JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) 1. The present appeal has been filed on behalf of the sole-appellant against the judgment of conviction dated 30.06.2008 and the sentence passed thereon dated 02.07.2008 by the learned Additional District & Sessions Judge, F.T.C.-V, Patna in respect of Sessions Trial Case No.509 of 2006, arising out of Fatuha P.S. Case No.19 of 2006, appertaining to G.R. No.73 of 2006, whereby and whereunder the appellant having been found guilty of an offence under Section-376 of the Indian Penal Code has been sentenced to undergo imprisonment for life and further to pay a fine of Rs.5000. 2. The prosecution case is based upon a written information given to the Officer-in-Charge of Fatuha Police Station by the informant, Shivanand Puri (P.W.4), though written by someone has been signed by him, inter alia, alleging that on 10.01.2006 at about 7:30 pm the appellant aged about 25 years, who is tenant in the house of one Mahesh Puri, enticed his minor daughter, Jyoti Kumari aged about 5 years and took her to the orchard of one Shardanand Puri, which is adjacent to his house and there he ravished her and left her and ran away. His daughter returned home crying and bleeding from her private parts. Her mother Sulekha Devi (P.W.3) asked her as to what happened upon which the girl disclosed that Gudu Chacha, the appellant, had taken her to the orchard and taking advantage of the darkness ravished her because of which she was bleeding. The pain agony and cry of the girl alarmed the neighbours and Raj Kumari Puri, Prahland Puri and many other people came there seeing all this in her house. This statement was given at about 8:30 pm on 10.01.2006, upon which immediately the present case, being Fatuha P.S. Case No.19 of 2006 dated 10.01.2006, was instituted against the appellant for an offence under Section-376 of the Indian Penal Code. The Sub-Inspector of Police, Amarnath Tiwari (P.W.8) was entrusted with the investigation. This statement was signed by the informant is Ext.1, the endorsement on the F.I.R. is Ext.1/1 and the endorsement of the Officer-in-Charge, Naeem Ahmad (not examined) on the formal F.I.R. is Ext.3. 3. The Investigating Officer (P.W.8) immediately took up investigation and the girl was taken to the Primary Health Centre, Fatuha for medical examination which was done by Dr. This statement was signed by the informant is Ext.1, the endorsement on the F.I.R. is Ext.1/1 and the endorsement of the Officer-in-Charge, Naeem Ahmad (not examined) on the formal F.I.R. is Ext.3. 3. The Investigating Officer (P.W.8) immediately took up investigation and the girl was taken to the Primary Health Centre, Fatuha for medical examination which was done by Dr. Rajendra Prasad Singh (P.W.10) at 11:45 pm on 10.01.2006 itself. On the request of the police, he gave an injury report, which was marked as Ext.5, noticing that there was lacerated bleeding wound of ½” x ½” over lower portion of vagina and there was abrasion of ¼” x 1/4” over the face on both the sides. He expressed no opinion about the nature of injury but referred the patient to the Patna Medical College & Hospital (P.M.C.H.) for treatment and medico legal examination. 4. On the next morning, i.e., 11.01.2006, the Investigating Officer inspected the place of occurrence in the orchard and found allegedly some footprints. He found that the orchard was surrounded by a boundary wall of about 3 to 4 height. He took the statement of various witnesses whose houses were contiguous to the orchard about seeing the girl crying in the house and the parents saying that it was the appellant who had ravished the girl. It is alleged that while he was taking the statements, he found the appellant trying to escape from his house which was contiguous to the orchard but was apprehended. 5. The infant was then taken to Patna with a request to get her medically examined. On that request itself the Civil Surgeon, Patna referred the infant to Guru Govind Singh Hospital, Patna City on the same day she was then examined by Dr. Arati (P.W.5) who gave a medical report, which is Ext.2, assessing her age to be about 6 to 8 years. On medical examination, abrasion on the right side of the nose, left foot front and right leg front was found, apart from lacerated wound on the right side of the vagina which was bleeding. But, on vaginal smear examination no spermatozoa was found. The nature of injury to the lower genital in her opinion could be caused due to sexual contact or trauma to genital parts. 6. But, on vaginal smear examination no spermatozoa was found. The nature of injury to the lower genital in her opinion could be caused due to sexual contact or trauma to genital parts. 