JUDGMENT : A.S. SUPEHIA, J. 1. The present criminal appeal emanates from the judgment and order dated 19.02.2019 passed by Special Judge and 3rd Additional Sessions Judge, Bhavnagar in Special (POCSO) Case No. 44 of 2015, whereby the appellant has been convicted for the offences punishable under Sections 363, 366 and 376(2) of the Indian Penal Code, 1860 (IPC), and sentenced to undergo rigorous imprisonment for ten years and fine of Rs. 10,000/- for the offence under Section 376(2) of the IPC, to undergo rigorous imprisonment for five years and fine of Rs. 5,000/- for the offence under Section 363 of the IPC and to undergo rigorous imprisonment of seven years and fine of Rs. 7,000/- for the offence under Section 366 of the IPC. No separate sentence has been awarded under the Protection of Children from Sexual Offences (POCSO) Act, 2012. 2. Learned advocate Mr. Nirad Buch appearing for the appellant-accused has submitted that the judgment and order of the trial court deserves to be set aside since the same is not premised on proper appreciation of the evidence. He has invited the attention of this Court to the charge framed below Exh.10 and has submitted that the age of the prosecutrix was 15 years 07 months on the date of the alleged incident. It is contended that the evidence reveals that, the appellant has not enticed away or forcibly taken the prosecutrix from the lawful guardianship of her parents. He has invited the attention of this Court to the statement recorded under Section 164 of the Code of Criminal Procedure, 1973 (the Code) before the Magistrate and has submitted that the prosecutrix has clearly stated that she has willingly accompanied the appellant and thereafter, she has also stayed at various places. It is further submitted by him that even the deposition of the prosecutrix, which is recorded at Exh.15, reveals that she has accompanied the accused at various places and in fact stayed at Surendranagar with the appellant and during her stay, she has not raised any alarm or objection. 2.1 Learned advocate Mr.Buch has submitted that in fact the medical evidence reveals that there was no forcible physical relationship established by the appellant with the prosecutrix and in fact it was a consensual act and hence, the impugned judgment and order of sentence is required to be set aside. 2.1 Learned advocate Mr.Buch has submitted that in fact the medical evidence reveals that there was no forcible physical relationship established by the appellant with the prosecutrix and in fact it was a consensual act and hence, the impugned judgment and order of sentence is required to be set aside. In this context he has invited the attention of this Court to the various depositions of the witnesses examined by the trial court more particularly, of PW- 18 Dr. Sugandha Kevalbhai, who is examined at Exh.62. 2.2 In support of his submission, learned advocate Mr. Buch has placed reliance on the judgment of the Supreme Court in the case of State of Madhya Pradesh vs. Bablu Natt, (2009) 2 SCC 272 and the judgment of the Coordinate Bench of this Court in the case of Melo @ Maleaji Jeramjibhai Khavadiya vs. State of Gujarat, 2012 SCC Online Guj. 1218. It is urged that the appellant has already undergone 05 years of imprisonment, and hence, he may be released. Thus, he has requested that appropriate orders may be passed with regard to quashing and setting aside the impugned judgment and order. 3. A fortiori, learned Additional Public Prosecutor Ms. Shruti Pathak has submitted that it is established from the evidence that the appellant had enticed the prosecutrix from the lawful guardianship of her parents, though he was aware that she was aged about 15 years 07 months on the date of incident. She has invited the attention of this Court to the deposition of the prosecutrix and has submitted that the said deposition reveals that the appellant had enticed away the prosecutrix and forcibly developed a relationship against her will. She has submitted that the medical evidence in fact proves physical relationship between the appellant and the prosecutrix and from the medical evidence, it is emerging that she was pregnant and a foetus was belonging to the appellant-accused. She has submitted that the sentence, which was ordered by the trial court, does not require any interference and the same can be said to be justified in view of the offence committed by the appellant on a minor-prosecutrix. 3.1 In support of her submission, the learned Additional Public Prosecutor has placed reliance on the judgment of the Supreme Court in the case of State of Madhya Pradesh vs. Suresh, AIR 2019 SC 1377 . 3.1 In support of her submission, the learned Additional Public Prosecutor has placed reliance on the judgment of the Supreme Court in the case of State of Madhya Pradesh vs. Suresh, AIR 2019 SC 1377 . Thus, she has submitted that no interference is called for by this Court by exercising the appellate powers under Section 374 of the Code. 4. This Court has heard the learned advocates appearing for the respective parties at length. The evidence emerging from the record and proceedings is also considered. 