JUDGMENT K.M. Thaker, J. 1. Present appeal under Section 374 of Code of Criminal Procedure is directed against the judgment and order dated 14.8.2012 passed by the learned Second Additional Sessions Judge, Mehsana in Sessions Case No. 59 of 2011 recording conviction against present appellant i.e. original accused No. 1 for the offence punishable under Sections363, 366 and 376 of Indian Penal Code. 2. So far as the accused No. 2 in said Criminal Case No. 59 of 2011 is concerned, the accused No. 2 is acquitted from the charge for offence punishable under sections 363, 366 and 114 of IPC. 2.1 By the said judgment and order dated 14.8.2012, the learned Court has recorded conviction against the original accused No. 1, i.e. present appellant for the offence punishable under sections 363, 366 and 376. For the offence under Section 376 the appellant sentenced to undergo RI for 7 years and to pay fine to the tune of Rs. 1,500/- and in default to undergo SI for 2 months and for offence under Section 366 the appellant is convicted and sentenced to undergo RI for one year with fine of Rs. 500/- and in default to undergo simple imprisonment for one month and for offence punishable under section 363, accused No. 1 - appellant is sentenced to undergo RI for 1 year and fine of Rs. 500/- and in default to undergo SI for 1 month. 3. The case of the prosecution is that the appellant kidnapped the complainant's minor girl aged 15 years by enticing her with the promise that he will marry her and on such promise the appellant abducted the minor girl, moved with her at different places and committed sexual intercourse with the minor girl - victim and committed offence punishable under aforesaid provisions of IPC. 3.1 According to the prosecution on 6.3.2011 the complainant-father of the victim - lodged the complaint and alleged that on 25.2.2011, when he was going towards village Balasan he saw that accused No. 1 was going towards his village on a motorcycle and his daughter was with the appellant and when, on seeing them together he asked the appellant that where is he going with his daughter, the appellant told him that he met her (i.e. the complainant's daughter) near the farm from where she was returning and since he was going towards the village he offered to drop her and then the appellant drove the motorcycle with his daughter. When, after completing his work, the complainant returned home, he asked his wife about the daughter and his wife told him that she had not returned. Therefore, they started looking for their daughter and started making inquiry when accused No. 2 told them that their daughter and accused No. 1 have eloped on his motorcycle. Then, on 6.3.2011 the complainant - father of the girl - lodged the complaint that the accused No. 1 abducted his minor daughter aged 15 years with intention to commit sexual intercourse by enticing her with promise to marry and accused No. 2 had helped the accused No. 1 by lending his motorcycle to the accused No. 1. 3.2 On the basis of the material gathered during investigation, the inquiry officer found that there was sufficient material to file case and therefore the chargesheet came to be against said two accused. 3.3 As the case was triable by court of sessions, the learned Magistrate committed the case to the court of sessions where the case came to be registered as Sessions Case No. 59 of 2011. 3.4 The learned trial Court recorded statement of the accused. Both the accused pleaded not guilty and claimed to be tried. 3.5 After the stage of evidence was closed, further statements of the accused persons were recorded under section 313 of the Code when, the appellant claimed that he had actually tried to rescue the daughter of the complainant who was about to commit suicide and he had not committed any offence. 3.5 After the stage of evidence was closed, further statements of the accused persons were recorded under section 313 of the Code when, the appellant claimed that he had actually tried to rescue the daughter of the complainant who was about to commit suicide and he had not committed any offence. Thereafter the learned trial Court heard the learned advocate for the accused and the learned PP and after considering the submissions, evidence on record, the learned trial Court found the accused No. 1 guilty of the offence under Section 363, 366 and 376 and found that the charge against accused No. 2 was not proved. The learned Court acquitted the accused No. 2 while recording conviction against accused No. 1 for the aforesaid offence. Hence, this appeal under section 374. 3.6 During the trial, the prosecution examined below mentioned 11 witnesses and about 28 documents. Sr. No. Name of Witness Exh. No. 1 Dr. Bakulbhai P. Patel 18 2 Dr. Dilipkumar K. Thakker 23 3. Shakarabhai G. Salat 30 4. Panch Devjibhai J Salat 31 5. Panch Chavda Jaswantbhai 34 6. Victim 37 7. Dr. Nilesh A Brahmbhatt 38 8. Revabhai S. Parmar 39 9. Jayantibhai 42 10. Raysangji S. Thakore 44 11. Kanubhai R. Kapadia 49 3.7 The prosecution also placed on record below mentioned documents: Sr. No. Type of Document Exh. No. 1. Order of deputation 15 2. Report for examination of victim 19 3. Medical Certificate of victim 20 4. Report for examination of accused 21 5. Treatment Certificate of accused 22 6. Letter to refer victim 24 7. Case Papers 25 8. Civil Hospital, Mehsana Certificate of victim 26 9. Report to Medical Officer, Mehsana For Examination of victim 27 10. Panchnama of Recovery of clothes of victim 33 11. Muddamal Slip 35 12. Panchnama of recovery of clothes of accused 36 13. Extract of General Register for age verification 40 14. School Leaving Certificate of victim 41 15. Station Diary 43 16. Application to recover Muddamal 45 17. Panchnama