Judgment.- This is an appeal by Hayath (A-1) against the judgment of the Sessions Judge, Shimoga, dated 18th November, 1970, convicting him under section 366 of the Indian Penal Code, and sentencing him to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 500 in default to undergo rigorous imprisonment for 6 months. He has also been convicted for an offence under section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 500 in default to undergo rigorous imprisonment for 6 months, with a direction that substantive sentences should run concurrently. By the same judgment, the learned Sessions Judge acquitted A-2, Fathima, wife of A-1 and A-3 Basha, brother of A-1 Hayath. 2. The prosecution case is that one Sowbhagyalakshmi lived with her foster father, P.W.3, Seetharama Rao at Kumbatti village in Hosanagaia Taluk. Fatima (A-2) is the wife of A-1 Hayath, and Basha (A-3) is a petty contractor. Hayath, A-1, is the younger brother of A-3. Basha A-3 was residing in Hosanagar Town. A-3 took a contract work from Sitarama Rao, P.W.3 for digging a well in the court-yard of his house somewhere in the year 1967. A-1 and A-2 were working under the 3rd accused. Some time in the year 1969, A-1 and A-2 came to live in a portion of the house of Seetarama Rao, P.W.3 ana they were attending to some works of P.W.3 now and then. During their stay in the house of Seetharama Rao, A-1 and A-2 developed friendship with Soubhagyalakshmi, P.W.4. They pursuaded her to go with them to various places stating that they would show her film actors and actresses. According to the prosecution, Soubhagyalakshmi was a minor girl below 18 years of age. She became a victim of A-1 and A-2 and, she agreed to accompany them. 3. On 12th June, 1969, all the 3 accused met P.W.4 Soubhagyalakshmi near the well and told her that they have decided to leave the place for Vishakapattanam and she should also accompany them taking money and ornaments from the house. Soubbayalakshmi agreed and at the appointed time at 7-45 p.m. she left the house with money and ornaments and met A-1 near a mango tree. A-1 and Soubhagyalakshmi went near a dilapidated temple called Umapathi Temple where A-2 and A-3 were waiting with 2 cycles. Soubbayalakshmi agreed and at the appointed time at 7-45 p.m. she left the house with money and ornaments and met A-1 near a mango tree. A-1 and Soubhagyalakshmi went near a dilapidated temple called Umapathi Temple where A-2 and A-3 were waiting with 2 cycles. A-1 used one bicycle for himself and to take Soubhaygalakshmi and her clothes while A-3 took the other cycle to carry A-2. They reached Anandapuram at about 4 a.m. On 13th June, 1969, A-1 and A-2 along with P.W.4 left Anandapuram in the morning by bus to Davanagere and reached that place at about 2 p.m. They stayed there in ‘Hotel Lodge’. 4. On 14th June, 1969, A-1 and A-2, and Soubhagyalakshmi left Davanagere by train and reached Hubli where they stayed in a hotel called Modern Lodge. There they purchased a transistor in the shop of P.W.9, Babu Rao. As desired by A-1, P.W.4 gave her address as Fati Begum Abdul Rahim, Jayanagar, Hosanagar Taluk and accordingly that name was entered in the cash bill pertaining to the transistor. On 15th June, 1969, these 3 persons left Hubli at about 8 a.m. and reached Guntakal by about 1-30 a.m. and spent the night in the platform itself. The next day at 10 a.m. they left for Guntur by train and reached that place at about. 4 a.m. They stayed there in a hotel called Ganapathy vilas for 4 days on 19th June, 1969. They left Guntur and reached Vishakapatnam, where they stayed in a hotel called Woodlands of which P.W.15 Mohan Rao was the proprietor. A-1 and A-2 threatened Soubhagyalakshmi while staying in that hotel to kill her and forced her to give her consent to marry A-1. A-1 and A-2 knew a person by name Khadri Basha, P.W.6. They sought his help in getting Soubhagyalakshmi married to A-1. But P.W.6 pleaded. his inability in this behalf. That night according to Soubhagyalakshmi, A-1 had intercourse with her against her will. On 21st June, 1969 A-3 met A-1 and A-2 in the hotel and told them that the police were in search of them. Therefore on 23rd June, 1969, A-1 and A-2 along with P.W.4 left Vishakapattanam and. reached. Bellary on the morning of 25th June, 1969, where they stayed in a hotel. There also A-1 had intercourse with Soubhagyalakshmi against her will. Therefore on 23rd June, 1969, A-1 and A-2 along with P.W.4 left Vishakapattanam and. reached. Bellary on the morning of 25th June, 1969, where they stayed in a hotel. There also A-1 had intercourse with Soubhagyalakshmi against her will. On the advice of a lawyer, A-1 stayed in Bellary to get the marriage done with Soubhagyalakshmi. He arranged for 2 rooms in Shanti Nivasa Lodge belonging to one Shankara Narayana Gupta, P.W.7. A-3 again told A-1 and others that the police were searching for them and therefore they should immediately leave for Sagar. They left Bellary on 6th July, 1969. While leaving, A-1 left some utensils they were using so far and some gold ornaments belonging to Soubhagyalakshmi in the cycle shop of Ammerkhan, P.W.8. They came to Bhadravathi and from there they went to Anandapuram and on the following day they reached Sagar where they took a room in Rahmania Hotel. The police apprehended A-1 and A-2 and Soubhagyalakshmi at Lingadahalli and brought them to Sagar. The trunks that were with A-1 and A-2 were seized by the Police. 