5. The charge, which is framed at Exh.10, reveals the offence. It mentions that the prosecutrix, who was aged about 15 years 07 months on the date of incident, has been enticed away by the appellant on 25.11.2014 at 7.00 a.m. from Bhavnagar and, thereafter, she was taken to Surat, Surendranagar, Ahmedabad, Kachchh and other places and she was forced to have sexual intercourse by the appellant against her will, which resulted into the pregnancy of three months. The statement of the prosecutrix was taken under Section 164 of the Code before the Magistrate, which is recorded at Exh.16. A mere glance of the statement recorded under Section 164 of the Code reveals that in fact, the prosecutrix had accompanied the appellant willingly and while reaching at the busstand at Bhavnagar, she in fact called the appellant to accompany her. It further reveals that she has thereafter travelled at various places with the appellant. It is also stated by her that on an inquiry being made by a stranger at Surendranager railway station, she has informed him that she is married to the accused. From the statement recorded under section 164 of the Code, it is established that she had accompanied the accused willingly and also has maintained the physical relationship with consent. The age of the prosecutrix has been well-established. There is no evidence to the contrary that the prosecutrix was a minor when the offence was committed. Thus, the evidence with regard to her being a minor has remained unimpeachable. 6. The prosecutrix is examined at Exh.15. It is stated by her in the deposition that while she was going to the school, the appellant has forcibly taken her along with him and she went to the railway station. Thereafter, they left to Botad at his sister's home. 6. The prosecutrix is examined at Exh.15. It is stated by her in the deposition that while she was going to the school, the appellant has forcibly taken her along with him and she went to the railway station. Thereafter, they left to Botad at his sister's home. From there, they left to Surat at the home of the second sister of the appellant and then they left to Ahmedabad. After Ahmedabad, they went to Joravarnagar at Surendranagar and they came in contact with one Pareshbhai, who left them at someone's home and they stayed there for two days. It is stated that the appellant had developed physical relationship against her will. Thereafter, they went to Kachchh and stayed there for two days. It is deposed in the examination-in-chief that one Pareshbhai had in fact helped the appellant-accused in securing a job at a hotel. It is also deposed by her that thereafter, the appellant developed physical relationship for two or three times against her will and she was forced to have sexual intercourse and she became pregnant. In the cross-examination, it is elicited that on 25.11.2014, she was kidnapped by the appellant by gagging her mouth and accordingly, she was forced to sit in a rickshaw. It is also stated that she did not raise any alarm during her stay with the accused and she has also not informed the police. Her deposition is tainted with contradictions. 7. Thus, the very version of the prosecutrix being kidnapped does not reconcile with her examination-in-chief, wherein she has stated that the appellant had taken her to the railway station and thereafter, to the various places. From the deposition of the prosecutrix, it emerges that the prosecutrix had in fact accompanied the appellant at various places and also stayed with him. The prosecutrix has stayed for couple of days at Surat and thereafter, at Kachchh and in the meantime, it is also revealed from the deposition that the appellant had also served in a hotel. Thus, the statement of the prosecutrix alleging enticing or abducting her by the appellant does not inspire confidence. PW-17 Jigneshbhai Ashokbhai, who is examined at Exh.59, reveals that the prosecutrix and the appellant had stayed at Surat and in fact, the appellant was helped by one Pareshbhai, who secured him in getting the employment in a hotel. Pareshbhai is not examined as a witness. 8. PW-12 Dr. PW-17 Jigneshbhai Ashokbhai, who is examined at Exh.59, reveals that the prosecutrix and the appellant had stayed at Surat and in fact, the appellant was helped by one Pareshbhai, who secured him in getting the employment in a hotel. Pareshbhai is not examined as a witness. 