JUDGMENT : 1. This is an appeal arising from the judgment and order passed in Sessions Case No. 84 of 2010, whereby, the learned 2nd Additional Sessions Judge, Surat (for short, ‘trial Court’) convicted the present appellant-original accused for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860, and sentenced him to undergo rigorous imprisonment for the period of 3 years, 5 years and 7 years so also to pay fine of Rs.1,000/-, Rs.2,000/- and Rs.3,000/- for the respective offence. All the sentences were ordered to run concurrently. The appellant period of sentence undergone by the appellant, as an under-trial prisoner, was to be remitted, as provided under Section 428 of the Code of Criminal Procedure, 1973 (for short, 'the Code'). 2. The brief facts leading to the filing of the present appeal needs reference at this stage. The case of the prosecution is that the first informant-Satyabhan Dharmraj Rajput, is originally hailing from the State of Uttar Pradesh and is presently residing at Surat along with his family. The eldest daughter of the first informant is aged 15 years and after her there are two sons and another daughter, i.e. total four children and his wife resided as a family at Surat. His eldest daughter was studying in Sharda Hindi School in Standard-10. 2.1 On 31.10.2009, he lodged a complaint before Limbayat Police Station that on 30.10.2009, his daughter left without intimating anybody and therefore, a frantic search was made. On realizing that the appellant-convict, who resided in Plot No. A/123, was also not traceable, it was alleged that he had allured the girl and abducted her from the guardianship of the first informant and his wife. She being the age of 15 years, an FIR being I-C.R. No. 5 of 2015 for the offence punishable under Sections 363, 366, 376 and 114 of the Indian Penal Code came to be lodged with Limbayat Police Station. 2.2 After due investigation, the police officer charge-sheeted the appellant and the case was thereafter committed under Section 209 of the Code to the Sessions Court, Surat, on 11.03.2010. 2.3 The charges came to be framed against the appellant and he pleaded not-guilty and accordingly oral evidence was recorded of total 19 witnesses. 2.2 After due investigation, the police officer charge-sheeted the appellant and the case was thereafter committed under Section 209 of the Code to the Sessions Court, Surat, on 11.03.2010. 2.3 The charges came to be framed against the appellant and he pleaded not-guilty and accordingly oral evidence was recorded of total 19 witnesses. Which read thus: PROSECUTION WITNESS NUMBER NAME OF THE WITNESS EXHIBIT NUMBER 1 Ramchandra Rajai Yadav 19 2 Umesh Shrivishveshwar Sahu 21 3 Satyabhan Dharmraj Rajput 25 4 Dr. Arvindkumar Dasrathsing 27 5 Gambhir Vithla Vasava 32 6 Nathubhai Gavjibhai 34 7 Dr. Jayesh Harishchandra Rana 36 8 Dr. Which read thus: PROSECUTION WITNESS NUMBER NAME OF THE WITNESS EXHIBIT NUMBER 1 Ramchandra Rajai Yadav 19 2 Umesh Shrivishveshwar Sahu 21 3 Satyabhan Dharmraj Rajput 25 4 Dr. Arvindkumar Dasrathsing 27 5 Gambhir Vithla Vasava 32 6 Nathubhai Gavjibhai 34 7 Dr. Jayesh Harishchandra Rana 36 8 Dr. Shraddha Sandip Agrawal 40 9 Ramesh Dhanjibhai Patel 43 10 Lakshmiben Haribhai Patel 44 11 Sarojben Haribhai Patel 45 12 Ramchandra Jagmohan Kushvaha 46 13 Ratipalsinh Shukdevsinh Rajput 47 14 The prosecutrix 48 15 Rajkumar Jagatdharisinh Rajput 50 16 Tadkeshwar Umashankar Tiwari 52 17 Dilipchandra Ramnarayan Yadav 55 18 Bharatbhai Maljibhai Desai 58 19 Nathubhai Ravjibhai Parghi 64 2.4 The documentary evidence totaling to 21 documents also had been led by the prosecution, as under: DOCUMENTARY EVIDENCE NUMBER PARTICULARS EXHIBIT NUMBER 1 Arrest panchnama and the panchnama of seizure of the clothes of the accused Mukesh 20 2 Panchnama of place of offence 22 3 FIR 26 4 Treatment certificate of the accused 28, 29 5 Panchnama of the house rented by the accused 30 6 Arrest panchnama of the accused Shakuntala and Sangita 31 7 Catalogue 33 8 A copy of the extract of the Station Diary 35 9 Treatment certificate of the Prosecutrix 37 10 Report made for carrying out examination of the prosecutrix and the accused and to issue certificates in that regard 38 11 Memorandum written for carrying out medical examination of the prosecutrix and to issue a certificate to that effect 39 12 Certificate of the prosecutrix issued by the Gynecologist 41 13 A copy of the extract of the General Register of the School 53 14 A copy of the School Leaving Certificate of the Prosecutrix 54 15 Panchnama of seizure of clothes of the prosecutrix 59 16 Report made for carrying out analysis of the muddamal articles and dispatch note 60 17 Receipt issued for having received the muddamal 61 18 Report of FSL 62 19 Serological Report 63 20 A copy of the extract of the Station Diary 65 21 The photograph of the accused and the prosecutrix produced on behalf of the accused at the time of cross-examination of the prosecutrix 49 2.5 Except, the denial nothing has been stated in the further statement recorded under Section 313 of the Code. The trial Court after hearing both the sides and on appreciating the evidence oral as well as the documentary evidence, held the appellant guilty for the offences, as mentioned herein above. There were other accused also, i.e. the mother and sister of the appellant, who were acquitted by giving them the benefit of doubt. 3. Aggrieved appellant is, therefore, before this Court urging inter alia that serious error has been committed by the learned trial Judge in not appreciating the evidence properly. It is also, further, urged that the prosecutrix had accompanied him on her own in the autorickshaw on a public road, and therefore also, to say that she was abducted is nothing but a mockery. It is also his say that the evidence of the prosecutrix is also not palatable, as she stayed with the appellant for more than 15 days. She had not only gone voluntarily with the appellant but also she had purposely left with the appellant, till the course of law took its turn and the appellant came to be arrested for the FIR, which had been lodged by the father of the prosecutrix. The entire story of illegal confinement is ridiculous, according to the appellant. It was a clear case of love affair between the appellant and the prosecutrix, who both were young. The age of the prosecutrix is not proved by the prosecution beyound in accordance with law. The only person examined, to prove the age of the prosecutrix, is the Principal of the School, where she had studied and on the basis of the same, the Court concluded that she was below 18 years of age. It is, further, the say of the appellant that the amendment is carried out, where the age of the prosecutrix is enhanced to 18 years from 16 years to constitute an offence under Section 375 of the IPC, whereas, the relevant age in this case would 16 years and not 18 years. 