JUDGMENT 1. - Present appellant Mukesh in case arising out of the FIR No.157/06 registered at Police Station Manpur, District Dausa for offences under Sections 498A, 376(2) IPC was nominated as accused alongwith Kalu Ram, Mahesh, Chhotelal @ Chuttan, Lallu Ram, Hariman and Smt. Kamla. The appellant could not be arrested and the investigation was kept pending against him under Section 173(8) Cr.P.C. Later, the appellant was declared proclaimed offender. The trial against the above named co-accused concluded on 18.6.2010 and the Additional Sessions Judge, Bandikui, District Dausa convicted and sentenced the co-accused Kalu Ram, Mahesh, Chhotelal @ Chuttan, Lallu Ram, Hariman and Smt. Kamla as under:- Kalu Ram, Chhotelal @ Chhuttan, Lallu Ram and Hariman U/s. 376(2)(g) IPC: Sentenced to life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo one year rigorous imprisonment. Mahesh U/s. 376(2)(g) r.w. Section 109 IPC: Sentenced to life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo one year rigorous imprisonment. Chhotelal @ Chhutan, Smt. Kamla and Mahesh U/s. 498A IPC: Sentenced them to three years rigorous imprisonment, to pay a fine of Rs. 2000/- and in default thereof to undergo three months rigorous imprisonment. Mahesh U/s 342 IPC: Sentenced to undergo one year rigorous imprisonment. 2. The co-accused of the appellant aggrieved against the conviction and sentence had filed two separate appeals. Smt. Kamla had filed D.B. Criminal Appeal No.433/2010, whereas remaining co-accused preferred D.B. Criminal Appeal No.529/2010. 3. During pendency of the aforesaid appeals, the appellant was convicted and sentenced vide impugned judgment dated 17.5.2013 by the court of Additional Sessions Judge Bandikui, District Dausa as under:- U/s. 376(2)(g) IPC: Sentenced to life imprisonment, to pay a fine of Rs. 5000/- and in default thereof to undergo one year rigorous imprisonment and also directed to pay Rs. 10,000/- as cost to the prosecutrix. 4. The appellant has also instituted instant appeal to assail his conviction and sentence. 5. Vide a separate order of even date, we have decided two appeals, namely D.B. Criminal Appeal No.529/2010 preferred by Kalu Ram, Mahesh, Chhotelal @ Chuttan, Lallu Ram, Hariman and D.B. Criminal Appeal No.433/2010 filed by Smt. Kamla. 6. Lali (P.W.5) and Maya (P.W.6) two daughters of Mahesh Kumar Bairwa (P.W.1) were married with two brothers namely Mahesh and Suresh sons of Chhotelal. 6. Lali (P.W.5) and Maya (P.W.6) two daughters of Mahesh Kumar Bairwa (P.W.1) were married with two brothers namely Mahesh and Suresh sons of Chhotelal. Case of the prosecution is that on 20.5.2006 Maya (P.W.6) was subjected to gang rape by Mukesh present appellant, Kalu Ram, father-in-law Chhotelal @ Chuttan, Lallu Ram and Hariman due to abetment and connivance of her husband Mahesh son of Chhotelal @ Chhuttan. Mother of Mahesh, Smt. Kamla was also tried for offence under Section 498A IPC having subjected her two daughters-in-laws Lali (P.W.5) and Maya (P.W.6) to cruelty during subsistence of marriage. 7. Criminal proceedings were initiated on the basis of written report (Ex.P1) presented by Mahesh Kumar Bairwa (P.W.1) before Hari Charan Sharma (P.W.19) who was then posted as SHO, P.S. Manpur. In his written report (Ex.P.1) dated 22.5.2006 Mahesh Kumar Bairwa (P.W.1) stated that his two daughters Maya and Lali were married with two brothers Mahesh and Suresh sons of Chhotelal Bairwa and after marriage they had sent their elder daughter to the matrimonial home. Accused (boy side) demanded Rs. 50,000/- as dowry and then her husband performed unnatural acts with daughter, but the same were not disclosed by his daughter out of shame, she returned to her paternal house and had refused to go back to the matrimonial home. Thereafter Lallu Ram Meena Sarpanch, Ramdhan, Genda, Chhotelal alongwith two Prabhati Lal's came to his house and they sought forgiveness. Thereafter on 2.5.2006 he had sent both the daughters alongwith Mahesh and Suresh. On 19.5.2006 his Bhabhi Sanjha had gone to look after and ask the welfare of his daughters, then the accused demanded Rs. 10,000/- and her daughters told her that Mahesh used to do unnatural acts with his wife and father-in-law also tried to commit rape. The information on 20.5.2006 was relayed to Dy. Superintendent of Police. He called the accused but they had not responded. He further stated that Mukesh Bairwa, Kalu Bairwa and two other boys of Meena community were sent inside the house of accused for committing gang rape. 8. As stated by us earlier, Chhotelal @ Chhuttan, Kalu Ram, Lallu Ram, Hariman, Mahesh and Mulya @ Mool Chand were tried for offence of gang rape and Mulya @ Mool Chand was acquitted. Therefore, the prosecution case primarily rests on the testimony of Maya (P.W.6) who was subjected to gang rape. 8. As stated by us earlier, Chhotelal @ Chhuttan, Kalu Ram, Lallu Ram, Hariman, Mahesh and Mulya @ Mool Chand were tried for offence of gang rape and Mulya @ Mool Chand was acquitted. Therefore, the prosecution case primarily rests on the testimony of Maya (P.W.6) who was subjected to gang rape. To corroborate her testimony, another sister Lali has been examined as P.W.5. Before we take notice of the testimony of the victim and her sister, it will be apposite to have a glance over the testimony of various other witnesses. 