JUDGMENT : M.R. Shah, J. 1. As both these appeals arise out of the impugned judgment and order passed by the learned Sessions Judge, Panchmahal at Godhra (hereinafter referred to as the learned trial Court) passed in Sessions Case No. 96 of 2006, one preferred by the original accused challenging his conviction by the learned trial Court for the offence under Sections 376, 363 and 366 of the Indian Penal Code and another filed by the State to enhance the punishment and sentence imposed by the learned trial Court, imposed while convicting the original accused for the offences 376, 363 and 366 of the Indian Penal Code, both these appeals are decided and disposed of by this common judgment and order. 2. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction dated 14.12.2006 passed by the learned trial Court convicting the original accused for the offence under Sections 363, 366 and 376 of the Indian Penal Code, the original accused has preferred present Criminal Appeal No. 291 of 2007. 2.1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned trial Court in so far as imposing sentence of 5 years RI with fine of Rs. 1000/- and in default to undergo 30 days SI for the offence under Section 376 of the Indian Penal Code, 3 years RI with fine of Rs. 500/- and in default to undergo 15 days SI for the offence under Section 366 and 2 years RI with fine of Rs. 500 and in default to undergo 15 days SI for the offence under Section 363 of the Indian Penal Code, State has preferred Criminal Appeal No. 300 of 2007 to enhance the punishment imposed by the learned trial Court. 3. Prosecution case in nutshell are as under: 3.1. An offence being CR-I-No. 100 of 2006 came to be registered with Halol Police Station for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code by the complainant viz., Maniram Shivprasad Kanojiya on 1.5.2006. The complainant in his complaint has narrated that he was residing in Jay Yogeshwarnagar with his family and having one shop and doing business of washer man. The complainant was having wife viz., Indiraben, two sons and two daughter, wherein younger daughter viz., Parul born on 08.12.1991. The complainant in his complaint has narrated that he was residing in Jay Yogeshwarnagar with his family and having one shop and doing business of washer man. The complainant was having wife viz., Indiraben, two sons and two daughter, wherein younger daughter viz., Parul born on 08.12.1991. It was also stated in the complaint that on the day of incident, just adjacent to their house, one Natubhai, who was running Uma Industries in GIDC is residing with his wife and son viz., Amit i.e. the respondent-original accused. The respondent herein - original accused was running tuition classes since last two and half years and every now and then, he used to call the daughter of the complainant viz., Parul and talk with her and hence the complainant also scolded him. 3.2. It was also stated in the complaint that on 26.04.2006, when the complainant and his wife and two sons were at his shop, his nephew viz., Lalchand Ramjag Kanojiya resident of Siddhi Shivsankalp Park, Halol came to his shop along with the younger daughter of the complainant viz. Laxmi and told that the original accused came at about and told him that the respondent - original accused and Parul are going out for a walk, but he did not return back. Upon making inquiry, neither the respondent - original accused nor the victim was found. Accordingly, complaint came to be registered. 3.3. The investigation was carried out by the Police Inspector of Halol Police Station Shri Khant. During the course of investigation, Investigating Officer recorded the statement of concerned witnesses and also collected documentary evidence including school leaving certificate of the victim. That on 4.6.2006 the victim-Parul and original accused found from Halol Bus stand and after recording their statement both were sent for medical check up. The Investigating Officer seized the cloths of the victim as well as accused under the panchnama. That the original accused came to be arrested on 5.6.2006. That on conclusion of the investigation and having found prima facie case against the accused, the Investigating Officer filed the charge sheet against the original accused for the offence under Sections 363, 366 and 376 of the Indian Penal Code, in the Court of learned JMFC, Halol. 3.4. As the case was exclusively triable by the Court of Sessions, the learned JMFC, Halol committed the case to the Court of Sessions, Panchmahal at Godhra. 3.4. As the case was exclusively triable by the Court of Sessions, the learned JMFC, Halol committed the case to the Court of Sessions, Panchmahal at Godhra. That the learned trial Court framed the charge against the accused at Exh. 3 for the offence under Sections 363, 366 and 376 of the Indian Penal Code. As the accused pleaded not guilty and therefore, he came to be tried by the learned trial Court for the aforesaid offences. 