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2016 DIGILAW 990 (GUJ)

State of Gujarat v. Ravjibhai

2016-05-05

A.J.SHASTRI, M.R.SHAH

body2016
JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned 4th Additional Sessions Judge, Anand (hereinafter referred to as "the learned trial Court") in Sessions Case No. 38/2011 by which while convicting the respondent-original accused for the offence punishable under Section 376 of the Indian Penal Code the learned trial Court has imposed the minimum sentence provided under Section 376 of the Indian Penal Code i.e. 7 years' Rigorous Imprisonment, State has preferred the present Appeal under Section 377 of the Code of Criminal Procedure for enhancement of the sentence. 2. At the outset, it is required to noted that by the impugned judgment and order the learned trial Court has held the respondent-original accused guilty for the offence punishable under Section 376 of the Indian Penal Code having committed rape on a minor girl/victim aged 16 years. However, while convicting the respondent-original accused for the offence punishable under Section 376 of the Indian Penal Code the learned trial Court has imposed the sentence of 7 years' Rigorous Imprisonment i.e. minimum sentence provided under Section 376 of the Indian Penal Code. The respondent-original accused has not challenged his conviction for the offence punishable under Section 376 of the Indian Penal Code, and therefore, as such, the impugned judgment and order of conviction convicting the respondent-original accused for the offence punishable under Section 376 of the Indian Penal Code has attained finality so far as the respondent-original accused is concerned, and therefore, the short question which is posed for consideration of this Court is, whether in the facts and circumstances of the case, the learned trial Court is justified in imposing the sentence minimum provided under Section 376of the Indian Penal Code i.e. 7 years' Rigorous Imprisonment? 3. Ms. Moxa Thakkar, learned APP appearing on behalf of the State has vehemently submitted that the learned trial Court has materially erred in imposing the sentence of 7 years' Rigorous Imprisonment only i.e. minimum provided under Section 376 of the Indian Penal Code. It is submitted that while exercising the discretion at the time of awarding the sentence the learned trial Court has not exercised the discretion judiciously and has not appreciated the gravity of the offence committed by the respondent-original accused. It is submitted that while exercising the discretion at the time of awarding the sentence the learned trial Court has not exercised the discretion judiciously and has not appreciated the gravity of the offence committed by the respondent-original accused. It is submitted that as such the sentence imposed by the learned trial Court is inadequate, disproportionate, not commensurate with the gravity of the offence. 3.1 It is further submitted by Ms. Moxa Thakkar, learned APP that the reasons which are given by the learned trial Court while awarding the sentence less than the minimum provided under the Act are not germane and/or it cannot be said that cogent reasons have been given by the learned trial Court while awarding the sentence. It is further submitted by Ms. Moxa Thakkar, learned APP that as such it can be said that while not awarding appropriate and adequate punishment for the offence punishable under Section 376 of the Indian penal Code, it can be said that learned trial Court has failed to perform his duty and/or has failed to exercise the discretion judiciously. Relying upon the recent decision of the Hon'ble Supreme Court in the case of Satish Kumar Jayantilal Dabgar vs. State of Gujarat, (2015) 7 SCC 359 and the decision of the Hon'ble Supreme Court in the case of Aero Traders (P) Ltd. vs. Ravinder Kumar Suri, (2004) 8 SCC 307 and in the case of Sumer Singh vs. Surajbhan, (2014) 7 SCC 323 she has vehemently submitted that while awarding the sentence not only the learned trial Court has not exercised the discretion judiciously but even has failed to appreciate and/or consider the purpose and object of imposing adequate sentence/punishment. Relying upon the aforesaid decisions it is submitted that in the aforesaid decision it is observed by the Hon'ble Supreme Court that, "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." It is submitted that, in the said decision the Hon'ble Supreme Court has observed that, "discretion" 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." Ms. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular." Ms. Moxa Thakkar, learned APP has also heavily relied upon the decision of the Hon'ble Supreme Court in the case of Narinder Singh and others vs. State of Punjab and another, (2014) 6 SCC 466 (paras 14 to 17), in support of her submission that, when the offence committed by the accused is against the society, it must be dealt with by iron hand and a strict view should be taken. It is further submitted that in the aforesaid decision the Hon'ble Supreme Court has specifically observed and held that, "in cases involving heinous crime with element of criminality against the society and not parties inter se, 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." It is further submitted that in the aforesaid decision the Hon'ble Supreme Court has further observed that, "cases of murder, rape, or other sexual offences, etc. would clearly fall in this category." Ms. would clearly fall in this category." Ms. Moxa Thakkar, learned APP has heavily relied upon the recent decision of the Hon'ble Supreme Court