5. In the meanwhile P.W.3 searched for Soubhagyalakshmi in various places for some days and ultimately kept quiet hoping that she would return one day or the other. As Soubhagyalakshmi did not return at all, he filed a complaint to the Police at Hosanagar as per Exhibit P-3 alleging that a large amount of cash and a number of ornaments were found missing from his house and. that Soubhagyalakshmi, A-1 and A-2 were also missing from the house. Yesupadam, P.W.20, Sub-Inspector of Police, Hosanagar, on the basis of Exhibit P-3 registered a case under section 363, Indian Penal Code. After due investigation he filed a charge-sheet against A-1 to A-3 for offences under sections 366 and 376 of the Indian Penal Code. 6. The prosecution examined a large number of witnesses to show the movements of the accused persons along with Soubhagyalakshmi in various places. The learned Sessions Judge acquitted A-2 and A-3; but he however convicted Hayath, A-1 mainly relying on the evidence of P.W.4 Soubhagyalakshmi. 7. The defence of A-1 is that Soubhagyalakshmi at the relevant time was more than 18 years of age and she voluntarily accompanied him to various places. He has admitted that he stayed in various hotels along with her but he denied having committed rape on her against her will. 8. 7. The defence of A-1 is that Soubhagyalakshmi at the relevant time was more than 18 years of age and she voluntarily accompanied him to various places. He has admitted that he stayed in various hotels along with her but he denied having committed rape on her against her will. 8. To sustain a charge under section 366 of the Indian Penal Code, the prosecution must prove that Soubhagyalakshmi was kidnapped or abducted and such kidnapping or abduction was with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person, in this case A-1, 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. The second part of the section requires the prosecution to prove that A-1, by criminal intimidation or abuse of authority or any other method of compulsion induced any woman, in this case Soubhagyalakshmi, to go from Kumbatti, with intent that she may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with some other person. 9. The prosecution case is that Soubhagyalakshmi was a minor girl under 18 years of age on 12the June, 1969, and after she was kidnapped, she was compelled or threatened to marry A-1 Hayath against her will or she was forced or seduced to illicit intercourse with him. In order to bring home the charge under section 366 of the Indian Penal Code, in view of the fundamental importance of the question of age of the girl, Soubhagyalakshmi, it is the duty of the prosecution to place the evidence in this behalf with the utmost precision and to have it brought out clearly that Soubhagyalakshmi was under the age of 18 years on the relevant date. 10. Reliance is placed on the evidence of P.Ws. 1, 2, 3, 4, 15 and 18 and some documents. The oral evidence of P.W.3 and that P.W.15 is to the effect that the girl at the relevant point of time was below 18 years of age. 10. Reliance is placed on the evidence of P.Ws. 1, 2, 3, 4, 15 and 18 and some documents. The oral evidence of P.W.3 and that P.W.15 is to the effect that the girl at the relevant point of time was below 18 years of age. The natural father of the girl, viz., P.W.15 has given evidence that one son and a daughter were born by his first wife and after the death of his first wife, he married the second wife and from her he got 5 children with whom we are not concerned. Soubhagyalakshmi is the daughter of P.W.15 by his first wife. Then Soubhagyalakshmi was 10 months old, P.W.3 took her to his house and brought her up as he had no children. Soubhagyalakshmi was born at Kathigere, the native place of her natural father P.W.15. The prosecution have produced Exhibit P-27, an extract from the Birth Register relating to that village and according to that one Janaki, daughter of P.W.15 was born on 5th January, 1952. The certificate of birth of a person is evidence and conclusive evidence of his age,unless disproved by the evidence of the witness of the party denying the correctness of it. But the entries of the name of a person in a register of births cannot