under section 27 47 18. Panchnama of bike 48 19. Complaint 50 20. Report to PSO to lodge offence 51 21. Arrest of accused – report 52 22. Report of accused arrest made in Station Diary 53 23. R.C. Book of bike 54 24. Ravangi note 55 25. Receipt of FSL 56 26. Forwarding letter of FSL 57 27. FSL report 58 28. Panchnama of bike 48 19. Complaint 50 20. Report to PSO to lodge offence 51 21. Arrest of accused – report 52 22. Report of accused arrest made in Station Diary 53 23. R.C. Book of bike 54 24. Ravangi note 55 25. Receipt of FSL 56 26. Forwarding letter of FSL 57 27. FSL report 58 28. Serological report 59 4. The learned advocate for the appellant submitted that (a) any panch witness has not supported the case of the prosecution and panchnama is not proved since all the panch witnesses were declared hostile; and that (b) the victim was major and at the time of incident her age was 17 years or more and the appellant entered into physical - sexual relation with the girl - daughter of the complainant with her consent and that she was consenting partner; and that (c) the complaint was filed after delay of about one week inasmuch as the FIR was lodged on 6.3.2011; and that (d) there are material contradictions in the evidence with regard to the age of the prosecutrix. 4.1 However, having regard to the evidence of the victim the learned advocate for the appellant, stipulated, declared and submitted that the appellant does not challenge the judgment and decision recording conviction and the appellant also does not pray for clean acquittal. 4.2 Learned advocate for the appellant further submitted and clarified that having regard to the facts of the case and the age of the appellant it is prayed that the sentence may be reduced to the extent of sentence undergone. 4.3 The learned advocate for the appellant to justify the request to reduce the sentence, further submitted that the prosecutrix is now married and stays at her matrimonial house. The prosecutrix has, in her statement before the police and in her deposition admitted love affair between them and also admitted that the physical - sexual relation was committed with her consent and that she had travelled with him at different places. The prosecutrix has, in her statement before the police and in her deposition admitted love affair between them and also admitted that the physical - sexual relation was committed with her consent and that she had travelled with him at different places. Learned advocate for the appellant submitted that even in the history stated by the prosecutrix before the doctor, she admitted that the physical - sexual intercourse was committed with her consent and that there was no threat or force by the appellant and that it has emerged from the evidence including deposition by the doctor that any marks or signs of external injury or use of force were not found on the body of the victim which establishes that the appellant had not used any threat or force. Learned advocate for the appellant further submitted that in view of the contradiction and evidence with regard to the age of the prosecutrix, the appellant's request for reduction of sentence may be accepted and appeal may be allowed to that extent. 4.4 He also submitted that the appellant has undergone sentence for 3 years and 10 months and that, therefore, in light of the evidence on record and facts of the case, and considering young age of the appellant that sentence may be reduced to the extent of sentence undergone or as the Court may consider appropriate. 5. Mr. Dabhi, learned APP has opposed the appeal and the request for reduction in sentence. Learned APP submitted that in view of the fact that the victim girl was minor, the submission on ground of consent and request for reduction in sentence are not justified and may not be entertained. The learned APP submitted that there is sufficient documentary evidence with regard to the age of the prosecutrix and in the evidence of the complainant there is no contradiction with regard to the age of the prosecutrix. The learned APP also submitted that in view of the age of the prosecutrix at the time of incident, her alleged consent has no relevance. The learned APP also submitted that in view of the age of the prosecutrix at the time of incident, her alleged consent has no relevance. The learned APP further submitted that the investigation officer has given his deposition before the Court and in his evidence he has categorically stated that the panchnama were drawn in presence of the panchas and the details were recorded in presence of panchas and that he had signed the panchnama as well as the panchas had also signed the panchnama and that therefore merely because the panch witness turned hostile, probative value of the panchnama is not lost and it does not affect the case of the prosecution when the evidence of prosecutrix is recorded and her evidence supports and proves the case of prosecution. The learned APP referred to the evidence by PW-1 doctor (who had examined the victim) as well as the evidence by PW-2 the medical officer and PW-7 gynecologist and submitted that age of the prosecutrix as well as the fact that she was subjected to sexual intercourse is established beyond doubt. Learned APP also submitted that merely because the victim girl is now married, it cannot be a ground to be invoked by the appellant to seek reduction of sentence. Learned APP also submitted that the evidence by the prosecutrix and the details mentioned by the prosecutrix before the doctor who examined her establishes that she was subjected to sexual intercourse and merely because from the details mentioned by the prosecutrix, there was, as claimed by the appellant, element of consent, in view of the fact that she was minor, even if the physical and sexual relation was occasioned with consent, such consent by minor girl would not be material and relevant. The learned APP further submitted that the certificate and document of gynecologist corroborates the details mentioned in the school leaving certificate and thereby the age of the prosecutrix is established. Learned APP also submitted that merely because panchnama are not proved or merely because the panch witnesses turned hostile. Learned APP also submitted that the appellant - accused No. 1 had abducted the victim girl from custody of her parents and kept the victim girl in his custody for about fifteen days and returned with her and surrendered on 11.3.2011. 