4. This Court has heard the learned Advocate, Mr. Buddhbhatti, with learned Advocate, Ms. Parmar, for the appellant and learned APP, Mr. Pandya, for the Respondent-State. 5. Learned Advocate, Mr. Buddhbhatti, urged that for nearly two months, the appellant and the prosecutrix stayed together. 4. This Court has heard the learned Advocate, Mr. Buddhbhatti, with learned Advocate, Ms. Parmar, for the appellant and learned APP, Mr. Pandya, for the Respondent-State. 5. Learned Advocate, Mr. Buddhbhatti, urged that for nearly two months, the appellant and the prosecutrix stayed together. For proving the date of birth of the prosecutrix, the only person examined is PW-16, who was the Principal of Shardayatan Hindi School, where the prosecutrix had studied upto Standard-10, and who stated that she was admitted in the school on 15.06.2006 and she left the school on 07.06.2009. He urged that if, one goes by her date of birth, i.e. 15.01.1994, her age would be 15 years, 9 months and 5 days. However, the only way to prove her birth date beyound reasonable doubt is by either producing her birth registration certificate or any other valid certificate, which would establish her age below 16 years. He urged that the father of the prosecutrix-PW-3 stated that neither he knows the date of birth of his daughter nor her grandfather. He urged that the appellant has already undergone nearly more than 4 years of sentence, and therefore, the same may be construed as sufficient period of punishment. 6. Learned APP, Mr. Pandya, appearing for the State urged this Court not to interfere. According to him, after once the appellant was convicted and was granted temporary bail, he remained absconding for nearly 3 years and 8 months. He, further, urged that the matriculation certificate of the prosecutrix is brought on record by the prosecution and that is a valid proof, as per the decision of the Apex Court in ‘JARNAIL SINGH VS. STATE OF HARYANA’, (2013) 7 SCC 263 . It is also his say that, even if, the prosecutrix had given her consent to accompany the appellant and also for the act of physical relationship, her consent has no value in the eyes of law for she was below 16 years of age. He, therefore, urged that the trial Court has rightly convicted him. AGE OF THE PROSECUTRIX : 7. On thus hearing both the sides, the first question that comes up for the consideration of this Court is the appreciation of the evidence with regard to the age of the prosecutrix. Firstly, the evidence that has been adduced by the prosecution shall have to be regarded. AGE OF THE PROSECUTRIX : 7. On thus hearing both the sides, the first question that comes up for the consideration of this Court is the appreciation of the evidence with regard to the age of the prosecutrix. Firstly, the evidence that has been adduced by the prosecution shall have to be regarded. It is the father of the prosecutrix-PW- 3, who also is the first informant, had deposed vide Exhibit-25 that at the time of his deposition, i.e. in the year 2011, the prosecutrix was aged 17 years. He, further, stated that the prosecutrix was abducted by the present appellant from the guardianship of the parents and that she was eldest of all the siblings. He urged that there is a difference of about one and a half year to two years in the age of his children. He stated that he had gone to admit his daughter in the school at Surat. Earlier, his daughter was staying with her grandparents and her grandfather had gone to admit her in school. He was not sure, whether hi father knew the exact date of birth the prosecutrix or not. She had studied upto Standard-6 at her village before she was brought to Surat. He conceded that, at the time, his daughter was taken away by the appellant, his son was studying in Standard-10. He stated that had the prosecutrix continued her studies, she would have been in Standard-12. He agreed that had he remember the date of birth of his daughter, he would have mentioned the same in the FIR, and therefore, the same is not mentioned in the FIR. 7.1 It appears that the only person, who is examined to prove the age of the prosecutrix, from the family is her father-PW-3. The grandfather of the prosecutrix was not examined by the prosecution. 7.2 The deposition of the prosecutrix, at this stage, would be profitable to refer to. The prosecutrix was examined as PW-14. In her deposition, Exhibit-48, she stated that her date of birth is 15.01.1994 and she was studying in Sharda Hindi High School, Surat. 7.3 In her cross-examination, she stated that it was her grandfather, who had got her admitted, in Standard-1, as she was, at the relevant point of time, staying with her grand parents before she came to reside with her parents at Surat. 7.3 In her cross-examination, she stated that it was her grandfather, who had got her admitted, in Standard-1, as she was, at the relevant point of time, staying with her grand parents before she came to reside with her parents at Surat. She was not aware, as to whether her birth was registered elsewhere. She came to know about her date of birth because her parents told her. She knew nothing about her date of birth entry in the first school. It is only on the strength of the birth date entry in the school register that she had stated of her date of birth as 15.01.1994. 7.4 So far as the register of the school is concerned, same was proved through the Principal of Sharda Hindi School, PW-16. He had brought General Register with him, at the time of recording of his evidence and at Sr. No.171 of the said register pertains to the prosecutrix. He stated that she was admitted in the school on 15.06.2006 and she left the school on 07.06.2009, as she had failed in Standard-10. She was also issued School Leaving Certificate vide Sr. No.144, which was on 08.06.2009. 