JUDGMENT Rohit B Deo, J. - The appellant accused is aggrieved by the judgment and order dated 15.6.2007 rendered by the 2nd Adhoc Additional Sessions Judge, Gadchiroli in Special Case 6 of 2002, by and under which, the accused is convicted for the offence punishable under section 376 of the Indian Penal Code ("IPC" for short) and is sentenced to suffer rigorous imprisonment for two years and is further convicted for offence punishable under section 417 of the IPC and is sentenced to suffer rigorous imprisonment for a period of six months and to payment of fine of Rs. 5,000/. 2. Heard Shri Rajnish Vyas, the learned counsel for the accused and Smt. S.P. Kolhe, the learned Additional Public Prosecutor for the respondent / State. 3. The prosecutrix, who belongs to the Pardhan - scheduled tribe, lodged oral report dated 28.3.2003 at the Aheri Police Station alleging that the accused induced her to have sexual intercourse promising marriage and that when she conceived, the accused refused to marry her. On the basis of the oral report Exh. 13, the Aheri Police registered offence punishable under section 376 of the IPC and under section 3(1)(xii) of Scheduled Caste, Scheduled Tribe (Prevention of Atrocities) Act ("Atrocities Act" for short). Upon culmination of the investigation, chargesheet for offence under section under section 376 of the IPC and section 3(1)(xii) of Atrocities Act was submitted in the Court of Judicial Magistrate First Class, Aheri, who committed the case to the Sessions Court. The learned Sessions Judge framed charge (Exh. 7) for offence punishable under section 376, 417 of IPC and under section 3(1)(xii) of the Atrocities Act. The accused abjured guilt and claimed to be tried. In the statement recorded under section 313 of the Code of Criminal Procedure, the defence is of false implication. The motive for false implication is stated to be a dispute between the accused and the father of the prosecutrix over payment of amount of goods purchased on credit from the accused. However, the suggestions given to the prosecutrix would reveal that the accused admitted sexual relationship. The suggestions given to the prosecutrix are that the sexual relationship was consensual and the accused and the prosecutrix were in love. The accused is convicted as afore stated. 4. However, the suggestions given to the prosecutrix would reveal that the accused admitted sexual relationship. The suggestions given to the prosecutrix are that the sexual relationship was consensual and the accused and the prosecutrix were in love. The accused is convicted as afore stated. 4. In view of the suggestions given by the accused that the sexual relationship is consensual, the pivotal issue is what was the age of the prosecutrix when the accused established sexual relationship with her. In the oral report Exh. 13, the date of birth of the prosecutrix is stated as 23.2.1986. The prosecutrix was, if her date of birth as stated is accepted, barely 16 years old. In her testimony, the prosecutrix (PW 1) has stated that her date of birth is 22.2.1986. PW 1 has deposed that in 2002, she was in the 10th standard and was 16 years old. The prosecutrix was in a relationship with the accused since two years prior to the lodging of the oral report. The prosecutrix has deposed that 1 years prior to lodging the oral report, the accused established sexual relationship with her, for first time. The evidence of the prosecutrix as regards the date of birth and as regards the point in time when the accused first established sexual relationship with her, has gone entirely unchallenged. The suggestion given to the prosecutrix is that the sexual relationship was consensual, which suggestion is candidly accepted by the prosecutrix. If the unchallenged evidence of the prosecutrix is accepted, and there is no reason to reject the evidence, the prosecutrix was 14 years and 7 months or thereabout when the accused first established sexual relationship with her. In the teeth of the unchallenged evidence of the prosecutrix, it is irrefutable that her consent is irrelevant and the prosecution has established offence punishable under section 376 of the IPC, beyond reasonable doubt. PW 7 Dr. Pravin Kinnake examined the prosecutrix on 30.3.2002. PW 7 has proved the medical examination report Exh. 25. PW 7 has deposed that the prosecutrix was carrying fetus of 22 weeks. The report of the sonography Exh. 27 records the age of the fetus as 25 weeks. The medical evidence clinchingly establishes that when the prosecutrix conceived, she was less than 16 years of age. The learned counsel for the accused has invited my attention to the ossification test report Exh. The report of the sonography Exh. 27 records the age of the fetus as 25 weeks. The medical evidence clinchingly establishes that when the prosecutrix conceived, she was less than 16 years of age. The learned counsel for the accused has invited my attention to the ossification test