JUDGMENT : A.P. THAKER, J. 1. This appeal is filed under Sec. 374(2) of Code of Criminal Procedure (for short 'Cr.P.C.') by appellant-accused, being aggrieved by the judgment and order dated 21st December, 2013 passed by the 5th Additional Sessions Judge, Bhavnagar Camp at Botad in Sessions Case No. 118 of 2013 whereby the appellant has been convicted for the offence punishable under Sees. 363 and 376 of Indian Penal Code (for short 'I.P.C.') and was awarded simple imprisonment for 5 years and to pay a fine of Rs. 3,000/-; in default of payment of fine to suffer simple imprisonment for 6 months and simple imprisonment of 10 years and fine of Rs. 5,000/-; in default of payment of fine thereof, to suffer simple imprisonment for one year respectively. 2. The prosecution case as revealed from the record is that the victim was abducted and kidnapped by the appellant-accused and she was alleged to have been raped by the accused and for that offence, the complaint was lodged by his father before the Botad Police Station and it was registered as I.C.R. No. 45 of 2013. The accused was arrested and necessary investigation was carried out by the concerned police and after completion of the investigation, charge-sheet was filed before the Court of learned Judicial Magistrate, First Class of Botad which was registered as Criminal Case No. 436 of 2013. However, as the offence was exclusively triable by Court of Sessions, it was committed to the Court of Sessions and it was registered as Sessions Case No. 118 of 2013. 3. The learned 5th Additional Sessions Judge, Bhavnagar Camp at Botad, has framed charges against the accused at Exh. 5 and has recorded plea of the accused. Whereupon, the accused has denied the charges and prayed for trial. During the trial, the prosecution has examined 10 witnesses and has produced certain documentary evidence. After conclusion of the trial, the accused has been examined under Sec. 313 of the Code of Criminal Procedure by the learned Additional Sessions Judge. Thereafter, on hearing both the sides and perusing the evidence on record, the learned Additional Sessions Judge has convicted the accused for the offence punishable under Sees. 363 and 376 of the Indian Penal Code, and sentenced him for the said offence as mentioned hereinabove. Thereafter, on hearing both the sides and perusing the evidence on record, the learned Additional Sessions Judge has convicted the accused for the offence punishable under Sees. 363 and 376 of the Indian Penal Code, and sentenced him for the said offence as mentioned hereinabove. Learned Additional Sessions Judge has acquitted the accused from the offence punishable under Sec. 366 of the Indian Penal Code. 4. Being aggrieved and dissatisfied with the impugned judgment, the accused has preferred the present appeal, inter alia, contending that the learned trial Judge has erred in holding that the prosecution has proved beyond reasonable doubt that the age of the victim at the time of offence was between 13 to 16 years. It is also contended that there is no proof beyond reasonable doubt that accused has enticed victim and kidnapped her from the custody of her guardian and had carried her to Mumbai and he had also done sexual intercourse with prosecutrix without her consent. According to the appellant, as per the version of the prosecutrix, she has herself willingly gone with the appellant-accused. It is also contention of the appellant that the appellant and the prosecutrix run together and both of them were in love and decided not to live without each other. It is also contended that the complainant himself admits that the age of the prosecutrix was less than 18 years, and there is variation and material contradiction. So far as the age of the prosecutrix is concerned. While relying upon the decision reported in the case of Deelip Sing v. State of Bihar, 2005 (1) SCC 88 , it is contended that the prosecution has failed to prove beyond reasonable doubt that the age of the prosecutrix was below 18 years. While referring to the deposition of the P.W. 4 - Dr. Preshkumar Jerambhai at Exh. 11 and P.W. 5 - Dr. Vijaybhai Jivrajbhai at Exh. 20 who have examined the prosecutrix and the accused, it is contended that they have stated that there was no marks of injury either on the body of the prosecutrix or on the body of the accused and as per the version of the Doctor, the physical structure of the prosecutrix was look like a major person. The appellant has also referred to the deposition of P.W. 1 - Bhothabhai Amarshibhai Chekhaliya at Exh. The appellant has also referred to the deposition of P.W. 1 - Bhothabhai Amarshibhai Chekhaliya at Exh. 7 and has stated that according to this witness, the prosecutrix is the eldest daughter of the complainant. It is also contended that no birth certificate has been produced of the prosecutrix. According to the accused-appellant, the accused and the prosecutrix were in love and there was no forcible intercourse with the prosecutrix by the accused. It is also contended that the witnesses examined in this case are near relatives of the prosecutrix and the complainant. On all these grounds, it is prayed by the accused-appellant to quash and set aside the impugned judgment and order dated 21st December, 2013 as passed by the learned 5th Additional Session Judge, Bhavnagar Camp at Botad, convicting him and sentencing him and to acquit him. 5. I have perused the records and proceedings of the trial Court and I have heard learned Advocate Mr. Manraj A. Barot and learned A.P.P. Ms. Jirga Jhaveri at length. I have also perused the citations relied on by the learned Advocate for the appellant-accused. 