JUDGMENT 1. - The aforementioned appeal has been filed by appellant Madan Lal against his conviction as recorded by the learned Additional Sessions Judge (Fast Track) No. 1, Pali camp at Jaitaran whereby the appellant has been convicted and sentenced as below: 1. For the offence under Section 376 I.P.C. : Rigorous imprisonment for life and fine of Rs. 1000/- and, in default to further undergo two months' simple imprisonment. 2. For the offence under Section 447 I.P.C. : One month's simple imprisonment and a fine of Rs. 100/- and, in default, to further undergo 10 days' simple imprisonment. Both the sentences have been directed to rum concurrently. 2. Briefly stated the facts of the prosecution case are that the prosecutrix Smt. S (PW-1) (hereinafter referred to as "S") filed as written report before the S.H.O. of the Police Station, Raipur on 16.8.2005 at 10.00 p.m. alleging inter alia that on 15.8.2005 in the evening at 6 p.m. she was cutting fodder for the cattle at a distance of 1/4 k.m. away from her Heena crop. At that time, her neighbor Binja Ram came there from the adjoining filed after scaling over the boundary and enquired from the her whether she was cutting grass. On her giving answer an in affirmative, Madan Lal asked for being given some Cucumber to which she refused. After that, Binja Ram went away from her field. 3. At that time, Madan Lal, the accused was also breaking "Kakeda" from the boundary fence. After Binja Ram returned back, Madan Lal went to Binja Ram and five minutes later, Madan Lal scaled over the boundary between the fields and started talking to the complainant (the prosecutrix) for cutting of fodder. 4. As per the prosecutrix, since the accused was elder in age, she refused by an oral exclamation but the accused insisted but she again refused. Thereafter, the accused turned back and started to go away from her field. Just a minute later, he returned back with a big stick in his hand. After putting down the stick, the accused caught hold of her hand. At that time, the prosecutrix was holding an implement Khurpa for digging earth in her hand. She tried to hit the accused but in the scuffle, the khurpa fell down. Just a minute later, he returned back with a big stick in his hand. After putting down the stick, the accused caught hold of her hand. At that time, the prosecutrix was holding an implement Khurpa for digging earth in her hand. She tried to hit the accused but in the scuffle, the khurpa fell down. The prosecutrix tried to raise her voice at which time, the accused felled her down on the ground and started to commit forcible sexual intercourse on her, due to which, her cloths got stained with soil and also got torned. Despite her bet efforts, she could not succeed to save her modesty and the accused committed forcible intercourse on her. Since her house was at great distance from the field, no body could hear her cries. 5. It is further alleged that on hearing her hue and cry, Smt. Sukhi Devi came there. At that time the accused ran away after leaving her. She came back crying to her house. Her husband was not present at the house at that time and came back in the next morning and on disclosure about the incident to her husband she lodged the report. 6. On the basis of the written report, First Information Report No. 217/2005 was registered at the Police Station, Raipur District Pali which has been marked as Ex.P-1 at the trial. 7. The polic started investigation on the basis of the said written report Ex.P-1. The place of occurrence was inspected. The accused was arrested on 18.11.2005 vide arrest memo Ex.P-30. The prosecutrix was medically examined and the report Ex.P-31 was prepared. 8. It is significant to mention here that the medical report Ex.P-31 does not disclose any marks of violence on the person of prosecutrix. 9. At the conclusion of investigation, the charge-sheet was submitted against the appellant for the offences under Sections 376 and 447, I.P.C. in the Court of learned Judicial Magistrate, First Class, Bar, from where the case was committed to the Court of Additional Sessions Judge (Fast Track), Pali camp at Jaitaran for trial. At the trial, the charges were framed against the accused appellant for the offences mentioned above on 20.12.2005. The appellant pleaded not guilty and claimed trial. The prosecution examined as many as 13 witnesses in support of its case. At the trial, the charges were framed against the accused appellant for the offences mentioned above on 20.12.2005. The appellant pleaded not guilty and claimed trial. The prosecution examined as many as 13 witnesses in support of its case. The accused in his examination under Section 313 Cr.P.C. denied the allegation of the prosecution and submitted that the case put up against him was false and examined two witnesses in support of his defence. The learned trial Judge at the conclusion of the trial, proceeded to convict the appellant for the offences mentioned above and has sentenced him to imprisonment for life for the offence under Section 376 I.P.C. and has also sentenced him for a period of one month for the offence under Section 447 I.P.C. Being aggrieved by the conviction and sentences, the appellant has preferred the above mentioned appeal challenging the conviction and sentences. 10. Three applications for suspension of sentence have been filed earlier on behalf of the appellant which were rejected by this Court and today, the matter was taken up for consideration of the 4th bail application. With the consent of the counsel for both parties, the appeal itself was heard on merit finally. 