JUDGMENT Kanwaljit Singh Ahluwalia, J. - Kalulal s/o Ram Narayan, Smt. Tina w/o Omprakash and Omprakash s/o Lal Chand were tried by the Court of Sessions Judge, Jhalawar in Sessions Case No. 111/12. The said court vide impugned judgment dated 18.9.2014 held accused Kalulal guilty of offences under Sections 342 and 376 IPC, whereas Tina was held guilty of offences under Sections 342/109 and 376/109 IPC and Omprakash was held guilty of offence under Section 376/109 IPC. Having convicted the accused-appellants for the above said offences, the trial court vide a separate order of even date, sentenced them as under:- Accused - Kalulal "U/s. 342 IPC: One year simple imprisonment. U/s. 376 IPC: Ten years rigorous imprisonment, to pay a fine of Rs. 20,000/- and in default thereof to undergo two months additional simple imprisonment." Accused - Smt. Tina "U/s. 342/109 IPC: Six months simple imprisonment. U/s. 376/109 IPC: Seven years rigorous imprisonment, to pay a fine of Rs. 10,000/- and in default thereof to undergo one month additional simple imprisonment." Accused - Omprakash "U/s. 376/109 IPC: Seven years rigorous imprisonment, to pay a fine of Rs. 10,000/- and in default thereof to undergo one month additional simple imprisonment." (All the sentences were ordered to run concurrently). 2. Aggrieved against their conviction and sentence, Kalulal has filed an appeal through Jail bearing S.B. Criminal (Jail) Appeal No. 1121/14. Tina and Omprakash preferred S.B. Criminal Appeal No. 961/14. Since in both the appeals same impugned judgment has been assailed, both the appeals shall be decided together. 3. Prosecutrix (name withheld to protect her identity) on 7.8.2012 submitted a written report (Ex.P.3) before Jugraj Singh Hada (PW.10) who was then posted as SHO, Police Station Sarola. 4. Jugraj Singh Hada (PW.10) in court deposed that on the basis of above said written report (Ex.P.3), formal FIR (Ex.P.4) bering No. 187/12 was registered for offences under Sections 376, 120B and 342 IPC. 5. In the written report (Ex.P.3) prosecutrix stated that she is resident of Village Taraj. A year ago, on Wednesday she was going to market. On the way her friend Jyoti d/o Paras Jain met and told that she was called by Tina Sain w/o Omprakash Sain, who was running a parlour. 5. In the written report (Ex.P.3) prosecutrix stated that she is resident of Village Taraj. A year ago, on Wednesday she was going to market. On the way her friend Jyoti d/o Paras Jain met and told that she was called by Tina Sain w/o Omprakash Sain, who was running a parlour. When she reached at the house of Tina Bhabhi, she asked her to buy some articles for her and she went in the room to fetch money, then door of the room was bolted by a boy Kalulal who was already sitting inside the room. After bolting the door, Kalulal raised the volume of T.V. and after placing a knife on her neck, committed rape with her after moving her clothes and undergarments. After sexual intercourse was performed, prosecutrix complained to Tina Bhabhi, but she told her not to grumble. Thereafter Tina Bhabhi and her husband Omprakash made that boy run from the house. Two months later Tina Bhabhi handed over a SIM to her on which Kalulal talked with her and threatened that in case she will tell the incident to somebody, he will defame her as he had made a recording on mobile and had taken pictures. Thereafter Kalulal took the prosecutrix in a school and committed rape. Thereafter Tina Bhabhi had sent her to Tara Devi Dungari, Taraj where also Kalulal committed rape. It is further stated that Kalulal used to send medicines through Tina Bhabhi to avoid pregnancy. 6. Prosecution to secure conviction of three appellants, examined 13 witnesses namely Dr. Krishna Meena (PW.1), Jyoti Jain (PW.2), Prosecutrix (PW.3), Shanti Devi (PW.4), Moolchand Das (PW.5), Kamlesh Kumar (PW.6), Shrawan Kumar (PW.7), Omprakash (PW.8), Dr. Shivlal Meena (PW.9), Jugraj Singh Hada (PW.10), Ramesh (PW.11), Rajni Bala Kashyap (PW.12) and Surendra Singh (PW.13). 7. Dr. Krishna Meena (PW.1) on 7.8.2012 at 3.30 PM medicolegally examined prosecutrix, aged 16 years and prepared her clinical report (Ex.P.1). Since there was continuous sexual relationship, no external or internal injury was found on the person of prosecutrix. It was specifically noted by the Doctor that no pain and tenderness was felt on P.V. Examination. No injury, no tear or any other discharge was seen in P.V. Examination. Doctor opined, "it is not a case for forceful intercourse and final opinion is reserved and shall be given after FSL examination report". 8. It was specifically noted by the Doctor that no pain and tenderness was felt on P.V. Examination. No injury, no tear or any other discharge was seen in P.V. Examination. Doctor opined, "it is not a case for forceful intercourse and final opinion is reserved and shall be given after FSL examination report". 8. Jyoti Jain (PW.2) who allegedly sent the prosecutrix to the house of Tina appellant has not supported the prosecution case and turned hostile to the prosecution. 9. Since there was continuous sexual relationship between the prosecutrix and accused Kalulal, the most relevant question for the court is to determine age of the prosecutrix. 10. Shanti Devi (PW.4) mother of the prosecutrix in court deposed that her daughter used to go to school to attend 10th Class. When she had gone to fill the form, accused Kaleya @ Kalulal restrained her and committed wrong act with her. 11. Shanti Devi (PW.4) is not a witness to any occurrence. She stated that the incident was narrated to her on next day of occurrence by her daughter, the prosecutrix. However, the witness stated that her daughter was student of 10th Class. 