JUDGMENT Mr. Rakesh Kumar Jain, J.: - This appeal is directed against the order of Additional Sessions Judge, Bhiwani, dated 17.2.2007 by which the appellant has been held guilty under Section 376 IPC and order dated 19.2.2007 by which he has been sentenced for a period of 10 years, fine of Rs.5000/- and in default of payment of fine, sentence for a period of six months’ RI. 2. The appeal was filed with an affidavit for condonation of delay which was allowed at the time when it was admitted. Thereafter, the appellant had applied 2/3 times for suspension of sentence but could not succeed. However, the main appeal was ordered to be listed because the appellant had already suffered actual sentence of more than five years and 10 months out of the total sentence of 10 years. 3. It may be observed at the outset that the learned counsel for the appellant did not try to project that he was innocent, rather he has argued that the appellant had only made futile attempt to commit rape with the victim (in view of Section 228-A of IPC and judgment of Supreme Court in the case of State of Karnataka Vs. Puttaraja 2004 (1) RCR (Criminal) 113 (SC) for which he should have been convicted under Section 376 read with Section 511 of IPC and should have been punished for a lessor period of sentence. 4. In this regard, he has referred to the statement of PW-4 Dr.Sudha Garg, who had medicolegally examined the victim and has observed that “defused swelling all around lebia majora, reddish 2-3 vesicular regions filled of dirty discharge may be boils. Multiple superficial laceration present over clotoris and on lateral side and on posterior edge. Size of laceration from 3 x 5 cm. Irregular edges red oedematous edges. Hymen intact external os admitted tip of little fingure”. He has submitted that the Doctor has stated in her cross examination that “the possibility of the injuries in the present case cannot be ruled out if the patient falls on a solid surface while moving”. It is argued that as per the statement of Dr.S.C.Gupta (PW-10), who had medicolegally examined the appellant, his genital organ was well developed. He had well developed testicles and pubic hair. There was erection of penis seemed during coughing which indicates that penis was well developed. It is argued that as per the statement of Dr.S.C.Gupta (PW-10), who had medicolegally examined the appellant, his genital organ was well developed. He had well developed testicles and pubic hair. There was erection of penis seemed during coughing which indicates that penis was well developed. There was no sign of deformity in the penis. There was circumscion of penis already of 10 years back. According to his opinion, there was nothing to suggest that the appellant was not capable to do intercourse. 5. Learned counsel for the appellant has argued that keeping in view the age of the appellant and the age of the victim, who is stated to 6 ½ year old at the time of alleged occurrence, had there been any penetration of penis in her vagina, she would have suffered more injuries than drescribed by Dr.Sudha Gupta (PW-4). It is, thus, submitted that it was merely a case of attempt for which the appellant had already suffered almost six years actual sentence. He has relied upon a Division Bench judgment of Delhi High Court in the case of State Govt. of Delhi Vs. Mukesh 2011 (3) R.C.R.(Criminal) 777 and a Single Bench judgment of this Court in the case of Kuldeep Kumar @ Bittu and another Vs. State of Punjab [2007(3) Law Herald (P&H) 2405] : 2007 (3) R.C.R.(Criminal ) 587. 6. In the case of State Govt. of Delhi (Supra), the accused was convicted and sentence for 2 ½ years under Section 376/511 IPC against which the Government had filed appeal for enhancement of sentence. It was held therein that the Court would interfere with sentencing discretion of the Trial Court in a given case where the “inadequacy” of sentence is gross or glaring or shocks the Court’s conscience. It was held that as per the evidence, the prosecutrix was unable to depose about the incident and was cross examined to elicit details of the facts. 7. In the case of Kuldeep Kumar @ Bittu (Supra), the appellant was sentenced for a period of 10 years on account of rape. The allegation was that the prosecutrix was 13 years of age who was forcibly lifted by the appellant when she had stepped out of her house to urinate. 7. In the case of Kuldeep Kumar @ Bittu (Supra), the appellant was sentenced for a period of 10 years on account of rape. The allegation was that the prosecutrix was 13 years of age who was forcibly lifted by the appellant when she had stepped out of her house to urinate. When mother of the prosecutrix came to her house, she had found that the prosecutrix was locked in a room and upon her knocking at the door, the accused fled away. It was observed that there was an attempt to commit rape because Dr. Jaswinder Kaur (examined as PW-2 in that case) did not find any injury on the person of the prosecutrix. 