JUDGMENT : K.S. Jhaveri, J. 1. This appeal is filed against the impugned judgment and order dated 31.01.2011 passed by learned 2nd Additional Sessions Judge, Bharuch, in Sessions Case No. 25 of 2010. By the said judgment, the accused was held guilty for offences punishable under Sections 363,366, 376 and 302 of the Indian Penal Code (for short, "IPC"). For the offence punishable under Section 363 of IPC, the accused was ordered to undergo rigorous imprisonment for two years and to pay fine of Rs. 500/- and, in default of payment of fine, the accused was ordered to undergo further rigorous imprisonment for one month. For the offence punishable under Section 366 of IPC, the accused was ordered to undergo rigorous imprisonment for seven years. For offence punishable under Section 376 of IPC, the accused was ordered to undergo imprisonment for life with fine of Rs. 500/- and, in default of payment of fine, further rigorous imprisonment of two months was imposed. The accused was also convicted for the offence punishable under Section 302 of IPC and ordered to undergo imprisonment for life. All the sentences were to run concurrently. Being aggrieved by the impugned judgment, the accused has preferred present appeal. 2. The case of the prosecution is that the accused had took away the prosecutrix from the legal guardianship of her parents without their consent on 24.11.2009. It is alleged that on 24.11.2009 from 7 p.m. till 12 p.m. on 25.11.2009, the accused took her away and committed rape on her. The age of the prosecutrix at the time of offence was stated to be seven years. After committing rape, the accused killed the prosecutrix by throttling her neck. With these allegations, a complaint was filed against the accused before the police. 2.1 Upon filing of the complaint, investigation was carried out and the accused was arrested and charge-sheet was submitted in the Court of learned Magistrate. However, as the case was exclusively triable by the Court of Sessions, the same was committed to Sessions Court. Thereafter, charges were framed against the accused. The accused pleaded not guilty and claimed to be tried. 2.2 During the trial, the prosecution had examined following witnesses:- Sr. No. Name Exhibit 1 Natubhai Amasang Rathod. 15 2 Meenaben Jayantibhai Vasava. 17 3 Aayshaben Yusufbhai. 26 4 Madhuben Kalidas Vasava. 27 5 Arjunbhai Karsanbhai Prajapati. 28 6 Mohmadbhai Aadambhai Patel. Thereafter, charges were framed against the accused. The accused pleaded not guilty and claimed to be tried. 2.2 During the trial, the prosecution had examined following witnesses:- Sr. No. Name Exhibit 1 Natubhai Amasang Rathod. 15 2 Meenaben Jayantibhai Vasava. 17 3 Aayshaben Yusufbhai. 26 4 Madhuben Kalidas Vasava. 27 5 Arjunbhai Karsanbhai Prajapati. 28 6 Mohmadbhai Aadambhai Patel. 29 7 Akbar Abdul Saiyed. 6 8 Pratapsinh Raysinh Parmar. 10 9 Abdulhamid Abbas Diwan. 11 10 Gokulbhai Babarbhai. 13 11 Natvarbhai Jethabhai Rathod. 18 12 Mukeshbhai Ganpatbhai Rathod. 22 13 Dr. Vijay Motiram Baviskar. 33 14 Satishbhai Maganbhai Rathod. 37 2.3 The prosecution has also produced and relied upon following documentary evidence:- Sr. No. Description Exhibit 1 Panchnama of seizure of clothes of the deceased 7 2 Inquest panchnama of dead body of the deceased. 12 3 Panchnama of the place of offence drawn by IO. 14 4 Original complaint given by Natvarbhai Amarsang. 16 5 Panchnama of physical condition of the accused. 21 6 Panchnama of the place of offence shown by the accused. 23 7 Yadi written by IO to Mamlatdar for preparing map of the place of offence. 30 8 Panchnama regarding map carried out by Circle Inspector in presence of the panchas. 31 9 Map of the place of offence. 32 10 Postmortem note of the deceased. 34 11 Yadi written by IO to Medical Officer. Civil Hospital, Bharuch. 35 12 Certificate of physical condition of the accused given by medical officer. 36 13 Vardhi given by PSO to CPI. 38 14 Copy of the station diary of Bharuch Rural Police Station regarding registering the offence. 39 15 Yadi written by CPI, Bharuch to Scientific Officer for his visit 40 16 Report given by Scientific Officer after his visit. 41 17 Birth certificate of the deceased. 42 18 Dispatch note regarding sending muddamal to FSL, Surat. 43 19 Receipt of muddamal being received by FSL, Surat. 44 20 Report of FSL, Surat. 45 21 Letter written by CPI to Executive Magistrate for inquest. 46 22 Letter written by PSO to Circle Inspector, Bharuch for further investigation. 47 23 Letter written by FSL, Surat to CPI, Bharuch to take back muddamal. 48 2.4 At the end of trial, the Court below recorded further statement of the accused under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. 47 23 Letter written by FSL, Surat to CPI, Bharuch to take back muddamal. 48 2.4 At the end of trial, the Court below recorded further statement of the accused under Section 313 of Cr.P.C. and thereafter, passed the impugned judgment and order awarding the sentence, as aforesaid. Being aggrieved and dissatisfied with the impugned judgment of the trial Court, present appeal is preferred before this Court. 3. Mr. Manraj Barot, learned advocate appearing for the appellant-accused has taken us through the evidence and submitted that the impugned judgment and order is against the evidence on record. He submitted that the prosecution has failed to prove its case against the accused. He submitted that there is no eye witness to the incident and the accused is wrongly roped in. He submitted that so-called admission of the accused before the Medical Officer confessing about commission of the offence is not admissible as evidence and the accused cannot be convicted on that basis. He also submitted that there are discrepancies in the statements of the witnesses and some witnesses have also turned hostile. He submitted that this case is based on circumstantial evidence and the prosecution has failed to complete the chain, therefore, the accused is wrongly convicted by the trial Court. He also submitted that no independent witnesses have been examined by the prosecution in support of its case. He also submitted that there is no direct evidence connecting the accused with the crime and the trial Court has committed an error in convicting the accused. In view of above submissions, he prayed this appeal may be allowed, by setting aside the impugned judgment and the accused may be acquitted. 