6. On perusal of the records and proceedings, it transpires that the complainant has filed a complaint against the present accused for abducting his daughter. Initially, there was no complaint filed under Sec. 376 of I.P.C. But, during the course of investigation, as the fact of committing rape was revealed, the police has filed, charge-sheet including the offence punishable under Sec. 376. 7. On perusal of the F.I.R., it appears that when the prosecutrix was not found and at the relevant time the accused was also not found in the house, the parents of the prosecutrix were in search of their daughter and after 6 days, they got telephonic message that prosecutrix along with accused had gone to Mumbai and they were coming back to Botad. They have filed a complaint before the Police and at that time, the accused and prosecutrix were in the Police Station. 8. To prove the case against the accused, the prosecution has examined following witnesses: PW-1 Bhothabhai Amarshibhai Chekhaliya Father of victim Exh-7 PW-2 Pamuben Bhothabhai Chekhaliya Mother of victim Exh-9 PW-3 Victim i.e. daughter of Bhothabhai Victim Exh-10 PW-4 Dr. Preshkumar Jerambhai Medical Officer Exh-11 PW-5 Dr. 8. To prove the case against the accused, the prosecution has examined following witnesses: PW-1 Bhothabhai Amarshibhai Chekhaliya Father of victim Exh-7 PW-2 Pamuben Bhothabhai Chekhaliya Mother of victim Exh-9 PW-3 Victim i.e. daughter of Bhothabhai Victim Exh-10 PW-4 Dr. Preshkumar Jerambhai Medical Officer Exh-11 PW-5 Dr. Vijaybhai Jivrajbhai Medical Officer Exh-20 PW-6 Kishanbhai Babubhai Vagheliya Panch witness Exh-24 PW-7 Sanjaybhai Ratnabhai Chekhaliya Panch witness Exh-27 PW-8 Yusufbhai Abdulkarim Police witness Exh-29 PW-9 Kanjibhai Jagmalbhai Mariya, Investigating Officer Exh-33 PW-10 Dineshsing Mahavirsing Chauhan P.I. Exh-40 9. The prosecution has also relied on following documentary evidence: Sr. No. Document Exh. 1 Complaint 8 2 Yadi of PSI, Botad for medical examination of accused 12 3 Medical certificate of accused 13 4 Yadi of medical samples of accused 14 5 M.L.C. case of accused 15 6 Yadi of PSI, Botad for medical examination of victim 16 7 Victim’s medical certificate 17 8 Yadi of samples of victim 18 9 M.L.C. case of victim 19 10 Opinion of Radiology Department of SIR.T. Hospital, Bhavnagar 21 11 Medical certificate of victim 22 12 M. L. C. case 23 13 Panchnama 25 26 27 14 Extract of Station Diary 30 15 Investigation order of Police 31 16 Police yadi for registration of F.I.R. 32 17 Police yadi for ascertaining the age of victim 34 18 Dispatch for sending the muddamal to F.S.L. 35 19 Receipt of receiving the muddamal by F.S.L. 36 20 Forwarding letter of FSL, Junagadh 37 21 Biology Analysis report 38 22 Serology Analysis report 39 10. Learned Advocate for the appellant-accused has read over the entire evidence on record and has contended that the witnesses are relatives including of the accused and the victim. He has also contended that this is a case of love-affair and both were in love and age of the victim has been stated to be 17 years before Police as well as her father has also stated at one place as the age of the victim to be 17 years. Whereas her mother has stated different age. However, the victim has stated that her age to be 14 and half years at the time of incident. 11. According to learned Advocate for the appellant, as per evidence of the Doctor, age of the prosecutrix was shown as 17 years. Whereas her mother has stated different age. However, the victim has stated that her age to be 14 and half years at the time of incident. 11. According to learned Advocate for the appellant, as per evidence of the Doctor, age of the prosecutrix was shown as 17 years. So far as the report of police yadi for conducting the ossification test of age of the victim is concerned, learned Advocate argued that Dr. Kanani has given his opinion instead of getting written opinion from the Radiologist. According to learned Advocate for the appellant, in absence of opinion of Radiologist, the opinion expressed by Dr. Kanani on the basis of his experience cannot be treated as reliable evidence. He has also stated that the age of the victim may be above 18 years. He has also stated that initially there was no offence registered under Sec. 376 and as per the version of the Investigating Officer, there is usual practice to send the reports to J.M.F.C., if any new offence is added. But in this case, though offence under Sec. 376 is added in charge-sheet, no such prior report was sent to the learned J.M.F.C. He has also contended that in this case, police has straightaway filed the charge-sheet by including Sec. 376 against the accused. 