JUDGMENT : 1. The Appellant Accused has filed this Appeal under Section 374 (2) of the Code of Criminal Procedure (“the Code” for short) being aggrieved and dissatisfied with the conviction and sentence as below vide judgment and order dated 5.7.2002 passed by the learned Sessions Judge, Mahesana in Sessions Case No. 98 of 2000: Sr. Offence Sentence Fine Fine in default sentence 1 U/s 366 IPC R.I. of 5 Years Rs.500 3 Month SI 2 U/s 376 IPC 5 Years R.I. Rs.1000 6 Month SI 3 U/s 363 IPC No Punishment No Fine -- The learned Sessions Judge has ordered that both the sentences shall run concurrently and the benefit of set off for the period of detention during investigation and trial is also granted to the Appellant Accused. 2. Heard learned Advocate Mr. R.J.Goswami for the Appellant and learned APP Ms. Jirga Jhaveri for the Respondent – State of Gujarat. Facts of the Case: 3. The original Complainant Kanchanben Popatlal Patel has filed FIR on 27.05.1999 before the Kalol Taluka Police Station, District Mehsana. The said complaint was registered as I-CR No. 196 of 1999 for the offence punishable under Sections 363 and 366 of the IPC. 3.1 As per the case of the prosecution, on 27.5.1999, Kanchanben, who is the mother of prosecutix, lodged an FIR alleging that she and her husband are staying at Borisana, Taluka Kalol, District Mehsana, and her husband Popatlal is a partner in one factory named as Mahalaxmi Factory in G.I.D.C. Estate. She has one daughter, who is aged about 16 years. That on 26.5.1999 at about 4 O’ Clock in the afternoon, her daughter (hereinafter referred to as “the prosecutrix”) told her that she is going to Kalol vegetable market for buying vegetables and since she had to go to her maternal Aunt (Maasi) in the evening and she requested her mother to keep her bag ready. Her daughter went to buy vegetables. It is the case of the prosecution that after her daughter left, the Appellant Accused Prajapati Shaileshkumar Naranbhai followed her. Her daughter went to buy vegetables. It is the case of the prosecution that after her daughter left, the Appellant Accused Prajapati Shaileshkumar Naranbhai followed her. She was having a doubt that her daughter was having an affair relation with the Appellant Accused and since the prosecutrix did not return till about 6 O’Clock in the evening, she started inquiring of her from the neighbours and at that point of time, one Darji Natubhai Maganlal met them and told them that in the evening at about 7:15 pm when he was returning to his society, at that point of time, their daughter Amita and the Appellant Accused were going towards Kalol. Knowing so, they came to know that their daughter was kidnapped by the Appellant Accused. 3.2 After completion of the investigation, the Investigating Officer has filed a charge sheet before the Judicial Magistrate First Class, Kalol. The said charge sheet is registered as Criminal Case No. 80 of 2000. Learned JMFC, Kalol has committed the case under Section 209 of the Code to the Sessions Court, Mehsana because the same is Sessions Triable Case. The case is registered as Sessions Case No. 98 of 2000. That the learned Trial Court has framed charge at Exh. 4 for the offence punishable under Section 363, 366, 376 of the IPC on 27.12.2001. The Appellant Accused denied the charges and claim for trial. The prosecution has examined 10 witnesses and produced 10 documentary evidence before the learned Trial Court. Thereafter further statement of the accused was recorded under Section 313 of the Code, wherein the accused has stated that false case is filed against him. That the prosecutrix was taken away by her consent. The arguments of the learned APP and the learned advocate for the defence were heard and learned Trial Court has passed the impugned order. Arguments for the Appellant Accused: 4. Learned Advocate for the Appellant Accused has argued that the age of the prosecutrix as per the ossification test is between 18 and 20. The victim has not resisted, the victim had not complained to any other person during the three days of escape. That no external injury was caused to the prosecutrix. That there was no injury on the private part of the prosecutrix, also and therefore the prosecution has not proved that the conduct of the accused is against her will. The victim has not resisted, the victim had not complained to any other person during the three days of escape. That no external injury was caused to the prosecutrix. That there was no injury on the private part of the prosecutrix, also and therefore the prosecution has not proved that the conduct of the accused is against her will. It is further submitted that she got married after the incident, therefore, her age may be considered as more than 18 years. That the prosecutrix had voluntarily gone with the Appellant Accused. That the prosecutrix does not want to marry other person, therefore, she ran away with the Appellant Accused. He has argued that the learned Trial Court has not considered the oral as well as documentary evidence in proper perspective. That the