JUDGMENT : Record of the Court below has been received. 1. Heard on I.A. No.11968/2021, an application seeking permission to change the counsel. 2. Since this application is not opposed by earlier counsel appearing for the appellant, therefore, the same is allowed and Mr. Ashirbad Dwivedi is permitted to appear on behalf of the appellant. 3. Also heard on I.A. No.5582/2021, an application under Section 389 of the Code of Criminal Procedure for suspension of sentence and grant of bail to the appellant. 4. It is submitted by learned counsel for the appellant that the appellant is in jail for almost about seven years out of the total jail sentence of ten years awarded by the Trial Court, therefore, his prayer for bail may be considered on the ground of his period of detention as well as the fact that the hearing of this appeal may take time. 5. An option was given to learned counsel for the appellant that if he so desires, then he can argue the matter finally. Accordingly, Mr. Ashirbad Dwivedi, learned counsel for the appellant submitted that he is ready & willing to argue the case today finally. 6. Thus, with the consent of learned counsel for the parties, this appeal is heard finally. 7. This Criminal Appeal under Section 374(2) of the Code of Criminal Procedure has been filed against the judgment and sentence dated 30.10.2014 passed by the Additional Sessions Judge Karera, District-Shivpuri (M.P.) in Special Sessions Trial No.59/2014 by which the appellant has been convicted for offence under Section 363 of the Indian Penal Code and has been sentenced to undergo the rigorous imprisonment for three years with fine of Rs.1,000/-, for offence under Section 366-A of the Indian Penal Code, and has been sentenced to undergo the rigorous imprisonment for five years with fine of Rs.1,000/-, for offence under Section 376(1) of the Indian Penal Code, and has been sentenced to undergo the rigorous imprisonment for 10 years with fine of Rs.2,000/-, for offence under Section 4 of the Protection of Children from Sexual Offences Act, 2012, and has been sentenced to undergo the rigorous imprisonment for 10 years with fine of Rs.2,000/-with default stipulations. All the jail sentences have been directed to run concurrently. 8. According to the case of the prosecution, on 13.04.2014 at about 3:00 pm, complainant Santuram (PW.1) instructed the prosecutrix to fetch water from the well. All the jail sentences have been directed to run concurrently. 8. According to the case of the prosecution, on 13.04.2014 at about 3:00 pm, complainant Santuram (PW.1) instructed the prosecutrix to fetch water from the well. It was replied by the prosecutrix that the complainant may proceed and she would follow her. When the complainant returned back after fetching water from the well then he saw that prosecutrix "X" was not at home. When he enquired from his another daughter "A" about the whereabouts the prosecutrix "X" then she informed that the prosecutrix "X" has been taken away by the appellant. When the complainant searched for the prosecutrix "X " in the locality, he was informed by Nilesh Jatav and Arvind that they had seen the prosecutrix "X" going with the appellant. Thereafter, the complainant went to the house of the appellant and found that the appellant was also missing. It was further alleged that the complainant he had seen the appellant talking to the prosecutrix "X" very often and, therefore, the appellant must have kidnapped her by enticing her. The F.I.R was lodged vide Exhibit-P/1 and the Crime No.131/2014 was registered by Police Station-Dinara, District-Shivpuri for offence under Sections 363, 366 of the Indian Penal Code and Section 3/4 of the POCSO Act, 2012. After recovery, the prosecutrix "X" reported that she was raped by the appellant and accordingly offence under Section 376 of the Indian Penal Code was also added. The spot map was prepared. The statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure. The prosecutrix was got medically examined and the ossification test was also conducted. The appellant was also sent for medical examination. The undergarments, vaginal slide and other articles of the prosecutrix were seized, which were sent to F.S.L, Sagar and the Police after completing the investigation filed the charge-sheet for the offence under Sections 363, 366, 376, 120-B of the Indian Penal Code and under Section 3/4 of the Protection of Children from Sexual Offences Act, 2012 against the appellant and as well as against co-accused Mukesh. 9. 