6. Learned APP also submitted that the appellant - accused No. 1 had abducted the victim girl from custody of her parents and kept the victim girl in his custody for about fifteen days and returned with her and surrendered on 11.3.2011. 6. As mentioned earlier, learned advocate for the appellant has declared and stipulated at the outset that the appellant does not challenge conviction and does not claim clean acquittal. 6.1 In this view of the matter, as such, it is not required that the entire evidence should be re-examined, reanalyzed and re-appreciated by this Court for deciding the appeal. 6.2 However, in view of the fact that the appellant seeks reduction in sentence, it would be appropriate to take into account relevant evidence to consider the appellant's request. 7. The prosecution examined PW No. 1 - the doctor who first examined the victim girl. The evidence of PW No. 1 is recorded at Exh. 18. According to the evidence of PW No. 1, he examined the victim girl on 12.3.2011 and that he had asked the victim girl the details as to what had happened when the victim girl said that on 25.2.2011 she had gone towards Narmada canal when the appellant approached her and told her that they should elope and then he took her to village Mundarda. The PW No. 1 also mentioned in his evidence that the victim girl said that when she and the appellant stayed in the farm at Mundarda village, they had entered into physical relation and the appellant had sexual intercourse with her. The victim girl had also mentioned, while giving details/history to the doctor, that she and the appellant had stayed in the said farm for four days and during the said four days, she and the appellant had entered into sexual relation. 7.1 The PW No. 1 also mentioned in his evidence that he had examined the victim girl and conducted physical examination and found that her hymen was ruptured and the internal examination revealed that in recent time she had entered into sexual intercourse and that he had collected samples which he had handed over to police. 7.2 The PW No. 1 also mentioned in his evidence that he had also examined the appellant on the same date i.e. on 12.3.2011. 7.2 The PW No. 1 also mentioned in his evidence that he had also examined the appellant on the same date i.e. on 12.3.2011. The PW No. 1 mentioned that he had asked the appellant about the history and the details which the appellant mentioned were similar to the details mentioned by the victim girl and that the appellant had also mentioned that he had entered into sexual relation with the victim girl and they committed sexual intercourse during the days they stayed together. 7.3 The appellant also informed the doctor - PW No. 1 that he was married. The PW No. 1 also mentioned in his evidence that he did not notice any external mark or injury of force or resistance either on the body of the victim girl or the appellant. 7.4 The certificates/OPD papers signed and given by the PW No. 1 after examining the victim girl and the appellant mentioned, inter alia, that hymen was ruptured but there were no signs or marks of injury. Any injury marks were not found on the body of appellant. 7.5 The FSL report established presence of blood and semen on sample No. A/1 (victim girl's petticoat), sample No. A/2 (victim girl's Saree) sample No. B-1 appellant's trouser, sample No. C-5 (vaginal smear). The said evidence collectively establish and prove that the victim girl was minor at the time of incident and that she was subjected to sexual intercourse. 7.6 The prosecution has also examined the Medical Officer, Mehsana, i.e. PW No. 2, and his evidence is recorded at Exh. 23. The PW No. 2 has mentioned in his evidence that he examined the victim girl and that he had asked the details/history to the victim girl. The victim girl said that when she was going towards Narmada canal, the appellant approached her and persuaded and convinced her not to commit suicide and then, she, at his invitation and of her own will went with him and they had gone to village Mundarda. The victim girl mentioned similar details before the PW No. 2 which she had mentioned before PW No. 1. The victim girl mentioned similar details before the PW No. 2 which she had mentioned before PW No. 1. The doctor - PW No. 2 has also mentioned in his evidence that the victim girl said that she and the appellant had entered into physical relation and had sexual intercourse during the days they stayed together and the last time the appellant committed sexual intercourse was on 10.3.2011 and that at no point of time the appellant had forced her to enter into physical relation and had not caused any injury. 