JUDGMENT GHANSHYAM PRASAD, J. The sole appellant has preferred this appeal against the judgment dated 2S.9.2002 and order dated 30.9.2002 passed by 3rd Additional Sessions Judge, Gopalganj in Sessions Trial No. 174 of 2000/11 of 2000. The sole appellant has been convicted under sections 376, 313/109, 315/109, 315/109 and 201/109 I.P.C. and has been sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 2,000/- under section 376 I.P.C. R.I. for ten years and fine of Rs. 1,000/- under section 313/109 I.P.C., R.I. for ten years and fine of Rs. 1,000/- under section 315/109 I.P.C. and R.I. for three years and to pay line of Rs. 1,000/- under section 201/109 I.P.C. in default to pay fine he has further been sentenced to undergone S.I. for one month on each count. However, all the sentences have been directed to run concurrently. 2. One day at 11.00 A.M. in the beginning of year 2000 while the informant Kunti Kumari, P.W.3, who is also victim, was alone in her house and her parents had gone outside in connection with their work, the accused appellant Rama Singh entered in the house and on point of dagger forcibly committed rape upon her after removing her garments. He forbade her not to disclose about the incident to her parents otherwise she would be killed and her house would also be destroyed. Thereafter, he regularly used to visit informant's house and commit rape upon her in absence of her parents till she became pregnant. 3. Further case of the prosecution is that one day i.e. about five days before registration of case i.e. on 17.6.2000 the accused appellant came to the• house of the informant and in absence of her parents he forcibly brought her in a jeep to the clinic of Dr. Sub hash Tiwary at Barharia for abortion where she was administered and injected medicine as a result of which she became unconscious. When she regained 'hosh' after sometime she found herself in pool of blood. She also found a piece of flesh there which was later on flashed out by the doctor. She remained there for two days along with her mother and accused appellant Rama Singh. Thereafter accused appellant brought them back and dropped them at Mohammadpur Chowk and fled away. 4. She also found a piece of flesh there which was later on flashed out by the doctor. She remained there for two days along with her mother and accused appellant Rama Singh. Thereafter accused appellant brought them back and dropped them at Mohammadpur Chowk and fled away. 4. On 17.6.2000 at 6.45 A.M. the informant along with her parents came to Mohammadpur Police Station and lodged fardbeyan, which is ext. 2. The police registered case against the accused appellant and Dr. Subhash Tiwary under above sections and referred the victim girl to Sadar Hospital, Gopalganj for medical examination. She ws examined by P.W.5 Dr. Rajendra Thakur at Sadar Hospital, Gopalganj. After investigation, the police submitted chargesheet against the appellant pending investigation against other accused Dr. Subhash Tiwary. 5. In course of the trial, the prosecution examined as many as eight witnesses including the victim P.W.3 Kunti Kumari, her mother P.W.2 Rajeshwari Devi, her father P.W.1 Algu Mahto, doctor P.W. 5 Rajendra Thakur and I.O. P.W.7 Sheo Narayan Ram. Other witnesses are P.W.4 Birendra Sah, P.W.6 Hiralal Prasad Gupta, who have been declared hostile and P.W.8 Shri Onkar Nath Trivedi the then Judicial Magistrate who has recorded the statement of the victim under section 164 Cr.P.C. 6. Defence is total denial of the occurrence. According to the appellant, the real fact is that the family of the victim was settled in the village by his father. However, after death of his father they began to usurp the land of the accused appellant by constructing house. The accused appellant objected and therefore, he has been falsely implicated in this case. Further defence is that actually the victim had illicit relation with one Hiralal Prasad Gupta from whom she became pregnant. In support of his defence, he has examined two witnesses who are D.W.1 Shobha Devi and D.W.2 Basmati Devi. 7. In course of the argument, the learned lawyer for the appellant submitted that the conviction of the appellant is not sustainable in the eye of law as the victim was a consenting party to sexual intercourse who was major at the time of the alleged occurrence. It was further submitted that the evidence of prosecution is neither reliable nor inspire confidence and is also full of contradictions and infirmities and, therefore, no conviction can be based on her sole testimony. It was further submitted that the evidence of prosecution is neither reliable nor inspire confidence and is also full of contradictions and infirmities and, therefore, no conviction can be based on her sole testimony. It was further submitted that the conviction under section 313 or 315 of to I.P.C. is also bad and illegal as the evidence discloses that the abortion was made with the consent of the victim. 