JUDGMENT : Anant S. Dave, J. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is filed by the appellant/original convict, who came to be arrested on 22.3.2008 and remained in jail throughout the trial, against the judgment of conviction and sentence of life imprisonment awarded by learned Sessions Judge, Rajkot, pursuant to Special Atrocity Sessions Case No.9 of 2008 for the offences punishable Sections 363, 366, 376 and 114 of the Indian Penal Code and under Section 3(1)(10)(11) and under Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the appellant is held guilty for the above offences and he is also convicted and sentenced for the offences under Section 363 of Indian Penal Code is convicted R.I. for 04 years and fine of Rs.4,000/- for offence under Sections 366 and 376 of the Indian Penal Code and provisions of Atrocity Act under Section 3(2)(5) convicted for life and fine of Rs.16,000/- and convicted for 01 year for offence under Section 3(1)(10)(11) and fine of Rs.2,000/-. Fine of Rs.22,000/- was directed to be recovered from the convict and out of it Rs.11,000/- was directed to be given to the victim. 2. Brief facts of the case of the prosecution are as under : 2.1 That complainant, Mansukhbhai Bhikhabhai Solanki P.W. No.6 and father of the victim P.W. No.8 aged about 13 years was residing in the Village : Mota Mava of Taluka : Rajkot, having two daughters and a son and earning out his livelihood by doing labour work found his daughter missing on the eve of 17.1.2008 around 22:00 hours without disclosing the reason for leaving the parental home initially filed complaint upon receiving a mobile phone from one Naranbhai Bhimjibhai P.W. No.5. It is further stated that later on upon inquiry and information by the complainant that his daughter was kidnapped by accused who was staying at Khodiyarnagar at Ahmedabad and accused along with another person viz. Murli Bhaiyaji, who was also working in the factor along with his daughter were not traceable. It is further stated that later on upon inquiry and information by the complainant that his daughter was kidnapped by accused who was staying at Khodiyarnagar at Ahmedabad and accused along with another person viz. Murli Bhaiyaji, who was also working in the factor along with his daughter were not traceable. The accused belongs to a caste other than Scheduled Caste and Scheduled Tribe and had forcibly taken his daughter against her will and accordingly offences were registered under the provisions of Atrocity Act also as FIR No.70 of 2008 on 15.2.2008 for which investigation was carried out by the Officer empowered to do so in accordance with law. 2.2 During the course of investigation certain statements were recorded of witnesses and accused was traced out by making special efforts by sending a team of police personnel headed by PSI and 03 constable and accused was arrested from Devliya district of Utter Pradesh. Upon considering the certificate of date of birth issued by village panchayat of the victim and recording her statement on 22.3.2008 offences under Section 376 of the Indian Penal Code read with Section 3(2)(5) of the Atrocity Act came to be added. A report was sent to the concerned Court along with seizure panchnama of clothes of accused and for medical examination P.W. No.8 was sent to Civil Hospital and necessary medical certificate was issued and panchnama of body of person of victim was also drawn in presence of panchas being Ex.21. As required under the law muddamal seized as above vide Ex.20 and 22 were sent for FSL, Junagadh for which receipts were issued and finally FSL report Ex.55 along with serological report Ex.63 were received and produced before the concerned Court as a part of documentary evidence. Upon committal of the case to the Sessions Court it was tried and the accused came to be convicted as recorded earlier. 3. Upon perusal of oral as well as documentary evidence viz. Upon committal of the case to the Sessions Court it was tried and the accused came to be convicted as recorded earlier. 