6. On 12.01.2006 the appellant who had been arrested a day before and was in police custody was referred to P.M.C.H. for his medical examination, but it appears that same was done at Rajendra Nagar Hospital, Patna and the doctor found no noticeable abnormality in this regard, which report is Ext. A. Thereafter, on 12.01.2006 the F.I.R. which was registered and the appellant who was in custody since a day before 11.01.2006 were produced before the A.C.J.M., Patna City. The appellant was remanded in custody and has been in custody since then till date. 7. On 02.02.2006 upon application of the Investigating Officer, the statement of the victim girl, Jyoti Kumari (P.W.6) was recorded under Section-164 Cr.P.C., which is Ext.4. Upon conclusion of investigation, chargesheet was submitted on 11.04.2006. Thereafter, cognizance having been taken, the case was committed to the Court of Sessions on 14.09.2006 and the charge of raping of a minor girl having been framed being an offence punishable under Section-376 Indian Penal Code was framed. The appellant pleaded not guilty and was tried. 8. In course of trial, prosecution examined 10 witnesses, out of whom P.W.5 and P.W.10 are the two doctors. P.W.8 is the Investigating Officer and P.W.9 is the Judicial Magistrate who recorded the statement of the victim girl under Section-164 Cr.P.C. Out of the remaining 6 witnesses, P.W.3, Sulekha Devi is the mother of the victim girl. P.W.6 is the victim girl and P.W.4, Shivanand Puri is the father of the victim girl and the informant. Thus, remaining 3 other witnesses, who were said to be neighbours, that is, Brahmanand Puri, Raj Kumar Puri and Prahlad Puri, being P.Ws.1, 2 & 7 respectively. 9. When we come to the evidence, it would be seen that though they are allegedly neighbours they are of immediate family, being P.Ws.1&7 the brother of the informant and P.W.2 being cousin of the informant. It may be noted that there is no eye witness to the occurrence except the victim herself being P.W.6. The two doctors did not rule out possibility of the injuries being caused by rape. It may be noted that there is no eye witness to the occurrence except the victim herself being P.W.6. The two doctors did not rule out possibility of the injuries being caused by rape. The witnesses, apart from the Judicial Magistrate and the Investigating Officer, are hearsay witnesses, on the point of the victim girl crying and naming the appellant for having ravished her. 10. The appellant was examined under Section-313 Cr.P.C. wherein he clearly stated, as has been suggested to the prosecution witnesses also, that he and his family members were tenant in the house of the grandfather of the informant for over 35 years and only to pressurize the eviction such a false case was made out. 11. Defence examined four witnesses to establish that the appellant stayed in the house of the grandfather of the informant as a tenant and the informant had borrowed money from the father of the appellant. They were not vacating the house because of which this false case was instituted. A hand note signed by the informant was also produced and marked as X for identification through the informant himself. 12. The Trial Court upon perusal of the evidence found the appellant guilty of the offence under Section-376 of the Indian Penal Code and sentenced, as stated above, against which this appeal has been filed. 13. As the appellant had been in custody for over 6 years, instead of entertaining the repeated bail applications, we took up the matter for finally hearing and disposing of the appeal. 14. Mr. Ramakant Sharma, learned Senior Counsel has appeared in support of the appeal assailing the judgment of the Trial Court. We have heard him at length as also the learned A.P.P. For the appellant, it was submitted that on the facts the accusation is not free from doubt and the appellant was entitled to acquittal. In any view of the matter, the appellant having been found guilty of offence under Section-376 (2) (f), in the facts and circumstances of the case, the Trial Court erred in awarding the maximum sentence permissible without considering the fact that there was a discretion in the matter. In other words, the sentence was too severe for the alleged offence. 15. We have considered the evidence on record and heard the learned Senior Counsel for the Appellant, Mr. In other words, the sentence was too severe for the alleged offence. 