12. Regarding the report of F.S.L. of the blood and blood-group as also vaginal swab of the prosecutrix, it has been contended by the learned Advocate for the appellant that there is no blood-group of victim, and therefore, the report relied upon by the trial Court is not proper. Regarding the age, learned Advocate for the appellant has also contended that there is no documentary evidence to support the case of the prosecution that the prosecutrix was minor at the relevant time. 13. By referring to the evidence of the prosecutrix, learned Advocate for the appellant has stated that she has made improvement in her deposition by stating that there was no consent of her for intercourse by the accused; whereas in his police statement, she has not stated such thing. 13. By referring to the evidence of the prosecutrix, learned Advocate for the appellant has stated that she has made improvement in her deposition by stating that there was no consent of her for intercourse by the accused; whereas in his police statement, she has not stated such thing. While referring to the medical evidence as well as further statement of the accused under Sec. 313 of Code of Criminal Procedure, learned Advocate for the appellant has also submitted that the real fact has been narrated by the accused before the Medial Officer that he has intercourse with the consent of the prosecutrix and he has also revealed that they were in love. 14. Learned Advocate for the appellant has relied upon the decision in case of Sunil v. State of Haryana, 2010 (1) GLH 346 (SC), more particularly Paragraphs 29 and 33, which read as under: "29. The short question in the facts and circumstances of this case remains to be determined is whether the prosecutrix was a minor? Dr. Sadhna Verma, P.W. 1 who examined the prosecutrix referred her for verification to the Dental Surgeon and the Radiologist. The failure of getting the prosecutrix examined from the Dental Surgeon or the Radiologist despite the fact that she was referred to them by Dr. Sadhna Verma, P.W. 1 is a serious flaw in the prosecution version. We are not laying down as a rule that all these tests must be performed in all cases, but in the instant case, in absence of primary evidence, reports of the Dental Surgeon and the Radiologist would have helped us in arriving at the conclusion regarding the age of the prosecutrix." xxx xxx xxx "33. Bishan, P.W. 8, the father of the prosecutrix has also not been able to give correct date of birth of the prosecutrix. In his statement, he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date." 15. In his statement, he clearly stated that he is giving an approximate date without any basis or record. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date." 15. Learned Advocate for the appellant has also relied upon the decision reported in 2013 (7) SCC 675 in the case of Dipak Gulati v. State of Haryana, and has submitted that if there is a consent of the prosecutrix, then conviction for rape cannot be sustained and such consent may be expressed or implied. 16. Learned Advocate for the appellant also relied upon the decision reported in 1998 (6) SCC 420 in the case of Kuldip v. State of Bihar, and has submitted that if there is a consent, there cannot be conviction for rape. 17. Relying upon the aforesaid citations and evidence on record which is referred to, learned Advocate for the appellant has submitted that the present appeal may be allowed and the appellant may be acquitted by quashing and setting aside the impugned judgment and order of conviction and sentence. 18. Learned A.P.P., Ms. Jirga Jhaveri has mainly contended that there is no substance in this appeal and the Court below has rightly appreciated the oral as well as documentary evidence on record and has also properly appreciated the medical evidence, which supports the case of the prosecution. According to her submission, there is ample evidence on record that the prosecutrix was minor and the accused has committed rape on her, and therefore, consent of the prosecutrix was not material. Regarding the judgment relied upon by the learned Advocate for the appellant, she has contended that considering the peculiar facts and circumstances of the relevant case, the observations have been made in these cases. But according to her, the factual aspect of the present case is quite different from the factual aspect the decisions relied upon by the learned Advocate for the appellant. She has prayed to dismiss the present appeal by maintaining the conviction and sentence as passed by the learned trial Court. 