JUDGMENT 1. - The matter was listed on the application for suspension of sentence filed on behalf of accused-appellant Bhanji, however, at the request of learned Amicus Curiae, which was not opposed by learned Public Prosecutor, the parties were heard on the appeal itself, which was filed with a delay of 362 days and was registered at regular number only after condonation of delay by this Court vide order dated 6.1.2004. 2. The accused-appellant is aggrieved of the judgment of conviction and order of sentence passed by learned Addl. Sessions Judge (Fast Track) No. 1, Banswara in Sessions case No. 215/2001 5.10.2002, whereby he has been convicted for offence u/s. 376, 323 IPC and sentenced for rigorous imprisonment for 10 years with fine of Rs. 5,000/- and in default of payment of fine to suffer further rigorous imprisonment for a period of two months u/s. 376 IPC , and three months simple imprisonment and a fine of Rs. 500/-, in default thereof to further undergo imprisonment for 15 days for the offence u/s. 323 IPC. He has filed the present appeal u/s. 383 Cr.P.C. from jail through the Superintendent, Central Jail, Udaipur. 3. The facts apposite for disposal of this jail appeal, as unfolded in the prosecution story, inter alia, are that on 25.6.2001 at 8.10 p.m., prosecutrix Miss. Sushila Katara, a tribal, presenting herself at Police Station, Sadar, Banswara alongwith her mother Vala and father Vithala, orally informed that on that day in the morning she had gone to the house of her elder sister Laxmi at Jhantla. At about 4.00 p.m., when she was there, her brother-in-law Bhanji came from outside and tried to take her inside the house forcibly by catching hold of her hand. On her crying, when her sister came running there, the accused gave her a blow of club used for washing clothes and made her to run away from there. Thereafter, accused Bhanji forcefully dragged her inside the house and threw her on the ground. Accused, thereafter, put off his clothes and raised Ghaghara of the prosecutrix and committed rape and due to that blood came out from her private part but the accused did not leave and later on went away. She made shouts but nobody came for her help. Accused, thereafter, put off his clothes and raised Ghaghara of the prosecutrix and committed rape and due to that blood came out from her private part but the accused did not leave and later on went away. She made shouts but nobody came for her help. The brother of Bhanji and his father were also nearby but no one came there to get her released from the clutches of the accused. 4. On the basis of aforesaid oral report. Ex.P/2, Case No. 218/01 for the offence u/s. 376 and 323 IPC was registered and investigation commenced. During investigation, statements of the witnesses were recorded, and memos were prepared in respect of blood smeared Goodari (beddings) (Ex.P/3), recovered blood smeared and control soil (Ex.P/4), arrest of accused (Ex.P/5), Pant (Ex.P/6) etc. A letter (Ex.P/6) was written to the Superintendent of Police for sending the samples for examination to FSL and by reaching at the place of incident site map Ex.P/8 was prepared. The samples were sent for examination to the FSL after obtaining forwarding letter from the S.P., Office and the prosecutrix was got examined for her age and rape and injury. Laxmi, the sister of prosecutrix was got examined for the injuries sustained and the accused was examined for his potency. The statements of prosecutrix Sushila and her sister Laxmi were recorded u/s. 164 Cr.P.C. and finding a case falling u/s. 376, 342 and 323 of IPC, challan was filed in the Court of ACJM and on committal, in due course of time came to be tried by the Court of Addl. Sessions Judge (Fast Track), No. 1, Banswara. 5. The learned trial Court, after hearing the parties on charge, framed charge against the accused-appellant u/s. 323 and 376 IPC and read over and explained the same to the accused, who denied and claimed trial. 6. The prosecution, in support of its case, examined as many as 16 witnesses and produced several documents in evidence. Thereafter, statement of accused was recorded u/s. 313 Cr.P.C. in which he pleaded innocence. In defence, no evidence was produced. 7. The learned trial Court after hearing the arguments of counsel appearing for the parties, convicted and sentenced the accused appellant vide its order dated 5.12.2002 as aforesaid giving the accused benefit of set off u/s. 428 Cr.P.C. and ordered that both the sentences shall run concurrently. In defence, no evidence was produced. 