3.5. To prove the case against the accused, the prosecution examined following 14 witnesses: PW No. Name of witness Exh. No. 1. Maniram Shivprasad kanojiya 6 2. Lalchand Ramchandra Kanojiya 8 3. Jitendrakumar Maganlal Bhagat 9 4. Jamnashankar Ramprased Pandit 12 5. Parulben @ Punja Maniram Kanojiya 14 6. Dr. Amilben Santoshkumar Parikh 16 7. Vikrambhai Ranchodbhai Patel 18 8. Dr. Kanabala Sariyuprasad Shaini 21 9. Dr. Rekhaben Kalsingbhai Parmar 26 10. Naranbhai Chaturbhai Valand 30 11. Mukeshbhai Jagjivanbhai Valand 31 12. Yogeshwariben Parvinkumar 32 13. Gordhanbhai Somabhai Variya 33 14. Kalusinh Bhathisinh Kant 35 3.6. To the aforesaid witnesses, the prosecution also brought on record the following documentary evidences: Exh. No. Documentary evidence 7 Complaint given by the complaint Maniram kanojiya 10 Panchnama of cloths of Victim - Parulben 11 Panchnama of cloths of accused – Amit 15 Leaving Certificate of Victim 17 Medicial certificate of Victim – Parulbem 20 Certified copy of entry no. 1257 to 1271 22 Medical Certificate of victim Parul and accused 23 Case papers of Parul 27 Case papers of Parul 28 Medical Certificate of Parul 29 Certificate given by Doctorto victim 36 Yadi sent to Medical Officer, Halol for medical check up the victim. 37 Yadi sent to Medical Officer, Halol for physical check up of the victim 38 Yadiof sending Muddamal to FSL, Vadodara 39 Yadiof sending Muddamal to FSL, Vadodara 40 Receipt of receiving the Muddamal by the FSL 41 FSL Analysis opinion along with forwarding letter 42 Analysis Report of FSL 43 Analysis report of the Muddamal given by the FSL 3.7. That on submitting the closing purshis by the prosecution, further statement of the accused came to be recorded under Section 313 of the Code of Criminal Procedure, in which, the accused denied having committed the offence and stated that false case has been lodged against him. 3.8. That on submitting the closing purshis by the prosecution, further statement of the accused came to be recorded under Section 313 of the Code of Criminal Procedure, in which, the accused denied having committed the offence and stated that false case has been lodged against him. 3.8. That thereafter, after full-fledged trial and on appreciation of evidence and having held that at the time of commission of offence the victim was aged only 14 years and four months, by impugned judgment and order the learned trial Court has held the original accused guilty for the offence under Sections 363,366 and 376 of the Indian Penal Code and has convicted the original accused for the aforesaid offences and has imposed the sentence for the aforesaid offences as stated above. 3.9. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence the original accused has preferred Criminal Appeal No. 291 of 2007 and the State has preferred Criminal Appeal No. 300 of 2007 for enhancement of sentence imposed by the learned trial Court. 4. Shri H.S. Patel, learned advocate has appeared on behalf of the original accused and Shri K.P. Raval, learned APP has appeared on behalf of the State. 4.1 Shri Patel, learned advocate for the original accused challenging the impugned judgment and order of conviction and sentence passed by the learned trial Court has vehemently submitted that the learned trial Court has materially erred in convicting the original accused for the offences under Sections 363,366 and 376 of the Indian Penal Code. 4.2 It is vehemently submitted by Shri Patel, learned advocate for the original accused that learned trial Court has materially erred in holding and considering the age of the victim as 14 years and 4 months. It is submitted that before the learned trial Court no medical evidence was led either by the radiologist or dentist to prove the age of the victim. It is submitted that therefore, in absence of any medical evidence/expert evidence, the learned Judge has materially erred in believing the age of the victim as 14 years and four months. 4.3 It is further submitted by Shri Patel, learned advocate for the original accused that even otherwise the learned trial Court has not properly appreciated the evidence on record, more particularly, deposition of the victim as well as one Lalchand Kanojiya examined at Exh. 4.3 It is further submitted by Shri Patel, learned advocate for the original accused that even otherwise the learned trial Court has not properly appreciated the evidence on record, more particularly, deposition of the victim as well as one Lalchand Kanojiya examined at Exh. 8 and even conduct of the victim. 4.4 It is submitted that looking to the deposition of the victim as well as witness Lalchand and the conduct of the victim father she run away with the accused, it is case of consent of the victim and as the victim was in love with the accused, she ran away with the accused. 