7.5 This witness, in his cross-examination, admitted that in the General Register of the school, the name of the mother of the prosecutrix is not mentioned. The place of birth is shown to be Mirzapur, Uttar Pradesh. There was no mention in the General Register as to what documents were produced for entering the date of birth of the prosecutrix, therein. As per the government rules and regulations, the General Register was being maintained. He agreed that if one is admitted in school either the birth certificate or affidavit need to be taken. But, if, someone was already studying in another school, School Leaving Certificate issued by the earlier school is deemed to be due compliance, according to this witness. He agreed that the birth certificate of the prosecutrix was not produced before him. Thus, it was quite clear that on the basis of the School Leaving Certificate issued by the earlier school, the birth date of the prosecutrix was entered as 15.01.1994. Ordinarily, registered is maintained in according with rules and regulations and in the deposition of this witness also there does not appear to be anything contrary to disbelieve his version that the general register was maintained in accordance with the rules and regulations. Ordinarily, registered is maintained in according with rules and regulations and in the deposition of this witness also there does not appear to be anything contrary to disbelieve his version that the general register was maintained in accordance with the rules and regulations. He, of course, did not mention, as to which were the documents, which had led him to enter the birth date of the prosecutrix in the general register as 15.01.1994, in the very breath this witness agreed that the school leaving certificate of the prosecutrix issued by the previous school was produced and her date of birth was registered in the general register on the basis, thereof. 7.6 Cumulatively, if one examines the evidence of the prosecution with regard to the proof of the age of the prosecutrix, it appears that her date of birth certificate is not on record nor the prosecution examined her grandfather, who had gone to admit her in the first school. She studied up to Standard-6 in the school at her native place and it is only after, her parents moved to Surat, she was also shifted to Surat, where, on the basis of the School Leaving Certificate issued by the first school, she was admitted in Sharda Hindi School. She had discontinued her studied after she failed in Standard-10 and had she continued her further studies, she would have been in Standard-12. It is the matriculation certificate, which is forming the part of the record, where also, her date of birth is mentioned to be 15.01.1994 and thus, the date of birth of the prosecutrix, which has come on record is 15.01.1994. With this birth date, the age of the prosecutrix, on the date of the alleged offence, would come to 15 years, 9 months and 5 days. 7.7 The question that arises is, as to whether, this should be construed as the final and valid proof of proving the birth date of the prosecutrix. Particularly when, neither the birth date registration certificate is forming the part of the record nor the grandfather of the prosecutrix is examined, who had admitted her in the first school. The father of the prosecutrix maintained that he does not remember the date of birth of his daughter and that it was her grandfather, who had got her admitted in the first school. The father of the prosecutrix maintained that he does not remember the date of birth of his daughter and that it was her grandfather, who had got her admitted in the first school. There is no document to show on the strength of which, the first school had registered the birth date of the prosecutrix as 15.01.1994. With these evidence on the proof of the birth date of the prosecutrix, law on the subject deserve consideration at this stage. 7.8 In the case of ‘JARNAIL SINGH VS. STATE OF HARYANA’ (Supra), the Court was considering the case under the Juvenile Justice (Care And Protection) Rules, 2007, and the Court has detailed the procedure and manner for determining age and held that Rule 12 of the aforesaid rules should be the basis for determining the age of both, the children who are in conflict with law or who are the victims of crime. Before the Apex Court, it was the case of kidnapping and gangrape and for determining the age of the prosecutrix, therein, the Court adopted the procedure prescribed under Rule 12 of the Juvenile Justice Rules. 7.9 The Apex Court held that the manner of determining the age of the minor has been expressed in Rule 12(3) of the Juvenile Justice Rules, where, the age of a child is to be ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3) Juvenile Justice Rules, where, the matriculation certificate of a child is considered to be the highest rate option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion. “22. Since the judgment relied upon by the learned counsel for the appellant is distinguishable on facts. And since the judgment relied upon, had not made any reference to the 2007 Rules, we are of the view that the same would not be relevant for the purposes of determining the age of the prosecutrix VW - PW6, specially in the background of the evidence led by the prosecution through Satpal (PW4) to establish. 23. The next contention advanced at the hands of the learned counsel for the accused-appellant Jarnail Singh was, that the oral testimony of the prosecutrix VW - PW6 ought not to be accepted as sufficient to return a finding of guilt against the accused-appellant Jarnail Singh. Insofar as the testimony of the prosecutrix VW - PW6 is concerned, it is pointed that there were a number of discrepancies and contradictions therein. It was submitted, that such discrepancies can be seen on a comparison of her deposition before the trial Court, with the statement of the prosecutrix recorded under Section 164 of the Code of Criminal Procedure on 6.4.1993, as also, the statement of the prosecutrix recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure on 29.3.1993. 