12. Moolchand Das (PW.5) is father of the prosecutrix. He stated that the prosecutrix was student of 10th Class and was aged 16 years. 13. In cross-examination Moolchand Das (PW.5) stated that he is having three sons. Elder son is aged 30 years, middle son is aged 24 years and youngest son is aged 21 years. He further stated that the prosecutrix is younger to all the three sons and she was born after 3-4 years after the birth of youngest son. 14. Rajnibala Kashyap (PW.12) was posted as Senior Teacher in Government Girls Secondary School, Taraj in District Jhalawar. She produced the school record and as per the said record, at the time of admission, age of the prosecutrix was noted as 31.12.1997. Thus, the prosecutrix on the day when she was first raped was above 15 years, but less than 16 years of age. 15. We may notice here that accused Kalulal was also examined on 10.8.2012 at 6.15 PM by Dr. Shivlal Meena (PW.9) and as per medical report (Ex.P.14), Doctor opined that there was nothing to suggest that the accused was not fit to perform sexual intercourse. 16. 15. We may notice here that accused Kalulal was also examined on 10.8.2012 at 6.15 PM by Dr. Shivlal Meena (PW.9) and as per medical report (Ex.P.14), Doctor opined that there was nothing to suggest that the accused was not fit to perform sexual intercourse. 16. Material witnesses in the present case are Omprakash (PW.8), brother of the prosecutrix, and the prosecutrix herself who has been examined as PW.3. 17. Omprakash (PW.8) stated that last year her sister had gone to get admission in Senior School at Taraj where Kalulal met her and asked her to leave the studies and marry her. He proposed elopement. The witness stated that later the prosecutrix told that Tina Bhabhi had called the prosecutrix and facilitated her rape. 18. In cross-examination the witness admitted that they have no other grudge against Tina and Omprakash accused except that they used to support Kalulal and they facilitated rape of prosecutrix. 19. Prosecutrix (PW.3) in court reiterated as to what was stated by her in the written report (Ex.P.3) on the basis of which formal FIR (Ex.P.4) was registered. 20. Admittedly, the first act of rape was committed before February, 2012. Posecutrix stated that in February, 2012 she was called by the accused to handover recording and photographs and she was again raped. The prosecutrix in examination-in-chief stated that two months later in the month of May in summer she was called by Tina Bhabhi and Omprakash accused and they told that Prasad of Mannat is to be offered at Tara Devi Temple and when she went there, accused came and again committed rape with her. In cross-examination the prosecutrix stated that Kalulal lastly committed sexual intercourse with her in the month of May and she lodged the report in the month of August. Prosecutrix has further admitted that a SIM was handed over to her by Tina Bhabhi on which she used to have long conversations with the accused Kalulal. Relevant portion of cross-examination of the prosecutrix is reproduced below:- 21. In cross-examination the prosecutrix (PW.3) further admitted that house of Tina Bhabhi is near to her house. 22. I have heard Shri Dheeraj Singhal, learned counsel appearing for Kalulal accused, Shri Ajay Singh, learned counsel appearing on behalf of Smt. Tina and Omprakash accused, and Shri Prakash Thakuriya, learned Public Prosecutor for the State. 23. In cross-examination the prosecutrix (PW.3) further admitted that house of Tina Bhabhi is near to her house. 22. I have heard Shri Dheeraj Singhal, learned counsel appearing for Kalulal accused, Shri Ajay Singh, learned counsel appearing on behalf of Smt. Tina and Omprakash accused, and Shri Prakash Thakuriya, learned Public Prosecutor for the State. 23. Admittedly, in the present case prosecutrix continued to have sexual intercourse with the accused Kalulal for a quiet long period. From entire reading of evidence of the prosecutrix it is evident that sexual relationship between Kalulal and prosecutrix continued from the month of December, 2011, as she stated that two months later the second incident had happened in February, 2012. Thus, from December, 2011 till May, 2012 sexual relationship between the accused Kalulal and the prosecutrix continued. Complaint was only made in the month of August, 2012. This court could have accepted the version of the prosecutrix that she was compelled to yield to the demand of the accused because he was having video recording and photographs, but admission made by the prosecutrix that a SIM was provided by the accused and she used to have long conversations with him as and when she used to get time and that too by inserting the SIM in the mobile of her uncle, lead to only inference that the prosecutrix herself was amenable to have relationship with accused Kalulal. 24. Furthermore, a long silence on the part of the prosecutrix make her story improbable that she due to some fear or threat had not made a complaint to anybody. In the present case no video recording or photographs have been recovered by the Investigating Officer. Thus, the statement made by the prosecutrix that due to recording made by the accused or because of her photographs she continued to have sexual relationship cannot be accepted at the face value. 25. Be that as it may, since it is proved on record that the prosecutrix was less than 16 years of age, consent on her part will be of no consequence. 