JUDGMENT : A.B. Chaudhari, J. Being aggrieved by judgment and order dated 08.09.2005 passed by 4th Ad hoc Additional Sessions Judge, Nagpur in Special Case No.21/2004 by which the respondent-accused was acquitted of the charge of offence punishable under Section 376 read with Section 34 and 506B read with Section 34 of the Indian Penal Code, the present appeal was filed. FACTS : 2. On 28.06.2004, Ku. M. lodged oral report Exh.30 with Police Station, Gittikhadan stating that she was aged about 13 years and had left the school in 3rd standard in the year 2002 and was doing the work of washing of utensils at the bungalows. She resided with her mother, father, brother and sister. Her date of birth is 13.02.1991. She then stated that one Ku.Punam Jaiswal had lured her to the house of the accused in the same locality and the respondent-accused then took her at Manav Seva Nagar, i.e. the spot of incident on the date of incident and asked her to allow him to have sexual intercourse with her. When she denied, he threatened to kill her parents. She was frightened. He then removed her clothes forcibly and committed sexual intercourse with her. Thereafter, again on the next date, at about 8.00 p.m., the accused committed the same crime and it continued for about 15 days. Thereafter, having pain in her abdomen, she visited to PW1-Dr. Sanjivani Dharkar, who found that she was pregnant for about 4 1/2 months and issued a letter accordingly and asked her to go to Mayo Hospital. The prosecutrix-Ku. M. informed about her pregnancy from the respondent and that is how the report was lodged, offence was registered, investigation was done and charge sheet was filed. The complainant delivered a child, who died on the next day in the Mayo Hospital. The trial was held. The learned trial Judge, thereafter, acquitted the respondent-accused. Hence this appeal against acquittal. SUBMISSIONS : 3. In support of the appeal, Mr. T.A. Mirza, learned A.P.P. for the State, forcefully contended that the learned trial Judge has acquitted the respondent-accused merely on a figment of imagination and has given reasons, which are totally perverse and no prudent and reasonable person would record such reasons. According to him, the School Leaving Certificate filed on record clearly indicate her age as not more than 13 years. According to him, the School Leaving Certificate filed on record clearly indicate her age as not more than 13 years. The trial Judge has, for flimsy reasons rejected the School Leaving Certificate of the prosecutrix by holding that the birth certificate should have been produced by the prosecution, particularly because the girl resides in Nagpur Municipal Corporation area. The learned A.P.P. then submitted that there is no requirement of production of birth certificate anywhere in law since evidence in the form of School Leaving Certificate was duly proved by the prosecution and, therefore, there was no reason to disbelieve the evidence of the Head Mistress who was examined and proved the School leaving Certificate. It is further submitted that though one may come to the conclusion that intercourse was by consent, the fact remains that the girl was below 16 years of age and, therefore, consent becomes wholly immaterial in law and offence of rape was clearly proved. He submitted that the respondent is liable to be convicted for the offence of rape. 4. Per contra, Mr. A.B. Mirza, learned counsel for respondent-accused supported the impugned judgment and order and submitted that even if other view is possible, this Court in its appellate jurisdiction, may not interfere with the order of acquittal. According to him, there is no perversity in the judgment impugned and the learned trial Judge was right in pressing for the production of birth certificate. The burden of proof is on the prosecution to prove the date of birth according to law and if the evidence of PW2-Dr. Prashant Barve is seen, it clearly shows that the age of the prosecutrix M. could be 16 years at the time of examination and it was bound to result into acquittal of the respondent. He then submitted that the prosecution failed to prove the date of birth of Ku.M. below 16 years, therefore, no offence of rape was proved. He submitted that the reading of the evidence clearly shows that the case was one of consensual sex and no rape would be constituted in the wake of consent and the girl being above 16 years of age. He submitted that the reading of the evidence clearly shows that the case was one of consensual sex and no rape would be constituted in the wake of consent and the girl being above 16 years of age. So far as the offence under Section 506B of the IPC is concerned, he submitted that no offence is proved since admittedly the