7. The learned trial Court after hearing the arguments of counsel appearing for the parties, convicted and sentenced the accused appellant vide its order dated 5.12.2002 as aforesaid giving the accused benefit of set off u/s. 428 Cr.P.C. and ordered that both the sentences shall run concurrently. The learned trial Court also passed the order to the effect that in case the amount of fine is deposited, out of that amount, a sum of Rs. 4,000/- will be given to the prosecutrix and Laxmi will be paid Rs. 500/- as compensation. 8. I have heard learned Amicus Curiae and the learned Public Prosecutor and have gone through the record of the case tagged with the file. 9. It has been contended by learned Amicus Curiae that on account enmity the appellant has been involved in the case because his wife wanted to marry with some other person. It has next been contended that the prosecutrix at the time of alleged incident was not minor but major as per the medical evidence. It has also been submitted that infact the injury sustained in the vagina was not the result of intercourse but the result of thrusting some hard substance in it and that a false case has been lodged against the appellant. He also submitted that there are material contradictions in the evidence of prosecution witnesses and the medical evidence does not corroborate the factum of sexual intercourse with the prosecutrix. In support of his submissions, the learned Amicus Curiae has placed reliance on Sujan Singh v. State of Rajasthan, 1991 Cr LR (Raj.) 18 ; Mohan Singh v. State, 2005 (3) RDD 491 (Raj.) ; Peer Singh v. State of Rajasthan, 1991 Cr LR (Raj.) 621 ; Durgalal & Anr. v. State of Rajasthan, 2003 (2) Cr LR (Raj.) 1114 and State of Rajasthan v. Jirua, 1986 Cr LR (Raj.) 671 . 10. On the other hand, learned Public Prosecutor has submitted that the accused was brother-in-law of the prosecutrix and when she went to his house the accused forcibly committed intercourse with her. It has further been submitted that it is not believable that the wife of the accused will make incorrect statement in the Court at the cost of her sister's reputation and involve her own husband. It has further been submitted that it is not believable that the wife of the accused will make incorrect statement in the Court at the cost of her sister's reputation and involve her own husband. In the last, it has been submitted that the minor contradictions will not change the substance of the case. According to the learned Public Prosecutor, the trial Court has assigned good reasons for holding the accused guilty. 11. I have considered the submissions made before me. 12. In Sujan Singh's case (supra), this Court, particularly in the proved facts, observed that there was enmity between the accused and uncle of the prosecutrix and the evidence led was also not reliable, therefore, it was found that no case u/s. 376 IPC was made out. 13. In the case of Mohan Singh (supra), this Court observed that on close scrutiny of the statement of the prosecutrix it was found that it suffered from multiple infirmities and the testimony was not worth reliance. It was also found that she had written some letters to one Shaitan Singh about her relation with him, which came in possession of appellant Mohan Singh. The Court, after examining the evidence of the prosecutrix and other witnesses, came to the conclusion that it was not safe to base conviction on such testimony and acquitted the accused. 14. In the case of Peer Singh (supra), it was found that the prosecutrix had willingly gone with the accused, who was her brother-in-law. The girl was mature and she understood her welfare well. Therefore, it was considered to be a case of consent and the accused was acquitted. 15. In the case of Durgalal & Ors. (supra), this Court found that there were no injury marks on the private part of the prosecutrix except a little redness over vagina. The medical and other evidence did not corroborate the testimony of the prosecutrix and the age was also not below 16 years. Taking into consideration, the entire facts and circumstances of the case, the Court acquitted the accused. 16. In State vs. Jirua (supra), this Court observed that the prosecutrix was a married lady, therefore, if the hymen was found ruptured, it was of no significance. The statement of the prosecutrix was not considered to be reliable one because other witnesses of the prosecution did not support the version of the prosecutrix. 16. In State vs. Jirua (supra), this Court observed that the prosecutrix was a married lady, therefore, if the hymen was found ruptured, it was of no significance. The statement of the prosecutrix was not considered to be reliable one because other witnesses of the prosecution did not support the version of the prosecutrix. In that case, the father and mother of the prosecutrix also did not support the version of the prosecutrix on material particulars, therefore, the Court acquitted the accused. 