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2003 DIGILAW 936 (BOM)

Kishor Balaji Khadse v. State of Maharashtra

2003-09-02

P.S.BRAHME, R.K.BATTA

body2003
JUDGMENT - BRAHME P.S., J.:-The appellant was found guilty of the offence under section 376 of the Indian Penal Code for having committed rape on a minor child aged about three years and was sentenced to imprisonment for life and to pay a fine of Rs. 100/- in default to undergo rigorous imprisonment for one month by the IInd Additional Sessions Judge, Amravati by her judgment and order dated 9-4-1999. The appellant has filed the present appeal challenging the judgment of conviction and sentence. 2. The incident which gave rise to this prosecution against the appellant took place on 4th November, 1977 between 7.00 p.m. to 9.45. p.m. at Sanjay Gandhi Nagar, Amravati within the jurisdiction of Police Station, Frazorpura. The prosecutrix Rupali, who was about three years old, was residing with her parents namely Ramdas (P.W. 1) and Rama (P.W. 7) one Prakash Khadse was residing as a tenant in the house of Ramdas, father of Rupali. On the day of incident, appellant Kishor Khadse, who happens to be brother of Prakash Khadse, had been to his house to attend some programme. At about 7.00. p.m., Rupali was out of the house. After about 9.00. p.m., Ramdas, when came out of his house, found that his daughter Rupali was not there and therefore, he inquired as to her whereabouts. Ravi Khadse, who is the son of Prakash Khadse, disclosed Ramdas that the appellant Kishor had taken Rupali with him. The parents of Rupali namely Ramdas and Rama thought that for giving chocolates or biscuits, the appellant might have taken rupali and therefore, they waited till 9.00 p.m. But then, when they found that neither Rupali nor the appellant returned home, they started searching for the appellant and Rupali. At about 9.45. p.m. appellant came and when inquired by the parents of Rupali, he pointed out his finger and showed Rupali who was coming home following the appellant. Her parents noticed that she was weeping and she was coming from the hill. Rama, mother of Rupali, when inquired with her, she disclosed that Kishor, the appellant, had taken her to takadi, made her lie down and when she was not ready, the appellant beat her and lifted her and then she felt pricking sensation. They also noticed that her private part was wet with blood and there was also blood on her frock. They also noticed that her private part was wet with blood and there was also blood on her frock. They confirmed that the appellant committed rape on her and immediately Ramdas lodged report in the Police Station. Rupali was sent for medical examination. She was admitted in the hospital and she was in the hospital for 7 to 8 days. 3. A.S.I. Keshav Puri (P.W. 10), who was attached to Police Station, Frazorpura, on the report (Exh. 5) lodged by Ramdas, registered offence vide Crime No. 239 of 1997, under section 376 of the Indian Penal Code against the appellant. He was arrested on the same day. The frock of Rupali (Article A) on which there were stains of blood, came to be seized under panchanama (Exh. 8). The clothes of accused namely shirt (article B) and pant (article C) came to be seized under seizure memo (Exh. 36). Rupali and appellant, both were sent to Chemical Analyser for examination. The Investigating Officer received reports of Chemical Analyser (Exhs. 47 and 48). During the course of investigation, place of occurrence was visited by the Investigating Officer and spot panchanama as prepared. After completing investigation, charge-sheet was filed in the Court of the Judicial Magistrate, First Class, Amravati, who committed the case to the Court of Sessions. 4. Before the Additional Sessions Judge, the appellant pleased not guilty to the charge (Exh. 2) and claimed to be tried. His defence is that of total denial. At the trial, prosecution examined in all twelve witnesses including witness Ramdas (P.W. 1), Rama (P.W. 7), Dr. Vidya Dande (P.W. 5), Medical Officer, Dafrin hospital, Amravati where prosecutrix Rupali was admitted and was examined by her on 4-11-1997 and in respect of her findings on medical examination she issued certificate (Exh. 21), Dr. Someshwar Nirmal (P.W. 4) was the Medical Officer, General hospital, Amravati who examined the appellant on 5-11-1997 and issued certificate vide Exh. 18 and Investigating Officer Keshav Puri (P.W. 10). 