7.7 The evidence of the complainant i.e. father of the victim girl is recorded at Exh. 30. In his evidence, the complainant i.e. PW No. 3 repeated the details which he mentioned in his complaint, however, he denied that on 21.2.2011, he had scolded the girl. He also denied that his daughter had gone to commit suicide. Except repeating the details mentioned in his complaint, the PW No. 3 has not mentioned any other relevant details in his deposition. Even the cross-examination of PW No. 3 did not bring out any contradictions. The statement under Section 313 by the appellant corroborates the evidence of the father of the victim girl who mentioned that he had seen the appellant taking her daughter towards village on a motorcycle and also establishes the fact that appellant had taken the victim girl on the motorcycle. Thus, meeting between the victim and the appellant and the fact that he had thereafter taken her away are established by appellant's own statement under Section 313. 7.8 In this background it would be appropriate to turn to and refer to the evidence of the victim girl who was examined as P.W. No. 6 and whose evidence is recorded at exhibit 37. 7.9 In her evidence the victim girl has mentioned that while she was working in the farm - filed the appellant had approached her. The appellant had come on motorcycle and told her that he would drop her at her house. However, instead of taking her directly to house he had driven motorcycle at distance place and taken her to some farm - field. Then he promised to marry her and by giving promise of marriage he enticed her to enter into sexual intercourse. The appellant had come on motorcycle and told her that he would drop her at her house. However, instead of taking her directly to house he had driven motorcycle at distance place and taken her to some farm - field. Then he promised to marry her and by giving promise of marriage he enticed her to enter into sexual intercourse. According to evidence of the victim girl the appellant entered into sexual intercourse for 3 days and thereafter he had taken her to another village where also they stayed for 3 days. The victim girl also mentioned in her evidence that subsequently the appellant took her to the Kadi Police Station. In cross-examination the victim girl accepted and admitted the suggestion by the defence that the appellant had not caused any injury or hurt to her and that he had not committed physical/sexual relation and intercourse with her by force. However, she expressly denied the suggestion in the cross-examination that the appellant had not committed sexual intercourse with her. 8. In background of such evidence by p.w. No. 1 and P.W. No. 2, and in light of the medical evidence viz. the certificate issued by P.W. No. 1 and P.W. No. 2 it is established and proved by the prosecution that the victim girl was subjected to sexual intercourse. 9. Now so far as the victim's age is concerned, the prosecution examined the Principal of the school where victim girl had studied. The evidence of Principal - PW No. 8 is recorded at Exh. 39. The PW No. 8 produced original register maintained by the school wherein entries containing details of the students are entered. The PW No. 8 placed on record register of year 1997 wherefrom he showed the details related to the victim girl. According to the details recorded in the register, the date of birth of the victim girl is 29.11.1995 and she was admitted in 1st standard on 22.6.2010. According to the school leaving certificate, appellant's date of birth is 29.11.1995. The incident occurred in February-2011. 9.1 By virtue of the evidence of P.W. No. 8, the Principal of the school where the victim girl had studied and in light of the school leaving certificate, it is established and proved that at the time of incident i.e. in February 2011 the victim girl was minor and under 16 years of age. The incident occurred in February-2011. 9.1 By virtue of the evidence of P.W. No. 8, the Principal of the school where the victim girl had studied and in light of the school leaving certificate, it is established and proved that at the time of incident i.e. in February 2011 the victim girl was minor and under 16 years of age. 9.2 The PW No. 2, in his evidence, mentioned that the victim girl was referred to radiologist for his opinion. The victim girl was required to undergo x-ray and other test by radiologist who also examined her ankle bones, elbow bones, mandible and according to the certificate and opinion of the radiologist, the bones of the victim girl showed epipifisic but complete fusion was absent. He also opined that epificis of eliak were noticed and at there also complete fusion was not present. The radiologist accordingly opined and certified that the age of the victim of girl was more than 14 years but less than 17 years. The opinion of the radiologist corroborates the details mentioned in the school register and the school leaving certificate. Conjoint consideration of the said opinion and school leaving certificate and the school register give out and establish that at the material point of time i.e. on 25.2.2011, when the incident occurred, the victim girl was minor and under 16 years of age. The learned trial Court has, on the basis of the School Leaving Certificate recorded the conclusion that at the time of incident the age of the victim girl was 15 years, 3 months. 9.3 The learned trial Court has also recorded the conclusion that in light of the evidence i.e. School Leaving Certificate and the opinion of the radiologist it is not proved that the age of the victim girl was more than 16 years or more than 18 years, on the contrary by the evidence on record it is proved that her age was less than 16 years of age. 9.4 At this stage it is relevant to take into account decision in case of Jarnailsingh vs. State of Haryana (2013 [7] SCC 263). 