19. So far as the decision reported in Sunil v. State of Haryana (supra) is concerned, it appears from the facts of that case that there was a case wherein Dr. She has prayed to dismiss the present appeal by maintaining the conviction and sentence as passed by the learned trial Court. 19. So far as the decision reported in Sunil v. State of Haryana (supra) is concerned, it appears from the facts of that case that there was a case wherein Dr. Sadhna Verma has opined for examination of the prosecutrix by the Dental Surgeon or Radiologist and despite that no such exercise was made by the prosecution. But so far as the present case is concerned, in the present case, there is evidence of the Doctor, who has sent the prosecutrix for radiological test and got necessary X-ray report. 20. So far as the decision in case of Dipak Gulati v. State of Haryana, 2013 (7) SCC 675 , is concerned, it is found that while referring the entire evidence on record, the Hon'ble Supreme Court has observed in Paragraph 21, which reads as under: "21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the Court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception." 21. From the decision in the case of Kuldip v. State of Bihar (supra), it appears that in that case also, there was dispute as to the age of the prosecutrix. It was observed that there may be margin of error of six months in the calculation of the age of the victim. However, ultimately, in that case, the accused was convicted for abducting the prosecutrix, who was found to be below age of 18 years. 22. Now, on perusal of the entire evidence on record, it appears that the prosecutrix and accused have run away together from their house and have reached Mumbai and after 7 days, they have returned back to Botad. It also appears from the evidence of the complainant at Exh. 22. Now, on perusal of the entire evidence on record, it appears that the prosecutrix and accused have run away together from their house and have reached Mumbai and after 7 days, they have returned back to Botad. It also appears from the evidence of the complainant at Exh. 7 that at the time of incident, the age of the prosecutrix was 16 years and her birth date was not got registered. He has admitted that caste of both the sides are same. He also stated that he has narrated in police statement that birth date of his son; Kamlesh is 21-4-1998 and the age of the prosecutrix was 17 years. He has admitted that Police has recorded F.I.R., when the prosecutrix and the accused were in Police Station. 23. On perusal of the evidence of the Pamuben Bhothabhai Chekhaliya at Exh. 9, who is mother of the victim of prosecutrix, it is found that she has stated that age of the victim was 15 years at the time of incident. She has stated that parents of both i.e. accused and the victim were searching for them and the accused had telephonically informed that they were coming back from Mumbai. She has denied the defence that age of the victim is 18 years. 24. On perusal of the evidence of the prosecutrix at Exh. 10, it is found that she has stated that at the date of incident, accused came to her house and told her to run away, and therefore, they have gone to Botad Railway Station and reached to Mumbai. According to her version, the accused has committed rape on her in the field. She has also stated that prior to this incident earlier also, the accused has committed sexual intercourse with her without her consent. According to her version, at the time of incident, her age was 14 and half years. 25. Dr. Preshkumar Jerambhai at Exh. 11, in his deposition categorically stated that he has examined the accused as well as prosecutrix and as per the statement of the accused, both were in love and the accused has committed sexual intercourse with the prosecutrix with her consent. He has also stated that at the time of examination of the prosecutrix she has stated her age as 17 years and she has stated that the accused has sexual intercourse with her consent. He has also stated that at the time of examination of the prosecutrix she has stated her age as 17 years and she has stated that the accused has sexual intercourse with her consent. According to his opinion, both were capable of having sexual intercourse and two finger test could be easily done on the vagina of the prosecutrix. He has also admitted that considering her physical structure, she was look like a major one. 26. According to deposition of Dr. Vijaybhai Jivrajbhai at Exh. 20, he has got examination of prosecutrix from Radiological department and has opinion that the age of the victim could be between 13 to 16 years. Of course, he has not got the report from the Radiologist. 27. The above are the material witnesses and evidence of other witnesses are of a hearsay nature. Therefore, there is no need of reproduction of their evidence. 