21), Dr. Someshwar Nirmal (P.W. 4) was the Medical Officer, General hospital, Amravati who examined the appellant on 5-11-1997 and issued certificate vide Exh. 18 and Investigating Officer Keshav Puri (P.W. 10). The learned Additional Sessions Judge, accepting the evidence of parents of Rupali and the findings given by the Medical Officer in respect of medical examination of Rupali and also considering the fact, that human blood of blood group "A" was found on the clothes of the appellant, came to the conclusion that the appellant committed rape on the prosecutrix and consequently, the appellant came to be convicted for the offence under section 376 of the Indian Penal Code and was sentenced as stated above. It may be noted that the trial Court awarded sentence of life imprisonment as contemplated under section 376(1) of the Indian Penal Code. 5. We have heard Mr. Daga, the learned Counsel for the appellant and Mr. Mirza, the learned A.P.P. for the State. Mr. Daga, Advocate took us through the evidence on record and particularly, through the evidence of parents of prosecutrix and the medical evidence of Dr. Vidya Dande (P.W. 5). Mr. Daga, Advocate basically questioned the finding by the trial Court as to commission of offence of rape. While referring to the evidence of witness Rama, to whom the prosecutrix disclosed about what was done to her and also the medical evidence of Dr. Dande, the learned Counsel vehemently submitted that the factum of penetration is not at all made out and established beyond reasonable doubt. The learned Counsel submitted that as to disclosure made by victim Rupali to her, about which she stated in her evidence before the Court, does not find place in her statement recorded by Police. The witness claimed that she had stated to the police that Rupali was not in a position to stand when she asked her to stand up and that she stated that there was pain in her private part and Anus. But the witness could not assign an reason for its omission in her statement. So, referring to this omission, the learned Counsel vehemently submitted that evidence of witness Rama as it stands is not at all sufficient to infer even that the appellant committed rape. As regards the finding by the Medical Officer Dr. But the witness could not assign an reason for its omission in her statement. So, referring to this omission, the learned Counsel vehemently submitted that evidence of witness Rama as it stands is not at all sufficient to infer even that the appellant committed rape. As regards the finding by the Medical Officer Dr. Dande as to laceration, the learned Counsel submitted that in absence of any evidence regarding actual penetration, mere laceration by itself is not sufficient to hold that the appellant committed rape. That there could be laceration on private part of victim of rape on account of itching and insect bite or by insertion of pointed and rough substance. The learned Counsel, in the alternate, submitted that having regard to the nature of crime committed and the facts and circumstances attending the case, sentence of imprisonment for life is not called for. He submitted that having regard to the fact that the appellant is in jail since the date of commission of offence, lenient view in the matter be taken. 6. Mr. Mirza, the learned A.P.P., supported the judgment. He submitted that the evidence of witness Rama coupled with medical evidence, undoubtedly, goes to show that the appellant committed rape on a minor child. There is no infirmity in the prosecution case. He also submitted that having regard to the nature of offence committed and particularly, the tender age of prosecutrix, no lenient view as regards sentence could be taken. That, there are no mitigating circumstances to justify for taking lenient view in the matter. 7. It is not disputed that, on the day of occurrence, in the evening at about 7.00 p.m., appellant took away Rupali and that, at about 9.30 p.m., the appellant came to the house of Rupali and Rupali followed him and on pointing out by the appellant, Rupali's mother noticed Rupali coming from hill and she was weeping at that time. This is undisputed for the reason that the evidence of witness Rama relating to these facts has practically gone unchallenged. In her evidence, she has stated that Ravi, nephew of Kishor, told them that accused Kishor had taken Rupali with him and at about 9.30 p.m., Kishor had come to the house and she inquired with him as to where their daughter was and first he kept mum. They noticed that their daughter was coming from the side of hill. In her evidence, she has stated that Ravi, nephew of Kishor, told them that accused Kishor had taken Rupali with him and at about 9.30 p.m., Kishor had come to the house and she inquired with him as to where their daughter was and first he kept mum. They noticed that their daughter was coming from the side of hill. It has also come in the evidence of witness Vithalrao Talware that the appellant was present in the house of his brother Prakash and Rupali was on his lap and the appellant was proceeding with Rupali towards Uttam Nagar. There is also evidence of witness Ramdas (P.W. 1) who has stated that the appellant had taken his daughter with him and he also came to know from son of Prakash Khadse that the appellant had taken Rupali with him and when appellant had come at about 9.45 p.m., he inquired with him as regards whereabout of his daughter Rupali, appellant pointed finger to the place where Rupali was and he noticed that Rupali was coming from the hill and she weeping. It is very significant to note that witness Ramdas was cross-examined at length by the defence, but on material particulars, his evidence remained unshaken. It is again significant