9.5 In the said decision Hon'ble Apex Court has considered issued related to determination of minor's age. With reference to the said issue Apex Court considered the provision under Juvenile Justice (Care and Protection of Children) Act 2000 as well as Rules framed thereunder viz. 9.5 In the said decision Hon'ble Apex Court has considered issued related to determination of minor's age. With reference to the said issue Apex Court considered the provision under Juvenile Justice (Care and Protection of Children) Act 2000 as well as Rules framed thereunder viz. Juvenile Justice (Care and Protection of Children) Rules 2007, more particularly Rule 12 thereof. The said issue was considered in case where the victim of the crime was subjected to kidnapping and gang rape. The Apex Court, in the said decision observed that the procedure prescribed under Rule 12 of the aforesaid 2007 Rules can be availed for the purpose of determining - ascertaining the age of the victim of rape. The relevant observation in the said decision reads thus:- 22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under: "12. Procedure to be followed in determination of age.-(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining- (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law." 23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW 6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion. 24. Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the prosecutrix VW-PW 6 could not be determined on the basis of the matriculation (or equivalent) certificate as she had herself deposed, that she had studied up to class 3 only, and thereafter, had left her school and had started to do household work. The prosecution in the facts and circumstances of this case, had endeavoured to establish the age of the prosecutrix VW-PW 6, on the next available basis, in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW 4), to prove the age of the prosecutrix VW-PW 6. Satpal (PW 4) was the Head Master of the Government High School, Jathlana, where the prosecutrix VW-PW 6 had studied upto class 3. The prosecution produced Satpal (PW 4), to prove the age of the prosecutrix VW-PW 6. Satpal (PW 4) was the Head Master of the Government High School, Jathlana, where the prosecutrix VW-PW 6 had studied upto class 3. Satpal (PW 4) had proved the certificate Exhibit-PG, as having been made on the basis of the school records indicating, that the prosecutrix VW-PW 6, was born on 15.5.1977. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are therefore of the view, that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix VW-PW 6. It would also be relevant to mention, that under the scheme of Rule 12 of the 2007 Rules, it would have been improper for the High Court to rely on any other material including the ossification test, for determining the age of the prosecutrix VW-PW 6. The deposition of Satpal-PW 4 has not been contested. Therefore, the date of birth of the prosecutrix VW-PW 6 (indicated in Exhibit P.G. as 15.7.1977) assumes finality. Accordingly it is clear, that the prosecutrix VW-PW 6, was less than 15 years old on the date of occurrence, i.e., on 25.3.1993. In the said view of the matter, there is no room for any doubt that the prosecutrix VW-PW 6 was a minor on the date of occurrence. Accordingly, we hereby endorse the conclusions recorded by the High Court, that even if the prosecutrix VW-PW 6 had accompanied the accused-appellant Jarnail Singh of her own free will, and had had consensual sex with him, the same would have been clearly inconsequential, as she was a minor. 9.6 Thereafter, recently in case of State of M.P. vs. Anoopsingh (2015 7 SCC 773), Hon'ble Apex Court again considered issue about appropriate evidence/document which may be relied on while determining the issue related to age of minor victim. In the said recent decision by Hon'ble Apex Court in case of State of M.P. (supra) Hon'ble Apex Court has observed, inter alia, that:- "12. We believe that the present case involves only one issue for this Court to be considered, which is regarding the determination of the age of the prosecutrix. 13. In the said recent decision by Hon'ble Apex Court in case of State of M.P. (supra) Hon'ble Apex Court has observed, inter alia, that:- "12. We believe that the present case involves only one issue for this Court to be considered, which is regarding the determination of the age of the prosecutrix. 13. In the present case, the central question is whether the prosecutrix was below 16 years of age at the time of the incident. The prosecution in support of their case adduced two certificates, which were the birth certificate and the middle school certificate. The date of birth of the prosecutrix has been shown as 29.08.1987 in the Birth Certificate (Ext. P/5), while the date of birth is shown as 27.08.1987 in the Middle School Examination Certificate. There is a difference of just two days in the dates mentioned in the abovementioned Exhibits. The Trial Court has rightly observed that the birth certificate Ext. P/5 clearly shows that the registration regarding the birth was made on 30.10.1987 and keeping in view the fact that registration was made within 2 months of the birth, it could not be guessed that the prosecutrix was shown as under-aged in view of the possibility of the incident in question. We are of the view that the discrepancy of two days in the two documents adduced by the prosecution is immaterial and the High Court was wrong in presuming that the documents could not be relied upon in determining the age of the prosecutrix. 