learned Trial Court has erred in appreciating the evidence on record. That the impugned order is illegal, bad in law and the same is required to be quashed and set aside. Learned advocate for the appellant requested to allow the appeal and quash and set aside the conviction order passed by the learned Trial Court. Learned Advocate for the Appellant has alternatively requested to grant the benefit of probation to the Appellant Accused. Arguments for prosecution: 5. Learned APP has argued that the age of the prosecutrix is below 16 years of age and therefore her consent is immaterial. That the prosecution has established by medical evidence that co-habitation is proved. The opinion of Doctor as regards to commission of rape is on record. That the learned Trial Court has appropriately appreciated the oral as well as documentary evidence and convicted the Appellant Accused. Learned APP has further submitted that minimum punishment is prescribed, therefore, probation cannot be granted to the accused. She requested to dismiss the Appeal and confirm the impugned judgment and order. Age of the Prosecutrix: 6. The learned Advocate for the Appellant has submitted that as per the ossification test the age of the prosecutrix is between 18 and 20 years. The certificate of ossification test is produced at Exh.23. 7. Learned APP submitted that the certificate of ossification cannot be considered when the school leaving certificate is on record which is issued by the Prakash Vidhyalaya. Birth certificate issued by Gram Panchayat is also on record. The certificate of ossification test is produced at Exh.23. 7. Learned APP submitted that the certificate of ossification cannot be considered when the school leaving certificate is on record which is issued by the Prakash Vidhyalaya. Birth certificate issued by Gram Panchayat is also on record. To support her submission, the learned APP has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2018) 17 SCC 658 in case of State of Madhya Pradesh v. Preetam and submitted that the Hon'ble Apex Court in para 10 and 11 has observed as under: “(10) In our considered view, the answer elucidated in the cross-examination of Dr. Vasnik (PW-6) cannot be taken as a final opinion on the age of the prosecutrix (PW-1). It is to be relevant to note that before the trial court the prosecution has examined Bhaulal (PW-8), Head master/Head teacher of Primary School Chor Pind Ke Par, District Balaghat. In his evidence, Bhaulal (PW-8) has stated that the date of birth of the prosecutrix (PW-1) was 16th May, 1981 which means that on the date of the occurrence i.e. 6th March, 1993, the prosecutrix (PW-1) was only aged about 12 years. The trial court has neither acted upon the evidence of Bhaulal (PW-8) nor on the school certificate on the ground that the person who has admitted the prosecutrix in the school was not examined. (11) In our considered view, the approach of the trial court was not correct. In each and every case the prosecution cannot be expected to examine the person who has admitted a student in the school. The school registers are the authentic documents being maintained in the official course, entitled to credence of much weight unless proved otherwise. In our view, considering the evidence of head master, Bhaulal (PW-8), and the school certificate produced by him i.e. Ex.P/13-A, age of the victim has to be taken as 12 years at the time of occurrence.” 8. The prosecution has examined PW-8 Babubhai Purshottamdas Patel at Exh.31. This witness is Talati-cum-Mantri of the Vamaj Gram Ppanchayat. He has deposed on oath that he is working as Talati- cum-Mantri at Vamaj Gram Panchayat. He has brought the birth and death register of the year 1984 with him. The prosecution has examined PW-8 Babubhai Purshottamdas Patel at Exh.31. This witness is Talati-cum-Mantri of the Vamaj Gram Ppanchayat. He has deposed on oath that he is working as Talati- cum-Mantri at Vamaj Gram Panchayat. He has brought the birth and death register of the year 1984 with him. He has further deposed that at Sr No.46 of Page No.9 of the birth and death register, the birth was registered on 24.8.1984 and in the column of birth date 18.8.1984 is written. He has narrated the facts stated in the register in his deposition. That the name Munni; Father’s name Popatlal Chimanlal; Name of person who came to register birth date is Shantaben Ambalal Patel - Mother name Kanchanbahen. 8.1 That the birth was registered by Shantaben Ambalal Patel. It is also stated that at the time of registration of birth, if the name is not given to the child the parents generally call their child Munno or Munni. In such case he used to register as in that way. He has produced xerox certified copy of Sr. No.46 at page No.9 of the said register. This witness is cross-examined by the defence Advocate. Nothing adverse is revealed which can damage the case of the prosecution. 