JUDGMENT T.P.S. Mann, J.:- The appellant has been sentenced to undergo RI for four years and to pay a fine of Rs. 500/- under Section 376 IPC by Additional Sessions Judge, Kurukshetra vide judgment and order dated 14.7.1994. In default of payment of fine, the appellant was sentenced to undergo further RI for six months. Aggrieved by the same, the appellant has filed the present appeal. 2. The prosecutrix, who was aged about 8 years, was subjected to sexual intercourse by the appellant on 1.3.1993 at about 12.00 noon. The prosecutrix had accompanied her mother to the field of Shera of their village for bringing grass from there after cutting the same. At that time, the appellant was also cutting the grass from a nearby field. The prosecutrix helped her mother to place the bundle of grass on her head and thereafter they started moving towards their house. At that time, the appellant came to the mother of the prosecutrix and asked her to send her daughter to help him in picking up his grass bundle. The prosecutrix was, accordingly, sent by her mother with the appellant, who herself went to her house. About an hour later, the prosecutrix reached her house weeping and at that time her salwar was found be-smeared with blood. On being asked by her mother, the prosecutrix told her that appellant had committed rape upon her. After calling her husband, the mother of the prosecutrix accompanied him as well as the prosecutrix to Police Station Pehowa, where FIR was lodged. The prosecutrix was medico-legally examined by Dr. Sunita Jain PW9 on 1.3.1993. The accused was arrested on 4.3.1993 and on the same day was subjected to medico-legal examination by Dr. Rajan Kohli PW6, who found him sexually fit. After the completion of the investigation, challan was presented in the Court. The commitment of the case followed whereafter Additional Sessions Judge, Kurukshetra framed charge under Section 376 IPC against the appellant on 15.5.1993, but he pleaded not guilty and claimed trial. 3. In support of its case, the prosecution examined HC Zile Singh as PW1, Lakhmi Chand, UGC as PW2, Hakam Singh, Assistant, CMO Office, Kurukshetra as PW3, Balbir Singh, Patwari as PW4, HC Pritam Singh as PW5. Dr. Rajani Kohli as PW6, Sukhdevi, mother of the prosecutrix as PW7, SI Gian Singh as PW8, Dr. 3. In support of its case, the prosecution examined HC Zile Singh as PW1, Lakhmi Chand, UGC as PW2, Hakam Singh, Assistant, CMO Office, Kurukshetra as PW3, Balbir Singh, Patwari as PW4, HC Pritam Singh as PW5. Dr. Rajani Kohli as PW6, Sukhdevi, mother of the prosecutrix as PW7, SI Gian Singh as PW8, Dr. Sunita Jain as PW9, prosecutrix herself as PW10 and ASI Jagdish Chander as PW11. Reports of Forensic Science Laboratory (for short ‘FSL’) Ex. PL and PL/1 were tendered into evidence and the prosecution case was thereafter closed. When the accused was examined under Section 313 Cr.P.C., he denied the correctness of the prosecution case and stated that he was falsely implicated therein. 4. In his defence, the appellant produced Hukam Chand, teacher of Government High School Bandhani as DW1, who proved the certificate Ex.DB, as per which the date of birth of the appellant was entered in the records as 2.6.1976. 5. The trial Court believed the prosecution case and convicted the appellant under Section 376 IPC. However, in view of the young age of the appellant being 16 years and nine months on the date of the occurrence, the proviso to Section 376 (1) Cr.P.C. was pressed into service to award RI for four years and a fine of Rs. 500/-, instead of awarding minimum sentence of seven years. 6. I have heard learned counsel for the parties and gone through the evidence led by them and the documents proved on the record. 7. Though, according to Dr. Rajan Kohli PW6, there was no injury on the male organ of the appellant but that by itself is not sufficient to hold that the appellant did not indulge in sexual intercourse with the prosecutrix. Dr. Rajan Kohli PW6 had stated that he did not find any injury on the glans of the accused. However, in reply to Court’s question as to whether it was possible for the expected injury on the glans of the male organ to heal within three days time, he replied that minor injury shall heal within that period. The occurrence had taken place on 1.3.1993 at about 12.00 noon. The accused was arrested on 4.3.1993 and thereafter subjected to medico-legal examination at 6.00 P.M. By that time, more than 72 hours had elapsed from the time of the sexual assault committed by the appellant. The occurrence had taken place on 1.3.1993 at about 12.00 noon. The accused was arrested on 4.3.1993 and thereafter subjected to medico-legal examination at 6.00 P.M. By that time, more than 72 hours had elapsed from the time of the sexual assault committed by the appellant. In case, there was any minor injury on the glans of the male organ of the appellant, it could very well heal up within that period. 