14. This Court in the case of Mahadeo S/o. Kerba Maske Vs. State of Maharashtra and Anr., (2013) 14 SCC 637, has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape. 14. This Court in the case of Mahadeo S/o. Kerba Maske Vs. State of Maharashtra and Anr., (2013) 14 SCC 637, has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape. Rule 12(3) reads as under: "Rule 12(3): In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining- (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law." 15. This Court further held in paragraph 12 of Mahadeo S/o. Kerba Maske (supra) as under: "Under rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical opinion can be sought for. This Court further held in paragraph 12 of Mahadeo S/o. Kerba Maske (supra) as under: "Under rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of the ascertaining the age of a victim as well." (Emphasis supplied) This Court therefore relied on the certificates issued by the school in determining the age of the prosecutrix. In paragraph 13, this Court observed: "13. In light of our above reasoning, in the case on hand, there were certificates issued by the school in which the prosecutrix did her V standard and in the school leaving certificate issued by the school under Exhibit 54, the date of birth has been clearly noted as 20.05.1990 and this document was also proved by PW 11. Apart from that the transfer certificate as well as the admission form maintained by the Primary School, Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20.05.1990, the reliance placed upon the said evidence by the Courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of occurrence was perfectly justified and we do not find any grounds to interfere with the same." 16. In the present case, we have before us two documents which support the case of the prosecutrix that she was below 16 years of age at the time the incident took place. These documents can be used for ascertaining the age of the prosecutrix as per Rule 12(3)(b). The difference of two days in the dates, in our considered view, is immaterial and just on this minor discrepancy, the evidence in the form of Exts. P/5 and P/6 cannot be discarded. Therefore, the Trial Court was correct in relying on the documents. 17. The High Court also relied on the statement of PW-11 Dr. A.K. Saraf who took the X-ray of the prosecutrix and on the basis of the ossification test, came to the conclusion that the age of the prosecutrix was more than 15 years but less than 18 years. Therefore, the Trial Court was correct in relying on the documents. 17. The High Court also relied on the statement of PW-11 Dr. A.K. Saraf who took the X-ray of the prosecutrix and on the basis of the ossification test, came to the conclusion that the age of the prosecutrix was more than 15 years but less than 18 years. Considering this the High Court presumed that the girl was more than 18 years of age at the time of the incident. With respect to this finding of the High Court, we are of the opinion that the High Court should have relied firstly on the documents as stipulated under Rule 12(3)(b) and only in the absence, the medical opinion should have been sought. We find that the Trial Court has also dealt with this aspect of the ossification test. The Trial Court noted that the respondent had cited Lakhan Lal Vs. State of M.P., 2004 Cri.L.J. 3962, wherein the High Court of Madhya Pradesh said that where the doctor having examined the prosecutrix and found her to be below 18 1/2 years, then keeping in mind the variation of two years, the accused should be given the benefit of doubt. Thereafter, the Trial Court rightly held that in the present case the ossification test is not the sole criteria for determination of the date of birth of the prosecutrix as her certificate of birth and also the certificate of her medical examination had been enclosed. 18. Thus, keeping in view the medical examination reports, the statements of the prosecution witnesses which inspire confidence and the certificates proving the age of the prosecutrix to be below 16 years of age on the date of the incident, we set aside the impugned judgment passed by the High Court and uphold the judgment and order dated 24.04.2006 passed by the IIIrd Additional Sessions Judge, Satna in Special Case No. 123/2003. 10. 10. In view of the above quoted observations by Hon'ble Apex Court in case of Jarnailsingh(supra) and Anoopsingh (supra) this Court is of the view that the determination of the age of the victim, which is based on the School Leaving Certificate issued by the School where the victim had studied is just and proper and this Court finds no justification to interfere with the conclusion recorded by learned trial Court with regard to the victim's age on the basis of the date mentioned in the School Leaving Certificate. 11. From the evidence by P.W. No. 1 medical officer who first examined the victim girl as well as evidence of the P.W. No. 2 who had also examined the victim girl and recorded the history of the incident and also in view of the evidence by gynecologist, it is established that the victim girl was frequently subjected to sexual intercourse. 12. In this view of the matter and having regard to such evidence, the appellant has raised dual plea viz. (a) that the sexual intercourse were consensual and the prosecutrix was consenting partner and the sexual relationship was caused and committed with her consent and (b) considering such fact and absence of any force and other circumstances e.g. appellant's young age and that the girl is married, his sentence may be reduced to the extent of undergone. 