4.5 It is vehemently submitted by Shri Patel, learned advocate for the accused that in fact the victim wrote so many letters to the accused and with fear that her parents would get her marriage elsewhere, the victim run away with the accused voluntarily. It is submitted that therefore, the learned trial Court has materially erred in convicting the accused for the offence under Sections 363, 366 and 376 of the Indian Penal Code. It is not appeal preferred by the State which has been preferred for enhancement of sentence and without prejudice to the rights and contentions of the accused in Criminal Appeal No. 300 of 2007, it is submitted by Shri Patel, learned advocate for the original accused that in the facts and circumstance of the case, more particularly, it was case of consent, the learned trial Court has not committed any error in imposing the sentence as above while convicting the original accused for the offence under Sections 363, 366 and 376 of the Indian Penal Code. It is submitted that while awarding sentence the learned trial Court has exercised discretion judiciously and therefore, the same is not required to be interfered with by this Court. Making above submissions, it is requested to allow Criminal Appeal No. 291 of 2007 preferred by the original accused. In the alternative, it is requested to dismiss the appeal preferred by the State. 5. Criminal Appeal No. 291 of 2007 preferred by the original accused challenging the impugned judgment and order of conviction and sentence passed by the learned trial Court is vehemently opposed by Shri K.P. Raval, learned APP for the State. In the alternative, it is requested to dismiss the appeal preferred by the State. 5. Criminal Appeal No. 291 of 2007 preferred by the original accused challenging the impugned judgment and order of conviction and sentence passed by the learned trial Court is vehemently opposed by Shri K.P. Raval, learned APP for the State. 5.1 It is submitted that findings recorded by the learned trial Court while convicting original accused for the offences under Sections 363, 366 and 376 of the Indian Penal Code including the findings recorded by learned trial Court with respect to the age of the victim are on appreciation of evidence and they are neither perverse nor contrary to the evidence on record. It is submitted that in the present case by leading cogent evidence and producing the birth certificate of the victim at Exh. 15 and by examining the officer from the Halol Nagarpalika i.e. Vikrambhai Ranchodbhai examined as PW No. 7 at Exh. 18, the prosecution has been successful in proving the age of the victim i.e. 14 years and 4 months. It is submitted that in view of the aforesaid clinching evidence with respect to age of the deceased and the birth certificate issued by the competent authority even in absence of any medical evidence of Radiologist and/or even Dentist the age of the victim can be proved and in fact it has been proved by the prosecution. 5.2 It is submitted by Shri Raval, learned APP for the State that the assuming without admitting that victim was the consenting party in that case also, as the victim was aged 14 years and four months only, her consent is immaterial and therefore, the learned trial Court has rightly convicted the original accused for the offence under Sections 363, 366 and 376 of the Indian Penal Code. In support of above submission, Shri Raval, learned APP has heavily relied upon the recent decision of the Hon'ble Supreme Court in the case of Satiskumar Jayantilal Dabgar vs. State of Gujarat, reported in (2015) 7 SCC 359 . Making above submission and relying upon above decision, it is requested to dismiss the appeal preferred by the original accused and confirmed the impugned judgment and order passed by the learned trial Court. 6. Making above submission and relying upon above decision, it is requested to dismiss the appeal preferred by the original accused and confirmed the impugned judgment and order passed by the learned trial Court. 6. Now, so far as appeal preferred by the State being Criminal Appeal No. 300 of 2007 which has been preferred for enhancement for sentence awarded by the learned trial Court, Shri Raval, learned APP has vehemently submitted that in the facts and circumstances of the case, more particularly, looking to the age of the prosecutrix/victim and the position of the original accused i.e. he was giving private tuition by running tuition class and even otherwise considering the sentence provided under Section 376 of the Indian Penal Code, the learned trial Court has materially erred in awarding sentence of 5 years RI with fine of Rs. 1000/- while convicting the accused for the offence under Section 376 of the Indian Penal Code. 7. It is submitted by Shri Raval, learned APP for the State that in the facts and circumstances of the case the learned trial Court ought to have awarded maximum punishment provided under Section 376 of the Indian Penal Code. Making above submission, Shri Raval, learned APP appearing on behalf of the State has requested to dismiss the appeal preferred by the accused and allow the appeal preferred by the State for enhancement of sentence and to enhance the sentence imposed by the learned trial Court, imposed while convicting the original accused for the offence under Section 376 of the Indian Penal Code. 8. Heard the learned advocates for the respective parties at length. We have re-appreciated the entire evidence on record. 