3. Upon perusal of oral as well as documentary evidence viz. P.W. No.1 Dr.Jitendra Jivrambhai Joshi, who opined about age of the prosecutrix along with medical examination of her person, panch witnesses, Dr.Hansaben Laljibhai Kachdiya, Medical Officer, who carried out medical examination of prosecutrix in the context of crime registered, she is P.W. No.4 at Ex.23, Naranbhai Bhimjibhai Rathod, who had seen Varsahben along with accused is P.W. No.8 at Ex.27 then complainant P.W. No.6-Mansukhbhai Bhikhabhai Solanki, and father of P.W. No.8 prosecutrix at Ex.28 and mother of the victim P.W. No.7 at Ex.30, Varshaben victim herself P.W. No.8 at Ex.34 and factory owner Rasikbhai Ramjibhai Bhalala P.W. No.9 at Ex.36. Along with the above witnesses other police witnesses were also examined and documentary evidence in the form of (1) Medical Examination Certificate of accused at Ex.13 (2) Memorandum written by Investigating Officer P.W. No.13 to Medical Officer of Government Hospital for ascertaining the age of the victim at Ex.14 (3) O.P.D. papers of victim P.W. No.8 Varshaben at Ex.15 (4) Medical Certificate given by the Medical Officer stating the age of the victim P.W. No.8 Varshaben between 15 to 17 years after inquiring age of the victim at Ex.16 (5) Certificate of medical examination of victim P.W. No.8 Varshaben at Ex.24 (6) Memorandum written P.W. No.4 Dr.Hansaben Laljibhai to Investigating Officer for taking away Slide 2, blood sample, public hair and saliva which were taken at the time of medical examination of victim P.W. No.8 Varshaben at Ex.25 (7) Complaint of complainant at Ex.29 and (8) Birth Certificate of victim P.W. No.8 Varshaben, were taken into consideration. 4. In the backdrop of above circumstances Ms.Sadhna Sagar, learned advocate for the appellant - convict has taken us to entire evidence oral as well as documentary evidence and it is submitted that since it is established that victim was below the age of 16 years and had voluntarily left her parental home since she was in love with accused with whom she travelled and stayed together for months and at no point of time ever complained to anyone though opportunities were available, this appeal under Section 374 of the Code of Criminal Procedure, 1973 be considered accordingly. Inter alia, it is submitted that even about version of age of the prosecutrix, no doubt certificate of date of birth issued by Village Panchayat Kharavetha, district Jamanagar has stated on 20.12.1995 about birth of prosecutrix dated 29.8.1994 Ex.45 was produced on record, testimonies of parents viz. P.W. No.6 and P.W. No.7 would reveal that recording of date of birth as such was not based on any evidence but they had such memory about birth of their daughter. Even ossification test carried out by P.W. No.4 Dr.Harshaben and her medical team reveal that victim was aged around 15 to 17 years couple with the fact that absence of injury marks viz. external as well as internal on body of a person as per medical certificate dated 25.3.2008 issued by above P.W. and so deposed reveals that, it was a case of consensual relationship for which no coercion, undue influence or allurement was given. It is also submitted that since accused also belong to Scheduled Tribe no offence under Atrocity Act was attracted and by awarding sentence of life imprisonment by convicting the accused for the offence for which he was charged under no circumstance it was a case of imposing life imprisonment. However, learned advocate for the appellant fairly conceded that when the prosecutrix was aged below 16 years conviction and sentence was a logical consequence in accordance with law but there was absence of any convincing evidence even in FSL and serological report received by the prosecution and imposition of sentence of life imprisonment is not warranted in peculiar facts and circumstances of the case and at least it may be altered to 10 years of R.I. 5. Learned APP appearing for the respondent State invited our attention to findings and reasoning of learned Judge based on appreciation of evidence resulting into conviction and sentence of life imprisonment so awarded and submitted that when an innocent girl aged about 13 years and 04 months is allured by giving a false promise to marry her and the accused has committed the crime no lenient view be taken and no case is made out to reduce the sentence by assigning special reasons. In support of her submission learned APP has taken us to the testimonies of parents of the prosecutrix P.W. No.6 and P.W.No.7 which establishes the case of the prosecution and particularly P.W. No.8 prosecutrix herself has clearly deposed that it was not a case of consensus or any relationship mutually agreed upon. That prosecutrix was compelled to travel and stay along with accused under the hope that accused would marry her and further prosecutrix held from lower strata of the society and, therefore, considering circumstances as above offences were not only made out but established and proved by the prosecution for Sections 363, 366 and 376 of the Indian Penal Code and other offence under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The conviction and sentence both ordered by learned Judge be confirmed. 