REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  309          OF 2012 (Arising out of S.L.P. (Crl.) No. 2967 of 2011)

Bavo @ Manubhai Ambalal Thakore              .... Appellant(s)

Versus

State of Gujarat              .... Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1) Leave granted.

2) This  appeal  is  directed against  the final  judgment and  

order dated 28.08.2009 passed by the Division Bench of the  

High Court of Gujarat at Ahmedabad in Criminal Appeal No.  

505  of  2004  whereby  the  High  Court  while  affirming  the  

conviction and sentence awarded by the trial Court dismissed  

the appeal of the appellant herein.   

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3) Brief facts:

(a) According to the Complainant-Ramilaben, on 02.05.2002  

in the morning, when her husband had gone to work, she was  

in her house along with her three children.  At that time, her  

daughter – Smita, aged seven years, was having pain in her  

finger,  therefore,  she  called  her  distant  relative  Bavo  @  

Manubhai Ambalal Thakore - the appellant herein for taking  

her to the doctor.   

(b) Thereafter, the appellant herein took Smita to a doctor at  

about 10:00 a.m. and at about 11:30 a.m. she returned home  

alone limping and crying.  When the complainant asked her  

daughter as to what had happened, she narrated the whole  

incident that how the appellant herein over-powered her and  

the Complainant finally came to know that he has committed  

rape  on  her  daughter  which  was  also  evident  from  her  

condition.  Thereafter, the Complainant went to the house of  

the  appellant,  but  he  was  not  present  there.   When  her  

husband  returned  home  in  the  evening,  she  informed  him  

about  the  incident  and,  on  05.05.2002,  a  complaint  was  

lodged at Umreth Police Station.  

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(c) On  07.07.2002,  the  police,  after  conducting  the  

investigation,  filed  a  charge  sheet  before  the  Judicial  

Magistrate,  First  Class,  Umreth.   Since  the  case  was  

exclusively  triable  by  the  Court  of  Sessions,  the  Judicial  

Magistrate  committed  the  case  to  the  Court  of  Additional  

Sessions  Judge,  Anand.  On 18.03.2004,  the  Addl.  Sessions  

Judge,  convicted  the  appellant  for  the  offence  punishable  

under Sections 376 and 506(2) of the Indian Penal Code, 1860  

(in  short  “the  IPC”)  and  sentenced  him  to  undergo  

imprisonment for life with a fine of Rs.20,000/-, in default, to  

further undergo RI for three years.  

(d) Being aggrieved by the order of conviction and sentence,  

the  appellant  herein  preferred  an  appeal  before  the  High  

Court.  The High Court, by order dated 28.08.2009, dismissed  

the  appeal  and  confirmed  the  conviction  and  sentence  

awarded by the Addl. Sessions Judge.  

(e) Being aggrieved, the appellant herein has preferred this  

appeal by way of special leave before this Court.  

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4) Heard Mr.  Merusagar  Samantaray,  learned counsel  for  

the  appellant  herein  and  Ms.  Hemantika  Wahi,  learned  

counsel for the respondent-State.   

5) Learned counsel appearing for the appellant fairly states  

that he is not challenging the conviction but questioning the  

quantum of sentence only.  According to him, taking note of  

various  factors  including  the  age  of  the  appellant-accused  

being 18-19 years at the time of the incident and hailing from  

a  poor  family,  award  of  life  imprisonment  and  a  fine  of  

Rs.20,000/-, in default, to further undergo RI for three years  

is excessive.  Learned counsel appearing for the respondent-

State  fairly  submitted  that  the  Court  is  free  to  impose  

appropriate sentence in terms of Section 376(2)(f) of the IPC.

6) In view of the limited submission, there is no need to go  

into the finding regarding conviction under Sections 376 and  

506(2)  of  the  IPC.   The  only  question  to  be  considered  is  

whether  the  sentence  of  life  imprisonment  and  a  fine  of  

Rs.20,000/- is reasonable or excessive.   