8.1 Now, so far as the Criminal Appeal preferred by the original accused challenging the impugned judgment and order of conviction passed by the learned trial Court convicting the original accused for the offence under Sections 363, 366 and 376 of the Indian Penal Code is concerned, at the outset, it is required to be noted that the only defence of the accused is that it was a case of a consent and both the accused and prosecutrix were in love. Therefore, it is the case on behalf of the original accused that the original accused relying upon the exchange of letters between the accused and prosecutrix and the conduct of the victim/prosecutrix after they run away. Therefore, it is the case on behalf of the original accused that the original accused relying upon the exchange of letters between the accused and prosecutrix and the conduct of the victim/prosecutrix after they run away. It is the case on behalf of the original accused that as both of them have run away with the consent of the victim/prosecutrix and/or that the victim/prosecutrix was the consented party and therefore, the learned trial Court has committed a grave error in convicting the accused for the offence under Sections 363, 366 and 376 of the Indian Penal Code. 8.2 However, it is required to be noted that age of the victim/prosecutrix at the time of incident was 14 year and 4 months. The age of the prosecutrix/victim has been proved by the prosecution by leading cogent evidence both documentary as well as oral. The prosecution has brought the birth certificate of the victim produced at Exh. 15 which was issued by the competent Authority - Halol Nagarpalika. Even the birth certificate has been proved by the prosecution by examining the officer of the Halol Nagarpalika i.e. Vikrambhai Ranchodbhai PW No. 7 examined at Exh. 18. Thus, the prosecution has been successful in proving the age of the victim i.e. 14 years and 4 months. Under the circumstance, when the prosecution has been successful in proving the age of of the victim i.e. 14 years and 4 months, absence of medical evidence of Radiologist and/or even Dentist cannot be said to be fatal to the case of the prosecution. In the present case, there is a specific evidence led by the prosecution to prove the age of the victim/prosecutrix. Under the circumstance, the prosecution has successful in proving the age of the victim i.e. 14 years and 4 months at the time of incident. Thus, the prosecutrix was below 16 years on the date of occurrence. Identical question came to be considered by the Hon'ble Supreme Court in the case of Satiskumar Jayantilal Dabgar (supra). In the case before the Hon'ble Supreme Court, the victim/prosecutrix was less than 16 years of age and it was pleaded before the Hon'ble Supreme Court that the prosecutrix was a consenting party to the sexual intercourse, he ought not to have been convicted for the offence under Section 376 of the Indian Penal Code. In the case before the Hon'ble Supreme Court, the victim/prosecutrix was less than 16 years of age and it was pleaded before the Hon'ble Supreme Court that the prosecutrix was a consenting party to the sexual intercourse, he ought not to have been convicted for the offence under Section 376 of the Indian Penal Code. Not accepting the aforesaid defence of the accused, the Hon'ble Supreme Court has observed that clause sixthly of Section 375would get attracted making her consent for sexual intercourse as immaterial and inconsequential. It is further observed by the Hon'ble Supreme Court if the consent of the manner is treated as mitigating circumstance, it may lead to disastrous consequences. The Hon'ble Supreme Court in para 14 to 18 as observed and held as under: 14) First thing which is to be borne in mind is that the prosecutrix was less than 16 years of age. On this fact, clause sixthly of Section 375 of the Indian Penal Code would get attracted making her consent for sexual intercourse as immaterial and inconsequential. It reads as follows: "375. Rape-A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- xx xx xx Sixthly - With or without her consent, when she is under sixteen years of age. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." 