6. We have come across decisions of the Apex Court relied on by learned advocates appearing for the parties to which reference and discussion is made later on. 6.1 Upon careful perusal of record of the case including submissions made by learned advocates appearing for the parties and particularly submissions made by learned advocates for the appellant about reducing the sentence of life imprisonment by modifying it to 10 years it is revealed from the record that Medical Certificate dated 25.3.2008 at Ex.24 which records the statement of the prosecutrix about the fact that she had voluntarily left her residence on 17.1.2008 and reached at Ahmedabad and thereafter by train to Delhi on the next day and stayed with accused for about one and half month and entered into sexual relationship voluntarily with accused thereafter on number of occasions. That very Medical Certificate reveals certain observations which are reproduced herein below: "Examination is done in presence of staff nurse. Identification mark: (1) a black mole over left sternomastoid upper part (left side of neck) (2) a small black mole over Rt. Side of tace, 2 cm below Rt. Eyebrow. G/E: Pt is consious, cooperative & well oriented to time, place, person. Illegible Ht. 5 ft. P84/m wt 40 kg BP: 120/80 monthly Blood, saliva, public hair, cervical x vaginal swab were taken, labelled properly sealed & sent for FSL examination. Side of tace, 2 cm below Rt. Eyebrow. G/E: Pt is consious, cooperative & well oriented to time, place, person. Illegible Ht. 5 ft. P84/m wt 40 kg BP: 120/80 monthly Blood, saliva, public hair, cervical x vaginal swab were taken, labelled properly sealed & sent for FSL examination. B/c Breast-n well developed P/A:soft C/E Hymen torn Sec. sex character well developed P/s possible with pain 3 P/: 2 fing.P/U possible with pain No any external or internal marks of injury all over body or private part. Ut PV N S FMR fx clear" 6.2 That P.W. No.4 Dr.Harshaben who examined the prosecutrix on 22.3.2008 also confirmed issuance of Certificate at Ex.24 dated 25.3.2008 and recording of statement about nature of relationship with accused. In continuation of appreciation of evidence testimonies of parents of the victim disclosed their ignorance of relationship of their daughter with the accused and that certificate of date of birth of prosecutrix issued by village panchayat where date of birth is mentioned dated 29.8.1994. Likewise, P.W. No.8 prosecutrix herself stated in clear terms that she was allured and tempted by accused under a promise to marry her and though refused she was subjected to rape initially. The prosecutrix has studied upto Standard 9 and manner in which she has deposed it cannot be said that the relationship was purely and exclusively consensual. We have no doubt in our mind not to believe testimony of prosecutrix and the conviction order by learned trial Judge based on documentary evidence of certificate of date of birth of prosecutrix issued by a local authority viz. village panchayat at Ex.45 and confirmed in deposition by complainant and father of the prosecutrix established beyond any reasonable doubt that prosecutrix was aged below 16 years and subjected to sexual intercourse and Clause (6) of Section 375 was clearly attracted. 7. In above circumstances ossification test, for minor discrepancy in the testimony of the parents of the victim pale into insignificance. Thus, conviction ordered by the learned trial Judge for the offences for which accused was charged cannot be said to be contrary to law. 7. In above circumstances ossification test, for minor discrepancy in the testimony of the parents of the victim pale into insignificance. Thus, conviction ordered by the learned trial Judge for the offences for which accused was charged cannot be said to be contrary to law. However, imposition of sentence for life imprisonment if viewed in the context of the law laid down by the Apex Court in the case of State of Rajasthan v. Madan Singh (2008) 5 SCC 147 whereby trial Court initially convicted and sentenced accused for the offence under Section 376(2) (f) for 10 years imprisonment and reduced by High Court in appeal for 07 years was frowned upon by the Apex Court and sentence of 10 years ordered by trial Court came to