Judgment Surya Kant, J. 1. This appeal has been directed by the appellant against the judgment and order dated 29th November, 1989 passed by the learned Additional Sessions Judge, Ludhiana, whereby he was held guilty of committing offences under Sections 363/366/376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 500/-, in default whereof to undergo further RI for a period of two months, under Section 363 IPC, to undergo RI for a period of five years and to pay a fine of Rs. 1,000/- and in default whereof, to undergo further RI for a period of four months, under Section 366 IPC and to undergo RI for a period of five years and to pay a fine of Rs. 1,000/- and in default whereof to undergo further RI for four months under Section 376 IPC, though all the substantive sentences were directed to run concurrently. 2. As per the prosecution case on 9th March, 1988 at about 7.30 PM, the prosecutrix (name withheld) was going to the house of her neighbour to watch Television programme when the appellant met her and asked her to bring money from her house and told that he would marry her; the prosecutrix brought Rs. 10,000/- from her house and the appellant took her firstly to the Bus Stand, Ludhiana, from where they boarded a bus and went to New Delhi and stayed there in a hotel; the accused forcibly committed sexual intercourse against her wishes under threat of her life; after staying in the hotel for one day, the appellant took a room on rent in Rawal Nagar, New Delhi, @ Rs. 100/- per month where the appellant and prosecutrix stayed for about one month, during which period he used to commit rape upon her almost daily without her consent. After one month, the prosecutrix asked the appellant to go back to Ludhiana. However, neither did he concede to her request nor married her, though both of them came back to Ludhiana, on 15th April, 1988 and were apprehended by the police. The prosecutrix was got medico-legally examined on 15th April, 1988 at 4.45 PM from Dr. Amita Singla, who found her habitual to sexual intercourse and the last intercourse was committed two days prior to her medical examination. Her hymen was also found ruptured. The prosecutrix was got medico-legally examined on 15th April, 1988 at 4.45 PM from Dr. Amita Singla, who found her habitual to sexual intercourse and the last intercourse was committed two days prior to her medical examination. Her hymen was also found ruptured. The appellant was also got medico-legally examined and the doctor found that there was nothing to suggest that he was incapable of committing sexual intercourse. 3. It may, however, be mentioned here that though occurrence in relation to disappearance of the prosecutrix took place on 9th March, 1988, an FIR was registered on the statement of her mother (Smt. Vidya Wanti) on 1st April, 1988. The appellant was charged for offences under Sections 363/366/376 IPC and put to trial. 4. In support of the above mentioned charges, the prosecution examined as many as 8 witnesses, which included Dr. G.S. Grewal (PW-3), the prosecutrix (PW-5), her mother Vidya Wanti (PW-6), Dr. Amita Singla (PW-8) and the investigating officer SI Shamsher Singh (PW-7). 5. In his statement under Section 313 Cr.P.C. the appellant denied the prosecution allegations and took up the plea that he had a love affair with the prosecutrix who used to write him love letters and he was falsely implicated at the instance of the presents of prosecutrix, who were not agreeing to their marriage on account of the appellant and prosecutrix being from different castes. The appellant also pleaded that the prosecutrix was more than 18 years of age. 6. Learned Additional Sessions Judge, on appreciation of the evidence brought on record, held that at the time of commission of the offence, i.e., 9th March, 1988, the prosecutrix was around 14 years of age. This conclusion was drawn by the learned Additional Sessions Judge on the basis of the school leaving certification (Ex. PD), according to which the date of birth of the prosecutrix is 8th December, 1975, which fact was also corroborated by oral evidence of the prosecutrix. After holding that the appellant enticed the prosecutrix to bring money from her house and induced her to go with him to marry and the prosecutrix being below the age of 16 years, the appellant was guilty of committing offence under Section 363 IPC. After holding that the appellant enticed the prosecutrix to bring money from her house and induced her to go with him to marry and the prosecutrix being below the age of 16 years, the appellant was guilty of committing offence under Section 363 IPC. It was further held that since the appellant kidnapped a minor girl of 14/15 years, with an intention to compel her to marry him, he was guilty of an offence under Section 366 IPC as well. Since the prosecutrix was 14-15 years of age, it was immaterial whether sexual intercourse was committed with or without her consent, therefore, the appellant was also guilty of an offence punishable under Section 376 IPC. The appellant was accordingly sentenced, reference to which has already been made. 7. Aggrieved at his conviction and consequential sentence that the appellant has approached this Court. The present appeal was admitted on 16th January, 1990 and the appellant was directed to be released on bail. 8. It appears that the present