15) The Legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such a provision. It is considered that a minor is incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. Here the provision is concerning a girl child who is not only minor but less than 16 years of age. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so-called consent given by a girl who is less than 16 years of age. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so-called consent given by a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance. 16) Once we put the things in right perspective in the manner stated above, we have to treat it a case where the appellant has committed rape of a minor girl which is regarded as heinous crime. Such an act of sexual assault has to be abhorred. If the consent of minor is treated as mitigating circumstance, it may lead to disastrous consequences. This view of ours gets strengthened when we keep in mind the letter and spirit behind Protection of Children from Sexual Offences Act. 17) The purpose and justification behind sentencing is not only retribution, incapacitation, rehabilitation but deterrence as well. Certain aspects of sentencing were discussed by this Court in Narinder Singh v. State of Punjab, (2014) 6 SCC 466 . It would be apt to reproduce the said discussion at this juncture: 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 kinds. Mostly, punishment provided for committing offences is either imprisonment or monetary fine or both. Imprisonment can be rigorous or simple in nature. Why are those persons who commit offences 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. 15. Whereas in various countries, sentencing guidelines are provided, statutorily or otherwise, which may guide Judges for awarding specific sentence, in India we do not have any such sentencing policy till date. 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. 15. Whereas in various countries, sentencing guidelines are provided, statutorily or otherwise, which may guide Judges for awarding specific sentence, in India we do not have any such sentencing policy till date. The prevalence of such guidelines may not only aim at achieving consistencies in awarding sentences in different cases, such guidelines normally prescribe the sentencing policy as well, namely, whether the purpose of awarding punishment in a particular case is more of a deterrence or retribution or rehabilitation, etc. In the absence of such guidelines in India, the courts go by their own perception about the philosophy behind the prescription of certain specified penal consequences for particular nature of crime. For some deterrence and/or vengeance becomes more important whereas another Judge may be more influenced by rehabilitation or restoration as the goal of sentencing. Sometimes, it would be a combination of both which would weigh in the mind of the court in awarding a particular sentence. However, that may be question of quantum. 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. 17. 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. 17. 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 depict 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. 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 conflicting 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. It is a delicate balance between the two conflicting 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. 18) Likewise, this Court made following observations regarding sentencing in the cases involved in sexual offences in the case of Sumer Singh v. Surajbhan Singh and others, (2014) 7 SCC 323 (par 33 to 36) 33. It is seemly to state here that though the question of sentence is a matter of discretion, yet the said discretion cannot be used by a court of law in a fanciful and whimsical manner. Very strong reasons on consideration of the relevant factors have to form the fulcrum for lenient use of the said discretion. It is because the ringing of poignant and inimitable expression, in a way, the warning of Benjamin N. Cardozo in The Nature of the Judicial Process - Yale University Press, 1921 Edn., page 114. "The Judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to 'the primordial necessity of order in social life'." 34. In this regard, we may usefully quote a passage from Ramji Dayawala and Sons (P.) Ltd. v. Invest Import, (1981) 1 SCC 80 : "20. ... when it is said that a matter is within the discretion of the court it is to be exercised according to well established judicial principles, according to reason and fair play, and not according to whim and caprice. 'Discretion', said Lord Mansfield in R. v. Wilkes, (1770) 4 Burr 2527, 'when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular'" (see Craies on Statute Law, 6th Edn., p. 273). 35. In Aero Traders Pvt. Ltd. v. Ravinder Kumar Suri, (2004) 8 SCC 307 , the Court observed: "6. ... It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular'" (see Craies on Statute Law, 6th Edn., p. 273). 