17. It shall be worthwhile to refer here some of the decisions of the Hon'ble Court in such matters in relation to appreciation of evidence. 18. In the case of Narayan Iranna Potkanthi v. State of Maharashtra, 1994 Cr LJ 1752 , it has been observed by the Bombay High Court while appreciating the evidence of a child witness as under : "The reading of her deposition, particularly the Marathi version thereof makes one to believe that she was able to narrate in a consistent manner, how she was handled or mishandled on that day and how she reacted to the occurrence in question. We have, therefore, no reason to entertain doubt of intellectual capacity of the witness nor have any reason to suppose that the girl was narrating something that was not true or, that she was induced or influenced to tell before the Court something which was untrue." 19. In the case of Madan Gopal Kakkad v. Naval Dubey & Anr., (1992) 3 SCC 204 , the Hon'ble Supreme Court has observed that there are series of decisions to the effect that even in cases wherein there is lack of oral corroboration to that of a prosecutrix, a conviction can be safely recorded, provided the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities factor' does not render it unworthy of credence, and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. The Court observed in para No. 34 and 35 of judgment as under, ... Merely because the inexperienced medical officer has opined that it was an attempt to commit rape, probably on the ground that there was no sign of complete penetration ... The Court observed in para No. 34 and 35 of judgment as under, ... Merely because the inexperienced medical officer has opined that it was an attempt to commit rape, probably on the ground that there was no sign of complete penetration ... A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court. 20. In para No. 37, the Court observed, "We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence and- Toxicology(Twenty-first Edition) at page 369 which reads thus: "Thus to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and ruputre of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion not a medical one." 21. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion not a medical one." 21. At page 226 of the said decision, the Court observed that 'before parting with the judgment, with deep concern, we may point out that though all sexual assaults on female children are not reported and do not come to light yet there is an alarming and shocking increase of sexual offences committed on children. This is due to the reasons that children are ignorant of the act of rape and are not able to offer resistance and become easy prey for lusty brutes who display the unscrupulous, deceitful and insidious art of luring female children and young girls. Therefore, such offenders who are menace to the civilised society should be mercilessly and inexorably punished in the severest terms'. 22. In the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 , the Hon'ble Supreme Court has observed in relation to appreciation of the evidence as under : (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by the or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by the or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess-work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. 23. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important 'probabilities factor' echoes in favour of the version narrated by the witnesses. 24. It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex offence. This Court, in Rameshwar vs. State of Rajasthan, has declared that corroboration is not the sine qua non for a conviction in a rape case. 24. It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex offence. This Court, in Rameshwar vs. State of Rajasthan, has declared that corroboration is not the sine qua non for a conviction in a rape case. The utterance of the Court in Rameshwar may be replayed, across the time-gap of three decades which have whistled past, in the inimitable voice of Vivian Bose, J. who spoke for the Court: "The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge ... The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand." 25. In State of Rajasthan v. Om Prakash, (2002) 5 SCC 745 , it has been observed that the evidence of the child is required to be evaluated carefully as the child may be swayed by what others may tell him or her as the child is an easy prey to tutoring. Wisdom requires that the evidence of a child witness must find adequate corroboration before it relied on. The Court further observed as under : "Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to the light because of the social stigma attached thereto. According to some surveys, there has been a steep rise in 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 the country's future. 