be restored in the backdrop of above offence that a victim aged less than 10 years. In the case of State of Punjab v. Rakesh Kumar (2008) 12 SCC 33 in the backdrop of offences registered under Section 366 and 376 of the Indian Penal Code where accused - appellant was aged 19 years and victim was less than 16 years where victim admitted that she was in love with accused and therefore, entered into consensual relationship and father of the victim filed an affidavit before the High Court about settled life of the victim a liberal view be taken, the Apex Court though interfered with sentence awarded by the High Court of imprisonment undergone by restoring the sentence of 03 years R.I. and fine, laid down parameter and deprecated tendency of reducing sentence to less than minimum in such kind of crime. In the case of (2012) 2 SCC 684 , Bavo alias Manubhai Ambalal Thakore v. State of Gujarat, was again in the context of offence punishable under Section 376(2)(f) and considering the provision pertaining to awarding minimum sentence, where accused was aged about 18 to 19 years in the facts and circumstances of the above case emphasising requirement of adequate and special reason for reduction of sentence below statutory minimum period, life imprisonment which was maximum was held to be not warranted and it was modified to 10 years by holding that no further reduction was warranted as there was no special reason for sentence less than statutory minimum. 8. 8. Thus, Section 375 pertaining to rape before its substitution by Act 43 of 1983 clause sixthly reads that a man is said to commit "rape", who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions and clause sixthly read as 'with or without her consent when she is under sixteen years of age'. In view of the above, even if there was a consensual sexual intercourse, admittedly, in the present case, the age of the prosecutrix is about 13 years and 4 months and, therefore, would attract punishment for rape under Section 376 of the Indian Penal Code. Before substituting Section 376 of Indian Penal Code by Act of 13 of 2013 proviso of subsection (2) of Section 376 conferred discretion upon the court to impose a sentence of imprisonment for a term of less than 7 years, for adequate and special reasons to be mentioned in the judgment. Further, we are not convinced by arguments of learned advocate for the appellant that accused also belonging to Scheduled Tribe and, therefore, offence under the Scheduled Castes and Scheduled Tribes [Prevention of Atrocities] Act, 1989 would not be attracted in absence of any material on record or any finding in this regard by the trial court. We have considered the case upon overall conspectus of evidence surfaced on record and though not inclined to reduce the sentence of imprisonment for a term of less than 7 years, but altering and reducing sentence of life imprisonment to that of 10 years of RI and a fine from Rs.16,000/- to Rs.10,000/- for the proved offence under Sections 366 and 376 of Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes [Prevention of Atrocities] Act, 1989. In addition to the above, we have noticed that accused - appellant has so far undergone imprisonment of 7 years and 4 months and that accused is aged about 22 years and though the victim was allured under false promise to marry her, but nature of relationship with accused is disclosed in medical certificate. In addition to the above, we have noticed that accused - appellant has so far undergone imprisonment of 7 years and 4 months and that accused is aged about 22 years and though the victim was allured under false promise to marry her, but nature of relationship with accused is disclosed in medical certificate. Accordingly, we pass the following order: In the result, the appeal under Section 374(2) of the Criminal Procedure, 1973 is partly allowed and the sentence awarded for life imprisonment under Section 366 and 376 of Indian Penal Code read with Section 3(2) (v) of the Scheduled Castes and Scheduled Tribes [Prevention of Atrocities] Act, 1989 is modified and altered to the extent of 10 years of RI and fine of Rs.10,000/- instead of life imprisonment and Rs.16,000/, if not paid and deposited so far. That conviction and sentence awarded under other sections of Indian Penal Code and Scheduled Castes and Scheduled Tribes [Prevention of Atrocities] Act, 1989 are not disturbed. Rule is made absolute accordingly. 9. R & P to be sent back to the trial court forthwith. Appeal partly allowed.