JUDGMENT:- This appeal has been preferred by the accused appellant Ajai Singh against the judgment of learned Additional Sessions Judge (Fast Track) No.5, Bharatpur, dated June 28, 2004, passed in Sessions Case No. 2/2004, whereby he was convicted and sentenced for the offence under Section 366 IPC for five years rigorous imprisonment and a fine of Rs. 1.000/- in default of payment of fine to further undergo simple imprisonment for two months and for the offence under Section 376 IPC, ten years rigorous imprisonment and a fine of Rs. 1.000/-, in default of payment of fine to further undergo simple imprisonment for two months. 2. Briefly stated, the prosecution story is that Bachhu Singh, father of the prosecutrix lodged a written report with the police station, Mathura, Gate, Bharatpur, on 9-42003, to the effect that his daughter, student of class VIII of Meena Devi Adarsh Vidhayalaya. Suraj Mal Nagar, Bharatpur, had gone to school in the morning but did not return even after the school was over at one in the afternoon. On being searched, she could not be traced out. On being asked about the girl, it was told that the Manager of the School Ajai Singh s/o Bhagwan Singh Jat, resident of Nagla Jeevana, had taken the girl outside Bharatpur. On inquiry from his house, his whereabouts were not known. It was apprehended that the girl was induced by him and she was kidnapped for marriage by him. On this report, a case under Sections 363/366 IPC was registered. The prosecutrix Mamta Kumari. aged 19 years was recovered by the Police Vide Ex. p.2 from Sankhru, Mathura. On arrest, her statement was recorded under Section 161 and also under Section 164 Cr. P.C. she was put to medical examination for the offence of rape as well for determination of age. As per the statement of prosecutrix in the Court the accused had asked her to go with him to Faridabad in a jeep on the pretext that her marks would be increased and there she stayed with him for three days and rape was committed with her. Thereafter, he took her to Vashno Devi for a trip and came back to Mathura and in Mathura she was caught by the Police. She stated her date of birth to be 15-7-1989. After collecting necessary evidence, challan was filed. In due course the case came up for trial. Thereafter, he took her to Vashno Devi for a trip and came back to Mathura and in Mathura she was caught by the Police. She stated her date of birth to be 15-7-1989. After collecting necessary evidence, challan was filed. In due course the case came up for trial. The accused appellant was charge sheeted for the offence under Sections 363, 366 and 376 IPC, He pleaded not guilty and claimed to be The statement of the accused under Section 313 Cr. P.C. was recorded. In the statement, the accused explained that prosecutrix had gone with him with her consent. Her date of birth was 20-3-1985 as per the Transfer Certificate of C. S. Modern School. Bharatpur. He further explained that the parents of the girl were knowing the fact that the girl had gone with him and the girl used to love him too much. In defence, the accused has examined himself as D.W. 3. where in he deposed hat he had married with the girl on 25-3-2003. In cross-examination, he has also deposed that the girl had love affairs with him. That apart, he has admitted that he was already married and his wife is suffering with paralysis and he had obtained a divorce from her and he had a daughter from his earlier marriage. Apart from himself, he has also examined D.W.1 Dr. Harendra Singh and D.W.2 Dr. Lalit Krishna Gotecher. in support of the fact that the prosecutrix was more than 18 years old as per ossification test. 3. Heard counsel for the accused appellant, learned Public Prosecutor and also perused the record. 4. Learned counsel for the appellant advanced two fold arguments before this Court. His first argument is that the prosecutrix is more than 16 years of age as such she was a consenting party and hence offence under Sections 366 and 376 IPC is not proved. In the alternative, the second submission has been that even if it is found that the girl was less than 16 years of age and her consenting had no meaning, in that case the sentence awarded is on higher side and that deserves to be reduced in view of the special circumstances of the case, where it is revealed that the girl had gone with the accused voluntarily and posed for photographs from which she appears to be not under stress or any tension. It was further argued that the case does not squarely fall within the purview of Section 376 (2) (c) IPC as the accused appellant is not a person having custody of the institution as the girl was student of educational institution i.e. a school and was not an inmate of any such precincts as envisaged. The counsel for the appellant has relied upon the judgment of Apex Court in Omkar Prasad Verma v. State of Madhya Pradesh, 2007 (2) Crimes 364: 2007 Cri LJ 1831 (SC). According to learned counsel, instead of Section 376 (2), Section 376 (1) IPC is attracted where the minimum punishment is only for seven years and not for ten years and the Court has got ample jurisdiction to deal with the special circumstances of the case even where the minimum sentence is provided. 5. Per contra, learned Public Prosecutor supported the conviction and sentence passed by the trial Court. Learned Public Prosecutor further submitted that in view of the gravity of the offence and the fact that the accused appellant has been a Manager of the Institution, sub-section (2)(c) of Section 376 IPC is attracted and as such minimum sentence of ten years is not required to be reduced. Learned Public Prosecutor has relied upon Dinesh alias Buddha v. State of Rajasthan, (2006)3 Supreme Court Cases 771: 2006 Cri LJ 1679. Vishnu alias Undrya v. State of Maharashtra (2006) 1 Supreme Court Cases 283: 2006 Cri W 303 in support of the prosecution• case on the point of age as well as quantum of sentence. 