report Exh. 26 which records that on 30.1.2002, the prosecutrix is not less than 16 and not more than 19 years of age. In view of the unchallenged evidence of the prosecutrix, the ossification test does not take the case of the defence any further. It is well recognized that the ossification test can not be the last word and the error margin is two years either way. PW 6 Laxman Pal, the Gram Sevak of Gram Panchayat Allapalli has deposed on the basis of the school record that the date of birth of the prosecutrix is recorded as 22.2.1986. The school record is of the school to which the prosecutrix was first admitted. The Gram Sevak who was duly authorized by the Head Master to produce the register has proved the relevant entry Exh. 22. It is elicited in the crossexamination of PW 6 that he is not aware of the basis on which the entry of birth was taken in the school register. However, no specific suggestion is given to PW 6 that the date of birth recorded in the school register is incorrect. In view of the unchallenged testimony of the prosecutrix which is corroborated, although no corroboration is required, by the school record, the ossification test does not create any doubt as to the date of birth of the prosecutirx. 5. Since I have held that since the prosecutrix was 14 years and 7 months or thereabout when the accused first established sexual contact and was less than 16 years when she conceived, the defence of consensual sexual relationship is of no assistance to the accused in escaping the dragnet of section 375 of the IPC. The accused had admitted sexual relationship, albeit contending that the sexual relationship was consensual and the defence of false implication, fragile as the defence is, is rendered irrelevant. 6. The conviction of the accused under section 376 of IPC is unexceptionable. The reasons recorded by the learned Sessions Judge for award sentence of two years, which is less than the minimum, are not entirely satisfactory. 6. The conviction of the accused under section 376 of IPC is unexceptionable. The reasons recorded by the learned Sessions Judge for award sentence of two years, which is less than the minimum, are not entirely satisfactory. However, State has not chosen to prefer an appeal challenging the sentence. The incident occurred 16 years ago and I am not, at this stage, inclined to issue notice for enhancement of sentence. 7. The accused is further convicted for offence punishable under section 417 of the IPC. In my opinion, the conviction under section 417 of IPC is unsustainable. It is the version of the prosecutrix herself, that she is Pardhan - Scheduled Tribe and the accused is Shimpi by caste and that the parents of the accused did not like prosecutrix since she belonged to a different caste / tribe and therefore, rejected the marriage proposal. It is elicited in the cross examination that the prosecutrix become acquainted with the accused since she and her parents were purchasing grocery from the shop of the accused who used to visit house of the prosecutrix to collect the cost of the goods sold. It is elicited that the accused and the prosecutrix fell in love and the sexual relationship was consensually established. It is further elicited that since the prosecutrix is Gond /Pardhan and the accused Shipi, she was suspecting from the very beginning that there would be objection for marriage. It is difficult to record a finding with any decree of certainty that at the very initial stage the accused had no intention whatsoever of keeping his promise to marry the prosecutrix. The learned counsel for accused Shri Rajnish Vyas invites my attention to the decisions of the Apex Court in Uday Vs. State of Karnataka , (2003) AIR SC 1639 and Deepak Gulati Vs. State of Haryana , (2013) 7 SCC 675 : ( AIR 2013 SC 2071 ) to buttress the submission that the evidence on record is grossly insufficient to bring home the charge under section 417 of the IPC. The submission is well merited. 8. In the result, the appeal is partly allowed. The conviction of the accused for offence under section 417 of IPC is set aside. The conviction of the accused for offence under section 376 of IPC is upheld. 9. The bail bond of the accused shall stands cancelled. The submission is well merited. 8. In the result, the appeal is partly allowed. The conviction of the accused for offence under section 417 of IPC is set aside. The conviction of the accused for offence under section 376 of IPC is upheld. 9. The bail bond of the accused shall stands cancelled. The accused is directed to surrender to serve the sentence. The accused shall be entitled to benefit of section 428 of the Code of Criminal Procedure. 10. If the accused does not surrender within seven days, the Superintendent of Police, Gadchiroli is directed to take the accused into custody. In any event, compliance report shall be filed in the Registry of this Court within four weeks. 11. The appeal is partly allowed and disposed of.