to note that Ramdas immediately went to the Police Station and lodged report (Exh 6) in which he has specifically made mention of the facts about which he has deposed before the Court and that includes first taking away Rupali towards hillock and returning from there and secondly, his daughter Rupali was found coming from the hillock side and she was weeping then. 8. Rupali was admitted to the hospital and Dr. Vidya Dande (P.W. 5) examined her. In the certificate which she issued on examining the prosecutrix vide Exh. 21, she has categorically mentioned the symptoms which she noted. In her evidence, she has stated that there was swelling on anus and vulva. There was laceration on libia minora. In her opinion, attempt of rape might have been done. Though the Medical Officer was cross-examined at length, factum of positive symptoms noted by her has not been controverted. She has stated in her cross-examination that there can be swelling because of insect bite, but swelling mentioned in the certificate is not possible because of insect bite. In her opinion, attempt of rape might have been done. Though the Medical Officer was cross-examined at length, factum of positive symptoms noted by her has not been controverted. She has stated in her cross-examination that there can be swelling because of insect bite, but swelling mentioned in the certificate is not possible because of insect bite. She has stated that the treatment which was given to Rupali was treatment for laceration and all kinds of swelling. Referring to the evidence of Dr. Dande, the learned Counsel for the appellant submitted that there could be laceration because of itching and insect bite. The Medical Officer has totally ruled out the possibility of swelling and laceration in the instant case being due to insect bite. Even as regards on account of itching and insect bite, the Medical Officer has stated that it is a rare possibility. The learned Counsel submitted that the Medical Officer has not given positive opinion as penetration and therefore, finding mere laceration on private part of the prosecutrix is not sufficient to conclude that the prosecutrix was subjected to sexual abuse and that the applicant committed rape on her. It is very difficult to accept this submission of the learned Counsel having regard to the circumstances attending the case. 8-A. Witness Rama in her evidence stated that when asked Rupali told that she had pain in her private part. She further disclosed that the appellant Kishor made her lie down and she felt sensation of penetration on her private part and anus. The witness then noticed that her frocks was stained with blood and blood was oozing from her private part. It is significant to note that the frock of Rupali was seized and the same was referred to the Chemical Analyser for examination and as per the report of the Chemical Analyser (Exh. 47), human blood of blood group "A" was detected on the frock of prosecutrix. It is also not disputed that the clothes of the appellant namely torn manila, full pant and Jangia, which came to be seized when the appellant was arrested, were sent to the C.A. and as per the report (Exh. 47), human blood having blood group "A" was detected on his clothes. It is very significant to note that the blood of victim Rupali is found to be of group "A" while blood of appellant is of group "B". 47), human blood having blood group "A" was detected on his clothes. It is very significant to note that the blood of victim Rupali is found to be of group "A" while blood of appellant is of group "B". In the first place, finding of blood on the frock of Rupali lends assurance to the version of witness Rama she has stated that she found blood oozing from the private part of Rupali and there was blood on her frock. Secondly, finding of blood of blood group "A", Which is the blood group of blood of Rupali, on the clothes of appellant is a circumstance again lending assurance to the claim of witness Rama that the appellant committed rape on her daughter Rupali. 8-B. On the side of the appellant, though suggestions have been given as to how there could have been laceration on the private part of Rupali, no material tangible has been brought on record by the defence even to probablise causation of laceration as has been noticed by the Medical Officer. We have already stated that the Medical Officer has totally ruled out the possibility of laceration being caused for other reasons than making penetration in the case before hand. In our opinion, oozing blood from her private part and the prosecutrix sensing pain on her private part is sufficient to hold that there was penetration by the appellant in private part of the prosecutrix. Therefore, there is reason to accept the evidence of witness Rama even as regards what was disclosed to her by Rupali. It is true that some omissions have been there vis-a-vis her statement before Police, but those omissions are not very material so as to discard her testimony. At this stage, we also reiterate that the basic claim of witness Rama that the appellant took Rupali towards hill side and that Rupali came home following the appellant and she was found weeping are facts on which there was no controversy, in the sense whatever, the witness has stated in that regard in her evidence, has not been controverted at all. 9. There is evidence of witness Ramdas, the father of Rupali, wherein he has categorically stated that Rupali was coming from hill and she was weeping. He has also stated about what was disclosed by Rupali to her mother. 