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2016 DIGILAW 72 (GUJ)

State of Gujarat v. Vikash Motibhai Goswami

2016-01-11

M.R.SHAH, Z.K.SAIYED

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the passed by the learned 2nd Additional Sessions Judge, Surat in Sessions Case No. 246 of 2010, by which, the learned trial Court has sentenced the respondent herein - original accused to undergo 5 years RI for the offence under Section 376(2)(f) r/w Section 511 of the Indian Penal Code with fine of Rs. 3000/- and in default to undergo further three months RI and has sentenced to undergo 5 years RI with fine of Rs. 300 and in default to undergo further three months RI for the offence under Section 377 of the Indian Penal Code, the State has preferred the present Appeal under Section 377 of the Code of Criminal Procedure for enhancement of the sentence imposed by the learned trial Court. 2. At the outset, it is required to be noted that as such the impugned judgment and order of conviction passed by the learned trial Court convicting the original accused for the offence under Section 376(2)(f)r/w Section 511 of the Indian Penal Code and for the offence under Section 377 of the Indian Penal Code has attained the finality so far as original accused is concerned, as against the impugned judgment and order of conviction the accused has not preferred any appeal and thus the original accused has accepted the impugned judgment and order of conviction. 3. Shri K.P. Raval, learned Additional Public Prosecutor has vehemently submitted that in the facts and circumstances of the case punishment/sentenced imposed by the learned trial Court cannot be said to be adequate and/or commensurate with the gravity of the offence committed by the accused. 3.1. It is vehemently submitted by Shri Raval, learned Additional Public Prosecutor that while imposing the sentence the learned trial Court has not properly appreciated the manner in which the accused committed the offence and that too the minor girl aged only 9 years. 3.2. It is submitted that while imposing the punishment/sentence the learned trial Court has not appreciated the fact that the accused who at the time of commission of offence was aged about 29 years not only tried to commit rate on minor girl aged 6 years but also committed the offence under Section 377 of the Indian Penal Code. 3.2. It is submitted that while imposing the punishment/sentence the learned trial Court has not appreciated the fact that the accused who at the time of commission of offence was aged about 29 years not only tried to commit rate on minor girl aged 6 years but also committed the offence under Section 377 of the Indian Penal Code. It is submitted that therefore, the learned trial Court has not imposed the sentenced commensurate with the gravity of offence. 3.3. It is submitted that even no cogent reasons have been assigned by the learned trial Court while imposing the sentence. It is submitted that therefore, while imposing the adequate punishment/sentence the learned trial Court has not exercised discretion judiciously and has not considered the gravity of the offence committed by the accused. 3.4. It is submitted that learned trial Court ought to have imposed the maximum punishment provided under the Indian Penal Code. Making above submissions, it is requested to allow the present appeal and it is requested to enhance the sentence imposed by the learned trial Court. 4. Present appeal is opposed by Shri Y.M. Thakore, learned advocate for the original accused. Shri Thakore, learned advocate for the original accused has vehemently submitted that in the facts and circumstances of the case the sentenced imposed by the learned trial Court cannot be said to be inadequate which call for the interference of this Court in exercise of appellate jurisdiction. 4.1. It is further submitted by Shri Thakore, learned advocate for the original accused that as such the learned trial Court is having wide discretion with respect to sentence. It is submitted that therefore, when by assigning/giving cogent reasons the learned trial Court has exercised discretion and has imposed the sentence, the same is not required to be interfered with by this Court in exercise of appellate jurisdiction. 4.2. Shri Thakore, learned advocate for the original accused has further submitted that in the present case as such accused has been convicted for the attempt to commit rape and for the offence under Section 377 of the Indian Penal Code. 4.2. Shri Thakore, learned advocate for the original accused has further submitted that in the present case as such accused has been convicted for the attempt to commit rape and for the offence under Section 377 of the Indian Penal Code. Shri Thakore, learned advocate for the original accused has initially tried to assail the impugned judgment and order of conviction by submitted that the accused has not committed any offence for which he has been convicted by submitting that considering Section 377of the Indian Penal Code, it will always be open for the accused to submit that he may be acquitted. However, after considering the entire evidence on record and the findings recorded by the learned trial Court, thereafter, the learned advocate for the original accused has not made any submission against the impugned judgment and order of conviction and restricted the submission with respect to the sentence imposed by the learned trial Court. Making above submission, it is requested to dismiss the present appeal by submitting that the sentence imposed by the learned trial Court can be said to be sufficient and adequate punishment and same does not require any interference of this Court. 5. Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that the only question which is posed for consideration of this Court in the present appeal is whether and in the facts and circumstances of the case the sentence imposed by the learned trial Court, imposed while convicting the original accused for the offence under Section 376(2)(f) r/w Section 511of the Indian Penal Code and Section 377 of the Indian Penal Code can be said to be just, adequate punishment commensurate with the gravity of offence? 5.1. While convicting the original accused for the offence under Sections 376(2)(f) r/w Section 511 of the Indian Penal Code and 377 of the Indian Penal Code, the learned trial Court has sentenced the accused to undergo 5 years RI for the offence under Section 376(2)(f) r/w Section 511 of the Indian Penal Code with fine of Rs. 3000/- and in default to undergo further three months RI and has sentenced to undergo 5 years RI with fine of Rs. 300 and in default to undergo further three months RI for the offence under Section 377 of the Indian Penal Code. 5.2. 3000/- and in default to undergo further three months RI and has sentenced to undergo 5 years RI with fine of Rs. 300 and in default to undergo further three months RI for the offence under Section 377 of the Indian Penal Code. 5.2. While considering the question whether in the facts and circumstances of the case and considering the gravity of the offence committed by the accused the sentence imposed by the learned trial Court can be said to be adequate punishment, commensurate with the gravity of the offence, few decisions of the Hon'ble Supreme Court on penology and sentence policy and that too for the offence under Section376 of the Indian Penal Code are required to be considered. 6. In the case of State of M.P. vs. Bala alias Balaram, (2005) 8 SCC 1 , the Hon'ble Supreme Court has observed and held that, rape is a heinous crime, a crime against society, a crime against human dignity, one that reduces a man to an animal. It is further observed that, to view such an offence once it is proved, lightly, is itself an affront to society. It is further observed and held that, though the award of maximum punishment may depend on the circumstances of the case, the award of the minimum punishment, generally, is imperative. It is further observed that, the proviso to Sections 376(1) and 376(2) IPC give the power to the court to award a sentence lesser than the minimum for adequate and special reasons. The power under the proviso is not to be used indiscriminately or routinely. It is to be used sparingly and only in cases where special facts and circumstances justify a reduction. The reason must be relevant to the exercise of such discretion vested in the Court. It is further observed that, mere existence of a discretion by itself does not justify its exercise. The long pendency of the criminal trial or the offer of the rapist to marry the victim are not relevant reasons. Nor is the age of the offender by itself an adequate reason. It is further observed that, mere existence of a discretion by itself does not justify its exercise. The long pendency of the criminal trial or the offer of the rapist to marry the victim are not relevant reasons. Nor is the age of the offender by itself an adequate reason. In the aforesaid decision it is further observed and held by the Hon'ble Supreme Court that, the punishment prescribed by the Penal Code reflect the legislative recognition of the social needs, the gravity of the offence concerned, its impact on the society and what the legislature considers as a punishment suitable for the particular offence. While considering its earlier decision in the case of State of M.P. vs. Munna Choubey, (2005) 2 SCC 710 , it is further observed that, imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. It is further observed that, social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. In the aforesaid decision Hon'ble Supreme Court in para 11 to 17 has observed and held as under:- 11. The crime here is rape. It is a particularly heinous crime, a crime against society, a crime against human dignity, one that reduces a man to an animal. The penal statute has prescribed a maximum and a minimum punishment for an offence under Section 376 I.P.C. To view such an offence once it is proved, lightly, is itself an affront to society. Though the award of maximum punishment may depend on the circumstances of the