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 the 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 is rape besides other modes of sexual abuse. These factors point towards a different approach required to be adopted. The overturning of a well-considered and well-analysed judgment of the trial Court on grounds like non-examination of other witnesses, when the case against the respondent otherwise stood established beyond any reasonable doubt was not called for. The minor contradiction of recovery of one or two underwears was wholly insignificant." 26. In the case of Harpal Singh & Anr. v. State of Himachal Pradesh, AIR 1981 SC 361 , the Hon'ble Apex Court has observed as under : "Mr. Hardy laid emphasis on the circumstances that no injury was detected on the private parts of the girl and that she was found to have been used to sexual intercourse and argued that it was a case of sexual intercourse by consent. This argument will be of no avail to the appellants if once it is proved that the girl was below 16 years of age, because in that case the question of consent becomes wholly irrelevant." 27. In the case of Visueswaran v. State, 2003 Cr LJ 2548 the Hon'ble Supreme Court has observed: "...the cases are required to be dealt with utmost sensitivity, Courts have to show greater responsibility when trying an accused on the charge of rape. In such cases, the broader probabilities are required to be examined and the Courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved." 28. In the case of Dilip & Anr. v. State of M.P., 2002 WLC Cr. 224 (SC) , the Hon'ble Supreme Court has observed as under: "The law is well settled that prosecutrix in a sexual offence is not an accomplice and there is no rule of law that her testimony cannot be acted upon and made basis of conviction unless corroborated in material particulars. However, the rule about the admissibility of corroboration should be present to the mind of the Judge. In State of H.P. v. Gian Chand, (2001) 6 SCC 71 , on a review of decisions of this Court, it was held that conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by medical evidence and other circumstances such as the report of chemical examination, etc. if the same is found to be natural, trustworthy and worth being relied on. This Court further held: "If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations... 29. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations... 29. In Madan Gopal Kaddar v. Naval Dubey, (1992) 3 SCC 204 , the Hon'ble Supreme Court has held that lack of oral corroboration to that of a prosecutrix does not come in the way of a safe conviction being recorded provided the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities of factor' does not render it unworthy of credence, and that as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where having regarding to the circumstances of the case, medical evidence can be expected to be forthcoming. 30. Keeping in view the observations made by the Hon'ble Apex Court, now I proposed to examine the evidence led by the prosecution. 31. Prosecutrix PW-2 Sushila has stated her age to be 11 years. She was put some questions by the Presiding Officer of the Court and after satisfying that she was capable to understand the deposition she was going to made, her statement was recorded on 21.11.2001. She has stated that about 6 months ago of recording of her statement, when she had gone to her sister Laxmi's house, the accused caught her hand and dragged her into a room of the house and while he was obstructed by her sister Laxmi, he gave her beating by a wooden stick and thereafter the accused in the room lifted her Ghaghara (Petticoat) and forcibly inserted his penis into her vagina, as a result, blood started coming out from Vagina. She has also stated that the act of the accused made her fainted and thereafter she was taken in a tempo to her house. She has also stated that a report was lodged in the police station and on that report she put her thumb impression. She has also stated that the police persons took her to the hospital where she was medically examined. She has proved the report in this behalf. In the cross examination, she has stated that though there is a school in her village but she had never been there. She has admitted the suggestion made on behalf of the accused that he used to beat her sister regularly. She has proved the report in this behalf. In the cross examination, she has stated that though there is a school in her village but she had never been there. She has admitted the suggestion made on behalf of the accused that he used to beat her sister regularly. She has stated that at the time of incident it was dark but she was not feeling sleepy at that time. She has further stated in the cross examination that near the house of accused there was house of Badariya and denied that she had gone to take bath with the son of Badariya. She has also denied that rape was committed in some field where cattle used to graze. She has denied the suggestion that a false case has been lodged against the accused. 