35. In Aero Traders Pvt. Ltd. v. Ravinder Kumar Suri, (2004) 8 SCC 307 , the Court observed: "6. ... According to Black's Law Dictionary 'Judicial discretion' means the exercise of judgment by a judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court's power to act or not act when a litigant is not entitled to demand the act as a matter of right. The word 'discretion' connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard-and-fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. (See 27 Corpus Juris Secundum, page 289). When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice and not according to private opinion; according to law and not humour. It only gives certain latitude or liberty accorded by statute or rules, to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him." Thus, the judges are to constantly remind themselves that the use of discretion has to be guided by law, and what is fair under the obtaining circumstances. 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. 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. 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 for two years apart from the fine that has been imposed by the learned trial judge." 8.3. Considering the aforesaid law laid down by the Hon'ble Supreme Court in the case of Satiskumar Jayantilal Dabgar (supra) and applying to the same to the facts and circumstance of the case on hand, it cannot be said that the learned trial Court has committed any error in convicting the accused for the offence under Sections 376, 363 and 366 of the Indian Penal Code. A minor girl aged 14 years and 4 months was taken, out of the custody of the parent and therefore, the learned trial Court has rightly convicted the original accused for the offence under Sections 363, 366 and 376. No error has been committed by the learned trial Court convicting the original accused for the offence under Section 363,366 and 376 of the Indian Penal Code which call for the interference of this Court in exercise of appellate jurisdiction. 9. In view of the above and for the reasons stated above, the appeal preferred original accused being Criminal Appeal challenging the impugned judgment and order of conviction and sentence deserves to be dismissed. 10. Now that takes us to Criminal Appeal No. 300 of 2007 preferred by the State for enhancement of sentence imposed by the learned trial Court, imposed while convicting the original accused for the offence under Sections 363, 366 and 376 of the Indian Penal Code. 11. At the outset, it is required to be noted that by impugned judgment and order and while convicting the original accused for the offence under Sections 376, 363 and 366 of the Indian Penal Code, the learned trial Court has sentenced the accused to undergo 5 years RI with fine of Rs. 1000/- and in default to undergo 30 days SI for the offence under Section 376 of the Indian Penal Code, 3 years RI with fine of Rs. 500/- and in default to undergo 15 days SI for the offence under Section 366 and 2 years RI with fine of Rs. 500 and in default to undergo 15 days SI for the offence under Section 363 of the Indian Penal Code. 12. Having heard the learned advocates for the respective parties and that at the time of committing the offence, victim was aged 14 years and 4 months only and considering the sentence provided under Section 376(f)(2) of the Indian Penal Code, the minimum sentence provided is 10 years RI. However, by assigning cogent reasons and in exception case the learned trial Court may award punishment/sentence less than minimum provided. However, has held by the Hon'ble Supreme Court in catena of decisions awarding less than minimum is an exception and only in rare cases such an exception can be invoked. 13. However, by assigning cogent reasons and in exception case the learned trial Court may award punishment/sentence less than minimum provided. However, has held by the Hon'ble Supreme Court in catena of decisions awarding less than minimum is an exception and only in rare cases such an exception can be invoked. 13. 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. 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. 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 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. 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. 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. 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. 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. 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. 13.1. 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. 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. 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. 13.2 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. 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. 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. 