2010 ALL MR (Cri) 1497
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

A.P. LAVANDE AND P.D. KODE, JJ.

State Of Maharashtra Vs. Gupta Dashrath Todose

Criminal Appeal No.2 of 2009

2nd March, 2010

Petitioner Counsel: Mr. T. A. MIRZA
Respondent Counsel: Mr. S. M. GHODESWAR

Penal Code (1860), S.376(2)(f) - Sentence - Rape case - A tender child of 10 years brutally raped by accused - No evidence brought on record to justify adequate and special reasons to impose a sentence of imprisonment for a term of less than 10 years - Accused sentenced to undergo R.I. for 10 years and to pay fine of Rs.1,000/-. 2008 ALL MR (Cri) 569 (S.C.) - Ref. to. (Paras 8, 9)

Cases Cited:
Rajendra Datta Zarekar Vs. State of Goa, 2008 ALL MR (Cri) 569 (S.C.)=2008 Cri.L.J. 710 [Para 5]


JUDGMENT

A. P. LAVANDE, J.:- By this appeal the appellant takes exception to judgment and order dated 8th September, 2008 passed by Additional Ad-hoc Sessions Judge, Bhandara acquitting the respondent of the offence punishable under Section 376(2)(f) of the Indian Penal Code.

2. The respondent was charged for the offence punishable under Section 376(2)(f) of the Indian Penal Code for committing rape on minor girl aged 10 years on 13.2.2006.

3. In the course of trial the prosecution examined eight witnesses. According to the prosecution at the time of incident the prosecutrix was 10 years old. The victim deposed that she was 10 years old and at the relevant time she was studying in 5th Standard. Dr. Jyoti Virendra Kukde (PW-7) who had examined the prosecutrix soon after the incident, also deposed that victim was aged about 10 years. The accused/respondent did not seriously challenge the age of the prosecutrix.

4. The learned Additional Sessions Judge by the impugned judgment and order convicted the respondent simpliciter for the offence punishable under Section 376 of the Indian Penal Code without mentioning as to whether he was convicting the accused under Section 376(1) or (2)(f) of the Indian Penal Code.

5. According to Mr. Mirza, learned APP for the appellant, by the impugned judgment the respondent has been acquitted of the offence punishable under Section 376(2)(f) of the Indian Penal Code and, therefore, the present appeal is maintainable. Mr. Mirza, learned APP submitted that in case of conviction under Section 376(2)(f) of the Indian Penal Code the minimum punishment prescribed is 10 years which may extend for life and the court for adequate and special reasons to be mentioned in the judgment may impose a sentence of imprisonment of either description for a term of less than ten years. According to Mr. Mirza by the impugned judgment the respondent has been acquitted of the offence punishable under Section 376(2)(f) of the Indian Penal Code which is patently unsustainable in law. Mr. Mirza submitted that the trial court having come to the conclusion that the respondent had committed rape on a girl aged 10 years ought to have imposed minimum sentence of 10 years since adequate and special reasons did not exist for imposing sentence of less than 10 years imprisonment. In support of his submission Mr. Mirza relied upon judgment of the Apex Court in the case of Rajendra Datta Zarekar Vs. State of Goa, reported in 2008 Cri.L.J. 710 : [2008 ALL MR (Cri) 569 (S.C.)].

6. Per contra, Mr. Ghodeswar, learned appointed counsel for the respondent supported the impugned judgment and submitted that the trial court has correctly imposed the sentence on the respondent considering the facts and circumstances of the case.

7. We have carefully considered the rival submissions and perused the record. It is not disputed that the respondent has not challenged his sentence of four years imposed on him. In order to appreciate the rival submissions, it would be appropriate to quote Section 376(1) and u/s.376(2)(f) of the Indian Penal Code, which reads thus :

"Sec.376. Punishment for rape - (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both :

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

(2) Whoever,-

(a) xxxxx

(b) xxxxx

(c) xxxxx

(d) xxxxx

(e) xxxxx

(f) commits rape on a woman when she is under twelve years of age; or

(g) xxxxx

shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine :

Provided 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 ten years."

8. Bare perusal of Section 376 of Indian Penal Code discloses that even under Section 376(1) the minimum punishment prescribed is 7 years but which may extend for life or for a term which may extend to 10 years and fine unless the women raped is the wife of the accused/appellant and is not under twelve years of age. In such a case the punishment may extend to two years or fine or both. In terms of proviso to Section 376(1) of Indian Penal Code the court is entitled to impose a sentence of imprisonment for a term of less than seven years for adequate and special reasons. Similarly in terms of proviso to Section 376(2) of Indian Penal Code, the court may for adequate and special reasons impose a sentence of imprisonment of either description for a term of less than ten years. In the present case, in our considered opinion, no adequate and special reasons exist. A tender child of 10 years was brutally raped by the respondent which has been confirmed by the cogent evidence of the prosecutrix and Dr. Jyoti Kukde (PW-7). No evidence was brought on record to justify adequate and special reasons. Therefore, the learned trial court ought to have convicted the respondent for the offence punishable under Section 376(2)(f) of the Indian Penal Code and ought to have imposed sentence of imprisonment of either description for a term of not less than ten years. The impugned judgment and order discloses total non-application of mind on the part of the learned trial Judge. The judgment in the case of Rajendra Datta Zarekar is squarely applicable in the present case. In the said case the accused who was about 20 years had raped on minor girl of six years and the Apex Court upheld sentence of ten years rigorous imprisonment holding that no adequate or special reasons existed to impose less than minimum sentence.

9. In view of the above discussion, the impugned judgment and order insofar as the acquittal of the respondent under Section 376(2)(f) of the Indian Penal Code is concerned is quashed and set aside and the respondent is convicted for the offence punishable under Section 376(2)(f) of Indian Penal Code and sentenced to undergo R.I. for 10 years and to pay fine of Rs.1,000/- (Rs. One thousand only) and in-default to undergo further R.I. for 3 months. The appeal stands disposed of in aforesaid terms.

10. The fees of Advocate S. M. Ghodeswar are quantified at Rs.1,500/-.

Appeal allowed.