24. We have given our thoughtful consideration to the above noted submission, advanced at the hands of the learned counsel for the appellant. We, however, find no merit therein. It is not as if the prosecution version is entirely based on the statement of the prosecutrix VW - PW6. It would be relevant to mention, that her recovery from the custody of the accused-appellant Jarnail Singh from the house of Shashi Bhan, at Raipur, is sought to be established from the statement of Moti Ram-PW3. It is not as if the prosecution version is entirely based on the statement of the prosecutrix VW - PW6. It would be relevant to mention, that her recovery from the custody of the accused-appellant Jarnail Singh from the house of Shashi Bhan, at Raipur, is sought to be established from the statement of Moti Ram-PW3. There can therefore be no room for any doubt, that after she was found missing from her father’s residence on 25.3.1993, and after her father Jagdish Chandra- PW8 had made a complaint to the police on 27.3.1993, she was recovered from the custody of the accused-appellant Jarnail Singh. Thereafter, the prosecutrix VW - PW6 was subjected to medico-legal examination by Dr. Kanta Dhankar-PW1 on 29.3.1993 itself at 3.00 p.m. Dr. Kanta Dhankar-PW1, in her independent testimony, affirmed that she had been subjected to sexual intercourse, inasmuch as her hymen was found ruptured. Even though the visual examination of the prosecutrix VW – PW6, during the course of her medico-legal examination did not reveal the presence of semen or blood, yet the report of the forensic science laboratory (Exhibit PL) and of the Serologist (Exhibit PL/1) clearly establish the presence of semen on her salwar, underwear and pubic hair. The serologist’s report also disclose, medium and small blood stains on her “salwar”. In her own deposition, she had mentioned that, when she was raped by the accusedappellant Jarnail Singh and his accomplices, bleeding had taken place and she had felt pain, and her clothes were stained with blood. Her deposition stands scientifically substantiated by Exhibits PL and PL/1. The suggestion put to the prosecutrix VW – PW6 at the behest of the accused-appellant Jarnail Singh, during the course of her cross-examination, that she had accompanied the accused-appellant Jarnail Singh, of her own free will and had had sexual intercourse with him consensually, leaves no room for any doubt, that she was in his company, and that, he had had sexual intercourse with her. The assertion that the prosecutrix VW – PW6 had accompanied the accused-appellant Jarnail Singh, and had had sexual intercourse with him consensually is completely ruled out, because as per the substantiated prosecution version, the prosecutrix VW - PW6 was not taken away by the accused-appellant Jarnail Singh alone, but also, by his three accomplices. All the four of them had similarly violated her person. All the four of them had similarly violated her person. Additionally, in her statement under Section 164 of the Code of Criminal procedure, the prosecutrix VW - PW6 had asserted, that in the first instance, after having caught hold of her, the accused had made her inhale something from a cloth which had made her unconscious. Thereafter, when the accused-appellant Jarnail Singh attempted to commit intercourse with her, she had slapped him. He had then put a cloth in her mouth, to stop her from raising an alarm. Thereafter, each one of the accomplices had committed forcible intercourse with her in turns. The factum of commission of forcible intercourse by the accused-appellant, as also, his accomplices was reiterated by her during her testimony before the Trial Court as PW6. Besides the aforesaid, there is a statement of her own father, Jagdish Chandra (PW8) who also in material particulars had corroborated the testimony of the prosecutrix VW - PW6. The prosecutrix VW – PW6, was not subjected to cross-examination on any of these issues. Nor was the prosecutrix confronted with either the statements made by her under Section 161 or Section 164 of the Code of Criminal Prosecution, so as to enable her to explain discrepancies, if any. Therefore, we find no merit at all, in the submission advanced by the learned counsel. In the above view of the matter, we are satisfied that there was substantial material corroborating the statement of the prosecutrix VW - PW6, for an unequivocal determination of the guilt of the accused-appellant Jarnail Singh.” 7.10 In the case of ‘STATE OF M.P. VS. ANOOP SINGH’, (2015) 7 SCC 773 , the apex Court was considering the case of kidnapping and rape, where, the question arose of determination of the age of the prosecutrix. There was a difference of two days in the date of birth, as mentioned in the birth certificate and in the matriculation certificate. The Apex Court, therefore, held that the High Court ought to have appreciated the law laid down by the Apex Court regarding determination of the age, where, the birth date certificate is considered to be better evidence. Referring to the decision of the Apex Court in, it held and observed as under: “12. This Court in the case of Mahadeo S/o Kerba Maske Vs. Referring to the decision of the Apex Court in, it held and observed as under: “12. This Court in the case of Mahadeo S/o Kerba Maske Vs. State of Maharashtra and Anr., (2013) 14 SCC 637, has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape. Rule 12(3) reads as under: “Rule 12(3): In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining – (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.” 13. This Court further held in paragraph 12 of Mahadeo S/o Kerba Maske (supra) as under: “Under rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical opinion can be sought for. This Court further held in paragraph 12 of Mahadeo S/o Kerba Maske (supra) as under: “Under rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of the ascertaining the age of a victim as well.” (Emphasis supplied) This Court therefore relied on the certificates issued by the school in determining the age of the prosecutrix. In paragraph 13, this Court observed: “In light of our above reasoning, in the case on hand, there were certificates issued by the school in which the prosecutrix did her V standard and in the school leaving certificate issued by the school under Exhibit 54, the date of birth has been clearly noted as 20.05.1990 and this document was also proved by PW 11. Apart from that the transfer certificate as well as the admission form maintained by the Primary School, Latur, where the prosecutrix had her initial education, also confirmed the date of birth as 20.05.1990. the reliance placed upon the said evidence by the Courts below to arrive at the age of the prosecutrix to hold that the prosecutrix was below 18 years of age at the time of occurrence was perfectly justified and we do not find any grounds to interfere with the same.” 14. In the present case, we have before us two documents which support the case of the prosecutrix that she was below 16 years of age at the time the incident took place. These documents can be used for ascertaining the age of the prosecutrix as per Rule 12(3)(b). The difference of two days in the dates, in our considered view, is immaterial and just on this minor discrepancy, the evidence in the form of Exts. P/5 and P/6 cannot be discarded. Therefore, the Trial Court was correct in relying on the documents. 