9. There is evidence of witness Ramdas, the father of Rupali, wherein he has categorically stated that Rupali was coming from hill and she was weeping. He has also stated about what was disclosed by Rupali to her mother. He has stated that appellant Kishor had taken her to Tekadi and had beaten her as she was not ready to lie down and the appellant then slapped her and when he has taken her frock, she felt penetrating sensation. He also stated that they noticed that her private part was wet with blood and her frock was also wet with blood. He immediately went to the Police Station and lodged report (Exh. 6). Though this witness was subjected to cross-examination by defence, no material has been brought in his evidence so as to discard his evidence. It is very clear that this witness has no reason to involve the appellant falsely, much less at the stake of accusation of rape on his daughter. Therefore, we have found his evidence as natural and probable, carrying the ring of truth. Witnesses have no reason to involve the appellant falsely. So, accepting the evidence of these witnesses, coupled with the findings on clinical examination by Dr. Vidya Dande, we have no hesitation in coming to the conclusion that the appellant has committed rape on the prosecutrix Rupali by taking her to the hillock. As stated earlier, finding of blood on the clothes of appellant and that too, blood group "A" which was the blood group of victim is a circumstance which indicates positive involvement of the appellant in commission of rape on the victim. The appellant has not offered any explanation as to the finding of blood on his clothes. We, therefore, agree with the learned trial Judge that the appellant has committed offence of rape punishable under section 376 of the Indian Penal Code. 10. As regards sentence, the learned Counsel for the appellant submitted that having regard to the facts and circumstances of the case an more particularly, that the appellant has not sexually ravished the victim in the sense that there was no rupture of hymen nor any injury has been caused except laceration of libia minora, sentence of imprisonment is not called for. He, therefore, urged that lenient view in the matter of sentence be taken. 11. He, therefore, urged that lenient view in the matter of sentence be taken. 11. Having regard to the facts of the case at hand, the question that arises now is whether the learned Additional Sessions Judge was justified in awarding the sentence of imprisonment for life to the appellant or he should have been awarded sentence of 10 years rigorous imprisonment, which is a minimum sentence prescribed under the Indian Penal Code. Section 376(2) of the Indian Penal Code provides inter alia as under : "376. Punishment for rape.- (2) whoever, -- -- -- -- -- (f) commits rape on a woman when she is under twelve years of age; shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine; Provided that the Court may, for adequate and special reason to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years." 12. A perusal of the above provision would indicate that where the victim is a woman of less than 12 years of age, the minimum sentence that can be awarded to the accused is ten years, but it may also extend to life imprisonment apart from the fine which may also be imposed upon him. The proviso to this section, however, gives discretion to the Court to award a sentence of less than 10 years for adequate and special reasons which have to be mentioned in the judgment. The Apex Court in (T.K. Gopal @ Gopi, Appellant v. State of Karnataka, Respondent)1, A.I.R. 2000 S.C. 1669 , considered the question of sentence to be awarded to a rapist who has sexually assaulted an infant child of tender age of 1½ years. The accused was found guilty of the offence under section 376 of the Indian Penal Code and was sentenced to 10 years rigorous imprisonment by the trial Court. His sentence was upheld by the High Court. The accused was found guilty of the offence under section 376 of the Indian Penal Code and was sentenced to 10 years rigorous imprisonment by the trial Court. His sentence was upheld by the High Court. The Apex Court, while admitting the appeal, considering the mandate under section 376 of I.P.C providing sentence of rigorous imprisonment for a term not less than 10 years but which may be for life and also shall be liable to fine and having regard to the facts of the case, especially the age of victim, issued notice to the appellant to show cause why the sentence of 10 years of rigorous imprisonment should not be enhanced to life imprisonment. It is in this