32. PW Dr. Sudhindra Bhatnagar has stated that on 25.6.2001 he was posted as Medical Jurist in Mahatama Gandhi Hospital, Banswara and on that day on police requisition conducted medical examination of Sushila and found that her genitals were in developing stage. He found no injury on face, buttocks etc. of the prosecutrix but found her hymen ruptured and signs of recent bleeding present on the margin of hymen. He has stated that the age of the prosecutrix was between 9 to 11 years. He has prepared Report Ex.P/13 in this behalf and found that there was corroborative evidence of forcible intercourse. He has also mentioned in the report that slide, swab and clothes were taken for chemical examination for finding out semen and blood. He has recorded his opinion on the basis of x-ray report. In the cross examination, he has stated that the injuries could be sustained by a fall from tree and the hymen could rupture even by inserting forcibly round wooden stick in the vagina. He has accepted the suggestion about the age of the prosecutrix being two years more or less and stated that space for the last molar was not available. 33. PW-3 Laxmi is the wife of accused and she has stated that his sister Sushila had come to her house who was forcibly taken in a room by the accused and when she obstructed, accused gave him beating by a wooden log. 33. PW-3 Laxmi is the wife of accused and she has stated that his sister Sushila had come to her house who was forcibly taken in a room by the accused and when she obstructed, accused gave him beating by a wooden log. She has stated that accused took Sushila forcibly inside the room and there committed rape with her and when Sushila came out of the room she was bleeding from vagina and her clothes were stained with blood. She has stated that no proper food was available in the house and her husband got annoyed why she had brought her sister in the house. She has also stated that her husband told that who will bear her expenditure. She has denied the suggestion that she wanted to re-marry with somebody else. A note has been appended by the Court below that she replied this in the midst of weeping in the Court. She has also stated that she narrated the incident of rape with her sister to his Jeth and Devar. 34. PW-1 is Vala. He has stated that prosecutrix was his daughter who had gone to call Laxmi at her house where accused committed rape with her, First Information Report Ex.P/1 was lodged in the police. He has also stated that Sushila was examined medically. In the cross, he has sated that Sushila returned home in auto-rikshaw and he made payment of fare to the auto-rikshaw driver. He has accepted the suggestion that accused used to beat his daughter regularly however denied that his daughter Laxmi was having illicit relation with some other person. 35. PW-4 Ganesh, who had accompanied the prosecutrix upto the police station, has stated that Ex.P/3, Memo of seizing blood stained bedding, was prepared in his presence and sealed. Ganesh has also proved Ex.P/4, the memo in respect of controlled earth and the bloodstained earth taken and sealed by the police at the spot. PW-5 Constable Amar Singh has stated that accused was arrested in the case and his pant smeared with blood was seized through Memo Ex.P/6. PW-7 Vithala has stated about the rape committed by the accused with prosecutrix forcibly. PW-8 Mavali has stated that police prepared site-plan Ex.P/10 and seized the bedding through Memo Ex.P/3. It has also been stated by him that police also seized control earth and bloodstained earth. PW-7 Vithala has stated about the rape committed by the accused with prosecutrix forcibly. PW-8 Mavali has stated that police prepared site-plan Ex.P/10 and seized the bedding through Memo Ex.P/3. It has also been stated by him that police also seized control earth and bloodstained earth. PW-10 Gautamlal is witness in relation to taking the sealed packets of the case for deposit in the FSL, Jaipur. He after deposit of samples in FSL submitted receipt thereof in the police station. PW-12 Babar Khan Pathan is a witness in relation to arrest of the accused. He has proved Memo of Arrest Ex.P/5 and Memo of Seizure of accused's pant Ex.P/6. 