26. Shri Dheeraj Singhal has heavily placed reliance upon the testimony of Moolchand Das (PW.5), father of the prosecutrix, to contend that the prosecutrix was more than 16 years of age and hence, no offence of rape is committed. 27. 26. Shri Dheeraj Singhal has heavily placed reliance upon the testimony of Moolchand Das (PW.5), father of the prosecutrix, to contend that the prosecutrix was more than 16 years of age and hence, no offence of rape is committed. 27. This argument no longer shall prevail as inquiry regarding age of the prosecutrix is to be made in consonance with Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007. Therefore, the certificate of the school first attended by the prosecutrix is to be relied upon. As per the certificate produce on record by Rajnibala Kashyap (PW.12), Senior Teacher, Government Girls Secondary School, Taraj, prosecutrix was born on 31.12.1997 and hence, on the date when sexual intercourse was performed she was less than 16 years of age. 28. Now we have to examine the role of Tina and Omprakash accused. 29. Abetment has been defined under Section 107 IPC. Clause firstly to Section 107 IPC says that a person abets the doing of a thing, who instigates any person to do that thing and as per Clause thirdly, who intentionally aids, by any act or illegal omission, the doing of that thing. If both the clauses firstly and thirdly are taken into consideration, it cannot be held that Tina and Omprakash accused were abettors to the offence of crime. 30. Kalulal accused and the prosecutrix apparently were continuing with their sexual relationship. It is possible that the prosecutrix had shared with Tina her relationship with the accused. There is nothing on record that Tina and Omprakash are related with Kalulal accused. There is also nothing on record that Tina and Omprakash received any benefit from Kalulal to facilitate establishment of relationship of Kalulal with the prosecutrix. Rather, it is apparent from cross-examination of Omprakash (PW.8) brother of the prosecutrix, that family members called Kalulal and told him not to continue with the relationship with the prosecutrix. It is stated that the accused had replied that he will marry the prosecutrix. 31. It will be apposite here to reproduce the following portion from cross-examination of Omprakash (PW.8):- 32. From the above admission made by Omprakash (PW.8), brother of the prosecutrix, it is apparent that family members of the prosecutrix were annoyed with Tina and Omprakash accused because they were supporting the prosecutrix who was in relationship with accused Kalulal. 33. 31. It will be apposite here to reproduce the following portion from cross-examination of Omprakash (PW.8):- 32. From the above admission made by Omprakash (PW.8), brother of the prosecutrix, it is apparent that family members of the prosecutrix were annoyed with Tina and Omprakash accused because they were supporting the prosecutrix who was in relationship with accused Kalulal. 33. Thus, in these circumstances, this court is of the view that abetment cannot be attributed to appellants Smt. Tina and her husband Omprakash. Therefore, by extending benefit of doubt to them by way of abundant caution, their appeal is accepted and they are acquitted of the charges. 34. Vide order dated 16.2.2015, sentence awarded upon the accused-appellants Smt. Tina and Omprakash was suspended by this court and they were ordered to be released on bail. Hence, bail bonds and surety bonds furnished by them are discharged. The trial court is directed to comply with the provisions of section 437A Cr.P.C., 1973 35. Having held Kalulal guilty of offence because prosecutrix was less than 16 years of age, this court has to determine quantum of sentence. 36. Admittedly, on the date of occurrence prosecutrix was more than 12 years of age and hence, Section 376(2) IPC will not apply. As per the school certificate, prosecutrix was less than 16 years of age on the date of occurrence, but if literally cross-examination of Moolchand Das (PW.5) is taken into consideration then the prosecutrix can be more than 16 years of age. But bound by Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007, this court has to uphold the finding of the trial Judge that the prosecutrix was less than 16 years of age. Therefore, taking totality of circumstances into consideration, relationship between the accused and the prosecutrix, absence of recovery of video recording or photographs, as alleged, this court is of the view that it is a case where minimum sentence of seven years shall serve the ends of justice. 37. Consequently, while upholding conviction of appellant Kalulal under Section 376 IPC, sentence of 10 years awarded upon him by the trial court is reduced to 7 (seven) years while maintaining the sentence of fine and default clause. 38. 37. Consequently, while upholding conviction of appellant Kalulal under Section 376 IPC, sentence of 10 years awarded upon him by the trial court is reduced to 7 (seven) years while maintaining the sentence of fine and default clause. 38. Since this court has discarded the assertion of the prosecutrix that she was forcibly confined in a room with pinch of salt, conviction and sentence of the accused-appellant Kalulal for offence under Section 342 IPC is set aside and he is acquitted of the charge for offence under Section 342 IPC. 39. With the above modification in sentence, criminal appeal preferred by accused-appellant Kalulal is disposed of.