JUDGMENT : Gopal Krishan Vyas, J. 1. In this criminal appeal filed under Section 374 of Cr.P.C., the accused appellant, Matin Khan, has challenged the judgment dated 21st December, 2005 passed by learned Addl. Sessions Judge (Fast Track) No. 2, Pali (for brevity, hereinafter referred to as Trial Court') in Session Case No. 79/2005, whereby the accused appellant was convicted for the offences under Sections 376 and 363 of IPC and following sentence was passed which reads as under: "376 of IPC: Life Imprisonment and fine of Rs. 1000/- and in default of payment of fine, to further undergo three years' rigorous imprisonment. 363 of IPC: Three Years' rigorous imprisonment along with fine of Rs. 500/-, in default of payment of fine, to further undergo six months' simple imprisonment." FACTS OF THE CASE: 2. The complainant, P.W.3, Firoz S/o. Murad, submitted a written report (Ex. P/1) against unknown persons at Trauma Centre, Bangad Hospital, Pali, at about 11.55 PM on 21.06.2005 to the S.H.O., Police Station Kotwali, Pali, in which following allegations were levelled with respect to rape committed with his ten years' old daughter Ms. "R": ^^lsok esa Jheku Fkkuk vf/kdkjh iqfyl Fkkuk dksrokyh ikyh fo"k; & fjiksVZ ntZ djus ckcrA Jheku fuosnu Qhjkst iq= eqjkn HkkbZ tkfr fejklh eqlyeku fuoklh cgjkeiqjk ¼vgenkckn½ gky eLrku ckck njxkg ds ikl ikyh ;g gS fd vkt rkjh[k 21@6@05 dks eS 'kke dks djhc 7 cts ds vkl ikl dksfguwj cS.M+ I;kjk yksd ikyh ls esjs ?kj eLrku ckck tk jgk Fkk rc xyh es esjh cPph Ms. “R” mejh djhc 10 lky jkLrs pyrh feyh eSus iwNk dgk tk jgh gS rks dgk eS [ksyus tk jgh gwaA rc eSus dgk ?kj okil tYnh vkuk fQj eSa ?kj pyk x;k rFkk eSaus jksVh [kkdj fQj eS o esjh vkSjr jser nksuks edku ds lkeus tkds cSB x, djhc 9 1@2 cts rd Ms. “R” okil ?kj ugh vkbZ rks eS mldks ysus ?kyh es njxkg dh rjQ tk jgk Fkk rks Ms. “R” eq>s nhik th jko ds ?kj ds lkeus vkrh fey xbZ esjs lkFk ?kj pyh ?kj esjk edku nhikjke ds ?kj ds ikl gh gSA Ms. “R” okil ?kj ugh vkbZ rks eS mldks ysus ?kyh es njxkg dh rjQ tk jgk Fkk rks Ms. “R” eq>s nhik th jko ds ?kj ds lkeus vkrh fey xbZ esjs lkFk ?kj pyh ?kj esjk edku nhikjke ds ?kj ds ikl gh gSA Ms. “R” ?kj vkrs gh mldh vEeh ls fyiV dj jksus yxh vkSj dgk fd eq>s ,d vkneh idM+ dj ys x;kA rc eS o esjh vkSjr jsger us pqi fd;k rFkk eSus esjh vkSjr dks dgk rq bldks vUnj ys tkdj ns[k o iwNrkN dj r cog dejs esa ys x, FkksM+h nsj ckn ckgj vkb o eq>s dgk fd Ms. “R” ds diM+s [kwu ls Hkjs gSA rc eSus o esjh vkSjr us Ms. “R” ds diM+s [kwu ls Hkjs gSA rc eSus o esjh vkSjr us Ms. “R” ls iwNk fd D;k ckr gqbZ dSls gqb rc mlus crk;k fd eS eukst eksVj eLRkku ckck ds ikl cPpks ds lkFk [ksy jgh Fkh rc ,d vkneh toku mez dk esjs ikl vk;k vkSj eq>s Xkksyh nh vkSj nks :i;k dk flDdk fn;k rFkk eq>s dgk rsjs firk dk QksVw crkrk gwa esjs lkFk py rc esa mlds lkFk xbZ rks og eq>s jko.k ds pcwrjk dh rjQ gksdj cl LVS.M+ ds vkxs tkMh;ks dh rjQ lqulku txg ij ys x;k vkSj eq>s tehu ij uhps iVd nh eS fpYykus yxh rks esjs eqag ij FkIiM+ ekjh vkSj ukd ij Hkh ekjh ftlls esjs ukd ls [kwu Hkh fudyk vkSj esjh lyokj mrkj nh vkSj [kqn dh isaV [kksy dj esj mij uaxk gksdj lks x;k vkSj esjs is'kkc djus dh txg ij viuh uquh ls esjs lkFk [kksVk dke fd;k ftlls esjs is'kkc dh txg ls [kqu fudyus yxk vkSj nnZ gksus yxk eS fpYykus yxh rks esjk eqga nck fn;k eq>s ogh mlus esjs mij iMs iMs dgk esjk uke jQhd gS eS lCth e.M+h esa dke djrk gwa eSus iwNk og dSlk Fkk tks mlus crk;k fd og 'kjhj esa etcwr o lkoys jax dk toku mez dk Fkk rFkk mlus gjs jax dk cqlV o dFkbZ Hkwjh isaV igus dks crk;kA og esjs lkFk [kksVk dke dj og eq>s ogh iM+h dks NksM+ dj Hkkx x;k fQj eSa mB dj gkLihVy vk xb cPph ds dgs vuqlkj fjiksVZ is'k djrk gwaA vKkr mijksDr gqfy, ds cnek'k us esjh ukckfyd yM+dh dks cgyk Qqlykdj ehBh xksyh nsdj esjk QksVks crkus dk tk >klka nsdj mldks mBk dj lqulku txg esa ys tkdj mlds lkFk cykRdkj fd;k gSA fjiksVZ is'k djrk gwa dkuwuh dk;Zokgh djkosA^^ 3. Upon the aforesaid complaint submitted by the complainant, formal F.I.R. No. 306/2005 (Ex. P/32) was registered on 22.06.2005 at Police Station- Kotwali, Pali, for the offences under Sections 365 and376 of IPC and thereafter investigation was commenced. During investigation, accused appellant was arrested on the basis identification