8.2 The copy of the register is exhibited at Exh.32. On perusing the Exh.32 the following facts emerge: Sr. Date of Registration Date of Birth Sex M/F Name Father Mother Age of the mother at the time of giving birth to child Sr. number of birth (1) (2) (3) (4) (5) (8) (13) (18) (19) 46 24.8.1984 18.8.1984 F Munni Popatlal Chunnilal Kanchan ben 20 2 9. The prosecution has examined PW-7 Ranjanben Chhotalal Shah at Exh.28. She is Principal of Prakash Vidyalaya School, Borisana, Taluka Kalol, District Mahesana. She has deposed that she has brought general register of the school wherein the details as regards to the name of child, Srl., sex, birth date and the name of last school etc. is mentioned. She has deposed that on page no.33 at Sr. 1026, name of the prosecutrix, Hindu Kadwa Patidar, birth of place Vamaj Taluka, Kadi, District Mehsana, last school attended Prakash Vidhyalaya, Borisana, etc. are mentioned. Her birth date is shown as 1.6.1984. She has also issued one certificate as regards to the birth date. She has identified signature of former principal Mr. A.K.Patel on the certificate. 1026, name of the prosecutrix, Hindu Kadwa Patidar, birth of place Vamaj Taluka, Kadi, District Mehsana, last school attended Prakash Vidhyalaya, Borisana, etc. are mentioned. Her birth date is shown as 1.6.1984. She has also issued one certificate as regards to the birth date. She has identified signature of former principal Mr. A.K.Patel on the certificate. The said certificate is exhibited at Exh.29. She has produced copy of extract of page no. 33 of the general register of the school which is exhibited at Exh.30. It is also deposed that no discrepancy is found during regular inspection made on 22.12.2001. During cross examination this witness has explained details of most of the column of the register. 9.1 On perusing the oral evidence of the Principal and documentary evidence produced on record, the birth date of the victim is shown as 1.6.1984. If we consider the birth date as per school leaving certificate, at the time of incident, the prosecutrix was 14 years 11 months and 25days i.e. below 16 years. 10. Considering the ratio of the judgment referred as above and evidence as regards to the birth i.e. certificate issued by Talaticum-Mantri and certificate issued by the school authorities, the certificate issued by the Talati-cum-Mantri is more reliable and trustworthy as it is first in point of time and entry was made at the relevant point of time. On perusing Exh.32, the prosecution has established that the birth date of the prosecutrix is 18.8.1984. The incident took place on 25.5.1999. So, this court is of the opinion that the age of the prosecutrix at the time of incident as 14 years 9 months and 7 days i.e. below 16 years. General Principal for Appreciation of Evidence: 11. The Hon'ble Apex Court in a judgment in case of Bharwada Bhoginbhai Hirjibhai vs State of Gujarat reported in AIR 1983 SC 753 has observed in paragraphs 5 and 6 as under: “5. Over much importance cannot be attached to minor discrepancies. The reasons are obvious: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. It is not as if a video tape is replayed on the mental screen. (2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. 6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses.” Offence under Section 363 IPC: 12. 6. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses.” Offence under Section 363 IPC: 12. In criminal jurisprudence the prosecution has to prove its case by leading legal, relevant, cogent and reliable evidence. At the time of recording evidence, it may be depicted as oral evidence (Direct and indirect), documentary evidence(primary and secondary), real evidence (muddamal / thing). At the time of appreciation of evidence, the evidence on record may be depicted as substantive evidence, circumstantial evidence, corroborative evidence etc. Now what is substantive evidence? The evidence by which main fact in issued is decided, it can be named as substantive piece of evidence. Whether the particular evidence is substantive evidence or not that is required to be decided, considering the nature, effect and impact of evidence on the case on hand. The example of the substantive evidence are the dying declaration, evidence of injured witness, evidence of eye witness and evidence of prosecutrix etc. 13. In this case, the substantive piece of evidence in form evidence of prosecutrix is produced by the prosecution. In catena of judicial pronouncements, the Hon'ble Apex Court has held that the evidence of the victim, if it is reliable and trustworthy, conviction can be held on the sole evidence of the prosecutrix. 