context that, the Counsel who appeared for the appellant in that appeal, submitted and also set out the extenuating circumstances, on the basis of which he has prayed that sentence may not be enhanced to life imprisonment. The Apex Court observed that sexual offences, however constitute an altogether different kind of crime which is a result of perverse mind. The perversity may result in homosexuality or in the commission of rape. Those who commit rape are phychologically sadistic persons exhibiting this tendency in the rape forcibly committed by them. Thus, rape is not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. Therefore, it is a most hated crime. It is a crime against basic human rights and is also violative of the victim's most cherished Fundamental Rights, namely, the Right to Life contained in Article 21. 13. On the question of sentence, in such cases, the Apex Court considered the observations in (Phul Singh v. State of Haryana)2, A.I.R. 1980 S.C. 249, in which the Apex Court observed that : " Sentencing efficacy in cases of criminality cannot be simplistically assumed by award of long incarceration for, often that remedy aggravates the malady. It was thought that given correctional courses though meditational therapy and other measures, his erotic aberrations may wither away, particularly as the appellant had a reasonable prospect of shaping into a balanced person. It was thought that given correctional courses though meditational therapy and other measures, his erotic aberrations may wither away, particularly as the appellant had a reasonable prospect of shaping into a balanced person. The Apex Court, however observed that (A.I.R. 2000 S.C. 1669 "This theory was not followed in later decisions as it was found that inspite of devices having been employed and adopted within the jail premises so as to reform the offenders, there was negligible improvement in the commission of crime. The crime, instead of declining, had increased and, today, it has assumed dangerous proportions. While one person is reformed and moves out of jail, another offender is born. Consequently, in two recent decisions, relating to the offence of rape, on rendered by the present Chief Justice of India and the other by Brother Lahoti, the sentence was enhanced in (State of Karnataka v. Krishnappa)3, 2000(4) S.C.C. 75 , while in the other case, namely (State of Rajasthan v. Noore Khan)4, J.T. 2000(3) S.C. 643, the order of acquittal passed by the High Court was set aside and substituted by an order of conviction." 14. However, the Apex Court, in the case before it, having regard to the extenuating circumstances pointed out by the Counsel for the appellant, especially the fact that the appellant's two daughters have come of age and are to be married, felt that the present period of incarceration of the appellant in jail is enough and he should not be made to further suffer the consequences of his bestiality and therefore, his appeal was dismissed and the notice issued to him for enhancement of sentence was recalled. 15. We also refer to the decision of the Apex Court in State of Karnataka v. Krishnappa, 2000(4) S.C.C. 75 . The Apex Court observed that : "Sexual violence apart from being a de-humanising 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 her self esteem and dignity- it degrades and humiliates the victim and where the victim is a helpless innocent child, it leave 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." 16. 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." 16. In the above case, the trial Court, after giving sufficient and cogent reason imposed sentence of 10 years rigorous imprisonment for the offence under section 376 of the Indian Penal Code on the respondent. However, the High Court in appeal, having regard to the fact that the respondent was 49 years old, married and having children, though maintained conviction, sentence has been reduced to four years. Before the Apex Court, that decision of the High Court of reducing sentence to four years was under challenge. The Apex Court observed that the trial Court gave sufficient and cogent reason for imposing sentence of 10 years rigorous imprisonment and the medical evidence provided exhibits cruel nature of the act and the extent of pain and suffering which the victim might have undergone on her genitalia as a result of forcible coitus. The Apex Court found that the High Court was not justified in reducing sentence on the ground that the respondent was unsophisticated and illiterate citizen belonging to a weaker section of the society and that he was a chronic addict to drinking. These factors did not justify recourse to the proviso of section 376(2) of the Indian Penal Code to impose sentence less than the prescribed minimum. The Apex Court, while restoring the sentence awarded by the trial Court, observed that : "The measure of punishment in case of rape cannot depend upon the social status of victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. To show mercy in the case of such a heinous crime would be travesty of justice and the plea for leniency is wholly misplaced." 