in the case of Prahlad and another vs. State of Haryana, (2015) 8 SCC 688 , (para 16 to 18) more particularly para 17 and has submitted that the Hon'ble Supreme Court in the aforesaid decision has specifically observed and held that, "the offence of rape is basically an assault on the human rights of a victim and it is an attack on her individuality." It is submitted that in the aforesaid decision it is further held that, "sentence in support of offence of rape has to be in consonance with the law." It is further submitted that in the aforesaid decision it is further observed that, "with regard to the gravity of the offence, reduction of sentence indicating any imaginary special reason would be an anathema to the very concept of rule of law." It is submitted that in the aforesaid decision it is further observed that, "perpetrator of the crime must realise that when they indulge in such an offence, they really create a concavity in the dignity and bodily integrity of an individual which is recognised, assured and affirmed by the very essence of Article 21 of the Constitution." 3.2 Ms. Moxa Thakkar, learned APP has also heavily relied upon the decision of the Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Udaibhan reported in 2016 (4) SCC 166. It is further submitted by Ms. Moxa Thakkar, learned APP appearing on behalf of the State that as such no reasons have been assigned by the learned trial Court while awarding the sentence minimum provided under Section 376 of the Indian Penal Code i.e. 7 years' Rigorous Imprisonment only and not awarding any other sentence/punishment. Making the above submissions, it is requested to allow the present Appeal and impose the maximum punishment provided under Section 376 of the Indian Penal Code. 4. The present Appeal is vehemently opposed by Shri Y.M. Thakore, learned advocate appearing on behalf of the respondent-original accused. Making the above submissions, it is requested to allow the present Appeal and impose the maximum punishment provided under Section 376 of the Indian Penal Code. 4. The present Appeal is vehemently opposed by Shri Y.M. Thakore, learned advocate appearing on behalf of the respondent-original accused. 4.1 It is vehemently submitted by him that in the facts and circumstances of the case, as such, the learned trial Court has not committed any error in imposing the sentence of 7 years' Rigorous Imprisonment while convicting the respondent-original accused for the offence punishable under Section376 of the Indian Penal Code. 4.2 Taking shelter of Section 377 of the Code of Criminal Procedure, Shri Thakore, learned advocate appearing on behalf of the respondent-original accused has tried to submit that as such the learned trial Court has erred in convicting the respondent-original accused for the offence punishable under Section376 of the Indian Penal Code relying upon the deposition of the prosecutrix. It is submitted that as such there are material contradictions in the deposition of the prosecutrix/victim and she has not stated the truth before the Court. It is further submitted that as such it might be the case by consent and/or victim might be the consenting party and having caught by the parents thereafter she made allegations against the respondent-original accused of having committed rape. 4.3 It is further submitted that as such the sentence provided under Section 376 of the Indian Penal Code is up to life, and therefore, vast discretion is vested with the learned trial Court to impose appropriate punishment. It is submitted that in the facts and circumstances of the case, when the learned trial Court has as such imposed the sentence minimum provided under Section 376 of the Indian Penal Code in exercise of discretion vested in it, the same is not required to be interfered with by this Court. Making the above submissions, it is requested to dismiss the present Appeal. 5. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted that by the impugned judgment and order the learned trial Court has convicted the respondent-original accused for the offence punishable under Section 376 of the Indian Penal Code having committed rape of a minor girl aged 16 years. Heard the learned advocates appearing on behalf of the respective parties at length. At the outset it is required to be noted that by the impugned judgment and order the learned trial Court has convicted the respondent-original accused for the offence punishable under Section 376 of the Indian Penal Code having committed rape of a minor girl aged 16 years. It is not in dispute that at the time of commission of the offence the respondent-original accused was aged 32 years having two children and out of which one of the daughter was aged 11 years. The aforesaid aspect was required to be considered by the learned trial Court while awarding appropriate punishment while convicting the respondent-original accused for the offence punishable under Section 376 of the Indian Penal Code. 5.1 The learned advocate appearing on behalf of the respondent-original accused has even tried to submit that the learned trial Court has materially erred in convicting the respondent-original accused for the offence punishable under Section 376 of the Indian Penal Code relying upon the deposition of the prosecutrix. Apart from the fact that the respondent-original accused as such has not preferred any Appeal challenging his conviction, still considering Section 377 of the Code of Criminal Procedure, we have heard Shri Thakore, learned advocate appearing on behalf of the respondent-original accused on merits. Considering