narrated by the prosecutrix "R" vide Arrest Memo (Ex. P/13). The proceedings for identification was also conducted in the District Jail, Pali on 23.07.2005 in the presence of Judicial Magistrate, Pali, vide Ex. During investigation, accused appellant was arrested on the basis identification narrated by the prosecutrix "R" vide Arrest Memo (Ex. P/13). The proceedings for identification was also conducted in the District Jail, Pali on 23.07.2005 in the presence of Judicial Magistrate, Pali, vide Ex. P/43 in which prosecutrix identified the accused appellant and corroborated the allegation of rape against the appellant. The medical examination of prosecutrix as well as appellant, Matin Khan, was conducted in the hospital, and the medical examination report of prosecutrix Ms. "R" was prepared vide Ex. P/22 and injury report (Ex. P/23) was also prepared. After examination of the body of the accused, Matin Khan, Injury report as well as medical report of the accused appellant were also prepared vide Ex. P/24 and Ex. P/27 respectively during the course of investigation. Due to rape committed with the prosecutrix, her physical condition become serious, therefore, for further treatment she was referred from Bangad Hospital, Pali after MLC to the Ummed Hospital, Jodhpur, where she was admitted on 22.06.2005 and remain hospitalized for treatment up to 04.07.2005. In between that period, the prosecutrix had to undergone operation, which is evident from document Ex. P/48. 4. Upon the information given by the accused appellant under Section 27 of the Evidence Act, the clothes and other articles were recovered and place of occurrence was also identified by the accused during investigation. 5. The other necessary investigation was also conducted and the seized articles, viz. clothes and other articles were sent for chemical analysis to the FSL to ascertain the fact of rape upon the prosecutrix, and in return 4 FSL reports vide Ex. P/36, Ex. P/37, Ex. P/38 and Ex. P/39 were received. After completion of investigation, charge sheet was filed against the appellant under Sections 365 and 376 of IPC in the court of Chief Judicial Magistrate, Pali, from where the case was committed to the Sessions Judge, Pali, but later on transferred to the court of learned Addl. Sessions Judge (FT) No. 2, Pali for trial. 6. The learned trial court after providing an opportunity of hearing to the accused appellant framed charges against the appellant under Sections 363, 365 and 376 of IPC and the same were read over to the accused appellant, which he denied and prayed for trial. 7. During trial, statements of 26 prosecution witnesses were recorded and certain documents were also got exhibited. 8. 7. During trial, statements of 26 prosecution witnesses were recorded and certain documents were also got exhibited. 8. Learned trial court after recording the evidence of prosecution evidence, proceeded to record the statements of the accused appellant under Section 313 of Cr.P.C., in which the accused appellant denied all the allegations made by the prosecution witnesses and stated that a false case has been registered against him and witnesses, Hakim, Deeparam, Abid, Farukh assaulted him and said that you leave Pali, else we will indulge you in a false case because due to my business, they suffer financial loss. It is further said that on 18th June I went Udaipur and I remained at Udaipur till 26th June and from Udaipur I went to Jaipur, therefore, all the allegations levelled by the prosecution witnesses are false. In defence, no evidence was produced by the accused appellant. 9. The learned trial court after providing opportunity of hearing to both the parties convicted the accused appellant for the offence under Sections 363 and 376 of IPC vide judgment dated 21.11.2005, which is under challenge in this appeal. 10. The instant appeal was filed initially by Mr. S.S. Dhillon, Advocate, but at the time of hearing on 21.11.2016 nobody remained present, therefore, notice was issued to the appellant to make alternative arrangement to argue his appeal. Although notices were served but nobody put-in appearance on behalf of accused appellant. Therefore, Mr. Dileep Sharma was appointed as amicus curiae to argue this appeal. 