DEEPAK MISRA, J. ( 1 ) THIS appeal by the sole appellant (hereinafter referred to as the 'accused') has been preferred against the judgment and order of the learned Addl. Sessions Judge, Jashpur passed in Sessions Case No. 160/95 whereby he has been convicted under Ss. 363, 366 and 376 of the Indian Penal Code (In short the 'ipc') and sentenced to undergo rigorous imprisonment for three years on each count and to pay fine of Rs. 500/- on each count, in default, to further undergo simple imprisonment for three months for each offence. ( 2 ) STATED briefly, the prosecution case is that in the early hours of the evening on 23-4-1995 the prosecutrix, P. W. 1, being told by a young boy named Narayan, proceeded towards a nearby Banyan tree. The accused, who was previously present there, asked the victim to accompany him and took her to village Pirai and kept her in the hut belonging to one Neelamurson for two days and had forcible sexual intercourse with her on three occasions. As allegations proceeded, she, being alone, could not raise alarm nor could she protest. When the situation remained thus, her uncle arrived, a panchayat was convened in the said village and thereafter she was brought back to her house where she narrated the entire incident in great details before her mother. Her uncle lodged an FIR, Exhibit P-7, at the police station. After the criminal action was set in motion, the investigating agency sent her and the accused for medical examination, seized their wearing apparels and sent for forensic examination; recorded statements of certain witnesses and after completing other formalities laid chargesheet before the competent Court which in turn, committed the matter to the Court of Session. ( 3 ) THE accused abjured his guilt and pleaded false implication. ( 4 ) IN order to bring home the charge against the accused the prosecution examined 12 witnesses in toto. P. W. 1, is the prosecutrix; P. W. 2, Rohit Kumar, is the father of the victim girl; P. W. 3, Prakashram Yadav, is the informant; P. W. 4, Balibai, is the mother of P. W. 1; P. Ws. ( 4 ) IN order to bring home the charge against the accused the prosecution examined 12 witnesses in toto. P. W. 1, is the prosecutrix; P. W. 2, Rohit Kumar, is the father of the victim girl; P. W. 3, Prakashram Yadav, is the informant; P. W. 4, Balibai, is the mother of P. W. 1; P. Ws. 5, 6, 8, 9 and 11 are the formal witnesses; P. W. 7, is the Head Master of the School where the victim had prosecuted her studies; P. W. 10, is the investigating Officer and P. W. 12, is the doctor who had examined the prosecutrix. Defence chose not to adduce any evidence in support of its plea. ( 5 ) THE learned trial Judge on consideration of the oral and documentary evidence on record came to hold that the prosecutrix was below 16 years of age and the prosecution has been able to prove the victim kidnapped and raped beyond reasonable doubt and accordingly convicted the accused and sentenced him as mentioned above. ( 6 ) IMPUGNING the aforesaid judgment Miss Tripti Kholie, learned counsel for the appellant has contonded that the conclusion of the learned trial Judge with regard to age of the prosecutrix is absolutely infirm inasmuch as there had been no ossification test though the doctor had suggested for the same and, moreover, there is no clinching evidence in that regard. It is her further submission that the Court below has given undue emphasis on the certificate granted by the Head Master of the school though entry in the school register cannot be regarded as the unquestionable proof of age. The learned counsel has canvassed if the finding in regard to determination of age is dislodged there being apparent consent on the part of the prosecutrix, the accused would be entitled to an order of acquittal. Resisting the aforesaid submission Mr. B. P. Athya, learned Govt. Advocate has contended that the learned trial judge on proper scrutiny of the materials on record has determined the age of the victim girl to be less than 16 and the said conclusion being based on unimpeachable evidence on record cannot be found fault with. It is his further submission that even if the age would be determined more than 16 years then also the accused would be guilty of offence under Ss. It is his further submission that even if the age would be determined more than 16 years then also the accused would be guilty of offence under Ss. 363 and 366 of IPC as ingredients for the said offence are different and also are proved by the prosecution. ( 7 ) TO appreciate the rival submissions raised at the Bar, I have perused the impugned judgment and have scanned the evidence on record with assistance of the learned counsel for the parties. Before I advert with regard to proof of rape and existence of consent, it is essential to deal with the contention relating to age of the prosecutrix. The learned trial Judge has determined the age of the victim girl to be 15 years and to arrive at this conclusion he has placed reliance on the version of the prosecutrix and on the basis of the entry in ths admission register and the certificate granted by the Head Master of the school which have been marked as Exhibits P-3 and P-4. The question that falls for determination is whether the learned trial Judge is justified in accepting these materials as cogent and clinching for determination of the age of the victim girl. On a perusal of the evidence of P. W. 10, the Investigating Officer has admitted that he had not examined the register maintained by the Kotwar to find out the date of birth of Prosecutrix. P. W. 12, the doctor who examined the prosecutrix had categorically stated in her testimony that she had advised for ossification test to find out the age of the victim girl. Theossification test report has not been marked as exhibit though the X-ray plates along with the report are found in the lower Court record. Be that