9. Complainant Mahesh Kumar appeared as P.W.1 and deposed that his two daughters Lali and Maya on 16.5.2002 were married with two brothers namely Mahesh and Suresh. In the marriage he had given two cycles, two watches, two fans, two lady watches, jewelry and other household goods. After marriage when both the girls returned, they informed that in-laws are not satisfied with dowry and they had demanded Rs. 50,000/-. The complainant approached Prabhu Dayal, Phupha (uncle of the girls), he felt sorry and stated that he will make the accused see the reason. Then both the girls were sent to the house of in-laws. Still mother-in-law, father-in-law and husband were harassing the girls for dowry. Complainant called the girls back to his native place. In June, 2006, 10-15 persons from the village came and assured that they will not harass his daughters. On 2nd June both the girls were sent alongwith their husbands. Eldest daughter Maya informed that mother-in-law, father-in-law and husband have treated her in inhuman manner and actions of father-in-law were not according to norms. The girls further informed that accused had said that call your parents and tell them to bring Rs. 1 Lac, otherwise they would be confined and would be sold and got abducted by members of Meena community. On 15-16th June, Sanjha (aunt of girls) went to meet the girls and then they complained to her and Maya disclosed that mother-in-law, fatherin- law and husband are subjecting her to inhuman behaviour. Therefore, they be called back to the parental house. Then the complainant approached the Superintendent of Police and lodged the complaint. S.P. Sahab asked the in-laws to produce the girls. Next day was Sunday. On Monday they went to the office of S.P. Sahab and two policemen brought the girls. Condition of Maya was precarious. Therefore, they be called back to the parental house. Then the complainant approached the Superintendent of Police and lodged the complaint. S.P. Sahab asked the in-laws to produce the girls. Next day was Sunday. On Monday they went to the office of S.P. Sahab and two policemen brought the girls. Condition of Maya was precarious. Maya narrated the incident to her mother and told that she has been raped by four persons, namely Mukesh, Kalu, Lallu and Hariman. At that time her husband was also present. Lali informed that her mother-inlaw and sister-in-law had gagged her mouth and father-in-law was watching from the house. Moolchand was sitting on the chair. Number of persons were present who had watched the rape. Then he lodged a report at Police Station Manpur. 10. Meera (P.W.2) mother of both the girls supported the version given by her husband Mahesh Kumar (P.W.1) and corroborated his testimony. She further deposed that she was informed by Maya that she was subjected to rape by Mukesh, Kalu, Hariman and Mahesh. 11. Maya victim appeared as P.W.6. She stated that ten years before her deposition in the court she was married with Mahesh and her younger sister Lali was married with Suresh younger brother of Mahesh. After the marriage, both the sisters had gone to the house of their in-laws. After the marriage father-in-law, mother-in-law, elder brother of the husband used to beat her and demand dowry. The accused persons were harassing both the sisters. For 2-3 months they had not narrated the incident to anybody. When harassment had increased manifold, they informed their parents. Husband used to come under the influence of liquor and put fingers in her vagina. After six years of marriage, Sanjha aunt had come to visit in the house of in-laws. They narrated tale of their misery to the aunt. She further informed that in-laws were demanding Rs. 1 Lac and threatening that in case their father would come without taking money, they would be tied and both the sisters will be given beating. She further stated that on 20th Mukesh had dragged her inside the room. After the incident she had narrated the occurrence to her sister and Sarpanch Lallu Ram Meena. When she was subjected to rape, her father-in-law and mother-in7. law were sitting outside the house. They kept her confined in a room for two days. She further stated that on 20th Mukesh had dragged her inside the room. After the incident she had narrated the occurrence to her sister and Sarpanch Lallu Ram Meena. When she was subjected to rape, her father-in-law and mother-in7. law were sitting outside the house. They kept her confined in a room for two days. Policemen rescued them and she was brought before the Superintendent of Police where her parents were already present. She narrated the entire incident to him. He had sent her to police station where her father lodged a written report (Ex.P.1) on the basis of which a formal FIR (Ex.P.2) was registered. She handed over her sari, blouse, petticoat, underwear to the police vide memo (Ex.P.8). She was medico-legally examined and her medico-legal report was proved on record as Exhibit-P.9. 12. Lali (P.W.5) corroborated the testimony of her sister Maya (P.W.6) victim. She deposed that her mouth was gagged. Mukesh dragged Maya inside the room and she was subjected to rape by Mukesh, Kalu Ram, Lallu Ram and Hariman. At that time, her husband Mahesh was standing at the spot. 13. Dr. Anjana Bhargava (P.W.20) had examined Maya (P.W.6). As per case history given by the patient, it was noted in her bed head ticket that she was gang raped by 4-5 persons in presence of her husband. According to Dr. Anjana Bhargava (P.W.20), Maya (P.W.6) was habitual to sexual intercourse. 