JUDGMENT Mr. Arvind Kumar, J.: - The appellant has been held guilty under Sections 376, 366, 363 and 506 IPC by dint of judgment dated 30.4.2002 and vide order dated 8.5.2002 he has been sentenced to undergo rigorous imprisonment for seven years with fine of Rs.500/-; three years with fine of Rs.300/- ; two years along with fine of Rs.200/- and one year respectively. In default of payment of fine further rigorous imprisonment for three months; three months and again two months respectively was awarded on the aforesaid counts. All the sentences were ordered to run concurrently, while his co-accused Jitender @ Johni, who since was found juvenile, was sent to the Juvenile Justice Board for awarding of sentence. 2. The brief fact of the case are that on 7.10.2000 Suresh Kumar and Subhash Chand went to the police station and apprised the police about missing of their daughters respectively as Pooja and Pinki, aged about 14-15 years, who had gone to attend the tuition classes yesterday, but did not return. They also suspected the hand of Rajiv @ Monu and Jitender @ Johni in it and doubted that they have taken away the girls on the false promise of getting marriage. 3. On the basis of statement Ex.PA present case was registered and investigated upon, during course of which it revealed that the girls were noticed with the aforesaid Rajiv and Jitender near Vaishno Devi shrine and were taken back by one Sheshan and Jai Kumar to Karnal along with boys, from where the police arrested both of them and girls, after medical examination, were handed over to their respective parents. Statements of both the girls under Section 164 Cr.P.C. were got recorded and on the basis thereof offence under Section 376 IPC was also added against the appellant. On completion of usual formalities of investigation, final report under Section 173 Cr.P.C. was prepared and forwarded to the Court for trial of the accused. 4. On finding a prima facie case for the commission of offence under Sections 363, 366, 376 and 506 IPC accused Rajiv was charge sheeted while co-accused Jitender was charge sheeted under Sections 363, 366 and 506 IPC, to which they pleaded not guilty and claimed trial. 5. 4. On finding a prima facie case for the commission of offence under Sections 363, 366, 376 and 506 IPC accused Rajiv was charge sheeted while co-accused Jitender was charge sheeted under Sections 363, 366 and 506 IPC, to which they pleaded not guilty and claimed trial. 5. During trial the prosecution examined Sheshan as PW1, complainant Subhash Chand and Suresh Chand as PW2 and PW3 respectively, both the prosecutrix as PW4 and PW5 respectively, Dr. Deepak Parkash as PW6, Const. Maman Ram as PW7, PW8 HC Dharambir, PW9 Dr. Jyoti Shukla and ASI Ajit Singh, the investigating officer as PW10 besides the documentary evidence. 6. On closure of prosecution evidence, the incriminating evidence produced by the prosecution was put to the accused, which were denied by them and they pleaded false implication. According to them both the girls, accompanied them in the Mandli, without the permission of her parents to Vaishno Devi, where the girls tried to separate from the Mandali, upon which they were snubbed by Jai Kumar and Sheshan and they warned the girls not to follow both the boys and on reaching back Jai Kumar and Sheshan made complaint about their behaviour and attitude towards the girl and annoyed with the same the parents of the girls implicated them falsely in this case. They also pleaded that neither they kidnapped the girls nor any sexual act was done by them with the girls. 7. In defence the accused examined Surinder Kumar as DW1. 8. On conclusion of trial, the appellant was held guilty under Sections 363, 366, 376 and 506 IPC and sentenced in the manner indicated above. The learned trial Court, on the basis of evidence on record, came to the conclusion that the prosecutrix were less than 16 years of age and hence could not have given any valid consent. 9. Dis-satisfied with the same, present appeal has been preferred by the appellant Rajiv @ Monu. 10. I have heard learned counsel for the parties and with their assistance have gone through the records of the case. 11. It has been strenuously argued by learned counsel for the appellant that the evidence produced by the prosecution in respect of the age is not convincing and has to be excluded from the zone of consideration. 10. I have heard learned counsel for the parties and with their assistance have gone through the records of the case. 11. It has been strenuously argued by learned counsel for the appellant that the evidence produced by the prosecution in respect of the age is not convincing and has to be excluded from the zone of consideration. He further contends that the prosecutrix voluntarily accompanied the accused and there was no criminal intimidation or threat on the part of the accused compelling the prosecution to accompany him and the sexual acts being consentual, the accused be acquitted by giving him the benefit of doubt. 