14. The prosecution has examined the Complainant - PW-1 Kanchanben Popatlal at Exh.10. She is the mother of the prosecutrix. It is stated in her deposition that she call the prosecutirx in caressing as Munni also. At present, her age is about 17 years. She studied up to SSC. It is further deposed that on the date of incident, she had gone at about 4 O’ Clock to buy some vegetables. That it was previously fixed that she has to go to Bombay with her aunt. After considerable time she did not return, she has inquired nearby places. The neighbour Nattubhai informed that he has seen her daughter and the Appellant Accused - Shailesh Prajapati were going together. Meantime her husband came from factory, she had informed about prosecutrix. Thereafter also the complainant and her husband tried to find out the prosecutrix. Thereafter she filed complaint before the Kalol Taluka Police Station. The neighbour Nattubhai informed that he has seen her daughter and the Appellant Accused - Shailesh Prajapati were going together. Meantime her husband came from factory, she had informed about prosecutrix. Thereafter also the complainant and her husband tried to find out the prosecutrix. Thereafter she filed complaint before the Kalol Taluka Police Station. She had identified her thumb impression and contents of complaint before the trial court. She has also identified clothes of prosecutrix before court. She has identified the Accused. She has been cross-examined by the defence Advocates. The suggestion is made by learned Advocate for the defence which are denied. 15. The prosecution has examined PW-2 Popatlal Chunnilal Patel at Exh.11. He is the father of the prosecutrix. That at present, she is 17 ½ year. She was born in June 1984 approximately. He has deposed that her daughter is known as Munni. That the incident took place on 26.5.1999. He had gone to his factory. His daughter and his wife were at the home. On the date of incident at about 5 O’ Clock, when he returned from the factory, the prosecutrix was not at home. He asked his wife about the prosecutrix to which his wife replied that she has gone for purchasing some vegetables. After reasonable time as the prosecutirx did not return they made efforts to find her out. When they reached the gate the witness Nattubhai who is his neighbour was coming and met him. He inquired to Nattubhai about the prosecutrix. Natubhai told that he saw her daughter along with the Appellant Accused in the market. Therefore he inquired about the Appellant Accused at his home with mother of the Appellant Accused but he was not found. It is further stated that after making so many efforts when his daughter was not found, they filed a complaint. This witness is also cross-examined. The suggestion made by the learned Advocate for the defence are denied. 16. Therefore he inquired about the Appellant Accused at his home with mother of the Appellant Accused but he was not found. It is further stated that after making so many efforts when his daughter was not found, they filed a complaint. This witness is also cross-examined. The suggestion made by the learned Advocate for the defence are denied. 16. This court has come across the judgment of the Hon'ble Apex Court reported in AIR 1973 SC 819 , in case of State of Haryana v. Raja Ram wherein in paragraph 8, the Hon'ble Apex Court has observed as under: “The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor out of the keeping of the lawful, guardian of such minor" in s. 361, are significant. The use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control, further the guardian's charge and control-appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have, been by means of force, or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section.” 17. Considering the evidence of the parents of the victim, provisions of Sections 361 and 363 of IPC and the ratio laid down by the Hon'ble Apex Court in the above referred judgment and age of the prosecutrix, I am of the opinion that the Appellant Accused has kidnapped the prosecutrix from lawful guardianship without the consent of her parents. Considering the evidence of the parents of the victim, provisions of Sections 361 and 363 of IPC and the ratio laid down by the Hon'ble Apex Court in the above referred judgment and age of the prosecutrix, I am of the opinion that the Appellant Accused has kidnapped the prosecutrix from lawful guardianship without the consent of her parents. Thus, the prosecution has established the ingredients of the offence punishable under Section 363 of IPC. Offence under Section 366 and 376 of IPC: 18. The prosecution has examined PW-5 – the prosecutrix at Exh.24. She has deposited on oath that the complainant Kanchanben is her mother and PW-2 Popatlal is his father. She is having one brother who is elder to her. That she has studied up to 10th standard in Prakash Vidyalaya, Borisana and her date of birth is 1.6.1984. On the date of incident she went to purchase some vegetables. As she reached at the gate of the society, the Appellant Accused was standing there and asked her that where are you going. She replied that she is going for purchasing some vegetables. The Appellant Accused chased her on the way. She told him to please go away but the Appellant Accused had not gone. Again she told to the Appellant Accused that please go away from here otherwise my uncle Nattubhai PW-3 will inform her father who will beat him,. At that time the Appellant Accused told that he is having Rs.700/- with him and no damage will be caused to her and he will be with her. It is also said that after our return I will convince