17. In the above case, the victim of rape was a little girl who was about eight years of age at the relevant time. The medical evidence clinchingly established that the respondent used force and also the protest of the prosecutrix and her effort to free herself from the hold of respondent led the respondent to bite her on her upper lip which started bleeding. The prosecutrix sustained bleeding injuries on her private part and was exhausted. The medical evidence clinchingly established that the respondent used force and also the protest of the prosecutrix and her effort to free herself from the hold of respondent led the respondent to bite her on her upper lip which started bleeding. The prosecutrix sustained bleeding injuries on her private part and was exhausted. In such circumstances, when the minor girl was sexually ravished, the Apex Court found that the trial Court was justified in imposing minimum sentence of 10 years rigorous imprisonment and therefore, there was no justification for the High Court to take lenient view in the matter in reducing sentence to four years rigorous imprisonment. The Apex Court also referred to the decision in (State of A.P. v. Bodem Sundara Rao)5, J.T. 1995(7) S.C. 90. The Apex Court was dealing with the question of justification for reduction of sentence from 10 years 'rigorous imprisonment to four years' rigorous imprisonment by the High Court and observed that : "The crime against women are on rise. Imposition of grossly inadequate sentence and particularly, against mandate of 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 Apex Court observed that : "The courts have an obligation while awarding punishment to impose appropriate punishment to 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 year old girl shakes our judicial conscience. The offence was inhumane." 18. The decision of the Apex Court in (State of Rajasthan, appellant v. Omprakash, respondent)6, 2002 Cri.L.J. 2951, is again relating to the offence of rape on a minor child. The trial Court, after finding the accused guilty for the offence of rape of a child, who was of eight years, imposed rigorous imprisonment for seven years and fine of Rs. 1,000/- and in default of payment of fine, further to under go six months rigorous imprisonment. The High Court, by its judgment, acquitted the accused giving benefit of doubt. The trial Court, after finding the accused guilty for the offence of rape of a child, who was of eight years, imposed rigorous imprisonment for seven years and fine of Rs. 1,000/- and in default of payment of fine, further to under go six months rigorous imprisonment. The High Court, by its judgment, acquitted the accused giving benefit of doubt. As such, the Apex Court considered the appeal against acquittal. The Apex Court, ultimately, restored the judgment and order of conviction passed by the trial Court setting aside the judgment of the High Court. The Apex Court observed that : " It is necessary for the courts to have a sensitive approach when dealing with cases of child rape. The effect of such crime on the mind of the child is likely to be life long. A special safeguard has been provided for children in the Constitution of India in Article 39 which, inter alia, stipulates that the State shall, in particular, direct its policy towards securing that the tender age of the children is not abused and the children are given opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and that the childhood and youth are protected against exploitation and against moral and material abandonment." 19. The Apex Court observed that : "There was nothing unnatural for other villagers not visiting the house of parents of victim. The assumption that in natural course of events if rape had been committed, the young child girl and her mother would have shouted so as to collect others and they would have visited her house, would not be proper. The prosecutrix was unconscious. There was no question of prosecutrix shouting as assumed by the High Court. The aspect of the non-examination of the persons other than family members of the victim could not be given undue importance without having regard to the contextual facts. The cases involving sexual molestation and assault require a different approach a sensitive approach and not an approach which a Court may adopt in dealing with a normal offence under penal laws. It was also sought to be suggested that there were some disputes between the accused and the father of the prosecutrix over exchange of some land and that is the reason for their implicating the accused. There is nothing reliable on the record to substantiate that aspect. It was also sought to be suggested that there were some disputes between the accused and the father of the prosecutrix over exchange of some land and that is the reason for their implicating the accused. There is nothing reliable on the record to substantiate that aspect. No such suggestion was even put in the cross-examination of the father of the prosecutrix. On the facts in hand, it could not be said that the revenge on account of alleged dispute regarding exchange of land would be taken by the father of the prosecutrix by foisting on the accused a false case of rape involving his young daughter particularly in the setting of a village environment." 