4. On the other hand, Ms. C.M. Shah, learned APP appearing for the State has submitted that the order of conviction recorded against the accused is just and proper and she has supported the conviction recorded by impugned judgment. She submitted that the trial Court has rightly appreciated the evidence on record and convicted the accused. She has taken us through the evidence on record and contended that the trial Court has not committed any error in convicting the accused. She has also taken us through the medical evidence and submitted that as per the opinion of the doctor, the prosecutrix was killed by throttling her neck. She has taken us through the evidence on record and contended that the trial Court has not committed any error in convicting the accused. She has also taken us through the medical evidence and submitted that as per the opinion of the doctor, the prosecutrix was killed by throttling her neck. She further submitted that the accused has also confessed about commission of offence before this witness. She also submitted PW-6, who is an independent witness, has also supported the case of the prosecution. She has also taken us through the postmortem report of the victim and submitted that there were abrasion and bruise marks were present on the neck of the victim. She also submitted that the reason of death of the deceased is stated to be asphyxia due to throttling. She also submitted that even the complainant and other witnesses have also supported the case of the prosecution. She further submitted that the age of the prosecutrix was just seven years and the fact that she was forced to leave the parental home without consent of her parents would be the material aspect and, therefore, Sections 363 and 366 of the IPC would be attracted. She has further submitted that the appellant-accused has committed sexual intercourse, therefore, the trial Court has rightly appreciated the evidence on record and convicted the accused for offence under Section 376 of IPC. She has taken us through the medical evidence and contended that since it is proved beyond reasonable doubt that the prosecutrix was seven years of age and the accused committed rape on her after taking her away from the custody of her guardians, the trial Court has rightly convicted the accused for the offence punishable under Section 376 of IPC. She also submitted that the dead body was also recovered at the instance of the accused and in view of confession of the accused before medical officer as well as before PW-6, the trial Court has rightly convicted him for the offence punishable under Section 302 of IPC. She has taken us through the medical evidence and evidence of the prosecution witnesses, who have supported the case of the prosecution and submitted that the accused is rightly convicted by the trial Court. She has taken us through the medical evidence and evidence of the prosecution witnesses, who have supported the case of the prosecution and submitted that the accused is rightly convicted by the trial Court. She submitted that this is a heinous crime and considering the evidence on record, the trial Court has rightly convicted the accused, therefore, this Court may not interfere with the impugned judgment and this appeal may be dismissed. 5. We have heard Mr. Manraj Barot, learned advocate for the accused and Ms. C.M. Shah, learned APP appearing for the State. We have also gone through the impugned judgment and the evidence on record. Before considering the case on merits, it would be profitable to refer to the Provisions of Section 363, 366 and 376 of the Indian Penal Code, which are as under:- "363. Punishment for kidnapping:- Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. XXX XXX XXX 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1 [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid]. XXX XXX XXX 376. XXX XXX XXX 376. Punishment for rape: - (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (1) Whoever: -(a) Being a police officer commits rape-- (i) Within the limits of the police station to which he is appointed; or (ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) On a woman is his custody or in the custody of a police officer subordinate to him; or (b) Being a public servant, takes advantage of his official position and commits rape on a woman is custody as such public servant or in the custody of a public servant subordinate to him; or (c) Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) Commits rape on a woman knowing her to be pregnant; or (f) Commits rape when she is under twelve years of age; or (g) Commits gang rape, 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." 