your father. It is further deposed by her that the Appellant Accused threatened her that if you go to home your uncle Nattubhai witness will tell your father and your father will beat you and induced her to accompany him. Therefore she became afraid and had thus gone with the Appellant Accused at Kalol Bus station. Thereafter they went to Ahmedabad and from there, they reached Nadiad, Rajkot and from Rajkot to Junagadh. She deposed in paragraph 3 that they went to Junagadh and visited Girnar. On return they stayed in Sunil Guest House on a rented room. The relevant entry was made by the Appellant Accused. He has signed it also. They stayed in Room No.15. She deposed in paragraph 3 that they went to Junagadh and visited Girnar. On return they stayed in Sunil Guest House on a rented room. The relevant entry was made by the Appellant Accused. He has signed it also. They stayed in Room No.15. In the guest house, the Appellant Accused had committed rape on her without her consent. He removed my payjama and thrown me on the cot and committed rape with me. Thereafter we have left the guest house for going to Veraval and from Verawal to Somnath. From Somnath we returned to Rajkot and sat on Rajkot Bus stand. We had thereafter gone to Kalol from Rajkot. Between 3:00 and 3:30 pm the Appellant Accused accompanied me for some time. Thereafter he has left her alone and went on. She called her Aunti (Masi) who took her to the police station. The learned Advocate for the Appellant crossexamined the prosecutrix but she has stick to her chief examination and supported the case of the prosecution. The suggestion made by learned Advocate for the defence is denied. Nothing is revealed from the cross-examination which can cause any damage the case of the prosecution. Medical Evidence: 19. The prosecution has examined PW-4 – Medical Officer - Dr. Pravinbhai Gandalal Patel at Exh. 17. He has deposed that since 5 years he is serving in Sheth C.S. Hospital Kalol as Medical Officer. On 30.5.1999 at about 5 PM when he was on duty, at that time, the prosecutrix was brought with police yadi for medical examination. He examined her. It is stated in paragraph 2 that the prosecutrix has given history that on 27.5.1999 at about 10:30 in Junagadh the Appellant Accused committed rape on her. In paragraph 3 it is stated that on 26.5.1999 she was with the Appellant Accused in Junagadh and they visited several places and thereafter they stayed in the guest house where they had an intercourse at 11:30. The medical examination was conducted in presence of Woman Police Constable Shantaben. The prosecutrix consented for medical examination. That the history is given by the patient herself. It is further stated that no external injury was found and no injury was found on her private parts. That the hymen was torn completely. He also clinically examined and got the swab of vagina. On laboratory examination of vaninal smear the very few active spermatozoa seen. That the history is given by the patient herself. It is further stated that no external injury was found and no injury was found on her private parts. That the hymen was torn completely. He also clinically examined and got the swab of vagina. On laboratory examination of vaninal smear the very few active spermatozoa seen. He has opined that there is a sign of intercourse present within 3 – 4 days. He has issued certificate which is exhibited at Ehx.19. The certificate is also duly proved with contents and signatures. 19.1 This witness has further deposed that the Appellant Accused Shailesh Prajapati was also brought to him with police yadi on the same day. On medically examined the Appellant Accused, who has given the history that on 27.5.1999 at about 11:30 he committed rape. He has further narrated in the history that on 26.5.1999 he and the victim went to Junagadh. They visited several places and stayed in the guest house and he made intercourse at 11:30. The Doctor is cross-examined by the learned Advocate for the defence but nothing revealed against the prosecution. The history given by the Accused as regards to confession is hit by Section 26 of the Evidence Act because the Accused was in police custody during medical examination. But admission part can be read in evidence. 19.2 As per Description No.6 of Section 375 of IPC and considering the age of the prosecutrix that she is below 16 years, the consent of prosecutrix in rape is immaterial. The Doctor has produced medical certificates of both the prosecutirx and the Appellant Accused, the yadi written by the police officer etc. which is duly prove and exhibited at Exh.19, 20 and 21 respectively. Other witnesses: 20. The prosecution has examined PW-3 Natubhai Maganlal at Exh.16. He is a neighbour of the complainant. He deposed that he saw the prosecutrix and the Appellant Accused. He has informed the said things to the complainant. 