case, the award of the minimum punishment, generally, is imperative. The provisos to Section 376(1)and 376(2) I.P.C. give the power to the court to award a sentence lesser than the minimum for adequate and special reasons. The power under the proviso is not to be used indiscriminately or routinely. It is to be used sparingly and only in cases where special facts and circumstances justify a reduction. The reasons must be relevant to the exercise of such discretion vested in the court. The reasons must be set out clearly and cogently. The power under the proviso is not to be used indiscriminately or routinely. It is to be used sparingly and only in cases where special facts and circumstances justify a reduction. The reasons must be relevant to the exercise of such discretion vested in the court. The reasons must be set out clearly and cogently. The mere existence of a discretion by itself does not justify its exercise. The long pendency of the criminal trial or the offer of the rapist to marry the victim are not relevant reasons. Nor is the age of the offender by itself an adequate reason. 12. The punishments prescribed by the Penal Code reflect the legislative recognition of the social needs, the gravity of the concerned offence, its impact on the society and what the legislature considers as a punishment suitable for the particular offence. It is necessary for the courts to imbibe that legislative wisdom and to respect it. 13. The rationale for advocating the award of a punishment commensurate with the gravity of the offence and its impact on society, is to ensure that a civilized society does not revert to the days of 'an eye for an eye and a tooth for a tooth'. Not awarding a just punishment might provoke the victim or its relatives to retaliate in kind and that is what exactly is sought to be prevented by the criminal justice system we have adopted. 14. Even in the time of Kautilya, the need for awarding just punishment was recognized. According to Kautilya, "whoever imposes severe punishment becomes repulsive to people, while he who awards mild punishment becomes contemptible. The ruler just with the rod is honoured. When deserved punishment is given, it endows the subjects with spiritual good, material well being and pleasures of the senses." (See Kautilyan Jurisprudence by V.K. Gupta under the head 'Nature and Scope of punishment'). This philosophy is woven into our statute and our jurisprudence and it is the duty of those who administer the law to bear this in mind. 15. This Court has on a number of occasions indicated that the punishment must fit the crime and that it is the duty of the court to impose a proper punishment depending on the degree of criminality and desirability for imposing such punishment. 15. This Court has on a number of occasions indicated that the punishment must fit the crime and that it is the duty of the court to impose a proper punishment depending on the degree of criminality and desirability for imposing such punishment. In Earabhadrappa v. State of Karnataka [ (1983) 2 S.C.C. 330 ] this Court observed, "A sentence or pattern of sentence which fails to take due account of the gravity of the offence can seriously undermine respect for law. It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders." In Rajendra Prasad v. State of Uttar Pradesh [ (1979) 3 S.C.C. 646 ] Justice Sen stated, "Judges are entitled to hold their own views, but it is the bounden duty of the Court to impose a proper punishment, depending upon the degree of criminality and the desirability to impose such punishment as a measure of social necessity, as a means of deterring other potential offenders." 16. It is not necessary to multiply authorities. In a recent decision in State of M.P. v. Munna Choubey and Another [ (2005) 2 S.C.C. 710 ], this question has again been dealt with. This Court observed: "15. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentence or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for an strengthened by string of deterrence inbuilt in the sentencing system." 17. It is true that reformation as a theory of punishment is in fashion but under the guise of applying such theory, courts cannot forget their duty to society and to the victim. It is true that reformation as a theory of punishment is in fashion but under the guise of applying such theory, courts cannot forget their duty to society and to the victim. The Court has to consider the plight of the victim in a case involving rape and the social stigma that may follow the victim to the grave and which in most cases, practically ruins all prospects of a normal life for the victim. Could a Court afford to forget these aspects while imposing a punishment on the aggressor? I think not. The Court has to do justice to the society and to the victim on the one hand and to the offender on the other. The proper balance must be taken to have been stuck by the legislature. Hence, the legislative wisdom reflected by the statute has to be respected by the Court and the permitted departure therefrom made only for compelling and convincing reasons. 