ORDER : K.J. Thaker, J. 1. The present appeal has been filed by the appellant-accused against the judgment and order dated 19.10.2013 passed by learned 5th Additional Sessions Judge, Camp at Botad in Sessions Case No. 16 of 2013, whereby the appellant-accused was convicted for the offence under Sections 363, 366 and 376of the Indian Penal Code. The learned Judge by his Judgment and order convicted the appellant for offence under Section 363 and ordered the appellant to undergo simple imprisonment of 5 years and fine of Rs. 3,000/- and in default simple imprisonment of six months was imposed, for offence under Section366 of IPC simple imprisonment of five years and fine of Rs. 5,000/- was imposed and in default one year's simple imprisonment was imposed and for offence under Section 376of IPC, simple imprisonment of 10 years and fine of Rs. 10,000/- was imposed and in default simple imprisonment of one year was imposed. It was ordered to pay Rs. 10,000/- to the victim out of the amount of fine that may be paid by the accused. The accused is ordered to undergo all sentence concurrently. The case of the prosecution in short is that: 1.1 That the daughter of the complainant, Shri Budhabhai Sakaria, was abducted by the present appellant on 22.9.2012 at around 10.30 a.m. from Botad and the present appellant took her on his motorcycle. It is also alleged that thereafter they went to Anand where against the wish of the victim girl, the appellant raped her. Accordingly, the complaint was lodged against the accused. 1.2 Thereafter, investigation was carried out and charge-sheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions triable the same was committed to the Court of Session. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 1.3 In order to bring home the charges against the accused, prosecution has examined as many as 15 witnesses. The prosecution has also relied on 28 documents in support of its case. 1.4 Thereafter, after filing closing purshis by the prosecution, further statement of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused has denied the case of the prosecution and submitted that a false case is filed against him. The prosecution has also relied on 28 documents in support of its case. 1.4 Thereafter, after filing closing purshis by the prosecution, further statement of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused has denied the case of the prosecution and submitted that a false case is filed against him. 1.5 At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, convicted the appellant-accused. 1.6 Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 19.10.2013 passed by learned 5th Additional Sessions Judge, Camp at Botad in Sessions Case No. 16 of 2013, the appellant-accused has preferred the present appeal before this Court. 2. It is submitted by Mr. Sundesara, learned advocate for the appellant that had the learned trial Judge gone through decisions of the Apex Court the accused would not have been convicted. He submitted that there was absence of any force or coercion on the part of the appellant and therefore offence of kidnapping is also not made out. He also submitted that the Court below has seriously erred in not weighing the evidence on record and has failed to appreciate the admitted facts which were in favour of the appellant. He further submitted that Court below has failed to consider that this was a teen-age affair; that both were known to each other since long; that therefore this was not a case of rape or kidnapping. He submitted that the learned trial Judge erred in convicting the appellant for the offence under section 376 of the Indian Penal Code, without any trustworthy witness, the prosecution has not been able to bring anything on record to show that any untoward event occurred immediately before the sexual intercourse with the prosecutrix. He also submitted that evidence of Dr. Chavda shows that there were no injury marks on the body of the victim when she was examined and it is also not proved that there was sexual intercourse against her will. He submitted that the prosecution has miserably failed to prove any case against the appellant much less a prima facie case. He also submitted that the trial Court has grossly erred and has committed error both in law as well as in fact and he has not properly appreciated the evidence on record of the case. He submitted that the prosecution has miserably failed to prove any case against the appellant much less a prima facie case. He also submitted that the trial Court has grossly erred and has committed error both in law as well as in fact and he has not properly appreciated the evidence on record of the case. As per his say, there was no evidence of the rape. He also submitted that the allegation as to offence under Sections 363 and 366 of the Indian Penal Code, is not conclusively and satisfactorily proved. He also submitted that the learned trial Judge has failed to consider the fact that most of the prosecution witnesses are family members, relatives and of same caste and they are interested witnesses. He submitted that in view of above, this appeal may be allowed and the judgment and order of the lower Court may be reversed. 3. Learned Counsel for the appellant has taken this Court through the entire evidence and even the operative part of the conviction. It is further submitted that the prosecutrix and the accused were both very young and were having a love affair. It is also submitted that the prosecutrix had eloped with the accused, therefore, the consent of the prosecutrix was a relevant factor. He also submitted that the accused was very young at the time of the incident and the prosecutrix was in love with him. He further submitted that the prosecutrix has got married and she has settled in life, therefore, lenient view may be taken in the matter. He relied on the following authorities, in support of his submission. a) Alamelu v. State, reported in (2011) 2 SCC 385 : ( AIR 2011 SC 715 ). b) Mohd. Imran Khan v. State (Govt. of NCT of Delhi), reported in (2011) 10 SCC 192 : (AIR 2012 SC (Cri) 5). c) S. Varadarajan v. State of Madras, reported in AIR 1965 Supreme Court 942. d) Shyam and another, v. State of Maharashtra, reported in AIR 1995 Supreme Court 2169. e) Bhartiben W/o. Sureshbhai Bhikhabhai Chauhan v. Sushilaben Kanubhai Tevar and Anr., reported in 2009 3 GLH 664 . f) Mussauddin Ahmedabad v. State of Assam, reported in (2009) 14 SCC 541 : ( AIR 2010 SC 3813 ) and g) Bhupatbhai Somabhai Sardiya v. State of Gujarat, reported in (2012) 31 GHJ 140. 