14. We need not notice the testimony of other witnesses who participated in investigation. 15. Suffice it to say that the entire prosecution case rests on the testimony of Maya (P.W.6) which has further been corroborated by the testimony of Lali (P.W.5). 16. After prosecution concluded its evidence, statement of the appellant was recorded under Section 313 Cr.P.C. He denied all incriminating circumstances and pleaded false implication. In defence, the appellant examined two witnesses. 17. The appellant himself appeared as D.W.1 and stated that seven years before the occurrence he had shifted to Delhi. He was not present on the day of occurrence and has been falsely implicated. 18. Mandori (D.W.2) also stated that for last 20-25 years he is staying at Pitampura at Delhi and Mukesh was also residing there and that on the date of occurrence, Mukesh was in Delhi and he has been falsely implicated. 19. He was not present on the day of occurrence and has been falsely implicated. 18. Mandori (D.W.2) also stated that for last 20-25 years he is staying at Pitampura at Delhi and Mukesh was also residing there and that on the date of occurrence, Mukesh was in Delhi and he has been falsely implicated. 19. Shri Karamveer learned counsel for the appellant has vehemently contended that due to matrimonial dispute, false allegations of rape have been levelled. Therefore, he stated that we should not place implicit reliance on the testimony of Maya (P.W.6) who has been duly corroborated by Lali (P.W.5) as both the witnesses have exaggerated the allegations and without any basis have introduced story of gang rape in an ordinary matrimonial dispute in order to settle scores. It is further contended that both the sisters Lali (P.W.5) and Maya (P.W.6) have given a parrot like statements being tutored. It is further stated that Mahesh Kumar (P.W.1) and Meera (P.W.2) being parents have also deposed against the accused being interested witnesses. Further, no independent witness has been examined to corroborate their testimony. Maya (P.W.6) being wife of accused Mahesh and a married lady was leading an active sexual life. Therefore, it cannot be assumed that medical evidence corroborate version unfolded by the witness. 20. Shri Aladeen Khan the learned Public Prosecutor and Shri Umesh Vyas learned counsel for the complainant have supported the judgment of the trial court by contending that the appellants have been rightly convicted. 21. Having heard the learned counsel for the parties and perusing the record we are unable to discard the testimony of Maya (P.W.6) which has been duly corroborated by Lali (P.W.5). Even if the marriage of Maya (P.W.6) and Lali (P.W.5) had broken and there was no hope for survival of the marriage, we are unable to accept the argument that they will falsely implicate the present appellants and thereby spoil chance of their remarriage. At the time of incident, Maya (P.W.6) was aged 21 years and Lali (P.W.5) was aged 20 years. They had a long life ahead. They will not level allegation of gang rape and thereby mar their future prospects of remarriage and settlement. Therefore, we shall place implicit reliance upon the testimony of Maya (P.W.6). At the time of incident, Maya (P.W.6) was aged 21 years and Lali (P.W.5) was aged 20 years. They had a long life ahead. They will not level allegation of gang rape and thereby mar their future prospects of remarriage and settlement. Therefore, we shall place implicit reliance upon the testimony of Maya (P.W.6). However, it is to be noted that Maya (P.W.6) while appearing in court has clearly stated that she was subjected to gang rape by Mukesh, Kalu Ram, Lallu Ram and Hariman. 22. Having upheld the conviction of accused Mukesh for offence under Section 376(2)(g) IPC, we are of the view that in the facts and circumstances of the present case it was not justified to award the maximum sentence of life imprisonment. Minimum sentence prescribed for the offence of gang rape is ten years. It has been held in the case of Sunil Dutt Sharma v. State (Govt. of NCT of Delhi) [ (2014) 4 SCC 375 ] that the court while awarding sentence has to balance the aggravating and mitigating circumstances. To us, no compelling reasons are discernible to award maximum sentence of life imprisonment. Furthermore, we cannot ignore that in the present case, occurrence had taken place in the year 2006 and the appellant is in custody for last 3 years, 6 month. He has faced agony and pain of a protracted trial for such a long period. 23. Taking totality of the circumstances, we are of the view that the sentence of life imprisonment awarded upon the appellant Mukesh for offence under Section 376(2)(g) IPC is excessive and the same is not called for. 24. Consequently, while upholding conviction of appellant Mukesh for offence under Section 376(2)(g) IPC, we reduce the sentence of life imprisonment to ten years rigorous imprisonment. We also impose fine of Rs. 10,000/- on the appellant and order that in default of payment of fine, he shall undergo one year additional rigorous imprisonment. However, we maintain the cost of Rs. 10,000/- so imposed by the learned trial court to be paid to the prosecutrix.The appeal stands disposed of accordingly.Appeal disposed of. *******