JUDGMENT 1. - Rajendra Kumar @ Raju, aged 22 years, son of Ramlal has instituted the present appeal to assail the judgment dated 2nd September, 2008, passed by learned Additional District & Sessions Judge (Fast Track), Chabbra, Distt. Baran whereby the appellant has been held guilty of offence under Section 376 IPC. Having held appellant guilty of offence under Section 376 IPC, the trial Court by a separate order of even date sentenced the appellant to life imprisonment, and to pay a fine of Rs. Five thousand, and in default thereof to undergo two years of rigorous imprisonment. 2. On 3rd March, 2008 at 10.30 A.M., Banwari Lal (P.W.1) presented a written report (Ex.P/1) before Jodharam (P.W.13), who was then posted as SHO, Kawai Distt. Baran. In the written report (Ex.P/1), Banwari Lal (P.W.1) claimed that on 02nd March, 2008 at about 12.00 noon, his wife Sanju Bai (P.W.2) was giving a bath to his daughter (name of daughter withheld in order to protect her identity, and hereinafter called as 'the victim'), and when she took her underwear for washing, she found the same was stained with blood, and human semen as the underwear had become hard. Wife of the complainant questioned the victim, i.e. the daughter of the complainant, she replied that three days ago, between 12 P.M. to 1.00 P.M., Raju s/o Ramlal Meena, resident of Lolahedi, called her for bringing a match stick from a shop. Having called the victim, accused took her inside the 'bada' where goats are tied, the accused made the victim fall on the ground, removed her underwear, first inserted a finger in the vagina, and then committed rape. The accused further threatened the child not to disclose the fact to her mother. The complainant further stated that the rape was committed by the accused when his daughter was alone. This incident was told to him by his wife. Feeling aggrieved and due to mental shock, report was not lodged by the complainant on the same date. The complainant alongwith his wife and victim came on the next date to the police station, lodged the report and prayed that the legal action be taken against the accused. 3. The above said FIR was investigated and a report under Section 173 Cr.P.C. Was submitted. The complainant alongwith his wife and victim came on the next date to the police station, lodged the report and prayed that the legal action be taken against the accused. 3. The above said FIR was investigated and a report under Section 173 Cr.P.C. Was submitted. The said report of investigation alongwith the accused was committed to the Court of Sessions; trial was entrusted to the Additional Sessions Judge (Fast Track), Chhabbra, Distt. Baran.The appellant was charged for offence under Section 376 IPC. 4. The charge stated that on 29th February, 2008 between 12 to 1 P.m. in Village Lolahedi, appellant committed rape upon daughter of the complainant, aged seven years, against her consent and thereby, he committed an offence punishable under Section 376 IPC. 5. Banwarilal appeared as P.W.1. He in Court reiterated as to what was stated by him in the written report (Ex.P/1). 6. Smt. Sanju Bai, mother of the victim appeared as P.W.2 and duly corroborated the testimony of her husband Banwarilal (P.W.1). 7. The victim herself appeared as P.W.3. She narrated, the entire incident and stated that accused had committed rape with her. 8. Murli Dhar appearing as P.W.4 has not supported the prosecution case, and was declared hostile witness. 9. Dr. Sneh Lata Shrangi (P.W.5), on 03rd March, 2008 had medico-legally examined the child and proved the medical legal report (Ex.P/5). The observations made by Dr. Sneh Lata Shrangi (P.W.5) in the medico-legal examination of victim reads as under:- "Opinion:- In my opinion there are injuries over external,genital and vaginal area and there is evidence of recent forceful sexual intercourse. Vaginal swab, saliva & blood sample taken sealed and forwarded to FSL for chemical examination." 10. In cross-examination Dr. Sneh Lata Shrangi (P.W.5) stated that rape was committed within 24 hours as in the vagina, there was a presence of fresh blood. 11. Dr. JP Yadav (P.W.6) had examined the accused and stated that there was nothing to suggest that accused was not capable of performing the sexual intercourse.Prosecution in all had examined thirteen witnesses. 12. Harveer Singh, (P.W.7), Head Constable, was in charge of the Malkhana. He has deposed regarding deposit of cloth of accused and the victim. 