JUDGMENT : Kaushal Jayendra Thaker, J. 1. By way of this appeal, the appellant-Braj Kishore has challenged the Judgment and order dated 25.08.2008 passed by court of Additional Sessions Judge, Court No.3, Jhansi in Session Trial No.87 of 2007 arising out of Case Crime No.131 of 2006, under Section 376 Indian Penal Code (hereinafter referred to as 'IPC'), Police Station-Mauranipur, District Jhansi whereby the accused-appellant was convicted under Section 376 IPC and sentenced to imprisonment for life. 2. The brief facts as per prosecution case are that on 17.12.2006, a written report was submitted by Raj Kumar stating therein that on 16.12.2006 at about 4:30 p.m. the prosecutrix, a girl of 10 years of age, was returning to her House. On the way the accused-appellant met her. He took her in his house, committed rape with the prosecutrix and when she raised hue and cry, the accused-appellant ran away. The report of the incident was lodged on the next day at 1:20 a.m. i.e. in the night between 16/17.12.2006. A case crime No.131 of 2006 was registered at Police Station Mauranipur, District Jhansi under Section 376 IPC. 3. S.I.-Ram Naresh Singh took the investigation, visited the spot, prepared site plan, recorded statements of the prosecutrix and witnesses. Medical examination of prosecutrix was conducted by the doctor. 4. After completion of investigation, charge sheet was submitted against appellant - Braj Kishore under Section 376 IPC to the Magistrate trial Court. The case being triable by Court of Sessions, was committed by concerned Magistrate to the Court of Sessions for trial. 5. Trial Court framed charges against the appellant under Section 376 IPC. The accused denied the charge and claimed to be tried. The prosecution so as to bring home the charge, examined seven witnesses, who are as under:- 1. Kasturi Devi P.W.1 2. Prosecutrix P.W.2 3. Raj Kumar P.W.3 4. Ram Prakash P.W. 4 5. Dr. Alpana Bratariya P.W. 5 6. Ram Naresh Singh P.W. 6 7. R.L. Kureshi P.W. 7 6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence: 1. F.I.R. Ext. Ka-3 2. Written report Ext. Ka.2A 3. Statement of prosecutrix Ext. Ka-2 4. Recovery memo Ext. Ka-9 5. Recovery memo Ext. Ka-1 6. Injury report Ext. Ka-6 7. Injury report of prosecutrix Ext. Ka.5 8. X-Ray Report Ex.Ka.10 9. Site Plan Ex.Ka.7A 7. F.I.R. Ext. Ka-3 2. Written report Ext. Ka.2A 3. Statement of prosecutrix Ext. Ka-2 4. Recovery memo Ext. Ka-9 5. Recovery memo Ext. Ka-1 6. Injury report Ext. Ka-6 7. Injury report of prosecutrix Ext. Ka.5 8. X-Ray Report Ex.Ka.10 9. Site Plan Ex.Ka.7A 7. Heard Shri Rahul Misra assisted by Sri Raghuvansh Misra, learned counsels for the appellant, learned AGA for the State and also perused the record. 8. Perusal of record shows that occurrence of this case took place on 16.12.2006. The prosecution has alleged that the accused committed rape on ten year old daughter of complainant–Raj Kumar. The victim's statement under Section 164 Cr.P.C. was recorded by the concerned Magistrate. During the course of investigation, medical examination of victim was conducted and the medical report was prepared. Dr. Alpana Brtariya, conducted the medical examination. She in her evidence as PW-5 has stated that no spermatozoa was seen in the set smears. In her opinion, no definite opinion regarding rape could be given. Considering the x-ray report, the age of prosecutrix is 9-12 years. 9. The victim was examined as prosecution as PW-2. She reiterated what she had stated in her statement recorded under Section 164 Cr.P.C., the victim supported the prosecution version. In her statement before the Trial Court, she supported the prosecution version. Her mother-Kasturi Devi - PW-1 also supported the case against accused. 10. Complainant-father of the victim, Raj Kumar was examined as PW-3. He has proved the written report as Ex. Ka-2A which was submitted by him at police station for registration of the case against accused. 11. Learned counsel for the appellant would contend that on perusing the FIR, it was only a case of attempt to commit murder. However, on further statement of witness the police had filed charge sheet against the accused under Section 376 IPC also. 12. Learned AGA submitted that the age of victim at the time of commission of offence was just twelve years and as per the medical examination, she was found aged between 9-12 years. She has supported prosecution version in her statement and her testimony is supported with medical evidence. It is submitted that prosecution case is proved beyond doubt and accused is rightly convicted by the trial Court. 13. She has supported prosecution version in her statement and her testimony is supported with medical evidence. It is submitted that prosecution case is proved beyond doubt and accused is rightly convicted by the trial Court. 13. Learned Trial Court relied on the testimony of witnesses, mainly the testimony of victim coupled with medical evidence, convicted and sentenced the accused appellant for life imprisonment and fine under section 376 IPC. 14. After some arguments, learned counsel for the appellant submitted that he is not pressing this appeal on merits but prays for reduction of the sentence as the sentence of life imprisonment awarded to the appellant by the trial court is very harsh. Learned counsel for the appellant further contended that the medical evidence categorically showed that alleged incident took place on 16.12.2006 at 4:30 p.m.. There is a belated FIR. Seven witness who have been examined go to show that the FIR was ante timed and hence the sanity of FIR is also doubtful. The presence of PW1 and PW-3 are doubtful at the scene of occurrence. There is offence of opinion of rape that there were not external or internal injuries are found. The recovery of undergarment of accused and the victim is also very doubtful. The statement of victim was recorded under Section 164 Cr.P.C. The presence of PW-1 and PW-3 at the time of occurrence is not proved. 