8. The evidence of P.W.5 Dr. Rajendra Thakur corroborates the case of the prosecution that the victim Kunti Kumari (P.W.3) was pregnant having pregnancy of 1214 weeks and she was medically aborted within a week of her examination. The victim was examined by the doctor on 17.6.2003. The doctor has stated in his evidence that on examination he found sign of recent delivery of foetus which was 1214 weeks in size. 9. The victim P.W 3 Kunti Devi who is the sole witness to say that she became pregnant as a result of rape committed upon her by the accused appellant. She has stated in her examination-in-chief that one day while she was alone in the house and her parents had gone to Madhopur in connection with livelihood, this accused appellant entered in her house and on finding her alone he removed her clothes and on point of dagger forcibly committed rape and forbade her not to disclose about the occurrence otherwise she would be finished or kidnapped. She has further stated that thereafter, he frequently used to visit her and commit rape. In paragraphs 6 and 7, she has further stated that Rama Singh committed rape upon her continuously for about a month and there after, she became pregnant. 10. P.W.1 Algu Mahto is the father and P.W.2 -Rajeshwari Devi is mother of the victim. They are not directly on the point of rape but subsequently, they came to know about the illegal act of appellant Rama Singh through their daughter. 11. It was argued on behalf of the appellant that the victim was a major and was consenting party to sexual intercourse and therefore, no conviction under section 376 I.P.C. can be recorded against the accused appellant. 11. It was argued on behalf of the appellant that the victim was a major and was consenting party to sexual intercourse and therefore, no conviction under section 376 I.P.C. can be recorded against the accused appellant. In support of his submission, he referred to the fact that the victim never disclosed the fact of rape to her parents though the accused appellant repeatedly visited her till she became pregnant and that she also did not disclose the fact of her pregnancy to her parents and secretly went to the doctor with the accused appellant for abortion. 12. On careful consideration of evidence of prosecution coupled with the circumstances, I am of the opinion that above facts are not sufficient to show that the victim was consenting party to the intercourse even if she was above the age of 16 years. If actually, she was above the age of 16 years at the time of commission of rape the case falls under section 375(111) of the I.P.C. which runs as follows: "375 Rape: A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: First ............ Secondly............ 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. 13. P.W.3 in her evidence paragraph-3 has clearly stated that the rape was committed upon her on point of dagger and threat of being eliminated. Not only this, the commission of rape continued on threat that if she would disclose she would be eliminated or kidnapped. It clearly shows that she became passive consenting party of intercourse due to fear of being eliminated or kidnapped. In other words, the consent of the victim, if any, was obtained by putting her on constant fear of being killed or kidnapped. It clearly falls under Clause (III) of section 375 of the I.P.C. and hence this case comes under the definition of rape. Apart from it, Rama Singh was in a dominating position as he was Malik and the family of the victim was residing on his land. It clearly falls under Clause (III) of section 375 of the I.P.C. and hence this case comes under the definition of rape. Apart from it, Rama Singh was in a dominating position as he was Malik and the family of the victim was residing on his land. Consent of the victim to have intercourse with the accused appellant also does not appear to be probable as at the time of occurrence the age of the victim was about 16 years whereas the age of Rama Singh was above 55 years. 14. In the facts and circumstances of the case mere failure to disclose about the commission of rape to the parents is of no consequence. This view finds support from a decision of apex court reported in 1997(4) SCC 393 State Vs. Priya Sharma Maharaj in which it has been held that in villages it often happens that such victims do not complain against such illegal acts immediately because of factors like fear or shame or un-certainties about reaction of their parents and the adverse consequences which they apprehend, would follow because of disclosure. 