21. The prosecution has examined PW-6 Anilbhai Chichandas at Eex.25. He is the owner of the guest house at Junagadh where the prosecutrix and Appellant Accused had stayed. He has produced the abstract of the register i.e. entry made on Page No.192 at Sr. No. 7089 dated 27.5.1999. In the said register the name of the Appellant Accused and the prosecutrix is shown. The copy of the abstract is produced at Exh.26. He has produced the abstract of the register i.e. entry made on Page No.192 at Sr. No. 7089 dated 27.5.1999. In the said register the name of the Appellant Accused and the prosecutrix is shown. The copy of the abstract is produced at Exh.26. He has identified his signatures and handwritings etc. and the documents are duly proved. He has identified the Appellant Accused before trial court. Learned Advocate for the Appellant fairly submitted that there is no dispute as regards to the stay of the Appellant Accused and the prosecutrix in the guest house at Junagadh. 22. The prosecution has thereafter examined PW-9 Kantilal Ishwarlal at Exh.33 who is the Police Station Officer at Kalal Taluka Police Station. He has recorded the complaint of the complainant Kanchanben. He has registered the offence and handed over the investigation to the Investigation Officer. 23. The prosecution has also examined PW-1 Dhansang Changiram at Exh.36. He is the Investigating Officer. He has narrated in his evidence as regards to the different steps of investigation such as to drawing of panchnama and recording of the statements, sending of muddamal to the FSL etc. 24. The prosecution has also produced report of the FSL at Exh.38 and 39. As per the FSL report, semen is found on the Nicker of the prosecutrix as well as on the Underwear of the Appellant Accused. The group of semen found on the Nicker and the Underwear of the prosecutrix is B positive as the same to the sample of semen. It is also revealed that the vaginal swab is also B positive. 25. In view of the evidence discussed as above the following evidence is summarized as under: (a) That the age of the prosecutrix at the time of incident is 14 years 9 months and 7 days i.e. below 16 years. (b) For offence under Section 363 the consent of the minor who is taken or enticed is wholly immaterial. In this case consent of parents of prosecutrix have not been obtained. (c) The prosecutrix was kidnapped with intention that she may be compelled or knowing it to be likely that she will be compelled that she may be lured or seduced to illicit intercourse. Ingredients of Section 366 of IPC are established. (d) As per the owner of the guest house the Appellant Accused and prosecutrix were stayed in his guest house. Ingredients of Section 366 of IPC are established. (d) As per the owner of the guest house the Appellant Accused and prosecutrix were stayed in his guest house. (e) As per evidence of prosecutrix, Appellant has made intercourse with prosecutrix without her consent and against her will. (f) Medical evidence supports the version of prosecutrix. That intercourse was done to the prosecutrix. (g) The FSL report corroborates the fact of intercourse with the prosecutrix. 25.1 Considering the evidence of the proecutrix, the medical evidence and the evidence of the other witnesses, I find that the prosecution has established the ingredients of the offence as defined in Section 375 of IPC. It is also established that the Appellant Accused has committed rape on the prosecutrix without her consent, though the consent is immaterial. I find that the prosecution has established that the Appellant Accused has committed offence under Sections 363, 366 and 376 IPC. Probation: 26. Learned Advocate for the Appellant has submitted that Appellant Accused may be granted the benefit under the Probation of Offenders Act. Learned APP has submitted that probation cannot be granted as law provides minimum sentence for the offence under Section 376 of IPC. 27. This court has considered the the ratio laid down by the Hon'ble Supreme Court in judgment reported in (2019) 4 SCC 125 in case of State of Madhya Pradesh v. Vikram Das. The Hon'ble Supreme Court has observed in paragraph 5 and 8 as under: “5. Learned counsel for the appellant relies upon judgment of this Court in Narendra Champaklal Trivedi v. State of Gujarat wherein an argument raised by the appellant was rejected that sentence less than minimum sentence can be awarded in exercise of the powers conferred under Article 142 of the Constitution. The Court held as under:- “27. The submission of the learned counsel for the appellants, if we correctly understand, in essence, is that the power under Article 142 of the Constitution should be invoked. The Court held as under:- “27. The submission of the learned counsel for the appellants, if we correctly understand, in essence, is that the power under Article 142 of the Constitution should be invoked. In this context, we may refer with profit to the decision of this Court in Vishweshwaraiah Iron & Steel Ltd. v. Abdul Gani wherein it has been held that the constitutional powers under Article 142 of the Constitution cannot, in any way, be controlled by any statutory provision but at the same time, these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in any statute dealing expressly with the subject. It was also made clear in the said decision that this Court cannot altogether ignore the substantive provisions of a statute.” 