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. 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. 13.3. 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. 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. 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. 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 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. 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 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. 13.4 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. 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. 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. 13.5. 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. 13.6. 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 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. 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. 13.7. 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. 13.8. 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. 13.8. Applying the law laid down by the Hon'ble Supreme Court in the aforesaid decision to the facts and circumstances of on hand and reasons given by the learned trial Court while awarding punishment less than minimum provided under the Indian Penal Code, it appears to us that learned trial Court has not exercised the discretion judiciously by awarding suitable and adequate punishment. At this stage, it is required to be noted that the accused was giving private tuition and therefore, he can be said to be a teacher and being teacher he is required to act like guardian and his conduct in the society should be such that others can follow. In the present case, accused is run away with the minor girl aged 14 years and 4 months and had sexual intercourse with her. Under the circumstances, learned trial Court ought not to have imposed sentence less than minimum provided under the Indian Penal Code. Under the circumstances, the impugned judgment and order passed by the learned trial Court with respect to punishment/sentence is required to be interfered with by this Court as by imposing punishment/sentence less than minimum provided in the Indian Penal Code, which has resulted into mis-carriage of justice as the sentence imposed by the learned trial Court cannot be said to be adequate or commensurate with gravity of offence. In the facts and circumstances of the case, the learned trial Court ought to have awarded the minimum sentence provided under the Indian Penal Code. Under the circumstances, appeal preferred by the State for enhancement of the sentence is required to be allowed and by modifying the impugned judgment and order passed by the learned trial Court so far as imposing the sentence is concerned. 14. Under the circumstances, appeal preferred by the State for enhancement of the sentence is required to be allowed and by modifying the impugned judgment and order passed by the learned trial Court so far as imposing the sentence is concerned. 14. In view of the above and for the reasons stated above, Criminal Appeal No. 291 of 2007 preferred by the appellant - original accused - Amitkumar Natubhai Patel challenging the impugned judgment and order of conviction passed by the learned Sessions Judge, Panchmahals at Godhra in Sessions Case No. 96 of 2006 dated 14.12.2006, is hereby dismissed and the impugned judgment and order as stated above is hereby confirmed. 14.1. Criminal Appeal No. 300 of 2007 preferred by the State to enhance the sentence against the judgment and order passed by the learned Sessions Judge, Panchmahals at Godhra in Sessions Case No. 96 of 2006 dated 14.12.2006, convicting the respondent - original accused is hereby partly allowed and the respondent - original accused-Amitkumar Natubhai Patel, is sentenced to undergo 10 years rigorous imprisonment (instead of 5 years rigorous imprisonment as imposed by the learned trial Court for the offence under Section 376 of Indian Penal Code) with fine of Rs. 10,000/-, in default, to undergo further 1 year rigorous imprisonment for the offence under Section 376 of the Indian Penal Code and the rest of the sentence imposed by the learned Trial Court convicting the respondent - original accused for the offences under Sections 363 and 366 of the Indian Penal Code including fine and default sentence is hereby maintained. 14.2. It is reported that the accused - Amitkumar Natubhai Patel is on bail. Therefore, on dismissal of Criminal Appeal No. 291 of 2007 preferred by the accused and on partly allowing the Criminal Appeal No. 300 of 2007 preferred by the State, bail bonds of the accused stand cancelled forthwith. Time to surrender to the accused - Amitkumar Natubhai Patel to undergo sentence as per this judgment and order, is hereby granted upto 12.02.2016. Registry is directed to send back the Record & Proceedings of the case to the concerned trial court forthwith."