be positive evidence of the birth of such person unless his identity is fully proved. It is sought to be made out by P.W.3 and other witnesses that Janaki mentioned in the Birth Register is Soubhagyalakshmi herself. If the identity is established, then there is no difficulty in holding that Soubhagyalakshmi was below 18 years of age on the date of the incident. P.W.15, has no doubt, stated that he was calling her also as Janaki. Relying upon this statement, it is contended by the learned Counsel appearing on behalf of the State that the entries in the Birth Register relating to Janaki are referable only to Soubhagyalakshmi and if so, she was below 18 years of age on the relevant date. Except the solitary statement of P.W.15 that he was calling Soubhagyalakshmi as Janaki also, there is no other evidence to corroborate his statement. P.W.3, who brought up this girl from her infancy himself does not say that at any time she was called as Janaki. However, some relianced is placed on the evidence of P.W.18, Thimappa Hegde, Police Patil of Kathigere. P.W.3, who brought up this girl from her infancy himself does not say that at any time she was called as Janaki. However, some relianced is placed on the evidence of P.W.18, Thimappa Hegde, Police Patil of Kathigere. He has stated that the date of birth mentioned in the Register as 5th January, 1952, against the name of Janaki refers to the girl Soubhagylakshmi. But if his evidence is scrutinised carefully it goes to show that from the first wife 3 children were born to P.W.15 and of them I was male and 2 were females, while the evidence of P.W.15 is that only 2 children were born. The statement of P.W.18 that the date of birth as against the name of Janaki refers to Soubhagyalakshmi cannot be accepted in view of his own evidence that 2 daughters were born to P.W.15 from his first wife. The date mentioned in the Birth Register as against the name of Janaki in all probabilities refers to the other daughter of P.W.15 and not at any rate to Soubhagyalakshmi. 11. Reliance is also placed on the horoscope, Exhibit P. 4 to show that Soubhagyalakshmi, was born on 5th January, 1952. The author of Exhibit P-4 has not been examined in this case. It is said that by the time of the trial he was dead. Such documents could be got easily, is not in dispute at all. That is the reason why the learned Sessions Judge discards Exhibit P-4. The prosecution has produced admission form Exhibit P-15 and Admission Register Exhibit P-16 relating to Soubhagyalakshmi when she was admitted to the Higher Primary School at Ramachandrapura. P.W.3, the foster father, has given evidence that the girl admitted to that school and she passed S.S.L.C. Examination in September, 1968. That is also the evidence of P.W.4 Soubhagyalakshmi. The date of birth of Soubhagyalakshmi was given as 5th January, 1952 when she was admitted to the 5th Standard of that School. P.W.17 Narasimha Murthy who is not related to P.W.3 or P.W.15 appears to have admitted her to the school and he gave the date of birth as 5th January, 1951. It is unlikely that the girl who was being brought up by P.W.3 would be admitted to the school by P.W.17 who is not in any manner connected with the family of P.W.3 or P.W.15. It is unlikely that the girl who was being brought up by P.W.3 would be admitted to the school by P.W.17 who is not in any manner connected with the family of P.W.3 or P.W.15. P.W.3 does not say that he asked Narasimha Murthy, P.W.17, to admit Soubhagyalakshmi to the school; but however he has stated that it is Narasimha Murthy who gave the date of birth as 5th January, 1951. A perusal of Exhibit P-15 Admission form belies the version of P.W.15 that Narasimha Murthy (P.W.17) admitted P.W.4 to the school. It shows that P.W.3 has signed the form Exhibit P-15 and hence it has got to be inferred that he must be the person who furnished the date of birth as 5th January, 1951. If this date is taken into consideration, on the relevant date, Soubhagyalakshmi was above the age of 18 years on the relevant: date. The evidenciary value of entries in the records of educational institutions has seldom been considered to be correct. As against the evidence as to the age in birth registers the entries in school records have generally been considered to be of inferior quality. The entry in birth register is usually much more contemporaneous than the entry in the school registers and therefore more reliable. It is true, that not infrequently parents or guardians are tempted to see that their children enter in the school to be younger than they are, in order to enable them later to seek Government employment when their education is completed; but in the instant case it is the reverse. The entry in a birth-register would, normally speaking, inspire greater confidence than an entry in the records of