12.1 In this context, it is relevant to recall that in her deposition, the victim girl has mentioned that the appellant had promised her that he will marry her and in her cross-examination she denied the suggestion that the appellant had taken her away to save her or that he had stopped her from jumping into canal and committing suicide. In view of the fact that at the relevant time the victim girl was minor and she was under 16 years of age, even if the contention by the learned advocate for the appellant that from the deposition of the medical officer gynecologist and the doctor it becomes clear that the sexual relation was committed without any force and with consent of the girl and the sexual intercourse was consensual and the victim girl was consenting partner is considered and even if it were to be presumed that the victim was consenting partner then also the victim girl's consent is immaterial and such contention cannot help the appellant. 13. 13. As mentioned earlier it is established that the victim girl was taken away to different places by the appellant while the victim girl, a minor, was in custody of and in guardianship of her parents. 14. Having regard to the said aspect and above discussed evidence, learned trial Court has held appellant guilty and convicted him for offence punishable under Section 363, 366 and 376 of IPC. The said conviction does not warrant any interference. 14.1 On this count it is relevant to take into account following relevant provision under Section 375 of the Act which reads thus:- "375. Rape-A man is said to commit "rape" if he (a) to (d) .......... Under the circumstances failing under any of the following seven descriptions:- First 1. Secondly : ………………. 2. Thirdly : ………………. 3. Fourthly : ……………… 4. Fifthly : ………………. 5. Sixthly : With or without her consent, when she under eighteen years of age 6. Seventhly : ………………… Explanation : ………………..” 14.2 At this stage reference may also be made to the provision under Section 376. The relevant part of the said Section 376 reads thus:- "376. Punishment for rape (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine. (2) Whoever,- (a) to (h)............. (i) Commits rape on a woman when she is under sixteen years of age (j) to (m)............ (n) Commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's nature life, and shall also be liable to fine. Explanation.................." 14.3 Considering the evidence on record and in light of the provision it emerges that in present case clause "sixthly" of section 375 and clause (i) of Section 376(2) are attracted and applicable. 14.4 In that view of the matter, consent of the victim girl and/or the contention that sexual intercourse with the victim was consensual, is immaterial. The contention based on ground of consent does not help the appellant in building his defence in any manner whatsoever. 15. 14.4 In that view of the matter, consent of the victim girl and/or the contention that sexual intercourse with the victim was consensual, is immaterial. The contention based on ground of consent does not help the appellant in building his defence in any manner whatsoever. 15. When the deposition by the doctor who examined the victim and the appellant and the deposition by the victim and the appellant are taken into account, it becomes clear that the conclusion recorded by the learned Trial Court does not suffer from any error and does not warrant interference. The offence punishable under Section 376 read with Section 375 is established. 15.1 In this context it is relevant to advert, at this stage, to one of the factual aspects viz. age of the victim, because the appellant has tried to take shelter under the contention that victim was consenting partner. Considering the fact that at the relevant time the victim was under 16 years of age the request by the appellant to reduce the sentence cannot be entertained. In his context it is appropriate to take into account relevant part of provision under Section 376 which existed prior to 3.2.2013 i.e. before the amendment introduced by virtue of section 9 of Act No. 13 of 2013. The relevant part of erstwhile section 376 was thus:- "376. Punishment for rape (1) Whoever, except in the cases provided for by sub-section (2), commits rape, shall be punished with imprisonment of either description for a term which shall not be less than seven years, but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Whoever,- (a) to (e) ............. (f) Commits rape on a woman when she is under twelve years of age (g) ............ (2) Whoever,- (a) to (e) ............. (f) Commits rape on a woman when she is under twelve years of age (g) ............ Shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may be for life and shall also be liable to fine. Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. Explanation.................." The said provision after amendment w.e.f. 3.2.2013 reads thus:- "376. Punishment for rape (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine. (2) Whoever,- (a) to (h)............. (i) Commits rape on a woman when she is under sixteen years of age (j) to (m)............ (n) Commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's nature life, and shall also be liable to fine. Explanation.................." From comparative reading of the said provisions it comes out that the said two proviso under erstwhile section 376(1) which prescribed that "provided that the Court may, for adequate and special reason to be mentioned in the judgment, impose a sentence of imprisonment of either description for term of less than seven years" now stands deleted. Similarly, the proviso under erstwhile sub-section (2) of erstwhile section 376 which prescribed that "provided that the Court may, for adequate and special reason to be mentioned in the judgment, impose a sentence of imprisonment of either description for term of less than ten years" is also deleted. Similarly, the proviso under erstwhile sub-section (2) of erstwhile section 376 which prescribed that "provided that the Court may, for adequate and special reason to be mentioned in the judgment, impose a sentence of imprisonment of either description for term of less than ten years" is also deleted. In this view of the matter, i.e. in light of the amendment introduced w.e.f. 3.2.2013 whereby the proviso which prescribed that imprisonment of less than seven years or ten years as the case may be can be imposed is deleted the request by learned counsel for the appellant that though the fact about victim's consent may not be taken into account so far as the appellant's conviction is concerned, however the fact about victim's consent may atleast to be taken into account for purpose of quantifying the sentence and thereby the sentence imposed by the learned trial court may be reduced, cannot be considered and entertained. Therefore the request to reduce the sentence is not tenable and does not deserve to be entertained. 