15. The High Court also relied on the statement of PW-11 Dr. A.K. Saraf who took the X-ray of the prosecutrix and on the basis of the ossification test, came to the conclusion that the age of the prosecutrix was more than 15 years but less than 18 years. Therefore, the Trial Court was correct in relying on the documents. 15. The High Court also relied on the statement of PW-11 Dr. A.K. Saraf who took the X-ray of the prosecutrix and on the basis of the ossification test, came to the conclusion that the age of the prosecutrix was more than 15 years but less than 18 years. Considering this the High Court presumed that the girl was more than 18 years of age at the time of the incident. With respect to this finding of the High Court, we are of the opinion that the High Court should have relied firstly on the documents as stipulated under Rule 12(3)(b) and only in the absence, the medical opinion should have been sought. We find that the Trial Court has also dealt with this aspect of the ossification test. The Trial Court noted that the respondent had cited Lakhan Lal Vs. State of M.P., 2004 Cri.L.J. 3962, wherein the High Court of Madhya Pradesh said that where the doctor having examined the prosecutrix and found her to be below 18½ years, then keeping in mind the variation of two years, the accused should be given the benefit of doubt. Thereafter, the Trial Court rightly held that in the present case the ossification test is not the sole criteria for determination of the date of birth of the prosecutrix as her certificate of birth and also the certificate of her medical examination had been enclosed. 16. Thus, keeping in view the medical examination reports, the statements of the prosecution witnesses which inspire confidence and the certificates proving the age of the prosecutrix to be below 16 years of age on the date of the incident, we set aside the impugned judgment passed by the High Court and uphold the judgment and order dated 24.04.2006 passed by the IIIrd Additional Sessions Judge, Satna in Special Case No.123/2003.” 7.11 In ‘MAHADEO S/O KERBA MASKE VS. STATE OF MAHARASHTRA AND ANR.’, (2013) 14 SCC 637, the yardstick applied by the Apex Court is the statutory provision in Rule 12(3) of the Juvenile Justice Rules for determining the age of the prosecutrix. It was the question of age, as per the School Leaving Certificate vis-a-vis medical evidence. The Apex Court held that only in the absence of the relevant proofs, medical opinion can be sought. It was the question of age, as per the School Leaving Certificate vis-a-vis medical evidence. The Apex Court held that only in the absence of the relevant proofs, medical opinion can be sought. 7.12 All the decisions discussed herein above are considered and applied to the facts of the case on hand for determining the age of the prosecutrix, it can be seen that the prosecution the prosecution proved date of birth of the prosecutrix through the matriculation certificate, wherein her date of birth is mentioned to be 15.01.1994. The prosecutrix, of course, had failed in Standard-10, and therefore, she had left the school. With the highest rate or in the chronology, the matriculation certificate being placed at the top in Rule 12(3) of the Juvenile Justice Rules. Therefore, no other certificate wold be necessary to be looked at the and the date of birth of the prosecutrix could be said to have proved conclusively by the prosecution. If, one traces the source, it is the school leaving certificate issued by the school, where, the prosecutrix was fist admitted, which reflected her date of birth as 15.01.1994. Neither the birth certificate nor the affidavit of her grandfather, who had admitted her in school first school has been found on record. However, that being not the requirement under the law on the subject, as can be seen from the above referred decisions. Thus, on the issue of her date of birth, this Court holds that the trial Court committed no error in holding that the age of the prosecutrix was below 16 years, on the date of the incident, which is 30.10.2009. Charge of abduction and rape: 7.13 The question, now, that arises is of the charge of abduction and also of rape, as alleged in the charges levelled against the appellant. The father of the prosecutrix-PW-3, who is also the first informant has stated that without the consent of the parents, the prosecutrix was abducted by the appellant. 7.14 Section 361 of the IPC provides that whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. 7.15 Section 363 of the IPC provides that 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. 7.16 In the case on hand, the alleged incident having taken place in the year 2009, the age of the prosecutrix, as provided under Section 361 of the IPC, would be 16 years. She was, admittedly, below 16 years of age, on the date of the incident. It also has been established from the evidence of the father of the prosecutrix-PW- 3 that she was induced, to leave the protection of her parents, by the appellant. The evidence led by the prosecution also proves the charge under Section 361 of the IPC. 7.17 So far as Section 366 of the IPC is concerned, it provides that if any person 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; [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. 