intercourse was made repeatedly and at no point of time, the prosecutrix reported about the threats to anybody and on the contrary, did not disclose anything till finding out pregnancy after 4 1/2 months, which clearly destroys the theory of threats being given to her at the time or after the intercourse. He, therefore, prayed for confirmation of the order of acquittal. Mr. A.B. Mirza, learned counsel for the respondent-accused, further submitted that the respondent was married and has a daughter of three years and now his wife is also on family way. The incident had occurred eleven years before. The prosecutrix M. was also married immediately after the incident and as per his information, she has also two children and she is residing with her husband in bordering area of Madhya Pradesh. He, therefore, submitted that the incident being prior to the Amendment of the year 2013, this Court, in the circumstances, may record adequate and special reasons which do exist and pass appropriate orders, particularly when for the period of more than eleven years has elapsed. The respondent would be ready to make payment of Rs. 1,00,000/- if such a plea is accepted. CONSIDERATION : 5. We have heard learned counsel for the rival parties at length. We have carefully seen the reasons recorded by the learned trial Judge for recording an order of acquittal. The moot question in the instant case is about proof of date of birth of prosecutrix M. The reasons recorded by the learned trial Judge for rejecting the evidence regarding date of birth, in our opinion, are flimsy and cannot be accepted. Insofar as the birth certificate is concerned, the same was proved by PW9-Sou Vidyulata Khadgi. We quote her evidence in examination-in-chief as under: "1. From December 2001 to August 2004, I was the Head Mistress in Kanchanmalal Bobde Primary School. It is Nagpur Municipal Corporation School. School Leaving Certificate of Mosmi Rajesh Sadmake is now shown to me. It was issued by me from the said School. We quote her evidence in examination-in-chief as under: "1. From December 2001 to August 2004, I was the Head Mistress in Kanchanmalal Bobde Primary School. It is Nagpur Municipal Corporation School. School Leaving Certificate of Mosmi Rajesh Sadmake is now shown to me. It was issued by me from the said School. It bears my signature. As per school record birth day of the said Mosmi is 13.2.1991. contents of School Leaving Certificate are correct. It is at Exh.57." 6. It is true that in the cross-examination she admitted that the admission form for recording the date of birth on the register was not produced on record. We do not think that admission form was required to be produced on record when, as matter of fact, the entry was made in the official course of business and the register was not shown to be tampered. The register was maintained in the official course of business from which the entry was taken in the School Leaving Certificate and there was no likelihood shown of tampering with the same. However, the learned trial Judge recorded the following reasons for rejecting her evidence so also evidence about tampering of the register etc. We quote the reasons given in paragraph 15 of the judgment, which are as under : "15....Admittedly, P.W.9 did not bring along the said school register and admission form of the complainant and hence her evidence is deficient to prove birth date of the complainant. It is further admitted by her in her cross-examination that she is not aware as to who filled in complainant's admission from and she also does not know if the said admission form was signed by the parents of the complainant. She is also unaware of the fact as to who wrote the school register. Admittedly, Exh.-57 was prepared by P.W.9 without verifying admission from and Corporation's birth certificate, if any. It is further admitted by her that she is not aware of Corporation's birth certificate at the time of admission of the complainant was produced and if it note was taken in the resister." 7. We are not inclined to agree with the reasons given by the learned trial Judge as above. It is further admitted by her that she is not aware of Corporation's birth certificate at the time of admission of the complainant was produced and if it note was taken in the resister." 7. We are not inclined to agree with the reasons given by the learned trial Judge as above. In the first place Exh.-57 School Leaving Certificate was accepted and no such objection about non production of the School Register was at all taken and on the contrary without any objection, the document was allowed to be accepted. It was not the case of the defence that the School register was showing some different date than are shown in Exh.