16. Having regard to the facts of the case, and the fact that at the relevant time the victim girl was below 16 years of age and having regard to the amendment in section 376 and considering the evidence of the victim girl who, in her deposition, mentioned that the appellant had promised that he would marry her and considering the fact that P.W. No. 1 - doctor mentioned in his deposition that while mentioning the history of the incident the appellant had mentioned that he was married man and considering that despite such facts he had, as claimed by the victim, committed sexual intercourse with her by promising that he would marry her and having regard to the fact that law does not permit the Court to be lenient only because defence of love affair and/or consent is raised, more particularly when the victim is minor, this Court is not inclined to accept the appellant's request to reduce the sentence from what the learned trial Court has awarded. Besides this the conviction, even otherwise, as declared, stipulated and submitted by learned Counsel for the appellant, is not challenged and the appeal is not pressed qua the conviction and is restricted only qua the sentence. 17. Besides this the conviction, even otherwise, as declared, stipulated and submitted by learned Counsel for the appellant, is not challenged and the appeal is not pressed qua the conviction and is restricted only qua the sentence. 17. Besides this as mentioned earlier, the learned advocate for the appellant had submitted at the outset that appellant does not claim clear and complete acquittal however he urged for reduction of the sentence. Learned advocate for the appellant submitted that the sentence may be reduced to the extent of sentence undergone by the appellant since he has already undergone sentence of 3 years and 10 months and 5 days. However, having regard to the above discussed evidence and the facts of the case and that the victim as well as appellant admitted that they had entered into physical relation/sexual intercourse and on considering the said fact and in light of the fact that at the time of incident, the victim girl was under 16 years of age and the appellant had, though he was already married (as stated by him while mentioning history of the incident before the P.W. No. 1) lured and enticed the victim girl with promise to marry her and to committing sexual intercourse, the conclusion recording conviction against the appellant and/or the decision and direction as to the sentence, do not warrant interference. With reference to request by learned advocate for the appellant to reduce the sentence in view of the fact that the victim is now married and stayed at her matrimonial house, it is appropriate to take into account below quoted observations in the decision dated 10.3.2015 by Hon'ble Apex Court in case of Satish Kumar Jayanti Lal Dabgar vs. State of Gujarat wherein Hon'ble Apex Court observed, inter alia, that:- "19. Merely because the appellant has now married hardly becomes a mitigating circumstance. Likewise, the appellant cannot plead that prosecutrix is also married and having a child and, therefore, appellant should be leniently treated. It is not a case where the appellant has married the prosecutrix. Notwithstanding the same, as noted above, the High Court has already reduced the sentence from seven years rigorous imprisonment to 4 years under Section 376 of the IPC. Therefore, in any case, the appellant is not entitled to any further mercy. The appeal, accordingly, fails and is dismissed." 18. Notwithstanding the same, as noted above, the High Court has already reduced the sentence from seven years rigorous imprisonment to 4 years under Section 376 of the IPC. Therefore, in any case, the appellant is not entitled to any further mercy. The appeal, accordingly, fails and is dismissed." 18. The learned Counsel for petitioner relied on the decision dated 12.9.2011 in case of Dinesh @ Dinu K. Chunara Koli vs. State of Gujarat (Criminal Appeal No. 1231 of 2007) to justify his request to reduce the sentence. However, the said decision does not render any assistance to the petitioner because in the said case the age of the victim girl was above 16 years (i.e. 16 years and 11 months) and that therefore the provision under Section 376(2)(i) and (k) were not applied. Whereas in present case it is established that at the relevant time the victim was under 16 years of age and that therefore the provision under Section 376(2)(i) and (k) are attracted in present case. 19. In light of the above discussion and for the foregoing reasons the judgment and order passed by the learned trial Court and impugned in present appeal does not warrant any interference and the appeal does not deserve to be accepted and granted. Therefore, the appeal is dismissed. The record and proceedings be sent back to the concerned learned trial Court forthwith. Accordingly the appeal stands dismissed. Appeal Dismissed