11. Learned amicus curiae vehemently argued that the prosecution case is totally false and based upon concocted story because in the F.I.R., the prosecutrix said that accused appellant, who has committed rape with him, stated that my name is Rafiq, working in Sabji Mandi and gave details of his physic but it is very unfortunate part of the accused that although the prosecutrix specifically disclosed the name of accused, however, the appellant, Matin Khan, was arrested illegally for the alleged offence of rape with prosecutrix Ms. "R", therefore, the whole prosecution story is based upon fabricated evidence so as to connect the accused with the alleged crime of rape. 12. "R", therefore, the whole prosecution story is based upon fabricated evidence so as to connect the accused with the alleged crime of rape. 12. Learned amicus curiae submitted that there is no eye witness in this case, so also, before identification parade, photograph of accused appellant was already shown to the prosecutrix, therefore, evidence of identification in District Jail, Pali, before the Magistrate cannot be relied upon so as to connect the accused appellant with the alleged crime. 13. It is also argued that the appellant has falsely been implicated by the so-called witnesses because for his presence out of Pali, accused gave explanation in his statements recorded under Section 313 Cr.P.C. The evidence of last seen by the P.W.18, Jalaram, which has been taken into consideration for the purpose of holding the accused appellant guilty, has no relevance with regard to the incident because the day on which the offence was committed with the prosecutrix, the appellant was out of town and, therefore, the entire prosecution case is false. 14. Learned amicus curiae submitted that although clothes of accused appellant were recovered and sent to FSL and as per FSL report, on the clothes of prosecutrix semen was found, so also in the injury report, injuries were found upon the body of accused but for commission of rape with prosecutrix, the accused appellant cannot be held guilty because there is no eye witness, so also, in the FIR it is stated by complainant, Firoz, father of the prosecutrix, that as per information of prosecutrix, name of accused was Rafiq and not Matin Khan, therefore, the evidence upon which the trial court held the accused appellant guilty, deserve to be quashed and set aside. 15. Learned amicus curiae further submitted that although it is admitted fact that the accused appellant was residing in the area and was consuming 'Ganja' along with Ishaq Bhai (P.W.6), but mere fact that the appellant was residing in the area where family of prosecutrix is residing, cannot be taken on account as an evidence so as to hold accused appellant guilty because there is no trustworthy witness of the incident, more so, the appellant was out of town on the date of incident. Therefore, the judgment impugned may kindly be quashed. 16. Therefore, the judgment impugned may kindly be quashed. 16. In the alternative, it is submitted that if this Court is not inclined to accept the above arguments, then also, the sentence of life imprisonment imposed against the appellant, is excessive because the maximum punishment can be imposed after recording specific reasons for seriousness of the offence in view of judgment render by Hon'ble Apex Court in the case of Sunil Dutt Sharma v. State (Govt. of NCT of Delhi) reported in (2014) 4 SCC 375 , which was relied upon by this Court in the case of Gyarsi Lal v. State of Rajasthan reported in 2016 (1) Cr.L.R. (Raj.) 415, in which rape was committed with five years' girl but while following the verdict of Hon'ble Apex Court in the case of Sunil Dutt Sharma (supra), the sentence has been reduced from life imprisonment to ten years rigorous imprisonment looking to the facts and circumstances of the case. 17. On the other hand, learned Public Prosecutor opposed the prayer made by the learned amicus curiae and argued that although in the FIR lodged by the father of the prosecutrix, it was stated the prosecutrix gave information for commission of rape with her by Rafiq, and so also, gave