9. The Trial Court vide order dated 27.06.2014 framed charges under Sections 363, 366(A), 376(1) of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offence Act, 2012 against the appellant whereas the charges under Sections 363, 366(A) read with Section 120-B of the Indian Penal Code were framed against the co-accused Mukesh. The appellant as well as co-accused Mukesh abjured their guilt and pleaded complete innocence stating therein that they have been falsely implicated in this case. 10. The prosecution in order to prove its case examined the father of prosecutrix (P.W-1), aunt of the prosecutrix (P.W-2), the prosecutrix (P.W-3), sister of the prosecutrix (P.W-4), Nilesh Jatav (P.W-5), Arvind (P.W-6), Dr. Sunil Gupta (P.W-7), Smt Prabhavati (P.W-8), Dr. Mamta Chouhan (P.W-9), Ashok Kumar Sharma (P.W-10), Dr. M.L. Agrawal (P.W-11), Rakhi Soni (P.W-12) and Parmanand Sharma (P.W-13). The appellant did not examine any witness in support of his defence. 11. The Trial Court by the impugned judgment dated 30.10.2014 acquitted co-accused Mukesh but convicted and sentenced the appellant for the above-mentioned charges. 12. Challenging the judgment and sentence passed by the Court below, it is submitted by learned counsel for the appellant that the prosecutrix was a consenting party. The Trial Court has wrongly held that she was minor. As per the ossification test report Exhibit-P/11, her age was found to be above 16 years and below 18 years and if the margin of error of two years is taken in favour of the appellant then it is clear that the prosecutrix was major. 13. Per Contra, the submission made by the counsel for the appellant is vehemently opposed by learned counsel for the State. It is submitted that as per school record, the date of birth of the prosecutrix is 30.03.2001 and she was kidnapped by the appellant on 13th of April, 2014. Thus, it is clear that the prosecutrix was slightly above 13 years of age and she was minor. In the F.S.L. report, human sperms were also found. 14. Heard the learned counsel for the parties. 15. It is the case of the appellant that the prosecutrix herself was a consenting party and she went to Jhansi from Dinara and from Jhansi, they went to Satna. At Satna Bus Stand, the appellant offered to marry her but it was refused by the prosecutrix. 14. Heard the learned counsel for the parties. 15. It is the case of the appellant that the prosecutrix herself was a consenting party and she went to Jhansi from Dinara and from Jhansi, they went to Satna. At Satna Bus Stand, the appellant offered to marry her but it was refused by the prosecutrix. It is alleged that from Satna, they returned to Jhansi. At Jhansi Bus Stand, the appellant went to bring food for her and taking advantage of the opportunity, she came to Dinara Police Station. It is submitted that although the prosecutrix had alleged that she was forcibly raped by the appellant but the manner in which she was moving from one place to another without resisting or making complaint or raising any alarm, it is clear that the prosecutrix herself was a consenting party. As per the M.L.C report, it was found that the hymen of the prosecutrix was torn but no injury was found on her person. Thus, it is clear that she was never subjected to forcible sexual intercourse. 16. Before considering the submissions made by the counsel for the appellant regarding the consent of the prosecutrix, this Court thinks it apposite to consider the age of the prosecutrix. 17. Rakhi Soni (P.W-12) is In-Charge Headmaster of Government Middle School Damroun Kala, Police Station-Dinara, District-Shivpuri (M.P.). This witness has proved the school admission register in which the date of birth of the prosecutrix has been mentioned as 30th of March, 2001. The original school register is Exhibit-P/12 and the photocopy thereof is Exhibit-P/12-C. In her cross-examination, Rakhi Soni (P.W-12) admitted that she had not given admission to the prosecutrix and she does not know on what basis, the date of birth of the prosecutrix was recorded. 18. By referring to the evidence of the father of prosecutrix P.W-1, it is submitted by learned counsel for the appellant that the father of the prosecutrix has admitted that he has five children and had lost his wife about three years back. He further admitted that his eldest daughter is of 16 years of age and is already married. The prosecutrix had left her studies about two years back as she was weak in study and had failed twice. It is submitted that the evidence of this witnesses was recorded on 07.07.2014. He further admitted that his eldest daughter is of 16 years of age and is already married. The prosecutrix had left her studies about two years back as she was weak in study and had failed twice. It is submitted that the evidence of this witnesses was recorded on 07.07.2014. If a child is given admission in Class-I at the age of 5 then it would be clear that she would reach Class VI at the age of 11 years. Since the prosecutrix had already failed twice and had left her studies two years prior to the examination of the father of the prosecutrix P.W-1, therefore, it is clear that the prosecutrix was aged about 15 years on the date of her kidnapping. It is fairly conceded that even if the age of the prosecutrix is calculated in the manner suggested by him, still the prosecutrix would be minor. However, learned counsel for the appellant insisted that this Court must consider the ossification test report filed as Exhibit-P/11 and if the margin of error of two years is taken in favour of the appellant then the prosecutrix would be major. 