7.18 The prosecutrix, who had been examined as PW-14, in her deposition Exhibit-48, stated that she knew the appellant, since, he was residing in the neighbourhood and his sister was friend of hers and as she sued to frequently visit their residence. According to the prosecutrix, on the date of the incident, when she left her home at around 04:00 p.m. for purchasing Heena for a grocery shop, the appellant had tied a clothe on her face and gagged her mouth and took her into an autorickshaw. The auto-rickshaw was taken to the house of sister-in-law of the appellant, which is situated in Pandesara. The auto-rickshaw was taken to the house of sister-in-law of the appellant, which is situated in Pandesara. She had made attempts to wriggle out of his clutches, but, she could not succeed. She was, then, taken to one another place, where, she was kept for about one and a half month. She stated that, during that period, she and the appellant were staying alone and no one else stayed with them. She, further, stated that the mother and sister of the appellant sometimes used to visit them. During this entire period, the appellant continued to rape her. Then, her father came there along with police after about two months and she was taken before the doctor for examination. 7.18.1 In her cross-examination, she admitted that around the place, where she was kept initially for 15 days, there were other rooms and if, anyone speak in the neighbourhood in their room, they could be heard in her room. She further stated that the appellant used to go for earning the subsistence also. She also stated that the appellant did not continue to reside with her, but, he used to visit her intermittently and she used to stay alone in the house. She, further, stated that she was not cooking and that mother and sister of the appellant used to bring food for her once in about 15 days. She stated that for about 40 days, she had not eaten anything and, except, on those days, when the appellant used to visit her, she was all by herself. She also stated that she didn’t even attended to the washroom, as she had not eaten. It was only when the mother of the appellant used to visit her that she was being taken to the toilets. She had not take bath for about two months. She stated that she was kept in a room, which was closed from outside. 7.18.2 In her cross-examination, she, further, stated that when her mouth was gagged, at the time of abduction, she had become unconscious and she regained her consciousness at around 09:00 p.m., at night. She also stated that for 15 days, she stayed with the sister-in-law with the appellant and he had visited her only once or twice and the house was not locked from outside. She also stated that for 15 days, she stayed with the sister-in-law with the appellant and he had visited her only once or twice and the house was not locked from outside. She, further, stated that there were other persons residing in the neighbourhood and she had never asked them to help her. She also was shown Exhibit-49, where she is shown to be photographed with the appellant. She denied of there being any love affair between her and the appellant and it is only because of the pressure from her parents that she had alleged against the appellant. 7.19 PW-15, who was the friend of the father of the prosecutrix-PW-3 and had helped in searching her, was also examined and he stated that on coming to know through police that she was kept in a chawl situated at Pandesara village, they had visited the said place and the appellant had run away from the place. He also stated that when the visited the said place, the people in the neighbourhood had flocked. MEDICAL EVIDENCE: 7.20 Before appreciating the evidence of the prosecutrix and her father-PW-3, it would be worthwhile to regard to the medical evidence. Soon after the police found the prosecutrix, she was taken to Dr. Shraddha Sandip Agrawal, who was discharging duties as Medical Officer at Smimer Hospital at Surat, who had examined the prosecutrix and who was given the history by the prosecutrix that she was kidnapped by the appellant on 28.10.2009. She was given stupefying substance by the appellant, and therefore, she had remained unconscious for about two hours and when she regain her consciousness, she was at the residence of the sister-in-law of the appellant at Vadod village, Pandesara, where she stayed for initial 15 days, and thereafter, she was taken to an unknown place, where she was raped by the appellant 4 to 5 times. This witness found that there were no external injuries on the person of the prosecutrix and her hymen was torn. She had taken the vaginal swab and urinal swab samples of the prosecutrix. She opined that the sexual intercourse was done with her. Medical certificate issued by her also is indicative of the same. This witness found that there were no external injuries on the person of the prosecutrix and her hymen was torn. She had taken the vaginal swab and urinal swab samples of the prosecutrix. She opined that the sexual intercourse was done with her. Medical certificate issued by her also is indicative of the same. 7.21 The prosecutrix was first taken before PW-7, who was discharging duties as Medical Officer at Smimer Hospital, Surat, where the history was given that on 29.11.2017, she was given a stupefying substance, which made her unconscious. She was, then, taken to the residence of the sister-in-law of the appellant, where she was kept for 15 days, where, the appellant had successively raped her 5 to 6 times. She was, then, referred to the Professor of Gynecology Department. He denied that the history was given, as per the parents and not as per the say of the prosecutrix. 7.22 It is apt to refer to evidence of some of the witnesses, at this stage, namely Pws-10, 11, 12 and 13. 7.22.1 These persons where the neighbours, who had not supported the case of the prosecution. PW-10, who was examined vide Exhibit-44, stated that the room was given on rent to the appellant, who had gone to her with one girl by stating that they had already performed marriage. 