JUDGMENT 1. - Present appeal has been instituted by Shishram and Durgalal. They were tried by the Court of Additional Sessions Judge (Fast Track), No. 1, Jaipur City, Jaipur. 2. Case of the prosecution is that appellants who were brothers committed offence of gang rape with child (name of child withheld to protect her identity and hereinafter called as 'victim') aged 9 years daughter of complainant Ramnath (P.W.4). The trial Court vide its impugned judgment dated 22nd November, 2006 acquitted appellant Shishram of offence of gang rape under Section 376(2)G and 323 IPC. However, trial Court convicted Shishram of offences under Sections 366 and 376(2)(F) IPC for having committed the offence of rape with child less than 12 years of age. The trial Court also acquitted Durgalal of offence under Section 376(2)F, G IPC but held him guilty of offence under Sections 376(2)F read with Section 114 IPC. The trial Court came to the conclusion that Durgalal had abeted commission of offence of rape with a child aged below 12 years with Shishram. 3. Having convicted the above said offences, the trial Court vide a separate order of even date sentenced the appellant Shishram as under:- For offence under Section 376(2)F IPC: Life imprisonment and to pay a fine of Rs. 5000/-, in default thereof, to further undergo one year rigorous imprisonment. For offence under Section 366 IPC- Ten years rigorous imprisonment and to pay a fine of Rs. 2000/-, in default thereof, to further undergo three months rigorous imprisonment. 4. All the above sentences were ordered to run concurrently. 5. The trial Court sentenced the appellant Durgalal as under:- 6. For offence under Section 376(2)F/114- Life imprisonment and to pay a fine of Rs. 5000/-, in default thereof, to further undergo one year rigorous imprisonment. 7. Victim appeared in Court as P.W.6. She stated in Court that she along with her aunt (mausi) Santosh, Uncle (chacha) Rameshwar and brother Om had gone to pay obeisance at the mandir of Shankar. While returning, his uncle stopped at the shop of jewellery, and told the child to accompany her aunt (mausi), and wait for him at the bus stand. Uncle informed that he shall reach at the bus stand with tractor and then, shall take them to the house. For about half an hour, the victim along with her aunt waited for uncle Rameshwar to arrive. Uncle informed that he shall reach at the bus stand with tractor and then, shall take them to the house. For about half an hour, the victim along with her aunt waited for uncle Rameshwar to arrive. Since he had taken long, aunt (mausi) told the child to go and call her uncle. When she left to call her uncle, on the way, accused Shishram took her to his house where he committed rape with her and Durgalal had gagged the mouth of the victim to facilitate rape by his brother. 8. Shri Vinay Pal Yadav, appearing for the appellants has raised two arguments before us:- 9. He has submitted that there were no external or internal injuries suffered by the victim and furthermore, as per the ossification test conducted by Dr. N. L. Hissaniya (P.W.8), the age of victim was between 10 to 12 years. Counsel thus, has submitted before us that by extending margin of two years on either side, which is well accepted by the judicial precedents, we should hold the victim to be more than 12 years of age and acquit the appellants of offence under Section 376(2)F IPC. Shri Vinay Pal Yadav, counsel in alternate submitted that if we reject the contention regarding the age of the victim, then also, we should consider reduction of the sentence. Shri Vinay Pal Yadav has very fairly submitted that he has not assailed the testimony of victim and her parents so far as the commission of rape is concerned. Shri Yadav has only questioned the nature of offence and has prayed for reduction of the sentence. 10. A perusal of the medical examination of the victim by Dr. N.L. Hissaniya (P.W.8) reveals that right and left side of vagina was stitched. Therefore, we cannot say that the victim was not subjected to forceful penetration. It is true that as per the ossification test, age of the victim was determined between 10 to 12 years and even we extend the margin of one year, she will be above 12 years. But considering the gravity of the offence, accused-appellant No. 1 Shishram was party to take away the child to the house and accused-appellant No. 2 Durgalal had gagged the mouth of the child of the victim, we are of the view that clear cut case of gang rape is made out. But considering the gravity of the offence, accused-appellant No. 1 Shishram was party to take away the child to the house and accused-appellant No. 2 Durgalal had gagged the mouth of the child of the victim, we are of the view that clear cut case of gang rape is made out. A definition of gang rape makes the appellants guilty of the offence. To us, trial Court has committed a grave error in acquitting both the appellants for offence of gang rape punishable under Section 376(2)G IPC. Since State has not preferred any appeal regarding acquittal of the appellants for offence