6.1. In the case of Sumer Singh vs. Surajbhan Singh and others, (2014) 7 SCC 323 , the Hon'ble Supreme Court had an occasion to consider the principle of sentencing proportionality and adequacy of sentence. In the aforesaid decision while emphasizing the need for appropriate punishment in paragraph-36 the Hon'ble Supreme Court has observed and held as under:- 36 Having discussed about the discretion, presently we shall advert to the duty of the court in the exercise of power while imposing sentence for an offence. It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to the society which has reposed faith in the court of law to curtail the evil. While imposing the sentence it is the Court's accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalized judicial discretion and not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. It must evince the rationalized judicial discretion and not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. The old saying "the law can hunt one's past" cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation. The victim, in this case, still cries for justice. We do not think that increase in fine amount or grant of compensation under the Code would be a justified answer in law. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society. Therefore, striking the balance we are disposed to think that the cause of justice would be best sub-served if the respondent is sentenced to undergo rigorous imprisonment of two years apart from the fine that has been imposed by the learned trial Judge. 6.2. Again in the case of Narinder Singh and others vs. State of Punjab and another, (2014) 6 SCC 466 , the Hon'ble Supreme Court had an occasion to consider the sentencing policy, the purpose/jurisprudential justification of awarding sentence (deterrence, retribution or rehabilitation) vis-a-vis nature of crime. In para 14, 16 and 17 the Hon'ble Supreme Court has observed as under:- 14. The Law prohibits certain acts and/or conduct and treats them as offences. Any person committing those acts is subject to penal consequences which may be of various kind. Mostly, punishment provided for committing offences is either imprisonment or monetary fine or both. Imprisonment can be rigorous or simple in nature. Why those persons who commit offences are subjected to such penal consequences? There are many philosophies behind such sentencing justifying these penal consequences. The philosophical/jurisprudential justification can be retribution, incapacitation, specific deterrence, general deterrence, rehabilitation, or restoration. Any of the above or a combination thereof can be the goal of sentencing. 16. Imprisonment can be rigorous or simple in nature. Why those persons who commit offences are subjected to such penal consequences? There are many philosophies behind such sentencing justifying these penal consequences. The philosophical/jurisprudential justification can be retribution, incapacitation, specific deterrence, general deterrence, rehabilitation, or restoration. Any of the above or a combination thereof can be the goal of sentencing. 16. What follows from the discussion behind the purpose of sentencing is that if a particular crime is to be treated as crime against the society and/or heinous crime, then the deterrence theory as a rationale for punishing the offender becomes more relevant, to be applied in such cases. Therefore, in respect of such offences which are treated against the society, it becomes the duty of the State to punish the offender. Thus, even when there is a settlement between the offender and the victim, their will would not prevail as in such cases the matter is in public domain. Society demands that the individual offender should be punished in order to deter other effectively as it amounts to greatest good of the greatest number of persons in a society. It is in this context that we have to understand the scheme/philosophy behind Section 307 of the Code. 19. We would like to expand this principle in some more detail. We find, in practice and in reality, after recording the conviction and while awarding the sentence/punishment the Court is generally governed by any or all or combination of the aforesaid factors. Sometimes, it is the deterrence theory which prevails in the minds of the Court, particularly in those cases where the crimes committed are heinous in nature or depicts depravity, or lack morality. At times it is to satisfy the element of "emotion" in law and retribution/vengeance becomes the guiding factor. In any case, it cannot be denied that the purpose of punishment by law is deterrence, constrained by considerations of justice. What, then, is the role of mercy, forgiveness and compassion in law? These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious namely cases involving heinous crime with element of criminality against the society and not parties inter se. What, then, is the role of mercy, forgiveness and compassion in law? These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious namely cases involving heinous crime with element of criminality against the society and not parties inter se. In such cases, the deterrence as purpose of punishment becomes paramount and even if the victim or his relatives have shown the virtue and gentility, agreeing to forgive the culprit, compassion of that private party would not move the court in accepting the same as larger and more important public policy of showing the iron hand of law to the wrongdoers, to reduce the commission of such offences, is more important. Cases of murder, rape or other sexual offences etc. would clearly fall in this category. After all, justice requires long term vision. On the other hand, there may be, offences falling in the category where "correctional" objective of criminal law would have to be given more weightage in contrast with "deterrence" philosophy. Punishment, whatever else may be, must be fair and conducive to good rather than further evil. If in a particular case the Court is of the opinion that the settlement between the parties would lead to more good; better relations between them; would prevent further occurrence of such encounters between the parties, it may hold settlement to be on a better pedestal. It is a delicate balance between the two inflicting interests which is to be achieved by the Court after examining all these parameters and then deciding as to which course of action it should take in a particular case. 6.3. While considering the minimum sentence provided under Section 376(2) of the IPC the Hon'ble Supreme Court in the case of State of Karnataka vs. Krishnappa, (2000) 4 SCC 75 in para 12 to 16 has observed and held as under:- 12. A perusal of the above provision shows that the legislative mandate is to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but, it may extend to life and also to fine. A perusal of the above provision shows that the legislative mandate is to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but, it may extend to life and also to fine. The proviso to S. 376(2), I.P.C., of course, lays down that the Court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the normal sentence in a case where rape is committed on a child below 12 years of age, is not less than 10 years R.I. though in exceptional cases "for special and adequate reasons" sentence of less than 10 years R.I. can also be awarded. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso particularly in such like penal provisions. The Courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can be had only for "special and adequate reasons" and not in a casual manner. Whether there exist any "special and adequate reasons" would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard and fast rule can be laid down in that behalf of universal application. 13. The approach of the High Court in this case, to say the least, was most casual and inappropriate. There are no good reasons given by the High Court to reduce the sentence, let alone "special or adequate reasons." The High Court exhibited lack of sensitivity towards the victim of rape and the society by reducing the substantive sentence in the established facts and circumstances of the case. The Courts are expected to properly operate the sentencing system and to impose such sentence for a proved offence, which may serve as a deterrent for the commission of like offences by others. 14. The Courts are expected to properly operate the sentencing system and to impose such sentence for a proved offence, which may serve as a deterrent for the commission of like offences by others. 14. In State of A.P. v. Bodem Sundara Rao, (1995) 6 SCC 230 : (1995 AIR SCW 4435 : AIR 1996 SC 530 ), while dealing with a case of reduction of sentence from 10 years R.I. to 4 years R.I. by the High Court in the case of rape of a girl aged between 13 and 14 years, it was observed (para 9 of AIR): "9. In recent years, we have noticed that crime against women are on the rise. These crimes are an affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal. The Courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society's cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the Court's verdict in the measure of punishment. The Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment. The heinous crime of committing rape on a helpless 13/14 years old girl shakes our judicial conscience. The offence was inhumane." (Emphasis supplied) The sentence as accordingly enhanced to 7 years R.I. in the said case. 15. Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends herself-esteem and dignity - it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. Dealing with the offence of rape and its traumatic effect on a rape victim, this Court in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 : (1996 AIR SCW 998 : AIR 1996 SC 1393 : 1996 cri LJ 1728) observed (para 20 of AIR): "21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a greater responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity." 16. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos. 6.4. While considering the discretion vested in the court while awarding the sentence less than the minimum provided under Section 376 of the IPC and the direction on the judges to levy the appropriate sentence the Hon'ble Supreme Court in the case of Shimbhu and another vs. State of Haryana, (2014) 13 SCC 318 , has observed in para 11, 19 and 22 as under:- 11. The crucial stage in every criminal proceeding is the stage of sentencing. It is the most complex and difficult stage in the judicial process. The Indian legal system confers ample discretion on the Judges to levy the appropriate sentence. The crucial stage in every criminal proceeding is the stage of sentencing. It is the most complex and difficult stage in the judicial process. The Indian legal system confers ample discretion on the Judges to levy the appropriate sentence. However, this discretion is not unfettered in nature rather various factors like the nature, gravity, the manner and the circumstances of the commission of the offence, the personality of the accused, character, aggravating as well as mitigating circumstances, antecedents etc., cumulatively constitute as the yardsticks for the Judges to decide on the sentence to be imposed. Indisputably, the sentencing Courts shall consider all relevant facts and circumstances bearing on the question of sentence and impose a sentence commensurate with the crime committed. 19. Thus, the law on the issue can be summarized to the effect that punishment should always be proportionate/commensurate to the gravity of offence. Religion, race, caste, economic or social status of the accused or victim or the long pendency of the criminal trial or offer of the rapist to marry the victim or the victim is married and settled in life cannot be construed as special factors for reducing the sentence prescribed by the statute. The power under the proviso should not be used indiscriminately in a routine, casual and cavalier manner for the reason that an exception clause requires strict interpretation. 22. This is yet another opportunity to inform the subordinate Courts and the High Courts that despite stringent provisions for rape under Section 376, IPC, many Courts in the past have taken a softer view while awarding sentence for such a heinous crime. This Court has in the past noticed that few subordinate and High Courts have reduced the sentence of the accused to the period already undergone to suffice as the punishment, by taking aid of the proviso to Section 376(2), IPC. The above trend exhibits stark insensitivity to the need for proportionate punishments to be imposed in such cases. 6.5. In the recent decision in the case of Satish Kumar Jayantilal Dabgur vs. State of Gujarat, (2015) 7 SCC 359 , in a case where the accused was convicted for the offence under Section 376 of the IPC having committed a rape of a minor girl the Hon'ble Supreme Court has emphasized awarding appropriate punishment regarding such a crime as a heinous crime. It is further observed by the Hon'ble Supreme Court in the case that such an act of sexual assault has to be abhorrent. In the aforesaid decision the Hon'ble Supreme Court also considered para-33 to 36 of its earlier decision in the case of Sumer Singh vs. Surajbhan, (2014) 7 SCC 323 and thereafter in para-19 has observed as under:- 19. Merely because the appellant has now married, hardly becomes a mitigating circumstances. Likewise, the appellant cannot plead that the prosecutrix is also married and having a child and, therefore, the appellant should be leniently treated. 6.6. In the case of Prahlad and another vs. State of Haryana, (2015) 8 SCC 688 , the Hon'ble Supreme Court has again observed that the sentence in respect of offence of rape has to be in consonance with the law. It is further observed that concept of special reasons as engrafted in Section 376 of the IPC is not to be invoked for the asking. In the aforesaid decision while considering the impact of the offence of rape on the society at a large the Hon'ble Supreme Court in para-17 has observed as under:- 17. It has to be borne in mind that an offence of rape is basically an assault on the human rights of a victim. It is an attack on her individuality. It creates an incurable dent in her right and free will and personal sovereignty over the physical frame. Everyone in any civilised society has to show respect for the other individual and no individual has any right to invade on physical frame of another in any manner. It is not only an offence but such an act creates a scar in the marrows of the mind of the victim. Anyone who indulges in a crime of such nature not only does he violate the penal provision of the IPC but also right of equality, right of individual identity and in the ultimate eventuality an important aspect of rule of law which is a constitutional commitment. The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitation. The Constitution of India, an organic document, confers rights. It does not condescend or confer any allowance or grant. It recognises rights and the rights are strongly entrenched in the constitutional framework, its ethos and philosophy, subject to certain limitation. Dignity of every citizen flows from the fundamental precepts of the equality clause engrafted under Articles 14 and right to life under Article 21 of the Constitution, for they are the fons juris of our Constitution. The said rights are constitutionally secured. 