the deposition of the prosecutrix and other evidence on record and the injuries found on the prosecutrix and even the injuries found on the respondent-original accused himself, which he sustained when he was caught committing rape on the prosecutrix, it cannot be said that the learned trial Court has committed any error in convicting the respondent-original accused. Now so far as the submission on behalf of the respondent-original accused that the prosecutrix might be a consenting party is concerned the aforesaid is on assumption and presumption. No such stand has been taken in his further statement under Section 313 of the Code of Criminal Procedure. Under the circumstances, no error has been committed by the learned trial Court in convicting the respondent-original accused for the offence punishable under Section 376 of the Indian Penal Code. No such stand has been taken in his further statement under Section 313 of the Code of Criminal Procedure. Under the circumstances, no error has been committed by the learned trial Court in convicting the respondent-original accused for the offence punishable under Section 376 of the Indian Penal Code. Now that takes us to whether in the facts and circumstances of the case, the learned trial Court has committed any error in imposing the sentence minimum provided under Section 376 of the Indian Penal Code i.e. 7 years' Rigorous Imprisonment and/or whether the sentence imposed by the learned trial Court can be said to be just and adequate punishment and/or whether while imposing the sentence while convicting the respondent-original accused for the offence punishable under Section 376 of the Indian Penal Code the learned trial Court has exercised the discretion judiciously? While considering the aforesaid question posed for consideration of this Court the following decisions of the Hon'ble Supreme Court is required to be considered. 5.2 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) Indian Penal Code gives 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. 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." 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 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 SCC 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 SCC 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 SCC 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 meager sentence or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise 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." 5.3 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 center 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." 5.4 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." 5.5 While considering the discretion vested in the court while awarding the sentence less than the minimum provided under Section 376 of the Indian Penal Code 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." 5.6 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." 5.7 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." 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. In the recent decision of the Hon'ble Supreme Court in the case of Udaibhan (Supra) the Hon'ble Supreme Court has also taken a similar view. Now applying the aforesaid law laid down by the Hon'ble Supreme Court to the facts of the case on hand, we are of the opinion that the sentence imposed by the learned trial Court while convicting the respondent-original accused for the offence punishable under Section 376 of the Indian Penal Code cannot be said to be adequate punishment looking to the gravity of the offence, commensurate with the gravity of the offence. As such, no reasons have been assigned by the learned trial Court while imposing the sentence, minimum sentence provided under Section 376of the Indian Penal Code. As observed hereinabove, the victim was aged 16 years and the respondent-original accused was aged 32 years having two children, out of which one was a minor girl aged 11 years, and therefore, the victim was of the age of his daughter and/or like his daughter, and therefore, no leniency should be shown in favour of such a respondent-original accused. In the facts and circumstances of the case, if sentence of 10 years' Rigorous Imprisonment is imposed for the offence punishable under Section 376 of the Indian Penal Code, it can be said to be adequate punishment commensurate with the gravity of the offence. In the facts and circumstances of the case, if sentence of 10 years' Rigorous Imprisonment is imposed for the offence punishable under Section 376 of the Indian Penal Code, it can be said to be adequate punishment commensurate with the gravity of the offence. To the extent, the impugned judgment and order is required to be interfered with and/or modified. 7. In view of the above and for the reasons stated hereinabove, the Criminal Appeal succeeds in part. The impugned judgment and order passed by the learned 4th Additional Sessions Judge, Anand in Sessions Case No. 38/2011 is hereby modified so far as the sentence imposed by the learned trial Court while convicting the original accused for the offence punishable under Section 376 of the Indian Penal Code is concerned and while maintaining conviction of the original accused for the offence punishable under Section 376 of the Indian Penal Code, the original accused is hereby ordered to undergo the sentence of 10 years' Rigorous Imprisonment and the fine imposed by the learned trial Court is maintained. The Appeal is partly allowed to the aforesaid extent. Record & Proceedings of the case be sent back to the trial Court forthwith.