36. PW-15 is Dr. Mohani Sharma. She has stated that PW-11 Dr. Sudhindra Bhatnagar had called her at the time of medical examination of Sushila and she examined Sushila in presence of her mother. She has stated that on the margin of vagina there was clotted blood and hymen was ruptured. The clothes worn by the prosecutrix were also having spots of blood. In the cross examination, she has stated that normally at the age of 18 and upwards, two fingers can enter in vagina. 37. PW-16 is Gajendra Singh. He has conducted investigation in the case and has proved the first information report lodged in the police. She has stated that report was lodged orally and on that report Sushila affixed her thumb impression at place marked X. He has also stated that he seized the control earth and blood smeared earth from the spot, seized the bedding and pant of the accused and got examined the prosecutrix medically. He has further stated about the case articles being sent for examination in the FSL and has proved FSL Report Ex.P/21. He has stated in his cross examination that the accused was arrested after five days of the incident. 38. The trial Court on the basis of above evidence, came to the conclusion that the prosecution has proved sufficiently that accused has committed rape with prosecutrix Kumari Sushila. The trial Court further found that the minor discrepancies in the evidence were natural and that the accused used to beat her wife. 39. 38. The trial Court on the basis of above evidence, came to the conclusion that the prosecution has proved sufficiently that accused has committed rape with prosecutrix Kumari Sushila. The trial Court further found that the minor discrepancies in the evidence were natural and that the accused used to beat her wife. 39. Now, it is to be seen as to whether the contention of learned amicus curiae that in the present case the evidence of the prosecutrix is not worth reliance and infact a false case has been foisted against him, is liable to be accepted? 40. PW-2 is prosecutrix Sushila. She has stated in absolute clear terms that she was raped forcibly and when her sister wanted to save her, accused also gave beating to her. In her cross examination, suggestions were made to the effect firstly, that intercourse though has taken place not by the accused but by some other person i.e. son of one Barda, secondly, the accused was present in the house on the day of incident who pushed her inside the house and went out of the house, and thirdly, the entire story of rape was false. Nothing material has been elicited in her cross examination so as to presume that she was telling a lie. Her statement has been supported by the statement of her sister PW-3 Laxmi, who has narrated the entire incident and has made accusation against her husband stating that on the day of incident he forcibly took her sister into a room of the house and there committed rape with her which resulted in blood coming out from her sister's vagina. The other witnesses have also supported the version of the prosecutrix. The medical evidence led in the case of PW-11 Dr. Sudhindra Bhatnagar and PW-15 Dr. Mohini Sharma is also suggestive of the fact that there was recent sexual intercourse with her. A perusal of Ex.13 infact states that the age of prosecutrix was between 9 to 11 years, however, it seems that in the statement of Dr. Sudhindra before the trial Court with reference to Ex.P/13 the age of the prosecutrix has inadvertently been mentioned as 11 to 20 years. A perusal of Ex.13 infact states that the age of prosecutrix was between 9 to 11 years, however, it seems that in the statement of Dr. Sudhindra before the trial Court with reference to Ex.P/13 the age of the prosecutrix has inadvertently been mentioned as 11 to 20 years. Be that as it may, one thing which has been established by the prosecution evidence is that prosecutrix was subjected to rape by the accused and there is corroboration of rape committed with her by the medical evidence. There is no reason why a wife will speak against her husband particularly at the cost of her sister's reputation. It will be the last course, which will be adopted by a person to involve someone falsely in such a heinous crime like rape and particularly to a husband by his wife. The law is also settled on the point that single testimony of the prosecutrix is sufficient to base conviction provided it inspires confidence as has been held in the case of Dilip Singh (supra). I do not find any merit in the contention of the learned Amicus Curiae that in the present case, there are material contradictions in the prosecution story and further a false case has been lodged