6.7. It is further observed by the Hon'ble Supreme Court in the said decision that therefore, regard being had to gravity of offence, reduction of sentence, indicating any imaginary special reason, would be an anathema to very concept of rule of law. It is observed that, perpetrators of the crime must realize, that when they indulge in such offence, they really create a concavity in dignity and bodily integrity of an individual, which is recognised, assured and affirmed by very essence of Article 21 of the Constitution. 6.8. Applying the law laid down by the Hon'ble Supreme Court in the aforesaid decisions, to the facts and circumstances of the case on hand, it appears that while awarding sentence the learned trial Court has not properly appreciated and/or considered the gravity of the offence committed by the accused. It is required to be noted that more particularly in the present case the accused has committed offence under Section 376(2)(f) r/w Section 511 of the Indian Penal Code, he also committed the offence under Section 377 of the Indian Penal Code, which can be said to be a very heinous crime and against the nature and society. It is required to be noted that at the time of occurrence of the incident, the victim was only aged 6 years and the accused was aged 29 years. The accused was the neighbor and the victim went to the place of the accused to see Television and at that time taking disadvantage of the situation the accused committed the offence. Under the circumstances, the learned trial Court ought to have awarded maximum punishment provided under Section 377 of the Indian Penal Code, which is 10 years RI. The accused was the neighbor and the victim went to the place of the accused to see Television and at that time taking disadvantage of the situation the accused committed the offence. Under the circumstances, the learned trial Court ought to have awarded maximum punishment provided under Section 377 of the Indian Penal Code, which is 10 years RI. At this stage, it is required to be noted that even considering the facts and circumstances of the case and evidence on record, it can be said that the accused has committed the offence under Section 376 of the Indian Penal Code, however the learned trial Court has convicted the accused for the offence under Section 376(2)(f) r/w Section 511 of the Indian Penal Code observing that the accused attempted to commit the rape. However, as the State has not challenged the impugned judgment and order passed by the learned trial Court not convicting the accused for the offence under Section 377 of the Indian Penal Code but convicting the original accused for the offence under Section 376(2)(f) r/w Section 511 of the Indian Penal Code. In any case, sentence imposed by the learned trial Court while convicting the original accused for the offence under Section 376(2)(f) r/w Section 511 of the Indian Penal Code cannot be said to be adequate and/or commensurate with the gravity of the offence. In the facts and circumstances of the case, we are of the opinion that while convicting the original accused for the offence under Sections 377 and 376(2)(f) of the Indian Penal Code, the learned trial Court ought to have awarded sentence of 10 years RI with fine and in default to undergo further six month RI can be said to be just, adequate punishment and commensurate with the gravity of the offence. To the aforesaid extent, the impugned judgment and order passed by the learned trial Court is required to be modified. 7. In view of the above and for reasons recorded herein above, present appeal is partly allowed. To the aforesaid extent, the impugned judgment and order passed by the learned trial Court is required to be modified. 7. In view of the above and for reasons recorded herein above, present appeal is partly allowed. The impugned judgment and order of conviction and sentence passed by the learned 2nd Additional Sessions Judge, Surat in Sessions Case No. 246 of 2010 dated 17.12.2013 is hereby modified to the extent of sentence and while convicting the original accused for the offence under Section 376(2)(f) r/w Section 511 of the Indian Penal Code respondent herein original accused is ordered to undergo 10 years RI with fine of Rs. 3000/- and in default to undergo three months RI and is also sentenced to undergo 10 years RI for the offence under Section 377 of the Indian Penal Code and with fine of Rs. 3000/- and in default to undergo three months RI. Both the sentence to run concurrently. It goes without saying that whatever sentence the accused has already undergone, the same shall be given set off in accordance with law. Present appeal is partly allowed to the aforesaid extent.