8. In reply, learned counsel for the State has submitted that the order of conviction and sentence passed by the Court below does not require any modification because the victim herself has been examined as PW-1 who has stated that the appellant was her Kaka (uncle) in relation who had taken her to sarson (mustard) field. She pointed towards her private parts of the body where she had suffered pain when the appellant was trying to commit rape. Jai Dev (PW-2) has stated that the appellant had removed his trouser and pant of the victim and was trying to put her in his lap. He had placed his penis on the vagina of the victim due to which she was crying. They had snatched the girl from the appellant and gave a little bit thrashing to him (appellant). In the cross examination also, he had maintained his stand that he had seen the appellant who had put his male organ on the private part of the victim. It is also submitted that Dr. Sudha Garg (PW-4) has given the actual condition of vagina of the victim which had defused swelling all around lebia majora. Multiple superficial laceration was present over clitoris. She had categorically stated that “possibility of an attemp to make penetration in the private part of the victim cannot be ruled out”. She did not say anything with certainity that the victim could sustain redness as has been found in the present case because of moving to a distance with tight clothes. He has also submitted that the appellant had penetration in the private part of the victim which constitute an offence of Section 376 IPC. 9. She did not say anything with certainity that the victim could sustain redness as has been found in the present case because of moving to a distance with tight clothes. He has also submitted that the appellant had penetration in the private part of the victim which constitute an offence of Section 376 IPC. 9. I have heard learned counsel for the parties and perused the record with their able assistance. 10. In this case, the victim herself has been examined as PW 1 and the Court below had the opportunity to assess her demeanour. She had stated that the appellant who was her uncle in relation did buri harkats (bad things) with her. She pointed towards her private parts where she had suffered pain. PW-2 Jai Dev has also stated that the appellant had placed his penis on the vagina of the victim due to which she was crying. PW 4 Dr.Sudha Garg had also given medical condition of her private parts where she has found defused swelling all round lebia majora and superficial lacerations over clitoris. She did not rule out possibility of an attempt to make penetration in the private part of the victim. She had also stated that there was no development of secondary sexual character of the victim. Then the question is why the appellant was attracting towards her. Whether he is pedophilic because pedophillia is a psychiatric disorder in adults or late adolescents (persons 16 years elder) who have typical character of having sexual intercourse in prepubescent children (generally aged 13 years or younger). 11. The appellant was uncle of the victim who took advantge of his relation and faith she had in him when she had gone with him to the sarson fields where he had allegedly committed rape with her. 12. Section 375 (6th ) of the IPC provides for sexual intercourse with a girl below the age of 16 years with or without her consent and the explanation thereto provides that penetration is sufficient to constitute sexual intercourse necessary to the offence of rape. Section 376 (2) (f) of the IPC provides that if a person commits rape of a girl who is under 12 years of age, then he is liable to punishment for rigorous imprisonment for a term which shall not be less than 10 years. 13. Section 376 (2) (f) of the IPC provides that if a person commits rape of a girl who is under 12 years of age, then he is liable to punishment for rigorous imprisonment for a term which shall not be less than 10 years. 13. In the present case, the Court below has tried the appellant under Section 376 IPC for committing rape upon a girl below the age of 12 years and has imposed minimum sentence of 10 years. Insofar as the decision in the case of State Govt. of Delhi (Supra) is concerned, in that case the Court had held that conviction was based solely on the testimony of a child witness who could not desribe the facts accurately and was prompted to do so by the Public Prosecutor when he was permitted to cross examine the victim. But in the present case, conviction is not solely based upon the testimony of a child witness/victim but it is supported by the testimony of Jai Dev (PW2) who had himself seen the appellant committing the offence of rape as he had put his male organ on the vagina of the victim when he was caught red handed and given beatings. 14. In the case of Kuldeep Kumar @ Bittu (Supra), the victim was 13 years of age who made allegation of gang rape in which the appellant was convicted and sentenced for 10 years. This Court modified the offence under Section 376 IPC into Section 376/511 IPC while considering the statement of Medical Officer Jaswinder Kaur (PW-2), who had stated that there was no mark of injury on the person of the prosecutrix and there was no sign suggestive of intercourse having been committed with her. She had only stated that there was an attempt of sexual intercourse whereas in the present case, besides the statement of the victim, there is a statement of eye witness Jai Dev who had stated that the appellant had placed his male organ on the private part of the victim which resulted in her cries because of pain. Meaning thereby, he was in the process of penetrating when he was caught red handed and the girl/victim was saved. 15. Meaning thereby, he was in the process of penetrating when he was caught red handed and the girl/victim was saved. 15. Keeping in view the facts and circumstances of the case, I find that the appellant does not deserve any leniency of modification of charge from Section 376 IPC to Section 376/511 IPC for the purpose of reducing the sentence. Hence, this appeal is hereby dismissed. ------------------