educational institutions, and the former by and large is supposed to be more reliable piece of evidence than the later. In the instant case, the entry in the birth register which is produced as relating to Soubhagyalakshmi is not one relating to her and in all probabilities that entry relates to the other daughter of P.W.15. The most valuable piece of evidence on which it could have been easy for any Court to determine the age of the girl is full of suspicion and if the age as given in the school register is taken, on which reliance is placed by the prosecution itself, Soubhagyalakshmi was above 18 years of age on the relevant date. The most valuable piece of evidence on which it could have been easy for any Court to determine the age of the girl is full of suspicion and if the age as given in the school register is taken, on which reliance is placed by the prosecution itself, Soubhagyalakshmi was above 18 years of age on the relevant date. It is a well accepted principle of criminal law that when the facts proved in a case are capable of 2 constructions one in favour of the accused and the other against him, the one favourable to the accused mast be accepted and the benefit should be given to the accused. 12. The other evidence relied upon by the prosecution is that of 2 Doctors, P.W.1 Dr. Rukmini Bai and P.W.2 Dr. P. Ramachandrappa. The evidence of Rukmini Bai is that she, by observing the features of the girl, was of the opinion that at the time she examined the girl she was below 18 years. That is merely an opinion and on the basis of it, it is not safe to hold that the girl was below 18 years. The only evidence on which some reliance is placed is that of P.W.2. He took X-Ray photographs of the elbow and. wrist joints of the girl. On reading the X-Ray photographs, with reference to the ossification of bones he was of the view that the girl was just under 18 years of age. Sri Nagappa, the learned Counsel appearing on behalf of the State, urged that this evidence should be accepted in preference to the other evidence in regard to the date of birth of the girl. The evidence of P.W.2 is merely an estimate about the age and that does not amount to proof; but is merely again an opinion. That being the case, the prosecution have failed to prove that the girl Sowbhagyalakshmi was under 18 years of age on 12th June, 1969. 13. The evidence regarding the kidnapping or abduction of Soubhagyalakshmi is only that of her. A large number of witnesses that have been examined in this case merely state that they saw her in the company of A-1. That does not help the prosecution. 13. The evidence regarding the kidnapping or abduction of Soubhagyalakshmi is only that of her. A large number of witnesses that have been examined in this case merely state that they saw her in the company of A-1. That does not help the prosecution. If Soubhagyalakshmi was above 18 years of age on the relevant date, as she was in this case, a charge under S. 366, Indian Penal Code, cannot be sustained on the solitary testimony of Soubhagyalakshmi. In cases falling under section 366, Indian Penal Code, the evidence of the girl alleged to have been kidnapped or abducted must be taken with great amount of caution. She went fern place to place along with A-1, and stayed in a number of hotels. She did not inform this fact to any body anywhere at any stage. She voluntarily returned along with the accused to Sagar. Soubhagyalakshmi has stated that she was induced to go with the accused giving her false hopes that she would be shown actors and actresses and various places and for that reason, she left her house and met the accused and thereafter, she went with them to various places. By her own statement it is impossible to hold that any of the accused persons by deceitful means induced her to go from her house to various places. 13-A. Her evidence was that for the first time when the accused and she were in the hotel at Vishakapatnam, she was compelled by A-1 and A-2 to many A-1. They threatened her that they would end her life. By the time she reached Vishakapatnam, she was in the company of the accused persons for a number of days and stayed in various hotels. It i§ not her case that at any time before, any of the accused persons compelled her to marry A-1 and to have illicit intercourse. That being so, the charge under section 366, Indian Penal Code, cannot be sustained 14. So far as the charge under section 376 Indian Penal Code, is concerned, again the only evidence is that of Soubhagyalakshmi. It is the evidence of Soubhagyalakshmi that she had intercourse with A-1 when she was staying, at Vishakapatnam and thereafter she had intercourse at Bellary. She, no doubt, has stated in her evidence that she was threatened with dire consequences and therefore she meekly submitted to have intercourse with A-1. It is