15. Learned counsel for the appellant has relied on the decision of Supreme Court in Rahim BEG & Another Vs. State of U.P. (1972) 3 SCC 759 and Bavo Alias Manubhai Ambalal Thakore Vs. State of Gujarat, (2012) 2 SCC 684 and contended that the case does not fall within the parameters for commission of rape and punishment for the said offence. 16. This case pertains to the offence of 'rape', defined under Section 375 IPC, which is quoted as under: [375. State of Gujarat, (2012) 2 SCC 684 and contended that the case does not fall within the parameters for commission of rape and punishment for the said offence. 16. This case pertains to the offence of 'rape', defined under Section 375 IPC, which is quoted as under: [375. Rape.-A man is said to commit "rape" if he- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions :- First.-Against her will. Secondly.-Without her consent. Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.-With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.-With her consent when, at the time of giving such consent, by reason of unsoundness of mind of intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.-With or without her consent, when she is under eighteen years of age. Seventhly.-When she is unable to communicate consent. Explanation 1.-For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.-Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. Seventhly.-When she is unable to communicate consent. Explanation 1.-For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.-Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.-A medical procedure or intervention shall not constitute rape. Exception 2.-Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.] 17. Factual scenario goes to show that the accused has been named in the FIR. It is not proved that there was any enmity between the parties, though there is some doubt. Learned counsel for the appellant contended that he would press for commutation of sentence from life to a lesser sentence. 18. A very recent judgment of Hon'ble Supreme Court titled as Manoj Mishra @ Chhotkau Vs. The State of Uttar Pradesh (Criminal Appeal No.1167 of 2021) decided on 8th October, 2021 is also considered by us. The facts were similar and, therefore, we cannot disagree with the finding of facts of the Court below but at the same time considering the factual scenario and sentencing the policy will permit us to reduce the life imprisonment to lesser punishment of incarceration as far as Section 376 IPC is concerned. 19. In Mohd. Giasuddin Vs. State of A.P., [ AIR 1977 SC 1926 ], explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court: "Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an 'in terrorem' outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries." 20. 'Proper Sentence' was explained in Deo Narain Mandal Vs. State of U.P. [ (2004) 7 SCC 257 ] by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the 'principle of proportionality'. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically. 21. In Ravada Sasikala vs. State of A.P., AIR 2017 SC 1166 , the Supreme Court referred the judgments in Jameel vs. State of U.P. [ (2010) 12 SCC 532 ], Guru Basavraj vs. State of Karnataka, [ (2012) 8 SCC 734 ], Sumer Singh vs. Surajbhan Singh, [ (2014) 7 SCC 323 ], State of Punjab vs. Bawa Singh, [ (2015) 3 SCC 441 ], and Raj Bala vs. State of Haryana, [ (2016) 1 SCC 463 ] and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system. 22. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream. 23. As discussed above, 'reformative theory of punishment' is to be adopted and for that reason, it is necessary to impose punishment keeping in view the 'doctrine of proportionality'. It appears from perusal of impugned judgment that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system. 24. Learned AGA also admitted the fact that appellant is languishing in jail for the last more than 14 years. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system. 24. Learned AGA also admitted the fact that appellant is languishing in jail for the last more than 14 years. Keeping in view of theory of 'doctrine of proportionality' as discussed above, the sentence awarded to the appellant seems harsh. Since, the appellant has already served 14 years of sentence and ends of justice would be met if sentence is reduced from life imprisonment to the period of ten years. 25. We find that there were no external injury or there were no external injury were found. The accused-appellant was a young man at the time when he committed the offence. Hence, the sentence awarded to the appellant by the learned trial-court is modified and is reduced to fourteen years rigorous imprisonment with all remissions and fine default sentence mentioned. 26. Accordingly, the appeal is partly allowed with the modification of the sentence, as above. Record be sent back to the Court below forthwith. 27. Release order be sent to the Jail Authority without waiting for detailed judgment.