19. Unfortunately, the submissions made by learned counsel for the appellant cannot be considered in the light of the judgment of the Supreme Court in the case of Jarnail Vs. State of Haryana reported in (2013) 7 SCC 263 wherein the Apex Court has held as under:- “23.Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even of a child who is a victim of crime. For, in our view, there is hardly any difference insofar as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW, PW 6. The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). The manner of determining age conclusively has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained by adopting the first available basis out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the child concerned is the highest rated 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. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the child concerned, on the basis of medical opinion.” 20. In the present case, the incident took place in the year 2014 whereas the Juvenile Justice (Care and Protection of Children) Rules, 2007 were framed under Section 68(1) of Juvenile Justice (Care and Protection of Children) Act, 2000 were in force. In the present case, the incident took place in the year 2014 whereas the Juvenile Justice (Care and Protection of Children) Rules, 2007 were framed under Section 68(1) of Juvenile Justice (Care and Protection of Children) Act, 2000 were in force. From bare perusal of Rule 12 of the Rules of 2007, it is clear that if the matriculation certificates are available and in the absence whereof, the date of birth certificate from the school first attended is available and in absence whereof, the birth certificate given by a Corporation or Municipal Authority or a Panchayat is available and in only in absence of the above mentioned documents, the medical opinion would be sought from a duly constituted Medical Board, which will declare the age of the Juvenile or Child. Thus, where the birth certificate from the school is available then, the ossification test report cannot be looked into. 21. Under these circumstances, this Court is of the considered opinion that the Ossification Test Report (Exhibit-P/11) is not material piece of evidence for proper determination of the age of the prosecutrix. Even otherwise, according to the Ossification Test Report (Exhibit-P/11), the age of the prosecutrix was between 16 to 18 years but there is no straight jacket formula to the effect that in every case the margin of error of two years has to be taken in favour of the accused irrespective of the surrounding circumstances. If the surrounding circumstances indicate the margin of error in favour of the prosecution then there is no bar under the law in considering the same against the accused. In that view of the matter, this Court is of the considered opinion that the Trial Court did not commit any mistake by holding that the prosecutrix was minor on the date of the incident. 22. As this Court has already come to a conclusion that the prosecutrix was minor on the date of the incident, therefore, under such circumstances, her consent is immaterial. The prosecutrix has specifically stated in her evidence that she was raped by the appellant. Even in the FSL report, human sperms were found. Even otherwise it is well established principle of law that if the evidence of the prosecutrix is reliable & trustworthy then looking for corroborative evidence is nothing but adding a pinch of salt to her injury. 23. Even in the FSL report, human sperms were found. Even otherwise it is well established principle of law that if the evidence of the prosecutrix is reliable & trustworthy then looking for corroborative evidence is nothing but adding a pinch of salt to her injury. 23. Under these circumstances, this Court is of the considered opinion that the prosecution was successful in establishing the guilt of the appellant beyond reasonable doubt that he had committed rape upon the prosecutrix. 24. It is next contended by the counsel for the appellant that since the prosecutrix had herself left the house out of her own volition without any objection, therefore, the prosecution has failed to prove that the prosecutrix was kidnapped. 