Judgment KANWALJIT SINGH AHLUWALIA, J. 1. The present appeal has been filed by Ram Niwas son of Dashmi. He was named as accused in case FIR No.23 dated 25.1.1996 registered at Police station Barwala under Sections 363, 366 and offence under Sec.376 IPC was added later. The Court of Additional Sessions Judge, Hisar found the appellant guilty for offence under Sections 366 and 376 IPC. The appellant was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of rs.10,000/- for offence under Sec.366 IPC, in default of payment of fine, he was to further undergo rigorous imprisonment for one and a half year. He was also sentenced under Sec.376 IPC to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- and in default of payment of fine, he was to further undergo rigorous imprisonment for one and a half year. Both the sentences were ordered to run concurrently. 2. In the present appeal, the impugned judgment has been assailed and it has been prayed that conviction recorded and sentence awarded by the Court of Additional Sessions Judge, Hisar be set aside. Name of the prosecutrix is being withheld so that identity of the prosecutrix is not revealed. In the present case, FIR was lodged on basis of the statement made by Bhim Singh, father of the prosecutrix. Statement Ex. PB was recorded at the Police Station when complainant reached there to lodge the report. Complainant Bhim Singh stated that he is aged 40 years and is resident of Village Panihari and employed as Clerk in Irrigation Department at Hisar. After performing his duties, he used to daily return to his village. He had got six children, out of which four were daughters and two sons. Eldest daughter Saroj was married and younger son was a student of 9th class. Thereafter daughter (prosecutrix) was aged 16 years. Other children were toddlers. Prosecutrix used to do household work and was illiterate. House of Dashmi son of Jahiria, Caste Harijan adjoins the house of complainant. His son Ram Niwas was aged 20 years and was a student of 10th Class. Father of the complainant and Dashmi had cordial relations and they used to visit each other. Two months before the occurrence, prosecutrix had gone to Barra to throw gober (cow dung ). House of Dashmi son of Jahiria, Caste Harijan adjoins the house of complainant. His son Ram Niwas was aged 20 years and was a student of 10th Class. Father of the complainant and Dashmi had cordial relations and they used to visit each other. Two months before the occurrence, prosecutrix had gone to Barra to throw gober (cow dung ). At that time, wife of the complainant saw that Ram Niwas had performed wrong act with the prosecutrix. Krishna wife of the complainant pulled up Ram Niwas. In the evening when complainant returned, his wife told him about the incident. Complainant also called Ram Niwas and told him not to repeat such act in the future. On 25.1.1996, wife of the complainant had gone to neighborhood to offer condolences, as some body had died there. Prosecutrix was left alone at the house. After one hour when wife of the complainant Krishna returned to her house, she found that prosecutrix was missing. Family of the complainant searched for the prosecutrix till 6.00 P. M. When complainant after performing his duty at Hisar reached the village, his wife told him that prosecutrix was missing. From the neighborhood, it was learnt that Ram Niwas son of Dashmi had induced the prosecutrix to elope with him. Accompanied by son of the uncle (Chacha), complainant came to the police station to lodge the report. From the statement Ex. PB, following three facts are apparent:- (a) That age of the prosecutrix in the FIR mentioned was 16 years; (b) Prosecutrix earlier was spotted by the wife of the complainant with accused Ram Niwas doing something which was not acceptable to the family; (c) That when wife of the complainant had gone to offer condolences, prosecutrix being alone had left the house. The above said FIR was investigated. Report under Sec.173 Cr. P. C. was submitted. The appellant was charged by the Court of Additional Sessions Judge, Hisar on 10.6.1996. The first charge stated that on 25.1.1996 in the area of Village Panihar, the appellant abducted the prosecutrix with intent that she would be compelled to perform intercourse and committed offence punishable under Sec.366 IPC. Secondly in the area of Village Dhani Hajampur, appellant had committed rape upon the prosecutrix and, thus, committed offence under Sec.376 IPC. At this stage, medical evidence can be noticed. Dr. Secondly in the area of Village Dhani Hajampur, appellant had committed rape upon the prosecutrix and, thus, committed offence under Sec.376 IPC. At this stage, medical evidence can be noticed. Dr. K. K. Newal PW6 examined the prosecutrix on 26.1.1996 at 8.00 P. M. At that time, prosecutrix had given her age as 15 years. The observations made by the medical Officer can be noticed as under:- ". . . She was conscious and well oriented in time and place. She was febrile. Her pulse was 