6. While adverting to the first submission of the learned counsel. it may be noted that the learned counsel has essentially relied upon the report of the Medical Expert on the point of age on the basis of ossification test. On the other hand the prosecution has relied upon the statement of the father of the girl P.W. 2 Bachhu Singh and the prosecutrix P.W.1 Mamta, who deposed that the age of Mamta was less than 16 years as she was born on 15-7-1989. On the other hand the prosecution has relied upon the statement of the father of the girl P.W. 2 Bachhu Singh and the prosecutrix P.W.1 Mamta, who deposed that the age of Mamta was less than 16 years as she was born on 15-7-1989. This was further strengthened on the basis of the statement of Court witness (C.W. 1) Khacher Singh, Head Master of Primary School Baiman, who appeared as a witness in the Court along with the record and deposed that as per the Register No.7, the name of Kumari Mamta was written at Serial No. 2654 and her date of birth has been mentioned to be 15-71989. He further deposed that Mamta was admitted in Class V on 12-12-99 as per the Enrollment Register Entry No. 2654 brought by him. Regarding the age of the prosecutrix, it may be noted that ossification test was conducted and as per the report of the Medical Jurist (D.W.1) Dr. Harendra Singh, the prosecutrix was found to be of more than 18 years and less than 19 years. D.W. 2 Dr. Lalit Krishna Gotechar, Radiologist, has also been examined but he has not given the age on the basis of the report as he had simply conducted the ossification test. In the cross-examination, (D.W.1) Dr. Harendra Singh has admitted that variation of the age may be two to three years on higher side and lower side. In view of the evidence of defence on the point, it is revealed that (Ex. D.1) application for admission dated 19-7-2001 submitted to M. D. Adarsh Vidyalya, Bharatpur and Ex. D. 6 Transfer Certificate dated 2-10-01 by C" S. Modern Public School showing the agea~ 20-3-1985 were found in the bag of the prosecutrix when she was recovered by the police. But the prosecutrix has deposed that the:cse documents were kept in her bag by the accused. These documents are stray documents as no basis of these documents has been produced while the prosecution has been able to prove through the Court witness (C.W.1) Head Master of the school that the age of the prosecutrix was 15-7-1989 on the basis of the register as well as the record of the school. These documents are stray documents as no basis of these documents has been produced while the prosecution has been able to prove through the Court witness (C.W.1) Head Master of the school that the age of the prosecutrix was 15-7-1989 on the basis of the register as well as the record of the school. This statement has been further corroborated by the statement of the prosecutrix and her father, In view of the fact that there may be variation of two to three years on lower and higher side of the age, based on ossification test the age given by the father of the girl supported by the document of her enrollment entry in the school is worth relying. Honble Supreme Court in the case of Vishnu (supra) observed as under:- "In case of determination of date of birth of a child the best evidence is that of father and mother. It has been further observed that these are the statements of facts. If the statements of fact are pitted against the so called expert opinion of the doctor with regard to the determination age based on ossification test scientifically conducted, the evidence of facts of the former will prevail over the expert opinion based on the basis of ossification test." 7. In view of the above legal position, in the instant case, the age of the girl is found to be less than 16 years from the date of occurrence as her date of birth has been proved to be 15-7-1989 while the occurrence took place on 9-4-2003. Thus, in view of overwhelming evidence in the case, the offence under Sections 376, 366 IPC stands proved and this Court need not go into the details of case on merits any more. 8. Thus, in view of overwhelming evidence in the case, the offence under Sections 376, 366 IPC stands proved and this Court need not go into the details of case on merits any more. 8. Having decided the point of age of the girl and coming to the second submission of the learned counsel regarding reduction of sentence, it may be observed that the girl was student of VIII Class in Meena Devi Adarsh School, Suraj Mal Nagar, Bharatpur and, the accused appellant was the Manager of the said School where the prosecutrix used to come for education and as such he was not the Manager of the institution established and maintained for reception and care of women, as she was not inmate of the school but she was a day scholar and the case is not strictly covered by the provisions of Section 376 (2)(c) read with the explanation 2 thereof. The learned trial Court has also not given any categorical finding on the point whether Section 376 (2)(c) of the Indian Penal Code, is attracted. The accused appellant has been charge sheeted for the offence under Section 376 simpliciter and there is no mention in the charge that the offence was committed in the capacity of Manager so as to attract the provision of Section 376 (2)(C) of the Indian Penal Code and as such I find that the offence squarely falls within the ambit of Section 376 (I) of the IPC where minimum punishment is seven years. 9. That apart, it may be observed that the Apex Court had occasion to go into the point of reduction of sentence in State of Chhattisgarh v. Derha (2004) 9 SCC 699 : 2004 Cri W 2109 wherein the facts and circumstances of the case the sentence under Section 376(2) IPC was reduced from ten years to seven years rigorous imprisonment, Likewise, in Prem Chand and another v. State of Haryana, AIR 1989 SC 937 : 1989 Cri W 1246, in the peculiar facts and circumstances of the case the Honble Apex Court reduced the sentence of imprisonment of ten years awarded under Section 376 (2) IPC to a period of sentence of rigorous imprisonment for a period of five years. The State of Haryana filed a review petition before the Apex Court but the same was dismissed. 10. The State of Haryana filed a review petition before the Apex Court but the same was dismissed. 10. After considering all the facts and circumstances of the case, it is revealed that the accused appellant is handicapped having one hand and he is in custody for more than five years. After considering all the facts and circumstances, I am of the view that sentence awarded deserves to be reduced. 11. For these reasons the sentence awarded under Section 366 IPC for five years rigorous imprisonment is upheld but instead of a fine of Rs. 1000/-, the accused appellant is directed to pay a fine of Rs. 500/-, in default of payment of fine to further undergo two months simple imprisonment. For the offence under Section 376 IPC, the sentence is reduced to seven years rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine to further undergo 15 days simple imprisonment. Both the sentences shall run concurrently. The sentence accordingly stands modified. 12. The revised jail warrant be issued. 13. The appeal is disposed of accordingly. Order accordingly.