physical details of the accused, upon which investigation was conducted. All the suspects of the area concerned were called during investigation for the purpose of investigation and during investigation, witness Jalaram, specifically stated that on the date of incident, appellant came to his hotel situated in the area and purchased two Cavendor Cigarette and Toffee (mango fruity) and paid 10/- rupees, thereafter gave him back two coins of 5/- and 1/-. It was also informed that the accused appellant was going towards Manoj Motors along with a small girl situated at Sabji Mandi Road. The said independent witness i.e. P.W.18- Jalaram who was running his hotel near Manoj Motors, specifically reiterated before the court on oath that he saw the accused appellant going along with a small girl on the date of incident. The trial court considered the evidence of last seen as well as evidence of identification by the prosecutrix in jail, where the prosecutrix identified the accused appellant in the presence of magistrate. It is further argued that the clothes of the prosecutrix, so also, semen of accused appellant, Matin Khan and blood swab of Ms. The trial court considered the evidence of last seen as well as evidence of identification by the prosecutrix in jail, where the prosecutrix identified the accused appellant in the presence of magistrate. It is further argued that the clothes of the prosecutrix, so also, semen of accused appellant, Matin Khan and blood swab of Ms. "R" was sent for examination to the FSL, in which positive report (Ex. P/39) was recorded, therefore, the learned trial court after taking into consideration the entire facts and evidence on record, so also, the fact that due to rape committed upon the prosecutrix, held accused appellant guilty because she became unconscious and was admitted in the hospital, where she remained admitted from 22.06.2005 to 04.07.2005, and operation was also conducted in Ummed Hospital, Jodhpur. Therefore, the accused appellant has been held guilty for offence under Sections 376 and 363IPC by the learned trial court, therefore, no interference is called for in this appeal looking to the seriousness of the offence committed by the accused. 18. After hearing the learned counsel for the parties, we have perused the entire evidence. Admittedly, the FIR No. 306/2005 was registered on 22.06.2005 against unknown person u/s. 365 and 376 of IPC upon a complaint made by complainant, Firoz, father of the prosecutrix. The said complaint was submitted at Bangad Hospital, Pali, where the prosecutrix was under treatment. After MLC due to critical condition of the prosecutrix, she was referred to Ummed Hospital, Jodhpur for further and better treatment. The prosecutrix was admitted at Ummed Hospital, Jodhpur on 27.06.2005 and she remained there up to 04.07.2005. In between the said period, she was operated by Dr. Uma Bissa (P.W.24). 19. A thorough investigation was conducted by the Investigating Officer/S.H.O., Police Station Kotwali (P.W.23-Mohanlal). During investigation, accused appellant was arrested on the basis of evidence of last seen by the witness P.W.18 Jalaram, and to prove the said fact, witness P.W.18-Jalaram, specifically stated before the court that on the date of incident, he saw the accused appellant, Matin Khan, near Manoj Motors when he was going with a small girl towards Sabji Mandi road. The prosecutrix as well as accused appellant, were medically examined during investigation by the doctors and to prove the said fact, statements of three doctors viz. P.W.13, Dr. Sunita Joshi, P.W.14, G.N. Arora, and P.W.25 Sunil Kothari and P.W.24 Dr. The prosecutrix as well as accused appellant, were medically examined during investigation by the doctors and to prove the said fact, statements of three doctors viz. P.W.13, Dr. Sunita Joshi, P.W.14, G.N. Arora, and P.W.25 Sunil Kothari and P.W.24 Dr. Uma Bissa, who conducted the operation of prosecutrix at Ummed Hospital, Jodhpur were recorded during trial and all these witnesses proved that rape was committed with prosecutrix. 