80/p. M. And BP was 100/70 mmhg. Her L. M. P. Was 25th january, 1996. Her menstrual history was 3/30 and she attained menarche about one and half years back. No mark of external injury on any part of her body Breast or thighs or private parts. Both breasts were well developed and public and axillary hair were black and coarse pubic hair were taken for chemical examination. She was having menstrual bleeding. Two vaginal swabs were taken for chemical examination. On local examination: Both labia majora and labia minora were well developed. There was no mark of injury on nitrites. Old healed torn hymen was present. On perpeculam examination Blood stained discharge was present. There was no mark of injury seen. On per-vaginal examination: Vagina admitted two finger tightly. Cervix was small. Uterus was retroverted normal size. Non tender. Both fornices were containing nothing and were non tender. She was referred to radiologist for age verification. She was found to be habitual to in-frequent intercourse." 3 Pw3 Dr. Arun Gupta, Medical Officer, General Hospital, Hisar conducted radiological examination of the prosecutrix on 11.3.1996. As per ossification test, he determined the age of prosecutrix between 15 years to 16 years. In the cross-examination, this witness stated that there is variation of approximate three years on either side. 4. Dr. HARVINDER Singh, Medical Officer, Government Health Centre, barwala PW4 medico legally examined accused-appellant Ram Niwas and opined that there was nothing to suggest that appellant was not able to perform sexual intercourse. 5. Prosecutrix appeared as PW1. She stated that her mother had gone to offer condolences to the house of Kidara of the village. 4. Dr. HARVINDER Singh, Medical Officer, Government Health Centre, barwala PW4 medico legally examined accused-appellant Ram Niwas and opined that there was nothing to suggest that appellant was not able to perform sexual intercourse. 5. Prosecutrix appeared as PW1. She stated that her mother had gone to offer condolences to the house of Kidara of the village. At about 12.30 p. M. , accused present in Court came and asked her to reach his old house situated near the Village Chopal and after a short while prosecutrix followed him and reached there and accused was found present there. At that time Sumer whose shop was situated near the said old house of the accused, was sitting out side the shop. Sumer told the accused to take the prosecutrix inside the house and asked the accused to allow him also to perform sexual intercourse. Prosecutrix remained present in that house till 4.00/5.00 P. M. Thereafter Ram niwas took her from Village Panihari to village Hajampur. They went to Pala Ram maternal uncle of the accused who provided them accommodation in the back room of his house. Prosecutrix and accused slept in that room. After bolting the door of the room, accused raped her twice. Father of the prosecutrix reached there along with the police and took prosecutrix into his possession vide memo ex. PA and accused was arrested. From there accused was taken to Police Station barwala. In cross-examination, prosecutrix stated that accused Ram Niwas was known to her prior to the occurrence. His house adjoins the back portion of the house of the prosecutrix. In Court, this witness tried to explain that she had gone to Chopal, as the accused offered her to get new clothes and sweets. She was confronted with her statement Ex. DA where it was not so recorded. She further stated that accused reached her house immediately when her mother had left the house. At that time her other brothers and sisters were away to school. 6. Bhim Singh complainant-father of the prosecutrix appeared as PW2. He stated that on the day of occurrence, prosecutrix was aged 16 years. He reiterated what was stated in the FIR. He proved his statement Ex. PB, on basis of which FIR was registered. He stated that earlier to the occurrence, his wife had noticed the accused and prosecutrix in an objectionable position. He stated that on the day of occurrence, prosecutrix was aged 16 years. He reiterated what was stated in the FIR. He proved his statement Ex. PB, on basis of which FIR was registered. He stated that earlier to the occurrence, his wife had noticed the accused and prosecutrix in an objectionable position. He further stated that next morning, he went along with the police party to the house of Pala Ram at Village Hajampur where accused was found present along with the prosecutrix. Shamsher Singh, Draftsman PW5 proved scaled site plan ex. PJ of the place where the accused and prosecutrix were found. Shri s. K. Goyal, Chief Judicial Magistrate, Sirsa appeared as PW7 and proved statement of the prosecutrix recorded under Sec.164 Cr. P. C. . 7. Hc Rai Singh PW8 and Constable Zile Singh had tendered their affidavits Ex. PQ and Ex. PR respectively to prove link evidence. Inspector Ombir singh appeared as PW10. He proved various aspects of the investigation. In cross-examination, he stated that prosecutrix had gone away with the accused on same day. On the next day, father of the prosecutrix told him that Ram Niwas had gone to Village Hajampur and Ram Niwas and prosecutrix were apprehended. 