20. In the above case, the Apex Court found that the evidence of prosecutrix and other evidence was not unreliable and the doctor stated that, in his opinion, on examination something had been penetrated in the vagina of the prosecutrix and that intercourse was done with the girl i.e. the possibility of doing the intercourse cannot be ruled out. There was no valid reason to discard evidence of the doctor. The Apex Court further observed that when the case against the accused otherwise stood established, beyond any reasonable doubt, the minor contradiction of recovery of one or two underwear was wholly insignificant. As to the child rape cases, the Apex Court observed that : "Child rape cases are cases of perverse lust for sex when even innocent children are not spared in pursuit of the sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. There has been steep rise in the child rape cases. Children need special care and protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are country's future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation and is rape besides other mode of sexual abuse. These factors point towards a different approach required to be adopted by Court." 21. They are country's future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation and is rape besides other mode of sexual abuse. These factors point towards a different approach required to be adopted by Court." 21. In the above case before the Apex Court having found that the accused has played with the life of the child he does not deserve any leniency. The Apex Court observed that sympathy sought for on the ground that the incident took place about 13 years back and by now the accused has matured and around 31 years of age and has undergone nearly three years of sentence would be wholly uncalled for. However the Apex Court though directed the appellant-accused therein to undergo remaining part of sentence awarded by the trial Court by allowing the appeal preferred by the State, did not consider imposing of maximum punishment for imprisonment for life. It is in this context that the Apex Court restored sentence of 10 years of rigorous imprisonment as awarded by the trial Court. The Apex Court found that there was no justification for taking further lenient view in the matter when it was found that acquittal by the High Court was wholly erroneous. The Apex Court while allowing the appeal, also considered the submission on behalf of the respondent for taking lenient view in the matter and it is in that context that the Apex Court observed that the respondent does not deserve for leniency and for him, sympathy on the ground sought for, will be wholly uncalled for. The Apex Court therefore justified the sentence of imprisonment for ten years for the offence of rape which was prescribed as minimum sentence. 22. All these decisions of Apex Court, unequivocally have laid down, that in cases of rape on minor female child, in which rapist plays with life of the child he does not deserve leniency in regard to sentence to be imposed. In the case before hand appellant who is related with Prakash Khadse who was tenant of father of prosecutrix betrayed confidence reposed in him, by committing sexual assault on the victim. The appellant taking advantage of immobility of helpless child, sexually assaulted her. Therefore, he does not deserve sympathy and leniency as regards sentence. In the case before hand appellant who is related with Prakash Khadse who was tenant of father of prosecutrix betrayed confidence reposed in him, by committing sexual assault on the victim. The appellant taking advantage of immobility of helpless child, sexually assaulted her. Therefore, he does not deserve sympathy and leniency as regards sentence. In the absence of extenuating circumstances, substantive sentence of 12 years of imprisonment which in excess of minimum sentence prescribed by section 376(2)(f) would meet the ends of justice. At the same time having regard to the fact that a period of six years has passed the date of occurrence and the appellant has not acted in extreme cruel manner, we feel that maximum punishment of sentence to imprisonment for life is not called for. Therefore in the case before hand while maintaining order of conviction order of sentence of imprisonment for life has to be set aside and sentence of 12 years of imprisonment be imposed in addition to sentence of fine. Hence the order: 23. In the result, the appeal is partly allowed with reference to the question of sentence. The order of conviction passed by the trial Court is maintained. The order of sentence of life imprisonment is set aside. However, the appellant is ordered to undergo sentence of imprisonment for twelve years. The sentence of fine awarded by the trial Court is maintained. Appeal partly allowed.