appeal was taken up for hearing on 4th December, 2002 but since learned counsel for the appellant did not come present, notice was issued on him for 5th February, 2003. On 10th September, 2003 it was brought to the notice of this Court that the counsel for the appellant (Mr. K.S. Brar, Advocate) had left India and settled in U.S.A. Consequently, notice was issued to the appellant for 15th October, 2003. It further appears that bailable warrants issued against the appellant could not be executed, therefore, on 5th May, 2004, the interim order dated 16th January, 1990 vide which the appellant was released on bail while admitting the appeal, was recalled and warrants of arrest were issued against him. It is pursuant to the arrest warrants that the appellant was apprehended and produced in this Court on 30th March, 2005 when he also requested for appointment of some lawyer to defend him. Ms. Monika Jalota, Advocate was accordingly requested to assist this Court as amicus curiae. The appellant is, thus, in custody since 30th March, 2005 and is undergoing the sentence. 9. Ms. Ms. Monika Jalota, Advocate was accordingly requested to assist this Court as amicus curiae. The appellant is, thus, in custody since 30th March, 2005 and is undergoing the sentence. 9. Ms. Monika Jalota, learned counsel for the appellant has vehemently argued that the appellant has been roped in a totally false case as the prosecutrix was more than 16 years of age at the time of the alleged occurrence; she had a love affair with the appellant which fact has been admitted by her in her cross-examination and is proved beyond any doubt from the letters, Ex. D-1 and D-2. According to Ms. Jalota, no reliance can be placed upon the school leaving certificate (Ex. PD) for the reason that Narinder Singh Bangia, Principal of the School, who appeared as PW-4, has categorically admitted in his cross-examination that no birth certificate of the prosecutrix or any affidavit regarding her date of birth was given to him at the time of her admission in the school. There is, thus, no factual basis for the date of birth mentioned in the school leaving certificate (Ex. PD). According to the learned counsel, there is over-whelming evidence on record to suggest that the prosecutrix was more than 16 years of age. She has referred to the statement of Dr. Amita Singla (PW-8), whom though in her examination-in-chief stated that the prosecutrix was about 14 years old, but in her cross-examination, she had admitted that she had received the x-ray report. A pointed reference has been made to the hand-written note of Dr. Amita Singla which is appended to the medico-legal report (Ex. PH) in which, after referring to the X- ray/Radiological report, she has categorically opined that the age of the prosecutrix is between 15/16-1/2 years. Ms. Jalota has also referred to an affidavit dated 12th September, 1989, Mark-A, sworn before the Executive Magistrate, Ludhiana and purported to be that of the prosecutrix in which she had categorically admitted that she was 20 years of age on the date when the affidavit was given and that she had voluntarily joined the company of the appellant with whom she had an affair and wanted to marry him and settle down. According to learned counsel if the contents of this affidavit are taken to be true, the prosecutrix was about 18 years of age at the time of the alleged occurrence and, thus, the prosecution case stands demolished completely. On a query by the Court that the aforesaid affidavit, allegedly given by the prosecutrix, is not exhibited and, therefore, cannot be taken as a piece of evidence on record, learned amicus-curiae argues that the contents of the affidavit are consistent with the statement under Section 313 Cr.P.C. dated 14th November, 1989 made by the appellant in which it has categorically been stated that the prosecutrix is more than 18 years of age and the said affidavit had been tendered in evidence at he time when defence evidence was closed on 28th November, 1989, without any objection by the prosecution, therefore, may be taken into account by this Court even if it is not exhibited on record, especially when the appellant is an illiterate person, belonging to poor strata of the society and should not be made to suffer for a procedural lapse. Alternatively, learned amicus-curiae has argued that (i) the appellant was a young boy of 19 years of age at the time of occurrence; (ii) this is the solitary offence ever attributed to him in life; (iii) he is married and settled with family responsibilities; (iv) he has already suffered agony of protracted trial and pending appeal for more than 17 years; (v) the prosecutrix is now married and happily settled with grown up children; (vi) the appellant is the only source of livelihood in the poor family; and (vii) the evidence on record suggests in unequivocal terms that the prosecutrix was a consenting party, therefore, it is a fit case for invoking proviso to Section 376(1) IPC and to reduce the sentence for the period which the appellant has already undergone. 10. On the other hand, learned State counsel vehemently argued that the evidence on record which includes the statement of the prosecutrix as well as her mother, apart from the school leaving certificate (Ex. PD), proves beyond any doubt that the prosecutrix was 14-15 years of age at the time of occurence, and thus, her consent to join the appellants company or to have sexual intercourse with him is of no consequence. 