15. So far age of the prosecutrix is concerned there is overwhelming material available on the record to show that the victim was below 16 years of age at the time of commission of the illegal act. The doctor P.W. 5 in his examination-in-chief has stated that on the basis of the findings he was of the opinion that the age of girl was approximately 15-16 years. The victim was examined by the doctor on 17.6.2000 whereas the alleged act of rape was committed about six months before the examination. 16. P.W.1 Algu Mahto is the father of the vctim girl. He has stated that at the time of the alleged occurrence the' age of his daughter was about 12 years. P.W.2 Rajeshwari Devi is the mother of the victim girl. She has stated in her evidence paragraph-1 that at the time of the alleged occurrence the age of her daughter was about 14-15 years. Ext. 6 is the statement of the victim girl recorded under section 164 of the Cr.P.C. on 18.6.2000. The court has estimated her age as about 15 years. In course of the trial the victim has been examined as P.W.3. Her evidence was recorded on 11th December, 2001. Ext. 6 is the statement of the victim girl recorded under section 164 of the Cr.P.C. on 18.6.2000. The court has estimated her age as about 15 years. In course of the trial the victim has been examined as P.W.3. Her evidence was recorded on 11th December, 2001. The court estimated her age as about 15 years and the victim gave her age as 14 years. In cross-examination of the victim, no suggestion has been given on behalf of the defence that her age was more than 16 years at the time of the alleged occurrence. 17. Against the above material on the record there is evidence of P.W.1 in cross-examination paragraph-3 that the age of the victim girl was 22-23 years, which is apparently not correct and against the actual state of affairs. It appears that he made this statement in confusion as he was being cross-examined on point of age of different family members. In chief he has given the age of her daughter as 12 years. 18. Thus on careful consideration of the material discussed above, it is quite apparent that at the time of the alleged occurrence the age of the prosecutrix was below 16 years. The learned court below has rightly convicted the accused appellant under section 376 I.P.C. absolutely. I find no reason to interfere in the above findings of the court below. 19. Apart from section 376 I.P.C. the court below has also convicted the accused appellant under sections 313/315/ 201/109 I.P.C. for abortion. The evidence of doctor P.W.5, as discussed above, confirms that the 'victim was pregnant having pregnancy of 12-14 weeks and her pregnancy was terminated through abortion. Ext. 1 is the report of the doctor. According to prosecution story, vide fardbeyan, the accused appellant forcibly brought the victim to clinic of Dr. Subhash Tiwary where her pregnancy was medically terminated through abortion. Now let us examine the evidence of prosecution on this point. 20. The main witness on this point is the victim herself, who is P.W.3 Kunti Kumari. She has stated in paragraph-7 of her examination-in-chief that as a result of illegal act of the accused appellant she became pregnant and the people began to taunt her. She has further stated that thereafter she asked Rama Singh to bring her to any doctor then he brought her to doctor at Barharia where her pregnancy was terminated through abortion. She has stated in paragraph-7 of her examination-in-chief that as a result of illegal act of the accused appellant she became pregnant and the people began to taunt her. She has further stated that thereafter she asked Rama Singh to bring her to any doctor then he brought her to doctor at Barharia where her pregnancy was terminated through abortion. This statement of the victim clearly goes to show that the abortion was done with her consent and not forcibly. She has not stated even in her statement recorded under section 164 Cr.P.C. that the accused appellant forcibly terminated her pregnancy. Ext. 6 is the statement of this witness recorded under section 164 Cr.P.C. Paragraph-15 of evidence of this witness goes to show that Dr. Subhash Tiwary was her treating doctor. Paragraph-23 of her evidence goes to show that she voluntarily submitted for abortion. She has not utterred even a single word that at the time of administration of injection or medicine she objected. 