20. In the FSL reports, it was clearly reported that semen was found upon the clothes of prosecutrix and accused, vide Ex. P/36, Ex. P/37 and Ex. P/38, which loudly speaks that the prosecution has proved its case beyond reasonable doubt. 21. We have also perused the injury report of Ms. "R" (Ex. P/23) dated 21.06.2005 in which six injuries were found upon the body of prosecutrix. The prosecutrix was medically examined at 11.15 PM on 21.06.2005 in Bangad Hospital, Pali, which is evident from the document Ex. P/22 in which injuries are mentioned and there is specific report about bleeding upon her private part. The recovery of handkerchief ¼:eky½ and other material recovered on the basis of information given by the accused appellant has been proved, so also, identification parade was conducted in District Jail, Pali, in front of Judicial Magistrate, Pali on 23.07.2005, in which the prosecutrix identified the accused appellant and at the time of recording her statements in the court as P.W.1, prosecutrix Ms. "R" specifically said that, ^^eS gkftj vnkyr eqyfte dks tkurh gwa] ;g vkneh gS tks eq>s idM+dj ysdj x;k FkkA eS ,tsUlh ds ckgj [ksy jgh Fkh rks blus dgk fd rsjs ikik dk QksVks nsrk gwa] eSus dgk fd ugh pywaxh rks ;g esjk gkFk idM+dj ysdj x;k] blds ckn esa eq>s xksn esa mBkdj] jko.k pkSrjk ys x;k] ogka ls eq>s lquh >kfM+;ks esa ys x;k] fQj blus esjs diM+s [kksys] blds ckn mlus vius [kqn ds Hkh diM+s [kksys vkSj esj mij lks x;k] blds ckn mlus viuh is'kkc djus okyh esjh is'kkc djus okyh es Mky nh] blls esjh is'kkc djus okyh txg ls [kwu vk;kA blds ckn blus eq>s nks :i;s o xksyh nh vksj dgk fd ;g lh/kk jkLrk gS] pyh tkA eS jko.k pcwrjk ls vius ?kj dk jkLrk tkurh Fkh D;ksfd eS ogka ij xklysV ysus ds fy;s tkrh FkhA eq>s tc ;g ysdj x;k ml le; jkr gks x;h FkhA tc blus viuh is'kkc djus okyh esjh is'kkc djus okyh txg ij Mkyh rks eS fpYyk;h Fkh rks blus esjs eqga esa :eky Mky fn;k FkkA blus esjs lkFk vkSj dqN ugha fd;kA gkftj vnkyr eqyfte us eq>s viuk uke jQhd crk;k FkkA ftl le; eS ,tsUlh ds ckgj [ksy jgh Fkh ml le; esjs lkFk ulhe] uxek o eksfcu Hkh [ksy jgh FkhA^^ 22. In view of the fact that prosecutrix has specifically identified the accused appellant in jail in front of Magistrate, so also, in her statements recorded in the court as P.W.1, it is proved by her that accused appellant present in the court has committee rape with her and at the time of incident he said that my name is Rafiq. In view of above evidence the prosecution has proved its case beyond reasonable doubt, therefore, trial court recorded the finding of guilt against the accused appellant. 23. We have also considered the arguments of learned amicus curiae and learned Public Prosecutor in the light of evidence available on record. In our opinion, it is a case in which a serious offence has been committed by the accused appellant of rape with a ten years' old girl and not only forcibly in cruel manner but six injuries were caused by the appellant on the body of prosecutrix. In our opinion, it is a case in which a serious offence has been committed by the accused appellant of rape with a ten years' old girl and not only forcibly in cruel manner but six injuries were caused by the appellant on the body of prosecutrix. It is also admitted fact of the case that for treatment, the prosecutrix remained in hospital from 22.06.2005 to 04.7.2005, in between the said period, operation was also conducted by the doctor at Ummed Hospital, Jodhpur, therefore, no interference is called for in the sentence awarded to the accused appellant. 24. So far as law laid down by Hon'ble Apex Court in the case of Sunil Dutta Sharma (supra) is concerned, it is true that the said verdict has been followed by a coordinate bench of this Court in the Gyarsi Lal's case and Subhash v. State (D.B. Cri. Appeal No. 147/2010, decided on 03.01.2017, however, the said ratio is not applicable to the case in hand looking to cruelty and gravity of offence committed by the accused appellant with a ten years' old girl. Therefore, we are not inclined to take any lenient view to disturb the sentence of life imprisonment imposed by the learned trial court for committing offence of rape punishable u/s. 363 and 376 of IPC. 25. In view of above discussion, we find no force in the instant criminal appeal and the same is hereby dismissed.