The court emphasized the gravity of the offence of rape, the need for proportionate punishment, and the discretion vested in the court to award a sentence lesser than the minimum for adequate and special reasons.

M.R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned 2nd Additional City Sessions Judge, Surat (hereinafter referred to as "trial Court") in Sessions Case No. 184 of 2008 by which while convicting the original accused for the offence punishable under Sections 363, 376 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"), the learned trial Court has imposed the sentence of only 7 years' R.I. for the offence punishable under Section 363 of the IPC with fine of Rs. 5000/- and in default of payment of fine to undergo further 1 years' S.I. and has imposed the sentence of 7 years' R.I. with fine of Rs. 5000/- and in default of payment of fine to undergo further 1 year's S.I. for the offence punishable under Section 376 of the IPC, the State has preferred the present Appeal for enhancement of the punishment/sentence imposed by the learned trial Court, imposed while convicting the original accused for the offences punishable under Sections 363 and 376 of the IPC.

2. At the outset, it is required to be noted that at the time of incident the prosecutrix was aged less than 12 years of age. At the time of commission of the offence the accused was aged 55 years of age. At the outset it is required to be noted that by impugned judgment and order as such the learned trial Court has convicted the respondent herein - original accused for the offences punishable under Sections 363 and 376 of the IPC and the impugned judgment and order of conviction is as such accepted by the original accused and he has already undergone the sentence imposed by the learned trial Court. Therefore, the only question which is posed for consideration of this Court is whether in the facts and circumstances of the case, learned trial Court has committed any error in imposing the sentence of 7 years' R.I. for the offence punishable under section 376 of the IPC.

3. Ms. Moxa Thakkar, learned Additional Public Prosecutor appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case, the learned trial Court has materially erred in awarding the sentence which is less than the minimum provided under Section 376 of IPC. It is submitted that as such the learned trial Court has convicted the original accused for the offences punishable under Sections 363 and 376 of the IPC. It is vehemently submitted that while convicting the accused for the aforesaid offences the sentence which is imposed by the learned trial Court is inadequate and not commensurate with the offence which is held to have been committed by the accused.

3.1 It is further submitted by Ms. Moxa Thakkar, learned Additional Public Prosecutor that as such no adequate and substantial reasons had been assigned by the learned trial Court while awarding the sentence less than the minimum provided under section 376(2) of the IPC.

3.2 It is further submitted by Ms. Moxa Thakkar, learned Additional Public Prosecutor that while imposing the sentence provisions of section 376(2) of the IPC are not at all considered by the learned trial Court and in a mechanical manner and without proper application of mind the learned trial Court has imposed the sentence less than the minimum provided under section 376(2) of the IPC.

3.3 It is further submitted that in fact in concluding para No. 45, the learned trial Court has specifically observed that as the accused has committed the rape on victim aged 8 years, no leniency shall be shown, still the learned trial Court has imposed the sentence less than the minimum provided under section 376(2) of the IPC.

3.4 It is further submitted by Ms. Moxa Thakkar, learned Additional Public Prosecutor that while not awarding appropriate and adequate punishment for the offence punishable under section 376(2) of the IPC and awarding the sentence less than the minimum prescribed under section 376(2) of the IPC, it can be said that the learned trial Court has failed to perform his duty an