25. The submission made by the counsel for the appellant cannot be accepted in the light of the judgment passed by the Supreme Court in the case of Anversinh @ Kriansinh Fatesinh Zalaversus the State of Gujarat passed in Criminal Appeal No.1919/2010 vide order dated 13th of January, 2021 wherein in Paragraph No.17, the Apex Court has held as under:- “17.The ratio of S.Varadarajan (supra), although attractive at first glance, does little to aid the appellant’s case. On facts, the case is distinguishable as it was restricted to an instance of “taking” and not “enticement”. Further, this Court in S.Varadarajan (supra) explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused.” 26. The father of the prosecutrix in his F.I.R (Exhibit-P/1) had specifically stated that he had noticed that the appellant and the prosecutrix were in talking terms and upon search he was informed by Nilesh Jatav and Arvind that the appellant and the prosecutrix were going away. Thus, a specific allegation of enticing the prosecutrix was levelled by her father PW-1 in the F.I.R (Exhibit P/1) itself. 27. Thus, a specific allegation of enticing the prosecutrix was levelled by her father PW-1 in the F.I.R (Exhibit P/1) itself. 27. Under these circumstances, this Court is of the considered opinion that if a minor girl leaves her house on the enticement by the accused then it cannot be said that the prosecutrix has left her house on her own volition. Thus, it is held that the appellant is also guilty of kidnapping the prosecutrix as well as guilty of procuration of minor girl under Section 366A of the Indian Penal Code. 28. Considering the totality of the facts & circumstances of the case, this Court is of the considered opinion that the prosecution has succeeded in establishing the guilt of the appellant beyond reasonable doubt that he has committed the offence under Sections 363, 366(A), 376(1) and under Section 4 of the Protection of Children From Sexual Offences Act, 2012. 29. So far as the question of sentence is concerned, it appears that the Trial Court has awarded jail sentence of Rigorous imprisonment of 10 years for offence under Section 376(1) of the Indian Penal Code as well as rigorous imprisonment of 10 years for offence under Section 4 of the Protection of Children From Sexual Offences Act, 2012. Thus while awarding such jail sentence, the Trial Court has lost sight of Section 42 of POCSO Act, 2012. According to Section 42 of the POCSO Act, 2012, if the accused is found guilty for the offence punishable under POCSO Act, 2012 as well as under Section 376 of the Indian Penal Code, then the offender found guilty of such offence shall be liable to punishment under the POCSO Act, 2012 or under the Indian Penal Code as provides for punishment, which is greater in degree. 30. In the year 2014, the maximum sentence for the offence under Section 4 of the POCSO Act was seven years whereas the maximum sentence for the offence under Section 376 of the Indian Penal Code was ten years. However, this anomaly was also rectified by the legislation by amending the POCSO Act, 2012 by Amendment Act No.25/2019 and the minimum sentence for the offence under Section 4 of POCSO Act 2012 has been enhanced to rigorous imprisonment for ten years. However, this anomaly was also rectified by the legislation by amending the POCSO Act, 2012 by Amendment Act No.25/2019 and the minimum sentence for the offence under Section 4 of POCSO Act 2012 has been enhanced to rigorous imprisonment for ten years. Since the appellant has been held guilty for the offence under Section 376(1) of the Indian Penal Code as well as for the offence under Section 4 of POCSO Act, 2012 and at the relevant point of time, the sentence provided for offence under Section 376(1) of the Indian Penal Code was greater in degree, therefore, this Court is of the considered opinion that it was not necessary for the Trial Court to award a separate sentence for offence under Section 4 of POCSO Act, 2012. The sentences awarded for offence under Sections 363, 366-A and 376(1) of I.P.C. are hereby affirmed. No separate sentence is awarded for offence under Section 4 of POCSO Act, 2012 in view of Section 42 of POCSO Act, 2012. 31. With aforesaid observations, the judgment of conviction and sentence dated 30.10.2014 passed by the Additional Sessions Judge Karera, District-Shivpuri (M.P.) in Special Sessions Trial No.59/2014 is hereby affirmed. 32. All the sentences are directed to run concurrently. Since the appellant is in jail, therefore, free copy of this judgment be furnished to the appellant for necessary information. 33. Resultantly, this appeal fails and is hereby dismissed.