JUDGMENT 1. - This appeal is directed against the judgment dated 25.8.93, passed by the Additional Sessions Judge, Jaipur District, Jaipur by which the learned Additional Sessions Judge convicted the accused- appellant for the offence under Section 376 I.P.C. and sentenced him to undergo ten years' rigorous imprisonment and a fine of Rs. 5,000/- and in default of payment of fine to further undergo one year's simple imprisonment. 2. Appellant Babulal was tried by the learned Additional District & Sessions Judge, Jaipur District, Jaipur, for the offence under section 376 I.P.C. The case of the-prosecution is that on 16.1.1992, at about 2.00 p.m., accused Babu Lal took Miss Munni, aged about nine years, in the Bandha of Bhakar and committed rape upon her. She raised cries, which attracted P.W. 1 Fakir Mohammed, P.W. 8 Rajendra Singh and P.W. 11 Mst. Barkat, who came there at the place of the occurrence and rescued the prosecutrix. Mst. Barkat also, came there and saw the accused appellant committing rape upon the prosecutrix. The prosecution, in support of its case, examined fifteen witnesses. The accused appellant did not examine any witness in his defence. P.W. 5 Miss Munni is the prosecutrix, who was ravished by the accused. PW.1 Fakir Mohammed, P.W. 8 Rajendra Singh and P.W. 11 Mst. Barkat are the three eye witnesses, who came at the scene of the occurrence immediately after hearing the cries of the prosecutrix and saw the accused appellant committing rape upon Miss Munni. P.W. 2 Dr. N.K. Sharma is the Medical Jurist, who examined the injuries on the person of the prosecutrix. P.W. 3 Shashi Madhav is the Police constable who made the recoveries of the underwear and the pant of the accused vide Ex. P. 2. P.W. 4 Madhu Ram is a motbir witness to the preperation of the site plan Ex. P. 4. P.W. 6 Mst. Kamli, the aunt of the prosecutrix, P.W. 7 Rukma-the sister-in-law of the prosecutrix and P.W. 9 Laxmi Narain-the uncle of the prosecutrix are the persons, to whom the prosecutrix narrated the incident after the occurrence when she came to the house. P.W. 10 Gopal Singh was the Police Constable posted at Police Station, Sanganer, who took the samples for F.S.L. examination to the State Forensic Science Laboratory. P.W. 10 Gopal Singh was the Police Constable posted at Police Station, Sanganer, who took the samples for F.S.L. examination to the State Forensic Science Laboratory. P.W. 12 Bodu Ram was the Head Constable and was the Incharge of the Malkhana, in whose custody the sealed articles remained in the same sealed condition. P.W. 13 Motilal is the Sub-inspector who conducted the investigation and submitted the challan., P.W. 14 Dr. Y.R. Verma is the Medical Jurist posted at S.M.S. Hospital, Jaipur, who examined the accused and found him potent. P.W. 15 Dr. Kuldeep is the Radiologist, who took the X-ray plates Ex. P. 9 to Ex. P. 11 and determined the bonny age of the prosecutrix and as per his report the age of Miss Munni was found between nine to fourteen years. 3. The prosecution case mainly rests upon the statement of the prosecutrix P.W. 5 Miss Munni, P.W. 1 Fakir Mohammed. P.W. 8 Rajendra Singh and P.W. 11 Mst. Barkat, which is sought to be corroborated by the evidence of P.W. 6 Mst. Kamli, P.W. 7 Mst. Rukma and P.W. 9 Laxmi Narain. This evidence is further sought to be corroborated by the evidence of P.W. 2 Dr. N.K.Sharnia, who conducted the medical examination of Miss Munni P.W. 5 Miss Munni is the prosecutrix, who has stated that about thirteen months before, she had gone to gaze her cattles. The accused- appellant came there, caught-hold of her, took her to the place of the incident, made her naked and after opening his pant and underwear, fell upon her and committed rape upon her. According to her, on account of penetration, her vagina started bleeding; she raised cries and hearing her cries, P.W. 8 Raju came there and rescued her. She went to her house and narrated the incident to her aunt P.W. 6 Mst. Kamli. P.W. 1 Fakir Mohammed has stated that about ten months before, at about 2.00 p.m., he was watering his field. Some children were, also, grazing the cattles. He heard the cries that one person has taken one girl into the drains. He asked his wife as well as Raju to go near the water-course and enquire into the matter. The boy, who had taken the girl near the drains, went away but the girl was lying in the drain. Blood was oozing from her vagina. He heard the cries that one person has taken one girl into the drains. He asked his wife as well as Raju to go near the water-course and enquire into the matter. The boy, who had taken the girl near the drains, went away but the