12. As per prosecution allegations prosecutrix Pinki was raped by the present appellant while there stay at Vaishno Devi in a hotel. Her conduct is such that indicates her to be a consenting party to the sexual acts. It has come on record that when she along with Pooja was returning from tuition classes, the appellant and his accomplice Jitender met them on the way and asked both of them to accompany them, failing which they threatened to kill them. Then under the fear both the girls sat with the accused in a jeep and they took them to Safidon, then to Panipat and thereafter to Delhi by train and from Delhi they took both the girls to Jammu by train and thereafter they boarded a bus and went to Mata Vaishno Devi where in the way they took a hault at Aard Kunwari. There prosecutrix Pinki and the appellant Rajiv took a room in hotel while Pooja and Jitender stayed in separate room. It is the case of the prosecution that in the hotel appellant committed sexual intercourse with the prosecutrix. The evidence of PW9 Dr. Jyoti Shukla, who medicolegally examined the prosecutrix is suggestive of the fact that the prosecutrix had a sexual intercourse and per examination no marks of injury were noticed on her person. The tenor and manner of her deposition, as depicted from the impugned judgment, is suggestive of the fact that she was a consenting party to the sexual inter course since right from the beginning of their journey from Safidon to Jammu and then to Katra, at no point of time, she raised any hue to cry so as to get herself rescued from the clutches of the accused. During all this she obviously have come across number of people, but the silence on her part is clearly pointing that she was a consenting party. 13. But the evidence produced on record with regard to the age of the prosecutrix proves her age to be between 14-15 years at the relevant time. The evidence has been scrutinized and this Court is of the considered view that the findings returned by the Court below as to the age of prosecutrix need no interference by this Court. She is found to be born on 1.12.1986 as per school record produced by the prosecution, coupled with the other oral evidence of prosecutrix herself and that of her father. Hence, as per law she could not have given any valid consent. It has also come on record that the appellant and his co-accused threatened the prosecutrix to with life and forced them to accompany in a jeep and then took them to different places and the intention of the appellant was committing of sexual intercourse with her. Thus, the conviction of the appellant under Sections 363, 366,506 and 376 IPC warrants no interference by this Court. 14. Faced with the situation, learned counsel for the appellant has contended that the prosecutrix was a consenting party and had voluntarily accompanied the appellant, but technically that consent carries no value in the eyes of law, therefore, in the light of circumstances above, a lenient view be taken towards the appellant in the matter of sentence. 15. Though the law provides for imposing minimum sentence of seven years upon an accused found guilty of offence under Section 376 IPC yet the proviso to Section 376(1) gives discretion to the Court to award lesser sentence by recording adequate and special reasons in is judgment. In the case in hand though the prosecutrix was less than sixteen years of age, therefore, she could not have given a valid consent yet as held by this Court above, the prosecutrix had accompanied the appellant from place to place without there being any whisper or murmur on her part, which itself is an adequate and special reason for awarding lesser sentence to the appellant than the minimum prescribed. 16. In the case of State of H.P. Vs. 16. In the case of State of H.P. Vs. Mango Ram, 2000(7) SCC 224, the Hon’ble Apex Court, while convicting the appellant therein under Section 376 IPC, considered the mitigating circumstances of the case and restricted the period of sentence to the one already undergone by the appellant. The relevant observations are reproduced hereinbelow:- “16. In view of the foregoing conclusions, we reverse the findings of the learned sessions Judge which was confirmed by learned single Judge and find that the accused is guilty of the offence punishable under Section 376, I.P.C. As regards the sentence, we take a lenient view for the reason that the prosecutrix and accused are related. They were both teenagers with an age difference of about 2-3 years. Both were immature and young. Evidence indicates no marks of violence at all on any part of the body of the prosecutrix. The incident happened in 1993. After the acquittal by passage of time, the members of the two families must have buried their hatchet if any arisen on account of this incident. The learned counsel for the respondent argued that a further order for custodial sentence at this distance of time may cause rapture to social harmony in the village life and may only help to rekindle the flames of anger which have been smouldering for so long between near relatives. Having regard to all these matters, we hold that sentence already undergone by the accused would be sufficient to meet the ends of justice, and we do accordingly.” 17. In Crl. Appeal No. 806-SB of 2008, titled as Dilbag Singh Vs. State of Haryana, a Coordinating Bench of this Court, in a similarly situated situation, while following Mango Ram’s case (supra) reduced the sentence awarded to the appellant therein under Sections 363 and 376 to the period already undergone i.e. three years, eight months and fifteen days. 18. Keeping in view the mitigating circumstances of the case, as noticed above, this Court is of the considered view that ends of justice would be best met by reducing the substantive sentence of imprisonment of the appellant to the period of three years. 19. Resultantly, the conviction of the appellant for offences under Sections 363, 366 and 376 IPC is maintained. However, his substantive sentence of imprisonment is reduced to the period of three years. The sentence of fine with default clause is also maintained. 19. Resultantly, the conviction of the appellant for offences under Sections 363, 366 and 376 IPC is maintained. However, his substantive sentence of imprisonment is reduced to the period of three years. The sentence of fine with default clause is also maintained. The appellant since has not completed his sentence and is on bail, he shall surrender before the CJM concerned forthwith, failing which his warrants of arrest be issued by the CJM concerned. Copy of this order be sent to the Court of CJM concerned forthwith. 20. Appeal stands disposed of in aforesaid terms. --------------------