8. Statement of the accused was recorded under Sec.313 Cr. P. C. He denied all incriminating circumstances which were put to him and stated that he was falsely implicated by father of the prosecutrix at the instance of Sajjan Singh, Sarpanch to whom they had not supported in the election. No witness was examined in defence. 9. Mr. MAN Mohan appearing for the appellant has stated that appellant has been falsely implicated. The prosecutrix had herself left the house and sexual intercourse was performed with consent of the prosecutrix. Ms. Hemlata Balhara, Assistant Advocate General has stated that trial Court has rightly relied upon the testimony of PW1 prosecutrix and PW2 Bhim Singh her father. 10. I have considered the submissions advanced by counsel for the parties. 11. In the present case, in the FIR Ex. PB, Bhim Singh father of the prosecutrix had given her age as 16 years. At the time of medico legal examination, prosecutrix gave her age as 15 years. Ossification test of the prosecutrix was conducted and after radiological examination, PW3 Dr. Arun Gupta determined the age of the prosecutrix between 15 to 16 years. PB, Bhim Singh father of the prosecutrix had given her age as 16 years. At the time of medico legal examination, prosecutrix gave her age as 15 years. Ossification test of the prosecutrix was conducted and after radiological examination, PW3 Dr. Arun Gupta determined the age of the prosecutrix between 15 to 16 years. In cross-examination, doctor stated that there is a variation of approximate three years on either side. However, the age of the prosecutrix is conclusively clinched as father of the prosecutrix PW2 Bhim Singh stated that on the day of occurrence, prosecutrix was 16 years. Thus, on the day of occurrence, prosecutrix was more than 16 years of age but less than 18 years of age. Accused and the prosecutrix are neighbourers. The accused and prosecutrix were earlier seen by mother of the prosecutrix in an objectionable condition. Mother of the prosecutrix objected and father of accused had reprimanded the accused. It has come in evidence that when mother of the prosecutrix had gone to offer condolences in the neighbourhood, where death had taken place, on the message given by the accused, prosecutrix herself reached in the chopal near old house of the accused. From there she willingly accompanied the appellant to Village Hajampur in a four wheeler. In the way, she had not disclosed to any body that she was being taken forcibly. Both the prosecutrix and the accused thereafter had taken shelter in the house of maternal uncle of the appellant. On the next day, police along with father of the prosecutrix recovered them. In the house of maternal uncle also, prosecutrix had not complained to any body that she has been forcibly brought by the accused. Therefore, it can be safely inferred that prosecutrix had eloped with the accused and there is a merit in the contention of learned counsel that both being in their fancy were having a love affair. Therefore, it can be safely inferred that prosecutrix had consented to sexual intercourse. She was duly confronted with her previous statement Ex. DA where it was not stated that she followed the accused as he had promised to offer her new clothes. Under Sec.375 (6) IPC any sexual intercourse performed with consent of a girl whose age is more than 16 years will not constitute rape. She was duly confronted with her previous statement Ex. DA where it was not stated that she followed the accused as he had promised to offer her new clothes. Under Sec.375 (6) IPC any sexual intercourse performed with consent of a girl whose age is more than 16 years will not constitute rape. Now the issue remain for consideration of the Court is that prosecutrix was less than 18 years, therefore, she could not be taken away from lawful custody of her parents. Thus, the appellant has committed offence under Sec.366 IPC. As a result of above discussion, appellant is acquitted for offence under Sec.376 IPC, however, conviction of the appellant recorded under Sec.366 IPC is upheld. In the present case, occurrence had taken place on 25.1.1996.14 years are going to elapse. Counsel has further stated that appellant has committed no offence after the occurrence. Appellant has already suffered mental pain and agony of protracted trial. At the time of occurrence appellant was 18 years and prosecutrix was 16 years. Therefore, both the appellants and prosecutrix were not mature enough to understand the consequences of elopement. Sentence awarded upon the appellant under Section 366 IPC is excessive. Taking into consideration age and the protracted trial, the sentence awarded upon the appellant under Sec.366 IPC is reduced from seven years rigorous imprisonment to three years rigorous imprisonment.