13. Nemi Chand (P.W.8), a Constable, deposed regarding the arrest of the accused on 05th March, 2008 and proved arrest memo (Ex.P/12). 12. Harveer Singh, (P.W.7), Head Constable, was in charge of the Malkhana. He has deposed regarding deposit of cloth of accused and the victim. 13. Nemi Chand (P.W.8), a Constable, deposed regarding the arrest of the accused on 05th March, 2008 and proved arrest memo (Ex.P/12). He further stated that at the time of arrest, underwear of the accused was taken into possession by Ex.P/13. Hari Narayan (P.W.9), a Constable has also deposed on similar lines. Harlal (P.W.10), has not supported the prosecution case. Dhanraj (P.W.11), was the Headmaster of the Government Primary School, Lolahedi. He proved the date of birth of the victim as 10th July, 1999. Babulal (P.W.12), was examined as a witness to prove preparation of the site plan (Ex.P/3). Jodharam (P.W.13), proved various facet of investigation. Prosecution closed its evidence. 14. Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. He pleaded innocence, and stated that he has been falsely implicated. 15. In defence, accused examined Devi Lal and Jag Mohan as DW-1 and DW-2 to prove his alibi. Both the witnesses stated that on the date of the incident, accused remained with them, and was not present at the place of occurrence. 16. Shri Vinay Pal Yadav appearing on behalf of Sanjay Singhal, counsel for the appellant, has very fairly stated that in view of the medical evidence, testimony of the victim which is duly corroborated by her father, Banwarilal (P.W.1) and her mother, Smt. Sanju Bai (P.W.2), he will not be in a position to assail the conviction. But he shall pray to this Court that the sentence awarded upon the appellant be reduced. Counsel for the appellant has submitted that trial Court was swayed to award maximum sentence of life imprisonment primarily on the ground that child was aged 7/9 years. Counsel for the appellant has submitted that appellant also on the date of incident was aged 22 years. It is further contended that for committing rape upon a child of less than 12 years of age, legislature has defined the offence under Section 376(2)(F) IPC and has prescribed minimum imprisonment of ten years rigorous imprisonment. Counsel states that where minimum sentence is prescribed, for awarding maximum sentence, there must be aggravating circumstance available with the prosecution. Counsel states that except age of the victim, nothing else was considered by the trial Court while awarding maximum imprisonment. Counsel states that where minimum sentence is prescribed, for awarding maximum sentence, there must be aggravating circumstance available with the prosecution. Counsel states that except age of the victim, nothing else was considered by the trial Court while awarding maximum imprisonment. To fortify the above submission, the counsel for the appellant has relied upon a judgment rendered by us in a case of Chanda Lal @ Harchanda v. State of Rajasthan (DB Criminal Appeal No.947/2005 decided on 26th November, 2014) . Counsel for the appellant has submitted that in the case of Chanda Lal @ Harchanda (supra) age of the victim was also 51/2/6 years and this Court has dealt with the prayer of the counsel for Chanda Lal @ Harchanda by observing 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 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. 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." 17. We find no reason to take a contrary view. Thus, following the judgment rendered by us in Chanda Lal @ Harchanda (supra), as appellant is also a sole bread earner of the family, he was in his youth when offence was committed and is in corridors of Courts for last about seven years, hence, we reduce the sentence of life imprisonment awarded upon the appellant by the trial Court, to ten years rigorous imprisonment. However, we enhance the fine of Rs. 5000/- awarded by the trial Court to Rs. 10,000/- and in default of payment of fine, the appellant shall undergo one year of rigorous imprisonment. 18. With the above modification and reduction in the sentence i.e from life imprisonment to ten years, the present appeal stands disposed of by enhancing fine from Rs. five thousand to Rs. ten thousand. The appellant in default of payment of fine, shall undergo one year rigorous imprisonment.Appeal partly allowed. *******