7) Section 376 speaks about the punishment for rape.  Sub-

section(2)(f)  makes it  clear that  whoever commits rape on a  

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woman when she is under 12 years of age shall be punished  

with RI for a term which shall not be less than 10 years but  

which may be for life and shall also be liable to fine.  Proviso  

appended to sub-section (2) makes it clear that the Court may,  

for  adequate  and  special  reasons  to  be  mentioned  in  the  

judgment,  impose  a  sentence  of  imprisonment  of  either  

description for a term of less than 10 years.  

8) It is clear from the above statutory provision that for the  

offence of rape on a girl under 12 years of age, punishment  

shall not be less than 10 years but which may extend to life  

and also to fine shows that the legislature intended to adopt  

strictness in awarding sentence if the victim is below 12 years  

of age.  No doubt, the proviso to Section 376(2) lays down that  

the  Court  may,  for  adequate  and  special  reasons  to  be  

mentioned  in  the  judgment,  impose  a  sentence  of  

imprisonment of either description for a term of less than 10  

years.  It is settled law that courts are obliged to respect the  

legislative mandate in the matter of awarding of sentence in all  

such  cases.   In  the  absence  of  any  special  and  adequate  

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reasons,  recourse  to  proviso  mentioned  above  cannot  be  

applied in a casual manner.

9) Learned counsel for the appellant relied on a decision of  

this Court in Narayanamma (Kum) vs. State of Karnataka  

and Others,  (1994) 5 SCC 728 and contended that the life  

imprisonment is not warranted and sentence may be reduced  

to the period already undergone.  The said decision relates to  

the rape on a minor girl aged 14 years.  While the trial Judge  

convicted and sentenced the accused to three years RI,  the  

High Court reversed the same and acquitted the accused.  It  

was challenged before this Court.  After considering the entire  

materials, this Court set aside the order of the High Court and  

affirmed the conclusion arrived at by the trial Court.  Though  

this Court expressed displeasure in awarding only three years  

RI  for  the  crime of  rape,  taking note  of  length of  time,  not  

inclined to enhance it and confirmed the sentence awarded by  

the trial Court.   

10) Counsel for the appellant relied on another decision of  

this  Court  in  Rajendra  Datta  Zarekar vs.  State  of  Goa,  

(2007) 14 SCC 560.  The said case also relates to the offence  

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under Section 376.  The victim was aged about 6 years and  

the accused was aged about 20 years.  Ultimately, this Court  

confirmed the conviction and sentence of 10 years as awarded  

by the High Court.  However, the fine amount of Rs. 10,000/-  

awarded under Section 376(2)(f) being found to be excessive  

reduced to Rs. 1,000/-.   

11) Considering the fact that the victim, in the case on hand,  

was aged about 7 years on the date of the incident and the  

accused was in the age of 18/19 years and also of the fact that  

the incident occurred nearly 10 years ago, the award of life  

imprisonment which is maximum prescribed is not warranted  

and also in view of the mandate of Section 376(2)(f) IPC, we  

feel that the ends of justice would be met by imposing RI for  

10  years.   Learned  counsel  appearing  for  the  appellant  

informed  this  Court  that  the  appellant  had  already  served  

nearly 10 years.

12) Coming to the quantum of fine, in the case on hand, the  

learned trial  Judge has imposed Rs.20,000/-,  in default,  to  

undergo RI for three years, learned counsel for the appellant  

submitted that the accused hails from a poor family and was  

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working as an agricultural labourer and is not in a position to  

pay such a huge amount as fine which is not disputed by the  

State.  Taking note of all these aspects, we reduce the fine of  

Rs. 20,000/- to Rs. 1,000/-, in default, to further undergo RI  

for one month.  

13) In view of the above discussion, the conviction imposed  

on the appellant herein is confirmed.  However, the sentence  

of life imprisonment is modified to RI for 10 years with a fine of  

Rs.1,000/-, in default, to further undergo RI for one month.   

14) With  the  above  modification  of  sentence,  the  appeal  

stands disposed of.    

………….…………………………J.                  (P. SATHASIVAM)                                  

       ………….…………………………J.                 (J. CHELAMESWAR)                                   

NEW DELHI; FEBRUARY 3, 2012.

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