15. We have considered the evidence on record and heard the learned Senior Counsel for the Appellant, Mr. Ramakant Sharma who drew our attention to the fact that though admittedly the written information was written by someone else, other than the informant, the said person was never named or produced in the Court. The first information report was registered at 8:30 pm on 10.01.2006. It was not sent to the Court of A.C.J.M., Patna City immediately but only on 12.01.2006 for which Investigating Officer could give no explanation. Appellant was arrested on 11.01.2006 from his house contiguous to the place of occurrence and the residence of the victim, on the next day of the occurrence, which is extremely unusual. He was then sent for judicial remand on 12.01.2006. He further submitted that in the written report what was stated was that neighbours came when the girl returned crying but what was deliberately suppressed that the neighbours were none else but the brothers of the informant and the house in which the informant stays was the contiguous house of the grandfather of the informant. He then points out that the first doctor, who examined the victim girl being P.W.10, did not opine with regard to cause of the injury but referred the girl to the P.M.C.H. for medico legal purposes, instead, the girl was taken next day to the Civil Surgeon who was not informed of the earlier medical report and the girl was referred to Guru Govind Singh Hospital, Patna City instead of P.M.C.H., which raises great suspicion about the correctness of the reports and the intention of the prosecution. He further submits that though the girl was available for examination under Section-164 Cr.P.C., it was almost after a month that the Investigating Officer got her examined on 02.02.2006 for recording her statement under Section-164 Cr.P.C. He submits that a reference to the statement would show that the language spoken by this girl of 5 years of age is quite inappropriate for the age. The expression used by her cannot be expected of a child of her age. The expression used by her cannot be expected of a child of her age. He then refers to the deposition of this girl in Court as P.W.6 to show that apparently she had been much tutored because of the language she spokes describing the event, which is not expected of a girl of that age. He then pointed out that all the so called neighbours and independent witnesses, who had seen the girl crying at home after the incident, were not chance witnesses but were immediate family members of the informant who were living separately in contiguous houses. He further submitted that looking to the nature of the injuries, it is apparent that all the injuries, that is, bruises and the laceration near the vagina are all in the front of the victim and nothing on the back which would negate the story set up by the prosecution. He also submitted that in fact the girl had sustained some injuries while playing and there being a dispute with regard to money and eviction, the appellant was falsely implicated in this case. 16. Having considered the matter, in our view, the graphic details contained in the statement of the girl under Section-164 Cr.P.C. and her deposition in Court does not persuade us to disbelieve the statement though the language and the description appears to be slightly misplaced for a girl of such tender age but that alone is not enough to reject the statement of the prosecutrix. We, therefore, are unable to interfere with the conviction, which appropriately should have been with reference to Section-376 (2) (f) of the Indian Penal Code, being rape committed of girl below the age of 12 years. 17. But, coming to the question of sentence, we do think that a case for interference is made out in the facts and circumstances of the case. In order to appreciate the submission of the learned counsel for the appellant, it would be appropriate to quote the relevant part of the penal provision:- “376.Punishment for rape.- (1) ….... 17. But, coming to the question of sentence, we do think that a case for interference is made out in the facts and circumstances of the case. In order to appreciate the submission of the learned counsel for the appellant, it would be appropriate to quote the relevant part of the penal provision:- “376.Punishment for rape.- (1) ….... (2) Whoever,-……………… (f) commits rape on a woman when she is under twelve years of age; or ……… 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 reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.” 18. From the provision aforesaid, it would be seen that in order to attract the punishment it is first to be found that the rape is committed on a girl under 12 years of age. As in this case, once this is established the occasion to impose punishment arises. The punishment, as would be seen, as provided by the Legislature is three fold with fine. Firstly, it could be for life but secondly not less than 10 years normally and thirdly for adequate and special reasons to be mentioned in the judgment it could be for a term even less than 10 years. 