JUDGMENT 1. - Appellant Ram Deen has been convicted under section 376 IPC and sentenced to ten years R.I. and a fine of Rs. 500/- and five years R.I. and a fine of Rs. 250/- under section 366 IPC by the learned Sessions Judge, Merta by his judgment dcated 11-12-85. He has filed this appeal through jail. 2. I have heard the Amicus Curiae and the learned PP and have gone through the record. 3. The prosecution story briefly stated is that Smt. Gendudi is a married daughter of Bhanwarlal PW 8. Her age as stated by the girl herself, her father Bhanwarlal and her mother Smt. Phoolki is about 13 years and has been estimated between 12 to 14 years by Dr.Vijai Singh, PW 13 on the basis of the x-Ray about the ossification of her bones. According to the prosecution, on 1-9-84 the accused Ram Deen came to the house of Bhanwar Lal and proposed to purchase a she-buffalo. As the buffalo had gone to the jungle, Bhanwar Lal told him so and thereafter Bhanwarlal and his wife left for the field leaving their daughter Smt. Gendudi at the house. In the noon in their absence Ram Deen again came to the house to enquire about the she-buffalo and when he was informed by Smt. Gendudi that the buffaloes were in the jungle. He asked Smt. Gendudi to accompany him to point out the she-buffaloes. He carried her on his bicycle towards the field but instead of going towards the field or the jungle, he took her away towards Ajmer-Kishangarh etc. In the evening when Bhanwar Lal and his wife returned home, they did not find Smt. Gendudi at the house and on enquiry they were told that she was seen in the company of Ram Deen. Bhanwar Lal states that he then made enquiries and searched Smt. Gendudi at various places, namely, Ajmer. Kishangarh Peendugan and did not find her whereabouts and thereupon he lodged a report in this respect at police station Padu Kalan on 9-9-84. The police registered a case and started investigations. It appears that in the meantime the accused carried Smt. Gendudi to various places. Some times on the bicycle and some times in the night in a truck. These places included villages Talab, Badodia, Kalyanpura, Borkheri, Raghunathpura etc. The police registered a case and started investigations. It appears that in the meantime the accused carried Smt. Gendudi to various places. Some times on the bicycle and some times in the night in a truck. These places included villages Talab, Badodia, Kalyanpura, Borkheri, Raghunathpura etc. Near Raghunathpara, while the accused was carrying Smt. Gendudi on his bicycle, he was accosted by Pritam Singh PW 14, he had come to know that a person had abducted a girl and was roaming about. He handed them over to the police. This was in the district of Bundi. The SHO Ganesh Lal received information about the arrest of the accused from Bundi. He thereupon arrested him in this case. Smt. Gendudi had been lodged in the rescue home at Kota and she was also recovered. From the statement of Smt. Gendudi it appeared that the accused had forcible inter-course with her without her consent and against her will. After completing the investigations the police put up a challan and the accused had been convicted and sentenced as aforesaid after trial by the learned Sessions Judge. It may be mentioned here that the fact that Smt. Gendudi had been in the company of the accused has not been denied by him. In his statement under section 313 Cr. PC he has clearly stated that Smt Gendudis mother Phoolki had sent Smt. Gendudi with him in order to earn by labour as Gendudis mother was his dharm-bahin and he had been visiting their house for the last 8 or 9 years. He has, of course denied the fact of having had sexual intercourse with Smt. Gendudi. 4. Since the fact that Smt. Gendudi had been in the company of accused and had been recovered by the police at the instance of Shri Pritam Singh PW 14, the fact that Gendudi had been taken away with him by the accused remains undisputed and rather admitted by the accused. The question is whether the accused had taken her without Consent and had sexual intercourse with Smt. Gendudi and whether that intercourse amounts to rape. 5. In this connection the most important question is the age of the girl, namely, Smt. Gendudi. The question is whether the accused had taken her without Consent and had sexual intercourse with Smt. Gendudi and whether that intercourse amounts to rape. 5. In this connection the most important question is the age of the girl, namely, Smt. Gendudi. I have already stated that Smt. Gendudi, her father Bhanwar Lal and her mother Smt. Phoolki have stated her age to be about 13 years and that has further been corroborated by the medical evidence because on the ossification test etc. the doctor has found her age to be between 12 to 14 years. Even if some relaxation in age on account of the indefinite nature of the medical evidence is to be taken into account