7.23 Thus, there are oral evidences as well as the medical evidences and it is well established that the prosecutrix successive intercourse has taken place with the prosecutrix- PW-14. It was the appellant, who had committed the said act with her throughout the time, she was with the appellant, where, the version, of course, if given by her of his having abducted her forcibly and also having made her unconscious with the help of some stupefying substance. She continued to reside with the appellant for almost two months. Initially, she was taken to the house of her sister-in-law by the appellant, where, according to her, the people resided in the neighbourhood and she could also hear their talks in the room, where she was kept. It was not difficult for her to shout and seek the help of the neighbours, if, she was forcibly taken there. Her story of not eaten for 40 days and not having attended to the natural calls for two months and also not having taken bath are not palatable. It was not difficult for her to shout and seek the help of the neighbours, if, she was forcibly taken there. Her story of not eaten for 40 days and not having attended to the natural calls for two months and also not having taken bath are not palatable. But, they, on the contrary, raises questions on the veracity of the deposition of this witness. This appears to be a conduct on the part of the prosecutrix to save her own skin, when found in a consenting mode. It is also not in dispute that the sister of the appellant was a friend of the prosecutrix and that is how she came to know the appellant. On the date of the incident, possibly, it was with her consent that she had accompanied the appellant and eventually continued to live with him for two months till her father lodged a criminal complaint. There appears to be the support of the family of the appellant. However, the trial Court has given the benefit of doubt to both the mother and the sister of the appellant, which is not challenged either by the original complainant or by the State. Without, thus, entering into their roles in the alleged commission of the offence, it is suffice to hold that it is quite apparent from the evidence, which has been recorded by the trial Court that there was ample opportunity available with the prosecutrix to raise hue and cry to escape from the said place or seek assistance from the people residing in the neighbourhood to return to her parents. She studied upto Standard-10, and therefore, she could have found a way out. 7.24 This Court is quite conscious that she was barely 16 years of age, at the time of alleged incident, and therefore, her consent shall have no value in the eyes of law. Therefore, anything done by her, even her consent for elopement or for the act of sexual intercourse, will have no bearing on the issue, at all. It is also quite apparent from the photograph, Exhibit-49, that the relationship was with her consent, which, of course, in the eyes of law shall have no value at all. Therefore, anything done by her, even her consent for elopement or for the act of sexual intercourse, will have no bearing on the issue, at all. It is also quite apparent from the photograph, Exhibit-49, that the relationship was with her consent, which, of course, in the eyes of law shall have no value at all. It is quite often noticed that the boys, who themselves are very young, without being ordinarily aware of the law on the subject, take steps in haste, swayed by emotion and then will have to suffer the consequences of undergoing the imprisonment for having kept relationship with a girl, who was incapable of given her consent. In the instant case, the theory of consent, which writs large in the cross-examination conducted of the prosecutrix, would, in fact, have no value when the law, itself, is so unequivocally clear. Even going by the age, which was prescribed for commission of rape under Section 375 of the IPC, prior to 03.02.2013 also, the prosecutrix was of the age below 16 years, and therefore, she would be incapable of giving her consent. The theory of consent, which writs large in the cross-examination conducted of the prosecutrix would, in fact, have no value under the law, which is unequivocal and clear. Even going by the age, which was prescribed for commission of rape under Section 375 of the IPC, prior to 03.02.2013 also, the prosecutrix was below 16 years of age, and therefore, the would be incapable under the law to given her consent. Any act, therefore, committed by a person with or without the consent of a girl below 16 years of age and if the same falls under Section 375 of the IPC, the same would amount to an act of rape. 7.25 Not only the medical evidence proved by examining the medical officers for the version of the prosecutrix of the appellant having committed the act of sexual intercourse with her, who exaggerated the entire version, possibly for her own defence and being scared of the reaction of her parents, who were not approving the relationship of hers with the appellant and obviously so when she was of such a young age. 7.26 So far as the samples collected from the prosecutrix so also the collection of her clothes, which had been sent to the FSL is concerned, report of the FSL is proved by the prosecution vide Exhibit-62 does not help the case of the prosecution. It would not be much necessary to refer to the depositions of some of the panch witnesses, as otherwise, the prosecution has succeeded in proving the guilt of the appellant beyound reasonable doubt. 7.27 The evidence of the Investigating Officer (IO)-PW-18 also further confirms the factum of police visited the place of offence situated at the outskirts of the village Vadod and a panchnama to that effect also had been carried out in the presence of panchas. Further, the clothes of the prosecutrix also had been seized, in the presence of panchas, after drawing a panchnama. Likewise, the statements of the witnesses also have been proved through this witness by the prosecution, especially, the statements of those witnesses, who have not chosen to support the case of the prosecution. 7.28 Under the circumstances, the judgment and order passed by the trial Court convicting the appellant for the offence punishable under Sections 363, 366 and 376 of the IPC deserve no interference. QUESTION OF SENTENCING: 8. This will bring this Court to the question of punishment and the sentence inflicted by the trial Court for the respective offences. 