11. PD), proves beyond any doubt that the prosecutrix was 14-15 years of age at the time of occurence, and thus, her consent to join the appellants company or to have sexual intercourse with him is of no consequence. 11. After hearing learned counsel for the parties and perusing the record, there can be no escape but to conclude that the prosecutrix was below 16 years of age at the time of occurrence, i.e., 9th March, 1988. It is true that the school leaving certificate (Ex. PD) alone does not inspite enough confidence to return a finding of fact with regard to the age of the prosecutrix for the reason that PW-4 Narender Bangia has candidly admitted that neither the birth certificate nor an affidavit with regard to the date of birth of the prosecutrix was given him at the time of her admission in the school. However, there is ample corroborating evidence on record in the shape of statements of the prosecutrix (PW-5) and her mother (PW-6). Unfortunately, they have not been cross-examined on this issue and no specific suggestion has been given that the prosecutrix was more than 16 years of age on 6th March, 1988. Though it appears from the note of Dr. Amita Singla (PW-8) which she had appended with the medico-legal report (Ex. PH) that on the basis of x-ray report, she had opined the prosecutrix to be of the age of 15/16-1/2 years but she too has not been confronted with this part of her written opinion. Similarly, the affidavit dated 12th September, 1989 allegedly given by the prosecutrix has also not been exhibited and, thus, cannot be looked into as a piece of evidence on record so as to cause dent in the prosecution case. In these circumstances, no fault can be found with the conclusion drawn by learned trial Court in relation to the proximate age of the prosecutrix at the time of the occurrence. 12. However, there appears to be no cogent material on record on the basis of which the charge under Section 366 IPC can be held to be proved beyond any doubt. From the letters, Ex. D-1 and D-2 coupled with the admission made by the prosecutrix in her cross-examination, it stands established that she had an affair with the appellant and had run away in order to marry and settle down with him. From the letters, Ex. D-1 and D-2 coupled with the admission made by the prosecutrix in her cross-examination, it stands established that she had an affair with the appellant and had run away in order to marry and settle down with him. The ingredient of her being enticed by the appellant, thus, is completely missing. Similarly, there is not even a whisper what to talk of sufficient evidence, to suggest that the appellant ever compelled the prosecutrix to marry any person including himself against her will. The manner in which the prosecutrix accompanied the appellant; went all the way from Ludhiana to New Delhi with him; stayed in a hotel and thereafter lived with him in a rented room for about one month, also falsifies the story of any forced or threatened sexual intercourse with her by the appellant. Therefore, the prosecution has failed to establish all the ingredients of an offence under Section 366 IPC. Consequently, the conviction and sentence of the appellant under Section 366 IPC is set aside. 13. However, notwithstanding the aforementioned conclusion drawn with regard to the consensual intercourse with the prosecutrix, her age having been held to be below 16 years, there is no escape but to hold the appellant guilty of offence under Section 363 IPC as well as guilty of committing offence of rape in view of `Sixth description appended to Section 375 IPC. 14. Coming to the question of quantum of sentence, learned amicus curiae referred to the recent view taken by this Court in various judgments including (i) Raj Pal v. State of Haryana, 2005(1) RCJ 635, (ii) Mohinder Kumar v. State of Haryana, 2005(2) RCR(Criminal) 236, (iii) Sanjiv Kuamr v. State of Punjab, 2005(2) RCR(Criminal) 146 and (iv) Kesar Singh v. State of Haryana, 2005(2) RCJ 933. Having regard to the mitigating circumstances, referred to by learned amicus-curiae, especially the fact that the occurrence had taken place more than 17 years back; the appellant has already suffered the agony of protracted trial and pending appeal for more than 17 years; he has already undergone sentence of six months; as informed by the learned State counsel, on the basis of a written report submitted by the police authorities that the prosecutrix is now married and happily settled in her matrimonial home with grown up children; the appellant belongs to poor strata of the society and is fastened with the family responsibilities; he is the only source of their livelihood; the appellant had a love affair with the prosecutrix and genuinely wanted to marry her but for the strong opposition from the side of the prosecutrixs family due to caste-barriers and, thus, the offence was committed by him not with a criminal bent of mind, the sentence awarded to him under Sections 363/376 IPC by the learned Additional Sessions Judge, Ludhiana, is reduced to the extent of the period he has already undergone. The appeal is accordingly partly allowed. The appellant be released forthwith if not required in any other case.