6. We have gone through the evidence on record. From the postmortem report of the deceased, it is clear that there were abrasion and bruise marks on the neck of the deceased and the reason for death of the victim is stated to be asphyxia due to throttling. Therefore, it is clear that she has died an unnatural death. Natubhai Amarsang Rathod, PW-5, complainant, has stated in his evidence that since last 2-3 months the accused was residing with brother-in-law, Ganpatbhai Punabhai Vasava. He further stated that wife of Ganpatbhai went to her in-laws house and since they were having good relation, wife of the complainant was used to send meal for them. Natubhai Amarsang Rathod, PW-5, complainant, has stated in his evidence that since last 2-3 months the accused was residing with brother-in-law, Ganpatbhai Punabhai Vasava. He further stated that wife of Ganpatbhai went to her in-laws house and since they were having good relation, wife of the complainant was used to send meal for them. He further deposed that even the victim was frequently going to their house. He also deposed that on 24.11.2009, since their daughter was not present in the house, they inquired about her and upon inquiry, they were informed that she went to the house of Ganpabhai Vasava. He further deposed that when they inquired at the house of Ganpatbhai, no one was present there. However, at night at about 10 p.m. when he inquired the accused was sitting there and he told that he do not know as to where the victim has gone. Thereafter, on the next day, Jayantibhai and Meenben told the complainant that his daughter has been buried in a canal by the accused. PW-6, Meenaben Jayantibhai Vasava, Exh. 17 has deposed that on the date of the incident, the complainant came to her house to inquire about his daughter. She deposed that when inquired from the accused, he did not speak anything, however, he told that take me to Aaysaben and I will tell everything. Thereafter, when he was taken to Aaysaben in Anganwadi, that accused told that he had taken away the victim to a canal and committed rape on her and, thereafter, killed her. He also told that thereafter he buried the dead body of the deceased there. Thereafter the accused took them to the canal and showed the dead body of the victim. She further deposed that thereafter they went to the house of the complainant and informed him about these facts. PW-9, Aaysaben Yusufbhai, Exh. 26, has also stated these facts in her deposition. She has also deposed that the accused told her about the commission of offence and the manner in which he did it. PW-11, Arjunbhai Karshanbhai Prajapati, Exh. 28 has also deposed that on the date of the incident Sarpanch of the village called him and he went to the house of the complainant and came to know about the fact that his daughter was missing. PW-11, Arjunbhai Karshanbhai Prajapati, Exh. 28 has also deposed that on the date of the incident Sarpanch of the village called him and he went to the house of the complainant and came to know about the fact that his daughter was missing. On the next day, this witness was called by Aaysaben, Jayantibhai and Meenaben and he was informed that the accused has committed the offence and he wanted to show the place where she was buried. Thereafter, they went to canal and found the dead body of the victim. We have also gone through the panchnama of the dead body of the victim. From the panchnama it is clear that blood was coming out of the private part of the deceased-victim. We have also gone through the panchnama, Exh. 23, wherein it is clearly stated that the accused had willingly showed the place of offence. From this panchnama also it is clear that the accused had committed rape and murder of the victim and showed the place of offence. In view of above, it is clear that the accused has committed the offence. However, no semen or blood was found from the place of offence. In his evidence Dr. Vijay Motiram Baviskar, PW-13, Exh. 33, has clearly stated that the victim has died because of asphyxia due to throttling. He has also deposed that the injuries mentioned in column No. 17 of the postmortem report are possible if anyone commits rape. However, he has also stated that injury mentioned in column No. 15 regarding hymen rupture is possible if the finger is inserted forcefully in the private part. This witness has also examined the accused and stated that the accused has narrated the incident before him. He also deposed that injury No. 2 caused to the accused is possible if somebody tries to resist the commission of rape. However, the doctor stated that smegma was not found which is produced during penetration. Therefore, we are of the opinion that the trial Court has rightly convicted the accused for the offence punishable under Section376 of IPC, however, the sentence imposed upon him for this offence is required to be reduced to ten years of imprisonment instead of life imprisonment. 7. For the foregoing reasons, this appeal is partly allowed. Therefore, we are of the opinion that the trial Court has rightly convicted the accused for the offence punishable under Section376 of IPC, however, the sentence imposed upon him for this offence is required to be reduced to ten years of imprisonment instead of life imprisonment. 7. For the foregoing reasons, this appeal is partly allowed. The impugned judgment and order dated 31.01.2011 passed by learned 2nd Additional Sessions Judge, Bharuch, in Sessions Case No. 25 of 2010 is modified and, though conviction of the accused for offence punishable under Section 376 of IPC is confirmed, the sentence imposed upon him for this offence is reduced to ten years rigorous imprisonment. Fine is maintained. So far as conviction of the accused for offence punishable under Section 302 of IPC is concerned, the same is confirmed, however, we make it clear that life imprisonment means imprisonment for 20 years and the accused may be released after completion of imprisonment of 20 years. Remaining part of the impugned judgment shall remain unaltered. The period of sentence already undergone by the accused be given set off to him. Bail bond, if any, stands cancelled. Record and Proceedings be sent back to the concerned trial Court forthwith.