the evidence of Soubhagyalakshmi that she had intercourse with A-1 when she was staying, at Vishakapatnam and thereafter she had intercourse at Bellary. She, no doubt, has stated in her evidence that she was threatened with dire consequences and therefore she meekly submitted to have intercourse with A-1. She was staying in a hotel at Vishakapatnam along with the accused. Many customers were visiting the hotel. She did not raise any alarm, much Jess did she try to escape from the clutches of A-1 and A-2. She must have ample opportunities to escape from the clutches of A-1 and A-2 if she intended to do so. No attempt has been made by her in this behalf. She has travelled in buses and trains and it is not as though that the accused and Soubhagyalakshmi were the only passengers in the train and buses. It is not her case that she was threatened before reaching Vishakapatnam. She could have easily informed persons whom she came across about the acts of the accused. Her conduct in implicitly going along with A-1 from the beginning to the end shows that she voluntarily went with the accused. She has stated that against her will A-1 had sexual intercourse with her. When a girl had. intercourse with the accused but showed no signs of force having been used and her telling a story later to various persons is not the corroboration of her evidence in regard to rape. The kind of corroboration required is the same as required for the evidence of an accomplice, that is to say, some independent evidence confirming, in material particulars, the allegation that the crime was committed and that the accused committed it. But it must be stated that the girl who has been raped is not an accomplice. If she was raised she was the victim of an outrage. If she consented, there is no offence unless she was a married woman, in which case question of adultery may arise. But it must be stated that the girl who has been raped is not an accomplice. If she was raised she was the victim of an outrage. If she consented, there is no offence unless she was a married woman, in which case question of adultery may arise. In the case of girl who is below the age of consent, her consent will not matter so far as the offence of rape is concerned, but if she consented, her testimony will naturally be as suspect as that of an accomplice a large volume of case law has grown up which treats the evidence of the complainant somewhat along the same lines as accomplice evidence and the position now reached is that the rule of prudence that such evidence should be corroborated has hardened into one of law. But it must be pointed out that such corroboration can be dispensed with in a particular case depending upon the facts therein. In cases of this nature, the main evidence will be that of the victim herself. In practice, a conviction for rape almost entirely depends on the credibility of the woman, so far as the essential ingredients are concerned the other evidence being merely corroborative. All that is required is that there must be some additional evidence rendering it probable that the story of the girl is true and that it is reasonably safe to act upon it. If the facts of this case are examined, with reference to the evidence of Soubhagyalakshmi, what emerges out is that if A-1 had sexual intercourse with Soubhagyalakshmi as stated by her, it must have been with her consent and not against her will. Or A-1 did not have sexual intercourse with her in which case also the prosecution must fail. In all probabilities taking into consideration the manner in which Soubhagyalakshmi went with A-1 from place to place and stayed in a number of hotels, what could be stated is that A-1 must have had intercourse with her. Or A-1 did not have sexual intercourse with her in which case also the prosecution must fail. In all probabilities taking into consideration the manner in which Soubhagyalakshmi went with A-1 from place to place and stayed in a number of hotels, what could be stated is that A-1 must have had intercourse with her. So far as that aspect of the case is concerned, we can safely rely on the evidence of Soubhagyalakshmi; but that does not help the prosecution to prove the charge under section 376 of the Indian Penal Code, for the reason that in the first instance Soubhagyalakshmi at the relevant time was above 18 years of age and there is no evidence worth the name that A-1 committed rape on her against her will; but on the other hand every circumstance in the case points out that the intercourse with Soubhagyalakshmi was with her consent. When that is so no offence has been committed under section 376 of the Indian Penal Code. 15. For the reasons stated above, I allow this appeal, set aside the convictions and sentences passed against the appellant (accused) Hayath and acquit him. S.V.S. ----- Appeal allowed.