-57, School Leaving Certificate nay there was no suggestion also to that effect. At any rate, though PW9-Sou. Vidyulata had not herself made the entry in the register and she proved the entry which was taken in the official course of business, which is admissible in evidence. There was no reason for her to bring any false date of birth before the court. Insofar as admission form is concerned, we think, the reason is absurd. The admission form is not relevant when the entry was taken in the School Leaving Certificate Exh.-57. The next contention was about production of birth certificate from Nagpur Municipal Corporation. 8. Mr. A.B. Mirza, learned counsel for the respondent argued that adverse inference should be drawn because of non production of birth certificate. This argument could have appealed to us since she was born in the area of Nagpur Municipal Corporation and in normal course, entry about the birth ought to have been made and non production thereof before the court might have created trouble for the prosecution but then we find from the record that the respondent's defence witness himself DW1-Rajesh stated thus : "1. The accused sitting before the Court is my elder brother. We belonged to Damai Caste which comes in other caste. Our caste is Scheduled Caste. 2. I gave application for birth date certificate of the complainant in the office of the corporation. Two printed forms were given by me. Original forms are at Exh.82 to 84. Names of parents of the complainant are mentioned along with their address in these forms. Birth of the complainant is not registered in the Corporation Office. Such endorsement is there on Exh.84." 9. Two printed forms were given by me. Original forms are at Exh.82 to 84. Names of parents of the complainant are mentioned along with their address in these forms. Birth of the complainant is not registered in the Corporation Office. Such endorsement is there on Exh.84." 9. Reading of the above paragraphs clearly show that there was no entry of date of birth of the prosecutrix M. made by the Corporation office under the Birth Register and i.e. duly proved by him. Therefore, on the basis of the evidence of defence witness, the submissions for drawing adverse inference must be rejected. The evidence that remains on record is of the prosecutrix M. who stated that her age was 13 years and in addition Exh.-57, the School Leaving Certificate. There is also evidence of Doctor for Ossification test, but then the prosecution did not produce that evidence competently. Therefore, the evidence that remains before the Court is Exh.-57-School Leaving Certificate and her evidence, who stated that her age was 13 years. That being so, we are inclined to reverse the findings recorded by the learned trial Judge as perverse that the prosecutrix was not below 16 years of age and we hold that her age was duly proved by the prosecution as below 16 years. 10. Having thus held that the prosecutrix was below 16 years of age, the next question is about offence. The evidence of the prosecutrix M. clearly shows that there was sexual intercourse committed by the respondent with her on several occasions. Consequently, she became pregnant and delivered a child, which died on the next day of delivery. The family Doctor PW1-Dr. Sanjivani checked the prosecutrix M. on 14.06.2004 to find that she was pregnant of 4 1/2 months and that she was about 15 years of age. It is noteworthy from her evidence that she was about 15 years of age, which fact has not been challenged inasmuch as the cross-examination to PW1-Dr.Sanjivani was declined. Now, as on 14.06.2004, she was found to be pregnant with 4 1/2 months pregnancy and the DNA report produced on record clearly shows that the child was born due to respondent-accused. The DNA report was admitted by the accused and was accepted. Thus the fact that the respondent committed sexual intercourse with the prosecutrix M. is not in dispute since he admitted DNA report after birth of the child. The DNA report was admitted by the accused and was accepted. Thus the fact that the respondent committed sexual intercourse with the prosecutrix M. is not in dispute since he admitted DNA report after birth of the child. We have hardly any doubt that the case is one of consent and she remained pregnant from him with her consent but then she being below 16 years of age, offence of rape was clearly committed. It is noteworthy that she lodged report with Police Station on 28.06.2004 in relation to the threats etc. for which charge under Section 506B of IPC was framed against him. But then it clearly appears from the evidence of PW1-Dr. Sanjivani that on 14.06.2004 the prosecutrix M. was pregnant, which clearly means that she conceived from respondent-accused 4 1/2 months before 14.06.2004 and, therefore, lodging of report on 28.06.2004 about threat etc. for making out offence of 506B IPC was after thought. We, therefore, reject the submission that any charge under Section 506B of the IPC was proved. 