4. Per contra, Ms. e) Bhartiben W/o. Sureshbhai Bhikhabhai Chauhan v. Sushilaben Kanubhai Tevar and Anr., reported in 2009 3 GLH 664 . f) Mussauddin Ahmedabad v. State of Assam, reported in (2009) 14 SCC 541 : ( AIR 2010 SC 3813 ) and g) Bhupatbhai Somabhai Sardiya v. State of Gujarat, reported in (2012) 31 GHJ 140. 4. Per contra, Ms. Monali Bhatt has taken this Court through the evidence and has submitted that the judgment of the learned trial Judge is not such which calls for interference on the facts and the conviction of the accused should not be interfered with. She has submitted that the age of the prosecutrix was 15 years, six months and four days at the time of the offence and the fact that she was forced to leave the parental home without consent of her parents would be the material aspect and, therefore, Sections 363 and 366 of the IPC would be attracted. She submitted that since the prosecutrix was minor, her consent cannot be taken into consideration. She has submitted that the judgments cited by learned counsel for the appellant would not apply to the facts of this case as the age of the prosecutrix was below 16 years; even if she was a consenting party, that fact is of no consequence. She also submitted that only because the prosecutrix has married, no leniency should be shown to the accused. She has relied on the decision of the Apex Court in Criminal Appeal No. 230 of 2013 decided on 10.3.2015 in the case of Satish Kumar Jayantilal Dabgar v. State of Gujarat (AIR 2015 SC (Cri) 721), wherein it is observed as under: "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." 4.1 Ms. 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." 4.1 Ms. Bhatt has also relied on the latest decision of the Apex Court reported in Naushad v. State of Uttar Pradesh (Criminal Appeal No. 4505/2005, decided on 16-3-2007) : (2007 Cri. L.J. (NOC) 601 (All)). Ms. Bhatt has also tried to distinguish the decision reported in the case of Bhartiben W/o. Sureshbhai Bhikhabhai Chauhan v. Sushilaben Kanubhai Tevar and Anr., reported in 2009 3 GLH 664 and has stated that the girl in the said cases relied by accused was more than 18 years. Therefore, the said decisions with not apply to the facts of this case. She has further submitted that the appellant-accused has committed sexual intercourse with the minor girl, therefore, the trial Court has rightly appreciated the evidence on record and convicted the accused. She, therefore, submitted that the impugned judgment may not be interfered with and it may be confirmed. 5. Before considering the case on merits, it would be profitable to refer to the Provisions of Sections 363, 366 and 376 of the Indian Penal Code, which are as under: "363. Punishment for kidnapping:--Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. xxx xxx xxx 366. Punishment for kidnapping:--Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. xxx xxx xxx 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid]. xxx xxx xxx 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 woman 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. (1) Whoever:-- (a) Being a police officer commits rape--(i) Within the limits of the police station to which he is appointed; or (ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) On a woman is his custody or in the custody of a police officer subordinate to him; or (b) Being a public servant, takes advantage of his official position and commits rape on a woman is custody as such public servant or in the custody of a public servant subordinate to him; or (c) Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or. (d) Being on the management or on the staff of a hospital, takes advantage of his official positioned commits rape on a woman in that hospital; or (e) Commits rape on a woman knowing her to be pregnant; or (f) Commits rape when she is under twelve years of age; or (g) Commits gang rape, 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." 6. From the evidence on record, it can be seen that date of birth of the prosecutrix is 18.3.1997. Therefore, it is an admitted position that at the time of offence, her age was 15 years, six months and four days. However, going through the factual scenario, Ms. Bhatt is not in a position to dispute that the prosecutrix has moved with the accused from one place to another. From the evidence on record, it is clear that this is a case of love affair, however, age of the prosecutrix is a relevant factor. Therefore, taking into considering the evidence of her mother, medical certificate and birth certificate of the prosecutrix, conviction of the accused cannot be reversed. 7. From the evidence on record, it is clear that this is a case of love affair, however, age of the prosecutrix is a relevant factor. Therefore, taking into considering the evidence of her mother, medical certificate and birth certificate of the prosecutrix, conviction of the accused cannot be reversed. 