STATE OF MAHARASHTRA Vs. TONY FERNANDES

JUDGEMENT

(1.) This is State's appeal for enhancement of sentence under Section 376 I. P. C. The accused at the relevant time was 50 years of age while the age of the victim has been held to be 13 years, 8 months. It appears that before the trial Court, on behalf of the State, it was submitted that maximum punishment should be awarded to the accused and in answer to that, it was contended on behalf of the accused, that there was no past record of the accused and the accused had also wife and minor children residing with him in a rented house and in case harsh punishment is imposed, the family of the accused would be thrown on the road. It was further contended on behalf of the accused, that this was a fit case to award sentence of less than seven years.

(2.) The learned trial Court took note of Section 376 (1) I. P. C. and observed that it provided punishment with imprisonment of either description of a term which should not be less than seven years but which could be for life or for a term which may extend to ten years and also fine. The learned trial Court also took note of the proviso below subsection (1) of Section 376 and observed that sentence below seven years would be imposed only in case there were adequate and special reasons. The learned trial Court also took note of the respective ages of the accused and the victim and noted that there was nothing on record to suggest that the victim had a history of any bad moral and further noted that a person of 50 years, who indulged in rape, possessed a sick mind which would not entitle him for leniency and considering that the accused had a wife and two young children who had otherwise no support, the accused being the only earning member of the family and as the accused had no past record, the learned trial Court found that this is not a fit case to impose punishment for life or for a term of ten years and looking at all the circumstances, the minimum prescribed, namely of seven years would be adequate and reasonable.

(3.) All that which has been stated in the Memorandum of appeal is that the sentence of seven years R. I. and fine of Rs. 5,000/for an offence of rape is ridiculously low and is not commensurate with the gravity of the crime. On behalf of the accused, reliance has been placed on the case of Tulshidas Kanolkar v. State of Goa ((2003) 8 SCC 590). That was a case where the accused was tried under Section 376 and 506 (ii) IPC and the trial Court had imposed sentence of ten years and one year respectively with fines of Rs. 10,000/and Rs. 2,000/with default stipulation. The sentence imposed by the trial Court was reduced by this court to seven years in relation to Section 376 I. P. C. and it was argued before the Supreme Court that considering the nature of evidence and the gravity of the offence, this Court had rather acted liberally in reducing the sentence while upholding the conviction. The Hon'ble Supreme Court chose not to interfere either with the conviction or the reduction of sentence, as reduced by this Court and the final observations made by the Hon'ble Supreme Court are with reference to a mentally challenged deficient woman and the Supreme Court observed that the legislature would do well in prescribing higher minimum sentence in a case of that nature since gravity of offence in such cases is more serious than categories enumerated in subsection (2) of Section 376.