JUDGMENT : T.K. KAUSHAL, J. 1. Present appeal is directed against judgment dated 30.04.011 passed by II Additional Sessions Judge, Mhow, District - Indore in S.T. No. 1104/2009 convicting the appellants as below:- Necessary facts in short are that on 05.08.2009 at about 09:30 p.m. appellants apprehended the prosecutrix aged 15 years (PW-2) and subjected her to sexual assault and committed rape on her and also caused injuries in a garage while prosecutrix was going to her maternal grandmother's (Nanee's) house. In the morning at about 06:00 a.m., while appellants left the Garrage, prosecutrix came back to her parents house and narrated the incident to them, and lodged FIR (Exhibit P-2) on 06.08.2009 at 19:15 hours at Police Station Kishanpuraganj, District - Indore. Dr. Pratima Rai (PW-1) examined the prosecutrix and prepared MLC (Exhibit P-l) observing no definite opinion regarding rape. However, she found a contusion on occipital parietal region of 3 x 2 cms.. Police arrested the appellants on 07.08.2009 and sent the appellant Amit for his medical examination. After completion of investigation, Police filed charge-sheet in the court of concerned Judicial Magistrate, who committed the case for trial to the Sessions Court. 2. Trial court framed charges for the aforesaid offences and accused persons abjured guilt and pleaded innocence. 3. To substantiate the allegations, trial court examined Dr. Protima Rai (PW-1), Prosecutrix aged 15 years (PW-2), Head Constable Ranveer Singh (PW-3), Munnalal Lingwar (PW-4), Subhash (PW-5), Constable Krishna (PW-6), Constable Mohd. Ameen (PW-7), Mariyam mother of the prosecutrix (PW-8), Yaswant father of prosecutrix (PW-9), ASI Sitaram Kanare (PW-10), Head Constable Janardan Pandey (PW - 11), Dr. Hemant Patel (PW-12), Head Constable Fagulal (PW-13) and Dr. Santosh Khandelwal (PW-14). 4. Defence of appellants in the trial court was that of consent with the appellant Amit and got proved her letters with the help of handwriting expert Yogita Singh (DW-1). 5. After appreciating the aforesaid evidence, trial court has convicted and sentenced the appellants as above. 6. Present appeal has been preferred on the grounds that trial court has failed to appreciate the evidence in right perspective. It was a clear case of consent regarding appellant Amit. Co-accused Sanjay, who happens to be brother in-law (Jeeja) of Amit did not commit any intercourse even then the trial court has convicted and sentenced the appellant for Gang rape. Present appeal has been preferred on the grounds that trial court has failed to appreciate the evidence in right perspective. It was a clear case of consent regarding appellant Amit. Co-accused Sanjay, who happens to be brother in-law (Jeeja) of Amit did not commit any intercourse even then the trial court has convicted and sentenced the appellant for Gang rape. On the other hand, learned Government Advocate supported the findings of conviction and sentence both and opposed the appeal. 7. On careful perusal of the evidence of prosecutrix (PW/2) it becomes clear that though she had left the house for going to her grandmother's house as a routine but that day situation was little different because she had a quarrel with her mother (PW/8) and left the house with her clothes. It has also come in her evidence that at the time of incident in the beginning she met with mother of the appellant Amit also and they had a conversation regarding displeasure and dispute between the mother and the prosecutrix. In such background if contradictions and omission are examined then what has been proved beyond doubt is that appellant Sanju only subjected the prosecutrix to some indecent assault and helped the main accused to take the prosecutrix in the garage. All other allegations against the appellant Sanju are the improvements and best to be ignored. 8. From the evidence of prosecutrix (PW/2) it has become clear that appellant Amit subjected her to intercourse. Though she admitted that she had relations with him to the level of sending letters also but for commission of intercourse at that point of time she did not gave any consent. Lack of consent has also been proved and in this particular case to some extent it is immaterial also because prosecutrix is aged only 15-16 years as per school record. 9. It is true that Dr. Santosh Khandelwal (PW/14), Radiologist has opined the age of the prosecutrix to be 16-18 years but if this evidence is taken into consideration along with all other available evidence of age like documentary evidence of the school record, age disclosed of the prosecutrix during investigation, estimate of age made by the trial Court it becomes clear that prosecution has proved beyond doubt that at the time of incident prosecutrix was a minor girl. 10. 10. Accordingly, appellant Amit is rightly held liable for commission of rape on the prosecutrix but he will not be guilty of commission of gang rape because the act of rape was committed by the appellant Amit individually and without planning and conspiracy of any other person. 11. As discussed above, appeal deserves to be and is hereby allowed in part in following terms:- I. Appellant Sanjay stands acquitted of the charge under section 376(2)(g) of the IPC. Conviction and sentence under section 376(2)(g) IPC is hereby set aside. Conviction and sentence for other offences are hereby affirmed. II. Appellant Amit Banti stands acquitted of the charge under section 376(2)(g) IPC instead his conviction is reduced and modified for the offence under section 376 IPC. For the aforesaid offence, appellant shall suffer 7 years R.I. with fine of Rs. 500/-, in default of payment of fine, appellant shall suffer one month's S.I. The conviction and sentence for other offences are hereby maintained. III. The period spent in custody during investigation, trial and appeal shall be adjusted towards total jail sentence awarded to the appellants. In the result, the appeal is allowed in part as indicated herein above. Partly Allowed.