8. Mere absence of human semen on the vaginal smear, as per the reports EX.PL and PL/1 of FSL again does not belie the prosecution version. This also pales into insignificance once we refer to the medical examination of the prosecutrix. The doctor had found that the labia minora, which was not fully developed, was congested. Hymen was found ruptured. On the posterior vaginal wall, there was a tear of the size of 1 cm x 1 cm near the introitus from which fresh bleeding was coming out. All this shows that the prosecutrix had been sexually assaulted. 9. There is no dispute regarding the age of the prosecutrix. According to Hakam Singh PW3, date of birth of the prosecutrix was entered in the records as 22.5.1983. She was, thus, nine years and nine months of age on the date of the­ occurrence. 10. The statements made by prosecutrix, while appearing as PW10 and her mother as PW7, are categorical and consistent to point an accusing finger towards the appellant of having subjected the prosecutrix to sexual intercourse. Inspite of lengthy cross-examination conducted by the defence, no material could be brought out from which it could be inferred that the said two witnesses were not deposing truthfully. There was also no material on the file to show that the prosecutrix and her mother could falsely implicate the accused. In view of the above, it is held that the appellant has been rightly convicted by the trial Court under Section 376 IPC. 11. Coming to the question of sentence, it has to be borne in mind that the prosecutrix was nine years and nine months old on the date of the occurrence, her date of birth being 22.5.1983. In view of the above, it is held that the appellant has been rightly convicted by the trial Court under Section 376 IPC. 11. Coming to the question of sentence, it has to be borne in mind that the prosecutrix was nine years and nine months old on the date of the occurrence, her date of birth being 22.5.1983. As per the provisions of Section 376 (2)(f), whoever commits rape on a woman when she is under 12 years of age is required to be punished with rigorous imprisonment for a term which shall not be less than ten year but which may be for life, besides requiring the offender to pay fine. Inspite of the said specific provision providing for awarding of RI for a term not less than ten years, the trial Court dealt with the case as if appellant was to be sentenced for an offence of rape simpliciter under Section 376 (1) IPC instead of the aggravated form. However, at the same time the Court could award lesser than the minimum sentence. Keeping in view the young age of the convict on the date of the occurrence i.e. 16 years and 9 months, he being a student of 9th class having no beard and moustache and his parents being very old and poor, the trial Court found them to be adequate and special reasons for imposing a sentence of imprisonment for a term of less than seven years. However, as stated above, the minimum sentence which could be awarded to the appellant was RI for ten years as the case was covered under Section 376(2)(f) IPC and not under Section 376(1) I PC because the prosecutrix was under 12 years of age. The appellant has been facing the agony of criminal prosecution for the last more than 14 years. He remained in jail as an under-trial upto 3.7.1993, when he was granted the concession of bail by Additional Sessions Judge, Kurukshetra. He was again taken into custody on 14.7.1994 after having been sentenced by the trial Court. He filed the present appeal in which he was ordered to be released on bail by this Court vide order dated 8.11.1994. In view of the above, I find adequate and special reasons for imposing a sentence of imprisonment upon the appellant for a term of less than ten years. He filed the present appeal in which he was ordered to be released on bail by this Court vide order dated 8.11.1994. In view of the above, I find adequate and special reasons for imposing a sentence of imprisonment upon the appellant for a term of less than ten years. The sentence of RI for four years awarded by the trial Court is commensurate with the ­offence committed by the appellant. There is no scope for awarding any further lesser sentence. Resultantly, the conviction and sentence of the appellant as recorded by the trial Court are maintained and the appeal is dismissed. ——————————