11. The counsel for the appellant has not challenged the conviction of the appellant for the offences under Section 376 I.P.C. but has prayed that looking to the allegations made by the prosecution, the nature of the evidence produced at the trial and the manner in which the incident is said to have taken place, the case was not one where imprisonment for life was warranted. 12. A perusal on the testimony of the prosecutrix PW-1 "S" reveals that she has repeated the all allegations made in the report Ex.P-1 and has further submitted that Smt. Sukhi Devi and one Duda Ram were standing on the roof of their houses at a distance of 300 kadams from the place from where she was subjected to forcible sexual intercourse. In her cross-examination, she has stated that when the accused felled her down for the purpose of committing forcible sexual intercourse, she received injuries on her knees, toes and back and that she had shown her injuries to the doctor. 13. PW-2 Smt. Sukhi Devi, so called eye-witness has stated that in the evening of 5-6 p.m. she heard the cries "mare re mare re". The cries were being made by "S". 13. PW-2 Smt. Sukhi Devi, so called eye-witness has stated that in the evening of 5-6 p.m. she heard the cries "mare re mare re". The cries were being made by "S". When she went to the field of "S", "S" told her that when she was doing the agricultural work, at that time, Madan Lal committed forcible sexual intercourse on her. Thereafter she took "S" to her house. The witness has not claimed that she saw the accused committing forcible intercourse on the prosecutrix. 14. PW-3 Duda Ram was also produced as an eye-witness but he also did not depose in his testimony as having seen the accused committing forcible intercourse on the prosecutrix. 15. The doctor, who examined the prosecutrix medically, is PW-12 Dr. Anusuya. She has not stated that she found any marks of violence on the body of the prosecutrix on examination. In cross-examination, she has stated that there was no forcible marks of violence/injuries on the body of the prosecutrix. 16. From the careful appreciation of the evidence of all the prosecution witnesses and particularly the prosecutrix and the two eye-witnesses as well as the medical officer and in view of the fact that the counsel for the medical officer and in view of the fact that the counsel for the appellant has not challenged the conviction of the appellant, it is apparent that the offence of rape of the prosecutrix has been proved by the prosecution beyond any manner of doubt. 17. Section 376 provides that except in the cases provided for by sub-section (2), the person who commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine. The proviso to Section 376 gives the Court discretion to impose even less than seven years for adequate and special reasons to be mentioned in the judgment. 18. The proviso to Section 376 gives the Court discretion to impose even less than seven years for adequate and special reasons to be mentioned in the judgment. 18. The learned counsel for the appellant in support of his argument on the question of sentences has placed reliance on the judgment of the Hon'ble Apex Court in the cases of Prem Chand and another v. State of Haryana, AIR 1989 SC 937 , Raj Kumar alias Raju Yadav alias Raj Kumar Yadav v. State of Bihar, 2006 (2) WLC (SC) Criminal 538 and the judgment of this Court reported in Raj Singh v. State of Rajasthan thro' P.P., 2007 (1) Cr.L.R. (Raj.) 544 . In all these judgments, the Hon'ble Apex Court and this Court have dealt with the circumstances in which the quantum of sentence for the offence under Section 376 I.P.C. could be reduced. The Courts have held that in peculiar circumstances, the sentence could be even below seven years. 19. From a perusal of the case in hand, the prosecutrix is a major lady of 25 years. No marks of violence have been found on her body after the alleged act of sexual intercourse. The provisions of Section 376 I.P.C. in relation to sentence, leave the discretion of the Court to award sentence of seven years or ten years or even to imprisonment for life, but the legislature has given the said discretion to the Court to be exercised in view of facts and circumstances of the each case. In cases wherein the rape is on a minor or is on a mentally retarded woman or gang rape, probably, sentence of 10 years or even imprisonment for life would be warranted, but as is apparent, in the present case, none of the above circumstance exist. Therefore, this Court is of the view that it is not at all a fit case where maximum punishment provided under Section 376 I.P.C., i.e., imprisonment for life was warranted. 20. In view of the above circumstances, this Court is of the view that the appellant having been in custody since 18.11.2005, i.e. for a period of more than 51/2 months, the sentence which the appellant has suffered till date would suffice. 21. 20. In view of the above circumstances, this Court is of the view that the appellant having been in custody since 18.11.2005, i.e. for a period of more than 51/2 months, the sentence which the appellant has suffered till date would suffice. 21. Accordingly, this appeal is partly allowed and while maintaining the conviction of the appellant for the offences under Sections 376 and 447 I.P.C., the period of sentence awarded to the appellant for the offence under Section 376 I.P.C. is altered to the appellant for the offence under Section 376 I.P.C. is altered to the period already undergone, from the sentence of life imprisonment as awarded by the trial Court. The appellant shall be set at liberty forth with on payment of fine, if not required in any other case.Appeal partly allowed. *******