of gang rape, we shall not disturb the same. 11. Thus, granting benefit to the accused regarding age of victim, we acquit appellant Shish Ram of offence under Section 376(2)F IPC and hold him guilty of offence under Section 376 IPC. Similarly, Durga Lal is acquitted of offence under Section 376(2)F read with Section 114 IPC and is convicted for offence under Section 376 IPC read with Section 114 IPC. 12. However, taking aggravating and mitigating circumstances and reliance placed by the counsel for the appellants upon the judgment rendered by us in Chanda Lal @ Harchanda v. State of Rajasthan DB Criminal Appeal No. 947/2005 decided on 26th November, 2014 , we are of the view that it is not one of the rarest of the rare case, where we should uphold the life imprisonment. In case of Chanda Lal@Harchanda (supra), noticing the contention of counsel, in that case, we had observed as under:- " Shri N.A. Naqvi, Senior Counsel has also very fairly stated that taking the entire perspective of the case, he will only urge and pray before this Court that there were no aggravating circumstances available with the trial Court to award maximum sentence i.e. life imprisonment. The learned counsel has stated that to award the maximum sentence, there must be compelling reasons for the trial Court and such reasons are to be stated in the order whereby sentence is awarded. The learned Counsel has stated that recently Hon'ble Apex Court in case of Sunil Dutt Sharma v. State (Govt. of NCT of Delhi) reported as (2014) 4 SCC 375 while dealing with case of Section 304-B IPC had observed that Court should take notice of aggravating and mitigating circumstances while awarding sentence. The learned Counsel has stated that recently Hon'ble Apex Court in case of Sunil Dutt Sharma v. State (Govt. of NCT of Delhi) reported as (2014) 4 SCC 375 while dealing with case of Section 304-B IPC had observed that Court should take notice of aggravating and mitigating circumstances while awarding sentence. The learned counsel for the appellant has also placed reliance upon Bavo @ Manubhai Ambalal Thakore v. State of Gujarat AIR 2012 Supreme Court 979 to contend that Hon'ble Apex Court considering the agony of protracted trial has awarded minimum sentence of ten years. The learned counsel states that in the present case, incident had taken place 11 years ago i.e. in the year 2003 and since then, appellant is in the corridors of the Court. It is contended before us that since, appellant was not released on bail during the trial and his sentence was also not suspended during appeal, thus he continue to languish behind the bars since 04th September, 2003, when his formal arrest was effected. The learned Public Prosecutor except age of the prosecutrix could not divulge any other reason to persuade us to maintain the sentence awarded by the trial Court. Hence, taking ratio of law laid in Sunil Dutt Sharma (supra) which in turn had relied upon Sangeet and Another v. State of Haryana (2013) Volume 2 SCC 452 and taking aggravated circumstances i.e. age of the prosecutrix and the mitigating circumstance that the appellant is sole bread earner of the family, he is in the corridors of the Court from last 11 years, we follow the mandate of law laid in case of Bavo @ Manubhai Ambalal Thakore (supra) and while maintaining the conviction of the appellant, reduce the sentence of life imprisonment awarded upon the appellant by the trial Court to ten years rigorous imprisonment. However, we enhance the fine awarded by the trial Court from Rs. 5,000/- to Rs. 10,000/- while maintaining the default clause prescribed by the trial Court." 13. However, we enhance the fine awarded by the trial Court from Rs. 5,000/- to Rs. 10,000/- while maintaining the default clause prescribed by the trial Court." 13. Considering the observations by us in case of Chanda Lal @ Harchanda (supra) and the fact that both the appellants were party to the rape of the child, considering the same as aggravating circumstances and the fact that appellants are in the corridors of the Court from last 8-1/2 years, we are of the view that ends of justice will be fully met in case sentence of the appellants from life imprisonment is reduced to 12 years' rigorous imprisonment. 14. Consequently, altering the conviction as stated in earlier portion of the judgment, we reduce the sentence of life imprisonment awarded upon the accused-appellants by the trial court to 12 years rigorous imprisonment. However, we enhance the sentence of fine of Rs. 5,000/- awarded upon each appellant by the trial Court to Rs. 10,000/- qua each appellant and order that in default of payment of fine, the appellants shall undergo one year rigorous imprisonment. 15. With the modification in offence and reduction in the sentence i.e. from life imprisonment to twelve years, the present appeal stands disposed of by enhancing fine from Rs. five thousand upon each appellants to rupees ten thousand qua each appellant. The appellants in default of payment of fine, shall undergo one year rigorous imprisonment.Appeal Disposed of. *******