as it may, the fact remains that the prosecution has totally relied upon the entry in the school admission register. According to the school admission register the date of birth is 23-8-81. The alleged occurrence had taken place on 23-4-95. Thus, by that time she was slightly lower than 14 years. The reason given by the learned trial Judge to accept the entry in the school register as correct is that the admission in school had been done either by the parent or through a the class relative and, therefore, there is no justification to give a wrong date. Thus, by that time she was slightly lower than 14 years. The reason given by the learned trial Judge to accept the entry in the school register as correct is that the admission in school had been done either by the parent or through a the class relative and, therefore, there is no justification to give a wrong date. This reasoning of the learned trial Judge is not correct as it is usually noticed that the parents have a tendency to lower the age of a child at the time of admission in the school. In this context, I may refer to a decision rendered in the case of Brijmohan Singh v. Priyabrat Narayan Singh, AIR 1965 SC 282 , wherein their Lordships of the Apex Court have expressed as follows :"in actual life it often happens that persons give false age of the boy at the time of his admission to a school so that later in life hewould have on advantage when seeking public service for which a minimum age for eligibility is often prescribed. "the High Court of Orissa in the case of Pravakarpati v. Ajay Kumar Das (1996) 10 OCR 458 : 1996 Cri LJ 2626, held as under :-"what is stated in the school admission register as to the age of a student cannot be treated to be correct since guardians understate the age of their children than real one at the time of admission in the school. "similar view has also been taken in the case of Bishnudas Behra v. State of Orissa, 1997 Cr LJ 2207. Recently this Court in Criminal Appeal No. 1144/91 (Akeel v. State of M. P.) decided on 29-8-97 has held as follows :-"it is also noticed that the learned trial Judge has placed reliance on school leaving certificate the said document cannot form the basis to determine the age, as the guardians have a tendency to understate the age of their children at the time of admission in the school. This view of mine gains support from the decisions rendered in the cases of Brijmohan Singh v. Priyabrata Singh (supra) and Bishnudas Behra v. State of Orissa (supra ). This view of mine gains support from the decisions rendered in the cases of Brijmohan Singh v. Priyabrata Singh (supra) and Bishnudas Behra v. State of Orissa (supra ). "applying the aforesaid parameters to the present case, I am of the considered view that the determination of age by the learned Sessions Judge is not correct and it cannot be stated with certitude that the victim girl was 16 years of age. ( 8 ) LET us now proceed to deal with the contention that there was consent on the part of the prosecutrix. In the case at hand it is not necessary to scrutinise the circumstances and analyse the factual matrix in great detail as the prosecutrix in her examination-in-chief has clearly stated that the accused had kept her in the concerned hut for two days and had sexual intercourse with her on three occasions and she had not objected to it. In her cross-examination who has clearly admitted that she had written letters to the accused under Exhibits B-1 to B-6 in her own handwriting. On a perusal of those letters it is clear that she had previous relationship with the accused. The consent is absolutely apparent. Once the consent is there and it is determined that the age of the victim girl is more than 16 years, the question of commission of offence under S. 176, IPC does not arise. ( 9 ) MR. B. P. Athya, learned counsel for the State has strenuously urged that even if the appellant is not guilty under S. 376, IPC it cannot be said that he is not guilty of the rest of the offences. On a perusal of the allegations I am not convinced that offence under S. 366 has been committed by the accused inasmuch as there is no proof of compulsion or application of force or criminal intimidation. Hence I am of the considered view that the conviction under S. 366, IPC is unsustainable. As far as offence under S. 363 is concerned there is no iota of doubt that the accused had kidnapped the prosecutrix from the lawful guardianship of her parents. It is difficult to accept that she would be above 16 years of age. Hence I am of the considered view that the conviction under S. 366, IPC is unsustainable. As far as offence under S. 363 is concerned there is no iota of doubt that the accused had kidnapped the prosecutrix from the lawful guardianship of her parents. It is difficult to accept that she would be above 16 years of age. Benefit in favour of the accused cannot be extended to that extent by any stretch of imagination as her age cannot be determined to be above 16 years I am of the firm view that the accused has been rightly convicted of the offence under S. 363, IPC and the conclusion of the learned trial Judge on that score cannot be faulted. Thus the accused-appellant is not guilty of the offence under Ss. 366 and 376, IPC but is guilty under S. 363, IPC. ( 10 ) NOW to the question of sentence. Considering the relationship between the accused and the prosecutrix which transpires from the letters written by the prosecutrix and the other concomitant facts, I am of the considered view that the custodial sentence should be reduced to the period already undergone. The fine imposed is not justified in the facts and circumstances of the case and accordingly the same is set aside. The accused-appellant be set at liberty forthwith if his detention is not required in connection with any other cases. ( 11 ) RESULTANTLY, the appeal is allowed in part. Appeal partly allowed. .