28. Now, in this case, considering the material evidence on record, it clearly transpires that at the relevant time, the age of the victim was below 18 years. As such, even if the prosecutrix has admitted before the Doctor that the accused has sexual intercourse with her with her consent, that consent cannot be consent in the eye of law as she was below 18 years. Of course, one objection has been raised by the appellant side that without the Radiologist written opinion, the Doctor's opinion on the basis of the X-ray cannot be considered. However, considering the fact that Doctor who has given opinion regarding the age of the prosecutrix between 13 to 16 years on the basis of the medical examination by Radiologist, can be considered as an opinion of an expert. Therefore, considering the entire evidence on record coupled with the factual aspects, it is crystal clear that at the relevant time, the prosecutrix was minor one. 29. Now, in this case, the basic and main defence of the accused is that he has sexual intercourse with the victim with her consent. But as stated hereinabove, in view of the fact that the victim was below 18 years of the age, the defence version of consent vanishes and no benefit can be accrued to the accused. 29. Now, in this case, the basic and main defence of the accused is that he has sexual intercourse with the victim with her consent. But as stated hereinabove, in view of the fact that the victim was below 18 years of the age, the defence version of consent vanishes and no benefit can be accrued to the accused. Therefore, considering the entire evidence on record couple with the reasons given by the learned trial Judge, the impugned judgment convicting the accused under Sec. 363 as well as Sec. 376 of the I.P.C. is factually and legally sustainable. 30. During the course of the argument, it has been submitted by the learned Advocate for the appellant that if the Court comes to the conclusion that conviction of the accused is proper, then, the some leniency may be shown to the accused considering the age and facts that there was consent on the part of the prosecutrix. 31. Now, for consideration of the sentence, the amendment in the Code of Criminal Procedure, which has been reproduced in the judgment by the learned trial Judge at Paragraph 27, is reproduced hereunder for proper appreciation: "375. A person is said to commit "sexual assault : if that person- (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so' as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the penis, vagina, anus, urethra of another persons or makes such person to do so with him or any other person. (e) touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person, except where such penetration or touching is carried out for proper hygienic or medical purposes under the circumstances falling under any of the following seven descriptions:- First:-Against the other person's will. Secondly:-Without the other person's consent. Thirdly:-With the other person's consent, when such consent has been obtained by putting such other person or any person in whom other person is interested, in fear of death or of hurt. Fourthly.-With the person assaulted is a female, with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly:-With the consent of the other person when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that action to which such other person gives consent. Sixthly:-With or without the other person's consent, when such other person is under eighteen years of age. Seventhly:-When the person is unable to communicate consent. Explanation 1:-Penetration to any extent is "penetration" for the purposes of this Section. Explanation 2:-For the purposes of this Section, "vagina" shall also include labia majora. Explanation 3:-Consent means an unequivocal voluntary agreement when the person by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a person who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception:-Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not sexual assault. 376(1) Whoever, except in the cases provided for in sub-sec. (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine. 376(1) Whoever, except in the cases provided for in sub-sec. (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine. (2) Whoever- (a) being a police officer, commits rape- (i) within the limits of the Police Station to which such police officer is appointed: or (ii) in the premises of any station house; or (iii) on a person in such police officer's custody or in the custody of a police officer subordinate to such police officer; or (b) being a public servant, commits sexual assault on a person in such public servant's custody or in the custody of a public servant subordinate to such public servant; or (c) being a member of the armed forces deployed in an area by virtue of deployment by the Central or a State Government commits sexual assault, or (d) 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 women's or children's institution, commits sexual assault on any inmate of such jail, remand home, place or institution; or (e) being on the management or on the staff of a hospital, commits sexual assault