8. PW-12 Dr. Jaykarbhai Dineshbhai, who is examined at Exh.45, in his deposition has asserted that the prosecutrix along with the appellant had visited his clinic on 18.02.2015 for undertaking the sonography. He has deposed that the prosecutrix has specifically stated that she was married to the appellant. The facts are recorded in his history. The Form-F, which is required to be maintained while undertaking the record of diagnostic, ultrasound and sonography, which is exhibited at Exh.46, i.e. the file of the medical papers reveals that in the said Form, which is signed by the prosecutrix, she has mentioned her age as 20 years and in the Form, the name “Pintoobhai Narendrasinh Jadeja” is mentioned as her husband. Thus, the Form, which is signed by the prosecutrix on 18.02.2015, indicates that she has faked her age and surname and also addressed the accused as her husband as Pintoobhai Narendrasinh Jadeja instead of Pintoo Shashikantbhai Vakani. 9. After the prosecutrix was traced, she was examined by Dr. Sugandha Kevalbhai, PW-18 who is examined at Exh.62. In her deposition, she has revealed that she has recorded the history of the appellant and the prosecutrix vide Exh.63. A perusal of the certificate dated 21.03.2015 at Exh.63 issued by PW-18 Dr. Sugandha Kevalbhai reveals that she has specifically recorded the statement that the prosecutrix has developed the physical relationship with consent. It also reveals that the prosecutrix has stated that she has willingly accompanied the accused to Surat and from Surat to Ahmedabad and to Surendranagar. The history reveals that the prosecutrix has stayed for 15 days with her consent and she has also narrated that she has maintained sexual relationship with the accused and while maintaining such relationship, she did not use any contraceptive. She has stated that she had stayed with the appellant for three months. Thus, the deposition of two doctors, i.e. PW-12 Dr. Jaykarbhai Dineshbhai and PW-18 Dr. Sugandha Kevalbhai are very vital to the case. She has stated that she had stayed with the appellant for three months. Thus, the deposition of two doctors, i.e. PW-12 Dr. Jaykarbhai Dineshbhai and PW-18 Dr. Sugandha Kevalbhai are very vital to the case. The evidence of the doctors reveals that the prosecutrix has accompanied the appellant without there being any enticement or coercion of the appellant and in fact, the evidence reveals that she has consented to the sexual intercourse with the appellant which resulted in pregnancy. 10. The verity of physical relationship of the accused with the prosecutrix is further strengthened by the DNA examination of the fetus. The DNA examination report at Exh.89 precisely connects the appellant to the three months fetus of the prosecutrix, which was ultimately aborted. 11. The conspectus of the afore-noted evidence firmly establishes that the prosecutrix, who was a minor had developed the physical relationship with the appellant by consent and of her own will. The evidence with regard to her being taken by the accused forcibly or through enticement is blissfully silent. The prosecutrix had stayed with the appellant for three months and during that period, she has travelled at various places. Thus, the only issue, which needs deliberation, is whether the trial court is justified in imposing the sentence of 10 years in wake of the aforesaid facts and evidence. 12. The evidence exposes that the prosecutrix was a minor, aged 15 years and 07 months. The accused was of 30 years of age. She has developed the physical relationship with the accused with her consent, which resulted in pregnancy and abortion of three months foetus. In view of Clause-6 of Section 375 of the IPC, a sexual intercourse with a girl below eighteen years of age with or without consent is an offence of rape. Thus, when it is proved that the accused has sexual intercourse with the prosecutrix, who is below eighteen years, her consent will make no difference and the same is irrelevant for constituting the offence of rape. The offence is committed after the amendment of the Proviso to section 376(2) of the IPC, which conferred discretion on the Court to impose sentence less than the minimum sentence by assigning adequate and special reasons. The said Proviso has been deleted by the Criminal Law Amendment Act, 2013. The offence is committed after the amendment of the Proviso to section 376(2) of the IPC, which conferred discretion on the Court to impose sentence less than the minimum sentence by assigning adequate and special reasons. The said Proviso has been deleted by the Criminal Law Amendment Act, 2013. The minimum sentence prescribed for offence of rape is “rigorous imprisonment for a term which shall not be less than ten years” which may extend to imprisonment of life......” The trial court has imposed the minimum sentence of rigorous imprisonment for 10 years, as prescribed under section 376 of the IPC. The findings and the sentencing of the trial court are not tainted with any perversity and illegality and the same are found in conformity with law, hence the same do not call for any interference. 13. The Court does not have any discretion to impose lesser punishment than the prescribed minimum sentence as provided by the statute. Hence, the present criminal appeal fails and is dismissed. R&P to be sent back.