girl was lying in the drain. Blood was oozing from her vagina. They followed the accused and caught hold of him after covering some distance. At that time the accused was found in a drunken state. P.W.8 Rajendra Singh has stated that he was in his field. which is situated near the Tatawala water-course near Bhagar Bandh. He heard the cries of a girl. He went near the place of the occurrence and saw the accused and the girl in a naked position. The accused had caught the mouth of the girl and was committing rape upon her. He rescued the girl Thereafter the villagers came there and the accused was caught hold by them. The villagers Chhitta. Laloo and others came there. The blood was coming out from her vagina. P.W. 11 Mist. Barkat has stated that her daughter informed her that a person was committing rape upon a girl. She went near the water-course and saw the accused appellant committing rape upon Miss Munni. The accused, on seeing her ran away. The girl was in a bad condition and blood was coming out from her vagina. A lengthy cross examination was conducted from these witnesses, but nothing could be elicited from their testimony which could have discredited their statements. From the evidence of these four witnesses, the commitment of the rape by the accused appellant with Miss Munni, thus, stands established. The evidence of these witnesses further finds corroboration from the evidence of Dr. N.K. Sharma (PW.2) who has specifically stated that the hymen of Miss Munni was found torn. According to him, there were multiple lacerations present on her body. There was inflammation on her private part. Libia minor and libia major were lacerated. Multiple lacerations were there on the libia minor and libia major and there was fresh bleeding. From the evidence of all these witnesses. the commitment of the rape by the accused-appellant with Miss Munni, thus stands fully established. 4. The second point, which requires consideration in the present case is whether the prosecutrix, at the time of the incident, was less than twelve years of age? From the evidence of all these witnesses. the commitment of the rape by the accused-appellant with Miss Munni, thus stands fully established. 4. The second point, which requires consideration in the present case is whether the prosecutrix, at the time of the incident, was less than twelve years of age? This question is relevant as the learned lower Court has awarded the minimum sentence of ten years' rigorous imprisonment taking into consideration the age of the prosecutrix as less than twelve years. Section 376(2)(f) I.P.C. provides the punishment of minimum ten years' rigorous imprisonment when a person commits rape on a woman who is under twelve years of age. P.W.15 Dr. Kuldeep Singh, in order to determine the age of the prosecutrix, took four X-ray of Miss Munni and according to him the age of the prosecutrix was between nine to fourteen years. When the age of the prosecutrix, as per the medical opinion, was between nine to fourteen years then it cannot be conclusively said that she was below twelve years of age. In this view of the matter, provisions of sub-section 2(f) of section 376 IPC, concerning punishment of minimum ten years' rigorous imprisonment is not applicable in the present case. The accused appellant, at the time of incident was about twenty four years of age and has suffered a lot. His hands were cut down by the villagers when he was caught hold by them. In the facts and circumstances of the case, I, therefore, think it proper to reduce the substantive sentence from ten years rigorous imprisonment to seven years rigorous imprisonment and also reduce the sentence of fine from Rs. 5,000/- to Rs. 1,000/- and in default of payment of fine further to undergo three months' rigorous imprisonment. 5. In the result, the appeal, filed by accused appellant Babu Lal, is partly allowed. His conviction for the offence under section 376 IPC, awarded by the learned lower court, is maintained but, however, the substantive sentence of ten years' rigorous imprisonment is reduced to seven years' rigorous imprisonment and the sentence of fine is reduced from Rs. 5,000/- to Rs. 1,000/- and in default of payment of fine the appellant shall further undergo three months' rigorous imprisonment. 5,000/- to Rs. 1,000/- and in default of payment of fine the appellant shall further undergo three months' rigorous imprisonment. The period of imprisonment undergone by the accused appellant during investigation, enquiry and trial will be set-off against the term of the sentence awarded to him for the offence under section 376 I.P.C.Appeal Partly allowed. *******