7. At this stage, it is relevant to reproduce herein below certain observations made by the respective Courts: 7.1 In S. Varadarajan v. State of Madras, (AIR 2065 SC 942) (supra) "She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own that perhaps an unlettered girl hailing from a rural area." 7.2 In Bhartiben W/o. Sureshbhai Bhtikhabhai Chauhan (supra) "We have heard learned Counsel for the respective parties and have perused the oral as well as documentary evidence on record. It is a matter of record that the prosecutrix went missing from her house in the noon hours of 07.09.2004. The document on record at Ex. 11 is the School Leaving Certificate of the prosecutrix, which is a conclusive piece of evidence for the purpose of ascertaining the age of a person. In the said document, the date of birth has been shown as 31.08.1986. Even otherwise, the said date of birth has not been disputed by the prosecution. Therefore, admittedly and evidently, on the day when the prosecutrix went missing from her house, she was more than 18 years of age." 8. Having considered the evidence on record and the decisions of the Supreme Court, as aforesaid, it is clear that the prosecutrix was aged above 15 years. Therefore, it cannot be said that the accused has not committed any offence and conviction for the offences as alleged cannot be reversed. 9. Having considered the evidence on record and the decisions of the Supreme Court, as aforesaid, it is clear that the prosecutrix was aged above 15 years. Therefore, it cannot be said that the accused has not committed any offence and conviction for the offences as alleged cannot be reversed. 9. In spite of aforesaid observations, in my view, the learned trial Judge has fallen in error in considering the medical evidence on record, which shows that there were no external injuries on the person of the victim. From the evidence on record, following aspects emerge: (a) The prosecutrix had moved from place to place with the accused and she did not at all complain. (b) There were no marks of injury on the person of the accused. (c) The important aspect is that the prosecutrix had time to complain but she had never stated that the accused had raped her, though she had chances. 9.1 Therefore, it is clear that the prosecutrix had voluntarily moved from place to place. Moreover, it is stated by Mr. Sundesara that the prosecutrix has got married and has settled in life. The purpose and justification behind sentencing is not only retribution, incapacitation, rehabilitation but deterrence as well. A young boy of 18 years is already deterred as he is in jail since more than one year and six months. He is required to be rehabilitated, as the prosecutrix has now married and she has settled in life, while upholding the conviction of the accused, sentence is required to be modified suitably. I am supported in my view by the decision of the Apex Court in the case of State of Chhattisgarh v. Lekhram, reported in AIR 2006 SC 1746 . In the said case, similarly the prosecutrix was below 16 years of age, however, she was married and the respondent-accused who working in the house of father of prosecutrix abducted her and committed rape on her. While deciding the question of sentence, the Honorable Apex Court observed as under: "16. The prosecutrix was a mature girl. She was married. She spent a few months in her in-laws' place. The Respondent was working in her house. They, thus, knew each other for a long time. While deciding the question of sentence, the Honorable Apex Court observed as under: "16. The prosecutrix was a mature girl. She was married. She spent a few months in her in-laws' place. The Respondent was working in her house. They, thus, knew each other for a long time. The prosecution evidently could not prove its case that she was enticed away from the custody of her guardian by the Respondent on a false plea that he would marry her. She denied the said suggestion as presumably she was aware that she being married, the question of her marrying the Respondent again may not arise. She lived for some time with the Respondent in a rented house. Both the courts proceeded on the basis that she was a consenting party. The occurrence took place in the year 1986. The Respondent preferred an appeal before the High Court in the year 1987. The same remained pending about 10 years. The special leave petition was filed by the State 230 days after the prescribed period of limitation for preferring such appeal. The delay in filing the special leave petition, however, was condoned. He is said to have remained in custody for about one and a half year. In the peculiar facts and circumstances of this case and having regard to the fact that both the courts have arrived at the conclusion that she was a consenting party, in our opinion, it may not be proper to send the Appellant back to prison. 17. For the aforementioned reasons, while setting aside the judgment of the High Court and affirming that of the Trial Court, we are of the opinion that the interest of justice would be met if the Respondent is directed to be sentenced to the period already undergone by him. This appeal is allowed with the aforementioned directions." 10. Considering overall facts and evidence on record, while upholding the conviction of the accused, sentence is required to be reduced suitably. Therefore, following order is passed. The Criminal Appeal is partly allowed. The judgment and order dated 19.10.2013 passed by learned 5th Additional Sessions Judge, Camp at Botad in Sessions Case No. 16 of 2013 is modified to the following extent. Therefore, following order is passed. The Criminal Appeal is partly allowed. The judgment and order dated 19.10.2013 passed by learned 5th Additional Sessions Judge, Camp at Botad in Sessions Case No. 16 of 2013 is modified to the following extent. The conviction of the appellant-accused recorded for the offences under Sections 363, 366 and 376 of the Indian Penal Code is upheld, however, the sentence imposed upon the accused for these offences is reduced to one year and six months i.e. the period already undergone by the accused and the fine is reduced to Rs. 3,000/- and in default of payment of fine, simple imprisonment for three months is imposed in special circumstances. The accused-appellant is ordered to be released forthwith, if not required in any other case, as he is in jail since more than one year and six months. Record and Proceedings be sent back to the trial Court concerned forthwith.