8.1 This Court notices that all the sentences were ordered to run concurrently and the appellant has already undergone four years’ sentence. Out of them, the major punishment is the infliction of punishment to undergo seven years’ imprisonment, on the appellant, for the offence punishable under Section 376 of the IPC. 8.2 So far as the aspect of sentence is concerned, it is urged by the learned Advocate, Mr. Buddhbhatti, for the appellant that at the time of incident, the appellant was aged 21 years only and it is the case of a love affair. He, further, urged that on account of unwillingness of the parents of the prosecutrix, the marriage could not be performed. He urged that no force was exerted on the prosecutrix, as is clear from the medical evidence also from the deposition of the prosecutrix, herself, as no injury was found on her person. Moreover, she continued to stay happily with the appellant nearly for about two months, which speaks volumes of their relationship. He urged that no force was exerted on the prosecutrix, as is clear from the medical evidence also from the deposition of the prosecutrix, herself, as no injury was found on her person. Moreover, she continued to stay happily with the appellant nearly for about two months, which speaks volumes of their relationship. He also produced photographs of the prosecutrix with the appellant and urged that her physique was such that the same was deceptive and the person, who falls in love, does not ask for age. 8.3 Learned APP objected to any reduction in the sentence on the ground that he was person of 21 years of age and it is a case of rape. He, further, urged that the girl was too young to know her mind, and therefore, no leniency should be shown. 8.4 At this stage, it would be relevant to refer to the provisions of Sections 375 and 376 of the IPC. 8.5 Except, the cases provided under sub- Section (2), the act of commission of rape, as per Section 376 of the IPC, shall be punished with imprisonment of either description for a term which shall not be less than 7 years, but, which may extend to imprisonment for life and or which may extend to 10 years and also liable to fine, unless the woman raped is a wife and not below 12 years of age. The proviso to this Section provides that the Court may for the adequate and special reasons to be mentioned in the judgment impose sentence of less than seven years. What should be the criteria, which is to be adopted, even while considering the adequate and special reasons have been reiterated by the Apex Court in a plethora of decisions, discussed herein above. 8.6 So far as the applicability of the law to the facts in the instant case is concerned, this Court finds that, at the time of incident, the appellant was young and aged 21 years. He had taken the prosecutrix with him and it appears that, as has been pointed out on record from the evidence that had been adduced by the prosecution, both the appellant and the prosecutrix continued to reside at the place of his brother, initially, for 15 days and later on they had, on their own, had rented a house. He had taken the prosecutrix with him and it appears that, as has been pointed out on record from the evidence that had been adduced by the prosecution, both the appellant and the prosecutrix continued to reside at the place of his brother, initially, for 15 days and later on they had, on their own, had rented a house. Thus, there were all opportunities available with her to escape, but, she continued to be with the appellant and there does not appear to be any circumstances, which had deterred her from running away from the place. Even, as per her own version, the appellant used to go away to earn subsistence. Further, if, the photographs of the appellant and the prosecutrix, which were taken when they were together are seen, they indicate the willingness of the prosecutrix to continue with the appellant. This Court, as mentioned herein above, notices exaggeration in her version, which is not construed as falsity only on the ground of her young age and also being conscious of the stark reality of the society, where there is little say of the young girls in tradition ridden households. Therefore, for saving herself, the prosecutrix appears to have told the story along the line of her parents in giving the version of her forcible abduction by the appellant, which inspires very less confidence in such an exaggerated expression. The medical evidence also do not corroborate the version of the prosecutrix of forcible commission of act of sexual intercourse and with no injury on the person of the prosecutrix, as per the medical evidence, given by both the doctors and also supported by the contemporaneous record and the injury certificate, this Court finds these to be sufficient reasons for reducing the sentence from seven years to the period of sentence already undergone by him. From a perusal of the record, it appears that the appellant-convict has not paid any fine, as imposed by the trial Court. The amount of fine, if, not already paid by the appellant, same shall be paid by him, forthwith, as the said aspect is not being interfered with in any manner. However, considering the young age of the prosecutrix and also bearing in mind the ratio for compensation, let there be an additional amount of compensation of Rs.5,000/- be deposited by the appellant. 9. In the result, this appeal is PARTLY ALLOWED. However, considering the young age of the prosecutrix and also bearing in mind the ratio for compensation, let there be an additional amount of compensation of Rs.5,000/- be deposited by the appellant. 9. In the result, this appeal is PARTLY ALLOWED. While CONFIRMING the judgment and order passed by the learned 2nd Additional Sessions Judge, Surat, Dated: 11.01.2013, in Sessions Case No. 84 of 2010 to the extent it convicts the appellant for the offence punishable under Sections 363, 366 and 376 of the IPC, the same is MODIFIED to the extent it inflicts, on the appellant, the sentence of seven years of rigorous imprisonment for the offence punishable under Section 376 of the IPC and the same is REDUCED to the extent of period of imprisonment already undergone by him. 9.1 The appellant-convict shall be released forthwith, subject to he is not required in connection with any other case and he deposits the amount of fine of Rs.6,000/- so also the amount of compensation of Rs.5,000/-, i.e. total Rs.11,000/- with the trial Court concerned. 9.2 On deposit of the amount of Rs.11,000/- by the appellant, an amount of Rs.10,000/- shall be paid to the prosecutrix towards COMPENSATION. Further, the prosecutrix is entitled to the benefit of the Victim Compensation Scheme, 2016, either on her approach to the Chairman of the District Legal Services committee of the concerned district for the amount of compensation within EIGHT WEEKS or the authority concerned, on its own, would work out the aspect of compensation for her. Direct service is permitted.