JUDGMENT Mr. Kanwaljit Singh Ahluwalia, J. (Oral) - Dilawar son of Puran Mal, a student aged about 20 years, has directed the present appeal against the judgment of his conviction dated 9th May, 2001 rendered by the Sessions Judge, Jind, whereby he was held guilty of offences punishable under Sections 363, 366 and 376 IPC. Vide a separate order dated 11th May, 2001, the appellant was sentenced under Section 376 IPC to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.3,000/-, in default of payment of fine to further undergo rigorous imprisonment for two years. He was further sentenced under Section 366 IPC to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.2,000/-, in default of payment of fine to further undergo rigorous imprisonment for one year. The appellant was also sentenced under Section 363 IPC to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months. All the sentences were ordered to run concurrently. 2. Criminal proceedings were set into motion on an application Ex.PE filed by Surta PW-3, father of the prosecutrix PW-13 (name withheld to protect her identity). In the application Ex.PE, on the basis of which formal FIR Ex.PH was registered, he stated that he was father of two sons and three daughters. Eldest daughter (prosecutrix) was aged about 14 years. On 2nd February, 2000, he had gone to Safidon to do labour work and his wife Reshma had gone to other houses to do domestic work. His wife returned at about 4.00 p.m. and found that the prosecutrix was missing. A search was carried-out and at about 4.45 p.m. it was learnt that the prosecutrix had been enticed away by Dilawar Singh alias Kala, the present appellant. On the next day, i.e. 3rd February, 2000, a Panchayat was held, in which parents of the appellant sought three days’ time for bringing back the prosecutrix. Mother of the appellant also told that Dilawar Singh had taken Rs.1,400/- and he was also missing. Since the prosecutrix could not be traced-out within three days, a written application was given for registration of a case. Mother of the appellant also told that Dilawar Singh had taken Rs.1,400/- and he was also missing. Since the prosecutrix could not be traced-out within three days, a written application was given for registration of a case. It is case of the prosecution that on 17th February, 2000, the prosecutrix and the accusedappellant Dilawar Singh were arrested at Railway Station, Jind. Thus, it is evident that both, the accused Dilawar Singh and the prosecutrix left their houses on 2nd February, 2000 and were apprehended on 17th February, 2000, i.e. after a period of 15 days. Statement of the prosecutrix Ex.PM was recorded under Section 164 Cr.P.C. on 2nd March, 2000. 3. The appellant was charged by the Court of Sessions Judge, Jind for offences punishable under Sections 363, 366 and 376 IPC. The appellant pleaded not guilty and claimed trial. 4. Prosecutrix was medico legally examined by Dr.Mrs.Renu Aggarwal PW-1 on 17th February, 2000 at about 6.05 p.m. She found no external or internal mark of injury on the person of the prosecutrix. It was further opined by the Doctor that vagina of the prosecutrix admitted two fingers easily. Salwar and Kameej of the prosecutrix were also taken into custody and human semen was found on her Salwar Ex.P1. This witness further stated that the prosecutrix was referred to the Radiologist for determination of her age. 5. Dr. V.P. Kakkar, Medical Officer, Government Hospital, Jind appeared as PW-2. He had medico legally examined the appellant and opined that there was nothing to suggest that the appellant was incapable of performing sexual intercourse. 6. Prosecution examined father of the prosecutrix, Surta as PW-3 and the prosecutrix as PW-13. Surta PW-3 reiterated as to what was stated in the complaint Ex.PE and this witness was cross-examined for determination of age of the prosecutrix. 7. Statement of the prosecutrix under Section 164 Cr.P.C. was recorded by A.S. Narang, CJM, Sirsa PW-9, who at the relevant time was posted as Sub Divisional Judicial Magistrate, Safidon. Kartar Singh Patwari PW-12 had prepared the scaled site plan Ex.PR. 8. SI Chander Bhan PW-4, HC Giani Ram PW-5, HC Satpal PW-7, HC Satbir Singh PW-8, Constable Ram Bhaj PW-10 and Constable Ramesh Kumar PW-11 had participated in the investigation. 9. The case of the prosecution hinges upon the testimonies of Surta PW-3 and the prosecutrix PW-13. Kartar Singh Patwari PW-12 had prepared the scaled site plan Ex.PR. 8. SI Chander Bhan PW-4, HC Giani Ram PW-5, HC Satpal PW-7, HC Satbir Singh PW-8, Constable Ram Bhaj PW-10 and Constable Ramesh Kumar PW-11 had participated in the investigation. 9. The case of the prosecution hinges upon the testimonies of Surta PW-3 and the prosecutrix PW-13. This Court has to answer following three questions: (a) What was the age of the prosecutrix? (b) Whether the prosecutrix was a consenting party to the sexual intercourse? (c) What offence has been committed by the appellant? 10. After hearing counsel for the parties, the following facts emerge for consideration of this Court. 11. Surta PW-3, father of the prosecutrix, had stated that the prosecutrix was born at Kharad, District Hissar and she was his eldest child. It was further stated by him that he had five children, two sons and three daughters. The names of his sons were Ashok, Amit and Sunny. Ashok was a student of VI Class and was aged about ten years on the date of deposition, i.e. 28th August, 2000. He was 2 ½ years elder to Mamta. Mamta was aged about 12-13 years and the prosecutrix was elder to Mamta by two years. 