21. P.W.2 is the mother of the victim girl. She in paragraph-1 of her evidence has stated that she remained in clinic along with her daughter and accused appellant Rama Singh for two days. During that period, no case was lodged either against this accused appellant or the doctor. If the abortion was against their consent this witness would have approached the police or protested it against the abortion. P.W.1 is the father of the victim girl. He in his examination-in-chief has stated that he came to know from his wife that his daughter was pregnant. He has further stated that Rama Singh demanded money from him for treatment of his daughter. It appears that the main reason for dispute was demand of money by Rama Singh for treatment of the victim girl. 22. Thus from the above discussions of evidence of the prosecutrix as well as her parents, it is quite apparent that the abortion was not against the will of either the victim girl or her parents. It was with their consent. In this regard, a decision of the Full Bench of the Kerala High Court reported in 1987 Cr. Law Journal 1106 is relevant. In paragraph-5 of the decision it has been held as follows: "Section 313 I.P.C. penalises voluntary causing of miscarriage of a woman with child without her consent while miscarriage with consent is dealt with under S.312. In this regard, a decision of the Full Bench of the Kerala High Court reported in 1987 Cr. Law Journal 1106 is relevant. In paragraph-5 of the decision it has been held as follows: "Section 313 I.P.C. penalises voluntary causing of miscarriage of a woman with child without her consent while miscarriage with consent is dealt with under S.312. Under S.313 the person procuring the abortion alone is liable to punishment whereas under S.312 the woman is also liable for punishment. The only allegation in the complaint on that side is on hearing that she is pregnant the petitioner took her to a Doctor who caused the abortion. There is no case that it was without her consent. On the other hand the averments show that she willingly submitted herself to abortion and even thereafter she had sexual intercourse with the petitioner. There is nothing to show that abortion was at his instance. Whether he was only accompanying the lady at her request and whether he even made a request to the Doctor to have abortion, are not clear from the allegations. The Doctor who conducted the abortion is not made an accused which means she has no complaint against him. It is clear that an offence under S.313 is also not made out from the allegations." 23. In this case also, as said above, it is quite apparent that the miscarriage or abortion was done with the consent of the prosecutrix as well as her mother. It also appears from the evidence of the prosecutrix as well as her mother that they had no grievance against the doctor who conducted abortion. P.W.2 the mother of the prosecutrix in paragraph-27 of the cross-examination has stated that she had not lodged any case against the doctor. P.W.3 the prosecutrix in her cross-examination paragraph-17 has stated that she had compromised the case with the doctor. 24. Thus, from the above discussion of evidence as well as the decision cited above, it is quite clear that the conviction of the appellant under sections 313/109 I.P.C. is not legal and is fit to be set aside. Similarly, conviction of the appellant under sections 315/109 and 201/109 I.P.C. is also not tenable in the eye of law. Section 315 I.P.C. relates to quickening at the stage when the woman is in the advance stage of pregnancy. Similarly, conviction of the appellant under sections 315/109 and 201/109 I.P.C. is also not tenable in the eye of law. Section 315 I.P.C. relates to quickening at the stage when the woman is in the advance stage of pregnancy. In other words, when the mother feels foetal movement of child which is generally occurs after 18 weeks of the pregnancy. 25. Thus, on consideration of entire evidence, facts and circumstances, I find that the conviction of the appellant under section 376 I.P.C. is perfectly justified and legal. I find no occasion to interfere in the findings of the learned lower court in this regard. Accordingly, the conviction of the appellant under section 376 I.P.C. is hereby confirmed. However, the conviction of the appellant under other sections i.e. 313/109/ 315/109 and 201/109 I.P.C. does not appear to be legal and hence it is fit to be set aside. Accordingly, the conviction of the appellant under the above sections is hereby set aside. 26. In the facts and circumstances of the case, I am of the view that the sentence of seven years under section 376 I.P.C. is sufficient to meet the ends of justice. Accordingly, the sentence passed under section 376 I.P.C. by the court below is hereby reduced to the extent of R.I. for seven years along with fine of Rs.2,000/and in default to pay fine the accused appellant is further directed to undergo S.I. for one month. The fine so realised shall be paid to the prosecutrix Kunti Kumari. 27. In the result, this appeal is dismissed with above modification in conviction as well as sentence.