her age does not appear to be above 16 as has been found by the learned Sessions Judge. The learned Amicus Curiae has, of course, urged that according to the statement of Smt. Phoolki the age of Smt. Gendudi must be taken to be about 18 years at the time of this incident since she states that her marriage had taken place about 25 years back and Gendudi was born after about seven years of the marriage which brings her age to be about 18 but this contention cannot be accepted because Smt. Phoolki is an illiterate lady and as a matter of fact she does not have a clear conception of the period because she admits that she does not have even the knowledge of counting above 25. She has not been able to give the details about the year of birth of Gendudi. On the other hand, PW8 Bhanwar Lal states that their marriage had taken place about 19 years age and Gendudi was born about six years after the marriage. This brings her age to be about 13 as has been stated by all these witnesses and is corroborated by the medical evidence. Thus there is no doubt that Gendudi was below 16 years of age at the time of this incident. Her consent would be material. Her mother denies having allowed the accused to taken her with him. The statement does not appear to be false. 6. Smt. Gendudi states that the accused had intercourse with her a number of times during the time she was in his company and had visited from places to places. Her consent would be material. Her mother denies having allowed the accused to taken her with him. The statement does not appear to be false. 6. Smt. Gendudi states that the accused had intercourse with her a number of times during the time she was in his company and had visited from places to places. The medical evidence, of course, does not establish any injury on any part of the body of Smt. Gendudi but in circumstances, the absence of these injuries is not material because in the first place she had been recovered from the possession of the accused after a considerable time after she had been abducted and had been forced to illicit inter course. In the second place, she states that she had been threatened by the accused by dire consequences if she disclosed to any body that she had been kidnapped or has been subjected to sexual intercourse and on account of owe of the accused she could not have put up any resistance. The medical evidence, of course, supports the statement of Smt. Gendudi to the effect that on medical examination semen was found on her ghaghara as well as the dhoti of the accused which had been taken in possession by the police and has been sent for chemical examination. It does not appear that the dhoti or the ghaghara had been interfered after they had been taken into possession by the police and they reached the chemical examiner or serologist. It may also be mentioned that there was no reason for Smt. Gendudi to falsely implicate the accused Bhanwar Lal and Smt. Phoolki had no reason to implicate him falsely. It may be mentioned that although, the prosecutrix Smt. Gendudi is about 12 to 14 years of age. The accused, according to his own statement is 62 years of age and looking to this disparity in age, it is not easily conceivable that Smt. Gendudi may have eloped with Ram Deen or she may have consented to have intercourse with the accused. In these circumstances there is no reason to disbelieve her statement when She states that she had been subjected to intercourse by the accused without her consent and against her will. In these circumstances the conviction of the appellant under section 376 IPC appears to he proper. 7. In these circumstances there is no reason to disbelieve her statement when She states that she had been subjected to intercourse by the accused without her consent and against her will. In these circumstances the conviction of the appellant under section 376 IPC appears to he proper. 7. Coming to the question of sentence, it may he stated that the accused is aged about 62 years. He has not denied the fact that Smt. Gendudi has been in his company, although he states that it was with the consent of her mother which faction denied by her mother. Smt. Gendudi also does not appear to have tried to get out of his company or to report to complaint to anybody. In these circumstances the sentence of 10 years R.I. under section 376 is a little harsh and excessive. The minimum sentence of 7 years along with fine provided that section would in my opinion meet the ends of justice. 8. I, therefore, partly allow this appeal and while maintaining the conviction of the appellant under section 376 IPC reduce the substantive sentence awarded to him to seven years R.I. The line under section 376 IPC as also the substantive sentence of five years R.I. and fine of Rs. 250/- under section 366 IPC are maintained. The substantive sentences shall run concurrently.Appeal partly allowed. *******