12. Counsel for the appellant has submitted that from the testimony of Surta PW-3, it is evident that the prosecutrix was aged about 15-16 years. Learned counsel has further referred to the birth certificate Ex.DX pertaining to Ashok, wherein the names of his parents have been mentioned as Surta and Reshma Devi. The date of birth of Ashok mentioned in the birth certificate Ex.DX recorded is 30th December, 1987. Counsel states that the birth certificate Ex.DX was tendered by the accused and its admissibility was not disputed by the prosecution and same was permitted to be exhibited as Ex.DX. 13. Mr. Sandeep Singh Mann, Senior DAG, Haryana appearing on behalf of the State, has submitted that no witness was examined to prove the birth certificate Ex.DX and it cannot be ruled out that it pertains to some other Ashok, even though name of the father has been recorded as Surta. 14. This Court has to take all probabilities into consideration. It is an admitted fact that the doctor had referred the prosecutrix to the Radiologist for determination of her age. 14. This Court has to take all probabilities into consideration. It is an admitted fact that the doctor had referred the prosecutrix to the Radiologist for determination of her age. Counsel for the appellant has submitted that along with the report under Section 173 Cr.P.C., the report of ossification test was not annexed. Learned counsel has stated that this was done to deprive the Court to arrive at the right age of the prosecutrix. It is further submitted that the prosecution has submitted birth certificate of the prosecutrix Ex.PF, in which her date of birth was given as 10th January, 1986. Counsel has stated that later-on, an effort was made to say that the prosecutrix was having Pushpa as an alias name as mentioned in birth certificate Ex.PF. Counsel has further stated that no witness was examined to prove birth certificate Ex.PF and it cannot be ruled out that the same pertains to another daughter of Surta. A perusal of the birth certificate Ex.PF relied upon by the prosecution reveals that names of parents of the prosecutrix were recorded as Surta and Reshma. In birth certificate Ex.DX pertaining to Ashok Kumar, name of the parents recorded was also the same. The date of birth of Ashok in birth certificate Ex.DX was recorded as 30th December, 1987. According to the testimony of Surta PW-3, Ashok was 4 ½ years younger than the prosecutrix. 15. In the circumstances, where the report of ossification test has been withheld from the Court and later-on an attempt was made to assign an alias name to the prosecutrix and the age of the prosecutrix is bordering 15-16 years, this Court is of the opinion that a margin of one year can be granted to the accused and it can be safely inferred that the prosecutrix was aged more than 16 years on the date of occurrence. It was incumbent upon the prosecution to conclusively prove the age of the prosecutrix. 16. Once, this Court has held that it is not safe to rely upon the prosecution evidence to say that the prosecutrix was less than 16 years of age, this Court has to examine the conduct of the prosecutrix. The prosecutrix had stated that on 2nd February, 2000, she had gone to the house of the accused, where she was given sweets and three clothes. The prosecutrix had stated that on 2nd February, 2000, she had gone to the house of the accused, where she was given sweets and three clothes. She was also given some ornaments and she traveled along with Dilawar in a three-wheeler to Safidon. They alighted from the three-wheeler at the canal bridge at Safidon and then they went to the railway station Safidon. Thereafter, the accused took her to different places and when the money possessed by the accused was finished after 15 days, they returned to railway station Jind. It is improbable that for 15 days when the prosecutrix was accompanying the accused and she could not disclose any fact to anybody, though she was traveling in the public transport and had gone to public places like railway station also. It can be safely inferred that she was a consenting party to the sexual intercourse. Thus, no offence punishable under Section 376 IPC is made out against the appellant. However, the prosecutrix was less than 18 years of age, though she has been held to be above 16 years. She has been enticed away from the lawful custody of her parents by the accused on the pretext of marriage and she was induced for sexual intercourse. Thus, an offence punishable under Section 366 IPC is made out against the appellant. 17. The appellant has been sentenced to five years rigorous imprisonment under Section 366 IPC and to four years rigorous imprisonment under Section 363 IPC. Occurrence, in the present case, had taken place in the year 2000. About ten years have elapsed. The appellant has suffered mental pain and agony of a protracted trial. He was aged about 20 years when the occurrence had taken place. He was a teenager and being immature, he could not comprehend the consequences of his acts. Taking totality of these circumstances into consideration, this Court is of the opinion that ends of justice will be fully met in case sentence of five years rigorous imprisonment awarded to the appellant under Section 366 IPC is reduced to three years and the sentence of four years rigorous imprisonment awarded to him under Section 363 IPC is reduced to two years rigorous imprisonment. However, sentence of fine is maintained. Sentences awarded under Sections 366 and 363 IPC shall run concurrently. 18. However, sentence of fine is maintained. Sentences awarded under Sections 366 and 363 IPC shall run concurrently. 18. Hence, in the present appeal, the appellant is acquitted of the offence punishable under Section 376 IPC, however, the sentence awarded to him by the trial Court under Section 366 and 363 IPC is modified in above terms. 19. With the observations made above, present appeal is disposed of. ---------0.J.S.K.0-----------