on a person in that hospital; or (f) being a relative, guardian or teacher of, or a person in position of trust or authority towards the woman, commits sexual assault on such person; or (g) commits sexual assault on a woman knowing her to be pregnant; or (h) commits sexual assault on a person when such person is under eighteen years of age; or (i) commits sexual assault when the person assaulted incapable of giving consent; or (j) being in a position of economic or social dominance, commits sexual assault on a person under such dominance; or (k) commits sexual assault on a person suffering from mental or physical disability; or (l) while committing sexual assault causes grievous bodily harm or maims or disfigures or endangers the life of a person; or (m) commits persistent sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall also be liable to fine. Explanation 1:-For the purposes of this sub-section,- (a) "women's or children's institution" means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children. (b) "hospital" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation; (c) "police officer" shall have the same meaning as assigned to the expression "police" under the Police Act, 1861; (d) "armed forces" means the naval, military and air forces and includes any member of the armed forces constituted under any law for the time-being in force, including the para-military forces and any auxiliary forces that are under the control of the Central Government or the State Government; Explanation 2:-Where a person is subjected to sexual assault by one or more persons in a group of persons acting in furtherance of their common intention, each of the persons in the group shall be deemed to have committed sexual assault within the meaning of this sub-section." 32. In view of the amended provision, it is crystal clear that when the offence of rape is proved against the person then under Sec. 376(1), the punishment of rigorous imprisonment of either description for a term, which shall not be less than 7 years, but which may extent to imprisonment for life and fine is also required to be imposed. However, if the offence of rape is committed by specified category of person as narrated in Sec. 376(2), such sentence would be rigorous imprisonment for a term, which shall not be less than 10 years, but which may be extent to imprisonment for life and has also liable to fine. Now, admittedly in this case, the accused does not come within the specified category as enumerated in sub-sec. (2) of Sec. 376 of Indian Penal Code. The present case falls under the provision of sub-sec. (1) of Sec. 376 of the Indian Penal Code. Therefore, minimum punishment is required to be imposed on the accused is rigorous imprisonment of 7 years. Now, in this case, learned trial Judge has imposed simple imprisonment to the accused, which is not legal and valid. The present case falls under the provision of sub-sec. (1) of Sec. 376 of the Indian Penal Code. Therefore, minimum punishment is required to be imposed on the accused is rigorous imprisonment of 7 years. Now, in this case, learned trial Judge has imposed simple imprisonment to the accused, which is not legal and valid. There is no discretion lies with the Court to impose the simple imprisonment to the accused, who has committed rape. Therefore in the present case, the nature of the imprisonment inflicted for Sec. 376 is required to be altered from simple imprisonment to rigorous imprisonment. At the same time, considering the peculiar factual matrix of the present case, and the fact that the accused is to be sentenced under Sec. 376(1) and not under Sec. 376(2), the imprisonment of 10 years for the offence punishable under Sec. 376 is required to be reduced to 7 years rigorous imprisonment. However, punishment as awarded under Sec. 363 of the Indian Penal Code is required to be maintained. Therefore, considering the entire facts and circumstances of the case, the conviction of the accused under Secs. 363 and 376 of the Indian Penal Code and sentence under Sec. 363 are required to be confirmed by modifying the punishment awarded under Sec. 376 to the extent that the accused shall undergo rigorous imprisonment for 7 years. At the same time, the fine imposed for both the offences and punishment for non-payment of the fine, is required to be maintained. 33. With this modification, the present appeal is partly allowed. The conviction under Sec. 363 as well as Sec. 376 of the I.P.C., is confirmed. The sentence imposed on the accused under Sec. 363 of I.P.C. is also confirmed. So far as the punishment awarded to the accused under Sec. 376 is modified to the extent that the accused shall undergo rigorous imprisonment for 7 years instead of simple imprisonment of 10 years. The amount of fine is maintained for both the offence and punishment for non-payment of the fine is also confirmed. 34. With this modification, the present appeal stands disposed of. R. & P. to be sent back to the trial Court.