S. L. TALATI, J. ( 1 ) THE respondent was prosecuted for an offence punishable under Sections 363, 366 and 376 of the Indian Penal Code. The prosecution case was that the respondent kidnapped Sushilaben alias Bhanuben, daughter of Ganpatbhai Mathurbhai Tailor on 27-12-78 at about 2-15 p. m. with intention to have sexual intercourse with her and thereby committed an offence punishable under Sections 363 and 366 of the Indian Penal Code. The respondent was further charged that he without the consent of Sushilaben alias Bhanuben had sexual intercourse with her and thereby committed the offence of rape punishable under Section 376 of the Indian Penal Code. ( 2 ) THE complaint of Ganpatbhai Mathurbhai Tailor, the father of the girl was recorded and after investigation the respondent came to be charge-sheeted and at the trial the respondent came to be acquitted. The State has preferred the appeal. ( 3 ) IT is required to be stated that the learned Additional Sessions Judge, Baroda before whom the case was conducted came to the conclusion that the prosecution did not establish that Sushilaben was below 18 years of age. Further he came to the conclusion that the evidence of rape was not at all there and even if there was any sexual intercourse it was by consent. ( 4 ) WE have gone through the evidence of all the witnesses examined in the case. It is required to be stated that so far as the age of Sushila is concerned, she in her evidence stated that at the time of evidence she was 17 years old and that she was studying in vernacular VIII class. Her case was that they were three brothers and three sisters. Shashikant was the eldest and she was fifth and Gopal was younger to her. A contradiction was brought out whereby it was proved that in the police statement she stated that the eldest was Shashikant, thereafter there was Shakuntla, thereafter there was Ramesh and thereafter Meena was born. Forgetting for the time-being this discrepancy the other evidence on record in regard to age is the school leaving certificate produced by Bhagwanbhai Patel, teacher of the school where Sushila had studied. In General Register her birth-date stated to be 15-2-1963. This would mean that on the date of the offence she was 15 years and 10 months old. The medical Officer, Dr. In General Register her birth-date stated to be 15-2-1963. This would mean that on the date of the offence she was 15 years and 10 months old. The medical Officer, Dr. Raman Patel was examined and he stated that on examination of Sushila clinically and radiologically he concluded that the age of Sushila was between 15 and 16 years. He produced the certificate Exhibit 32. In cross-examination the Doctor stated that his opinion as to age was subject to error of two years upward or downward. This would meant that the girl could be 14 years as well as 18 years. There is no other evidence on record in regard to the age of the girl. ( 5 ) IT appears that after many many years of experience the investigating agency even today either does not know how the age of a particular individual is required to be proved or the investigating agency has no heart to investigate and find out and bring on record the correct date of birth of the victim. The primary duty of the investigating agency is given a go-bye. The investigating agency must understand that every child is born in some village or Taluka town or District town or even in a city. Birth and Death Register is compulsorily required to be kept. Therefore, the mother of girl was required to be questioned and it could not be difficult for the investigating agency to find out as to where Sushila was born meaning thereby in which village she was born or whether she was born in any hospital. There may be cases in which out of ignorance or illiteracy birth date might not have been registered. But the question is not whether birth date is registered or not but the question is that the investigating agency has to find out on these lines and investigate the case in regard to the age properly. ( 6 ) THE school leaving certificate for the purpose of proving the age in a criminal trial is useless. This investigating agency must know not from today, but if they had read the other judgments of any Sessions Judge in regard to the method of investigation in regard to the age they would have learnt as to how the age is required to be proved. This investigating agency must know not from today, but if they had read the other judgments of any Sessions Judge in regard to the method of investigation in regard to the age they would have learnt as to how the age is required to be proved. But it appers to us clearly and we report that it clearly appears to us in this particular case that they have not done anything to find out and investigate as to what the age of Sushila was. The school certificate which is produced at Exhibit 19 and if the investigating agency had bothered to read that certificate from column No. 6 they would have known that the girl was not admitted for the first time in that school but she came to that school from some other school and the birth-date which ws found in that certificate which was brought for the purpose of getting admission in this school that birth-date was noted. The investigating agency must find out as to in which school first she was admitted. This is necessary because under the Bombay Primary Education Act and the Rules made thereunder it is compulsory for the guardian to state the exact date of birth at the time of getting the child admitted and at that time not only produce the evidence as to how a particular date has been given to the school authorities but a statement is also filed in the school under the Act and the Rules and from that statement the investigating agency would be able to know the name of the person who got the child admitted in the school. That person is required to be examined in the court and that statement is required to be proved and that person would prove that on a particular date on which he went to the school authorities to get the child admitted, he gave the birth date from a particular source. But the investigating agency is required to go into the matter deep in order to ascertain the truth. If this is not done in the court of law they will never be able to bring the best available evidence which by their own effort they could have got and which they by their own negligence did not bother to get. But the investigating agency is required to go into the matter deep in order to ascertain the truth. If this is not done in the court of law they will never be able to bring the best available evidence which by their own effort they could have got and which they by their own negligence did not bother to get. That investigating agency should not have in any case bothered to file appeal but to improve the investigating method in order that such a result may not follow in all future cases to come. ( 7 ) NOW that, therefore, from the evidence on record it is more than clear that the prosecution was not in a position to prove beyond reasonable doubt the age of prosecutrix-Sushila. When the age is not established and it is not established that she was below 16 years of age the question of rape does not arise. Unless she was established to be below 18 years of age the question of kidnapping does not arise. The evidence further shows that throughout she had an opportunity to shout, she had an opportunity to run away when from near the school they went to Kodhiya which is not far away from the school. The respondent left her there bringing food. A clear opportunity was there either for shouting or for running away. As she was a willing party, she only waited for food to come. Thereafter she continued to remain with Jivan, went from place to place without any complaint. Therefore, in this particular case a clear case of consent throughout appears to be so clear that no other inference is possible. On the evidence of Sushila no person can be convicted. She had good relations with the respondent for the last three years. Under these circumstances also the second aspect of the case was also not established. It was not established because the evidence was not proper and the inestigating agency did not investigate the case properly. Under these circumstances the conviction was not possible and the learned Additional Sessions Judge came to a right conclusion. ( 8 ) IN the result the appeal fails and is dismissed. Bail bonds shall stand cancelled. Appeal dismissed. .