8. In view of aforesaid judgments that where minimum sentence is provided for, the Court cannot impose less than the minimum sentence. It is also held that provisions of Article 142 of the Constitution cannot be resorted to impose sentence less than the minimum sentence” 28. This court has considered the provisions of the Probation of Offenders Act, the ratio laid down by the Hon'ble Apex Court in above referred judgment. The court is of the view that the offence committed are punishable with imprisonment of life, that too when the age of the Appellant Accused is more that 21 years and Section 376 IPC provide for minimum sentence of imprisonment. Therefore, Section 4, 5 and 6 of the Probation of Offenders Act are not applicable to the present case. I am of the view that the probation cannot be granted for the offence punishable under Section 376 IPC. 29. The another argument advanced by the learned Advocate for the Appellant that the Appellant may be pardoned and requested to reduce the sentence up to the imprisonment already undergone. 29.1 Learned Advocate for the Appellant has cited the judgment reported in (2017) 15 SCC 591 in case of Mahendra Subhashbhai Vankhede v. State of Gujarat and Ors. In this case the trial court has awarded imprisonment of 2 Years and 9 Months and a fine of Rs.100/-. The High Court has enhanced the punishment of imprisonment to 7 years and ordered additional fine of Rs.5000/-. Thereafter the Hon'ble Supreme Court has reduced the sentence up to 3 years. 30. In this case the trial court has awarded imprisonment of 2 Years and 9 Months and a fine of Rs.100/-. The High Court has enhanced the punishment of imprisonment to 7 years and ordered additional fine of Rs.5000/-. Thereafter the Hon'ble Supreme Court has reduced the sentence up to 3 years. 30. Learned APP has submitted that the offence against the women are increasing day by day and therefore no leniency can be granted. The learned APP however submitted that the judgment cited by the learned Advocate for the Appellant is with regard to love affair and the age of the Appellant Accused was 19 years. She therefore submitted that this judgment is not applicable to the facts of the case on hand as the age of the prosecutrix in present case is below 15 years and the age of the Appellant Accused is 21 years and the case not being of love affair, there is no need to reduce the sentence. 31. Learned Advocate for the Appellant Accused has cited another judgment in case of Baldev Singh and Ors. v. State of Punjab reported in (2011) 13 SCC 705 . It is submitted that in this case the Hon'ble Apex Court has held that the offence under Section 376 is a non-compoundable offence, however considering the peculiar circumstances, sentence is reduced to period undergone but fine enhanced from Rs.1000/- to Rs.50000 with default stipulation. In the cited case the Appellant Accused has made compromise with the victim. In the case on hand no compromise is placed on record. Considering the facts and circumstances of the case this judgment is not applicable to this case. 32. I have gone through the reasons stated by the learned trial court for conviction and sentence. The learned trial court has rightly considered RI of 5 years for offence punishable under Section 366 and imprisonment of 5 year for the offence punishable under Section 376 IPC. I concur the reasons stated by the learned trial court and find that appropriate punishment is awarded by the court below. Hence there is no need to interfere with the sentence awarded by the learned trial court. Hence following order is passed: FINAL ORDER (i) For the reasons recorded herein above the present Appeal dismissed. I concur the reasons stated by the learned trial court and find that appropriate punishment is awarded by the court below. Hence there is no need to interfere with the sentence awarded by the learned trial court. Hence following order is passed: FINAL ORDER (i) For the reasons recorded herein above the present Appeal dismissed. (ii) The judgment and order passed by the learned Sessions Judge, Mahesana dated 5.7.2002 in Sessions Case No. 98 of 2000 convicting and sentencing the Appellant Accused for the offence under Sections 363, 366 and 376 IPC is hereby confirmed. (iii) The bail bond of the Appellant Accused stand cancelled and the Appellant Accused be taken into custody to undergo the remaining sentence. (iv) The Appellant Accused is entitled to set of for a period of detention already undergone during the investigation and trial. (v) The Appellant Accused shall surrender within 45 days from today, failing which, the trial court shall issue non-bailable warrant to proceed for execution of sentence in accordance with law. (vi) The Registry is directed to send copy of this judgment to the concerned court for certification under Section 388 of the Code. (vii) R&P be sent back to the trial court forthwith.