11. Insofar as the charge under Section 3(1)(x) of the SC & ST (Prevention of Atrocities) Act is concerned, we find that the prosecutrix and the respondent were in love affair and the sexual intercourse between them was consensual and there was no element of any caste being a factor for commission of the offence. On the contrary, the respondent and the prosecutrix had, by consent, indulged in sexual activity. We, therefore, conclude that the offence under Section 3(1)(x) of the SC & ST (Prevention of Atrocities) Act was not made out. 12. We have thus come to the conclusion that though the prosecutrix was consenting party, she being below 16 years of age, offence of rape was clearly proved. Hence, we hold that the respondent is guilty of the offence under Section 376 of the IPC by reversing the order of acquittal passed by learned trial Judge. 13. The next question is about the sentence. We have heard the respondent-accused as well his counsel on the point of sentence. The learned counsel for the respondent expressed that the respondent would be ready to pay compensation to the victim. The prosecutrix M. was married in 2003 and is living in the bordering area of Madhya Pradesh with her husband. The next question is about the sentence. We have heard the respondent-accused as well his counsel on the point of sentence. The learned counsel for the respondent expressed that the respondent would be ready to pay compensation to the victim. The prosecutrix M. was married in 2003 and is living in the bordering area of Madhya Pradesh with her husband. The respondent is also married and has a daughter of 3 years and his wife is also now on family way. He, therefore, submitted that the view taken by the Supreme court in Ram Kumar Vs. State of Haryana, (2006) 4 SCC 347 and relied by Single Judge of this Court in Umesh Tulshiram Kolhe Vs. State of Maharashtra; Criminal Appeal No. 464/2014, decided on 30.07.2015 (Coram: A.B. Chaudhari, J.) be followed in the interest of both the parties or else the families would be severely disturbed. 14. Today, the respondent-accused as well as the prosecutrix and her husband both are present in the Court and we have interviewed them. Both the victim as well as her husband, have agreed to the aforesaid proposal that imprisonment undergone by the respondent would be sufficient and they are not now interested in putting the respondent in Jail again and would like to buy piece rather than going ahead with an attempt to see the respondent behind the bars and they are ready to accept an amount of Rs. 1,00,000/- by way of compensation from the respondent, who has agreed to make the payment thereof. In our considered opinion, these are certainly the adequate and special reasons to enable us to reduce the sentence. The accused suffered imprisonment for about 15 months. 15. In that view of the matter and placing reliance on the view taken by the Supreme Court as aforesaid, we make the following order. ORDER (i) Criminal Appeal No. 659/2005 is allowed. (ii) The impugned judgment and order dated 08.09.2005 in Special Case No. 21/2004 passed by 4th ad hoc Sessions Judge, Nagpur thereby acquitting respondent-Vinod Damarkumar Shahi of the offence punishable under Section 376 r/w 34 of the IPC is set aside and instead the respondent-Vinod Damarkumar Shahi is convicted for the offence punishable under Section 376 (f) IPC. He is, however, acquitted of the charge under Section 506B of the IPC and Section 3(1)(x) of the SC & ST (Prevention of Atrocities) Act, 1989. He is, however, acquitted of the charge under Section 506B of the IPC and Section 3(1)(x) of the SC & ST (Prevention of Atrocities) Act, 1989. (iii) The respondent-Vinod Damarkumar Shahi is sentenced to undergo imprisonment, which he has already undergone namely; for the period from 28.06.2004 to 08.09.2005 and he shall deposit a sum of Rs. 1,00,000/- in the name of the prosecutrix M. in Fixed Deposit for a period of three years in any Nationalised Bank of the choice of the prosecutrix M. The interest accrued thereon can be made payable to the prosecutrix M. as per the bank's procedure. (iv) Failure on the part of the respondent-Vinod Damarkumar Shahi to deposit the sum of Rs. 1,00,000/- within 10 weeks from today, shall result into the respondent's undergoing sentence for a period of seven years and fine of Rs. 10,000/- and in default of payment of fine, to undergo sentence of six months. The respondent shall not seek for any extension to deposit the amount of Rs. 1,00,000/-.