19. Thus seen, there is a wide scope for variation of punishment upon finding of guilt depending on the circumstances, up to life imprisonment. This is in contradiction to some other provisions for example Section-302 I.P.C. where there is hardly any discretion. There the sentence upon guilt being found is either life or death. It would, thus, be seen that normally the punishment for an offence under Section-376 (2) (f) could be anything between 10 years to life imprisonment and in exceptional cases –“for adequate and special reasons” it could be less than that also. The Legislature has given this discretion to the Trial Court but this discretion is not either fanciful or arbitrary as this discretion has to be exercised upon genuine and bona fide consideration of various factors. It is a judicial discretion. The Legislature has given this discretion to the Trial Court but this discretion is not either fanciful or arbitrary as this discretion has to be exercised upon genuine and bona fide consideration of various factors. It is a judicial discretion. What we find here is that merely because of a rape of minor has been committed, it is stated to be a grave offence, calling for maximum punishment. That is not the legislative mandate. Section-376 (2) (f) with the discretionary punishment comes into play only when such a grave offence is committed. Yet the discretion In this connection, I may refer to a decision of Shadi Lal, Chief Justice long back in the case of Kehr Singh Vs. Emperer since reported in AIR 1929 Lahore 29. I can usefully quote from the judgment itself:- “…….The law confers a wide discretion upon the Judge, and leaves it to him to decide in each case whether the act done by the offender falls short of the maximum degree of gravity, and, if so, to what extent. The Court should realize the necessity of a proportion between an offence and the penalty; and should not inflict the maximum term of imprisonment on every offender without any regard to the seriousness or otherwise of the offence committed by him. While apportioning the punishment, it should also take into consideration the circumstances under which the offence was committed and the fact whether the criminal is a first offender or a habitual or professional offender. It is obviously impossible to give an exhaustive list of the circumstances which should be taken into consideration in determining the amount of the punishment, or to lay down any mathematical formula to measure the penalty in each case. But it is perfectly clear that the maximum punishment prescribed by the law should not automatically follow upon a conviction. ……………As pointed out above when the legislature has laid down a maximum punishment for an offence or a series of offences, it is the duty of the trial Court to apportion punishment in each case after considering all the circumstances having a bearing upon it, and not to shirk its responsibility by imposing the maximum penalty upon every offender…” (emphasis supplied) 20. We feel that if the Legislature found the offence to be such grave that it could be visited with a maximum sentence of life imprisonment, it would never have provided for any discretion in the matter but to the contrary, as noted above, wide discretion has been conferred on the Court. The sentence to be appropriate must be neither too severe nor too lenient as Courts have held while too lenient a sentence does not deter too harsh a sentence may frustrate thereby making the offender a hardened criminal. The wide discretion left on the Court by the Code must not be narrowed down only to the seriousness of the offence. As noticed above, no single consideration is there nor any mathematical equation to determine the proper sentence, but we are aware that one of the mitigating factors are youthfulness of the accused, no previous convictions. No aggravating factors also would be a consideration. That the accused at the time when the offence was committed was a young man and has a family to support could also be a relevant consideration. 21. In the present case, he was 25 years of age, married and having very young children. Though a large number of decisions of the Apex Court were cited to show that youthfulness can be a mitigating factor, we need not notice because in our view this is an established principle for gaging the extent of punishment. Considering the fact that the appellant was the tenant in the house of the grandfather of the informant and the circumstances borne out by the records coupled with the age of the offender and the family needed to be supported by him, we have given anxious consideration and consider it appropriate to interfere in the matter of sentence and reduce it to 10 years of rigorous imprisonment with a fine of Rs.10,000 and, in default whereof, a further period of six months of rigorous imprisonment. 22. Let it be noted that the appellant has been in custody since the age of 25 years for over six years now and in the facts and circumstances justice could be met accordingly. 23. With the aforesaid modification in sentence, the conviction is sustained and the appeal stands disposed of. I agree.