against the appellant. The evidence led by the prosecution in this case is reliable and the-authorities cited by learned amicus curiae, as discussed hereinabove, are of no help to him in the facts and circumstances of the present case for the reason that the evidence of the prosecutrix alone is sufficient to hold the accused guilty. The evidence of the prosecutrix has been supported by medical evidence and other evidence particularly the evidence of her sister Laxmi, who is wife of the accused. In these circumstances, I do not find any infirmity in the judgment of the learned trial Court whereby the accused has been held guilty of committing rape. 41. The learned Amicus Curiae also submitted that the accused is in jail for last five years, therefore, his case may be considered sympathetically and his sentence may be reduced to the period already undergone. It has also been submitted that infact the prosecutrix was not minor and accused has already suffered long five years in jail and he being the only male member in the family and bread earner of the family, his case is required to be considered sympathetically. It has also been submitted that infact the prosecutrix was not minor and accused has already suffered long five years in jail and he being the only male member in the family and bread earner of the family, his case is required to be considered sympathetically. In support of his submissions he has placed reliance on Khalikuddin v. State of Rajasthan, 2003 (2) Cr LR (Raj.) 850 ; Nekiya @ Neka Ram & Anr. v. State of Rajasthan, 2003 (2) Cr LR (Raj.) 1603 and Kallem Shankar Reddy v. State of A.P., 2004 Cr LJ 3270 . 42. In the case of Kalikuddin (supra), at para 7 & 8 of the judgment, the Court observed, "Section 376(1) IPC provides that the punishment for such an offence shall not be less than seven years but a proviso has been added which provides that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. Learned counsel contended that in view of the consent of the victim, lessor sentence may be awarded. Reliance was placed upon Ummaid Nath v. State of Rajasthan, 1999 (2) RCC 1383 , wherein the age of the prosecutrix was found below 16 years at the time of occurrence and the prosecutrix went with the accused willingly and thus the rigorous imprisonment often years u/s. 3761PC was reduced to five years rigorous imprisonment. In Rajan & Ors. v. The State of Rajasthan, 2002 (1) Cr LR (Raj.) 778 , the age of the girl was found thirteen and half years i.e. below 16 years at the relevant time and she was found a consenting party, therefore, in view of the proviso to Section 376(1)IPC, the sentence of ten years rigorous imprisonment awarded by the trial Court was reduced to three years rigorous imprisonment. In the present case the accused-appellant has served the sentence for more than a period of three years and six months and keeping in view the entire discussion made hereinabove, and in light of the two judgments of this Court, it would meet the ends of justice to sentence the accused- appellant with the sentence already undergone." 43. In the aforesaid case, this Court relying on the decisions rendered in the case of Ummaid Nath v. State of Rajasthan, 1999 (2) RCC 1383 and Rajan & Ors. In the aforesaid case, this Court relying on the decisions rendered in the case of Ummaid Nath v. State of Rajasthan, 1999 (2) RCC 1383 and Rajan & Ors. v. The State of Rajasthan, 2002 (1) Cr LR (Raj.) 778 and after assigning reasons reduced the sentence of accused from 5 years to 31/2 years. 44. In Nekiya's case (supra) this Court found the age of the prosecutrix above 16 years and taking into consideration the entire facts and circumstances reduced the sentence from 10 years to 7 years. 45. In Kallem Shunkar Reddy's case, the Andhra Pradesh High Court taking into consideration the age of the accused to be 28 years, reduced his sentence from 10 years to 7 years. 46. After carefully going through the authorities and taking into consideration the facts and circumstances of the case and the submission of learned Amicus Curiae, I deem it proper to reduce the sentence of accused-appellant u/s. 376 IPC, from 10 years to 7 years and maintain rest of the judgment and order passed by learned Addl. Sessions Judge (Fast Track) No. 1, Banswara in Sessions Case No. 215/2001 - State v. Bhanji . 47. In the result, the appeal is partly allowed and while maintaining the conviction of accused-appellant u/s. 376 IPC, his sentence is reduced from 10 years to 7 years. The rest of impugned judgment of conviction and order of sentence, including the order of fine passed by the learned trial Court, is maintained. 48. The appeal stands disposed of accordingly.Appeal partly allowed. *******