JUDGMENT 1. - Manoharlal accused petitioner has been convicted under section 353 IPC. and sentenced to undergo one years rigorous imprisonment and to pay a fine of Rs. 500/-, in default of payment of which to further suffer three months rigorous imprisonment. 2. One Marju daughter of P.W. 1 Laxmandas P W. 2 had left her house on March 20, 1975 at about 7 p.m. to make certain purchases for the house. She did not return and it appears that when she was coming back to her house, the accused appellant who was a hawker and use to sell gram met her. He had a cycle and asked Manju that he will take her to a round of the city to which Manju agreed. The accused took her on his cycle to a deserted house where it is alleged that she was ravished by the accused. The accused left her in the house in the morning and returned in the evening along with three other boys and all three of them said to have been ravished her. The accused appellant gave Rs. 3/- to Manju and fold her that in case he does not return in the evening, she should utilise it. The accused did not return in the evening and also in the next morning and she returned to her father Laxmandas P.W 2 on March 25, 1975 and narrated the incident to her father Laxmandas who went to the police station Sardarpura Jodhpur and lodged the report Ex. P. 6. In the report he mentioned the age of Manju as 14 years. A case was registered and Manju was sent for medical examination. Dr Prakash Dayal P.W. 5 Medical Jurist in M.G. Hospital, Jodhpur examined Manju on March 26, 1975 for rape and age. He also took X-rays of joints of wrist, elbow and knee to reach to the correct estimate of her age. In the opinion of the doctor, on the day of examination, Manju was aged about 14 years. She was used to sexual intercourse The accused was arrested and a charge u/s 366 IPC was read over to him who plead not guilty of the charge and claimed to be tried On behalf of the prosecution as many as five witnesses were examined. Accused was examined u/s 313 Cr. P.C. to explain the circumstances against him. She was used to sexual intercourse The accused was arrested and a charge u/s 366 IPC was read over to him who plead not guilty of the charge and claimed to be tried On behalf of the prosecution as many as five witnesses were examined. Accused was examined u/s 313 Cr. P.C. to explain the circumstances against him. He stands on a bare plea of denial, and examined three witness in defence. 3. The learned Additional Sessions Judge holding that there was no satisfactory evidence that on the day of occurrence, age of Manju was below 16 years, held that the intercourse by the accused was with her consent and as such it did not amount to rape u/s 366 IPC., but the learned Judge also held that the girl was aged less than 18 years and as such a case under section 366 IPC is made out. Accused was convicted and sentenced as aforesaid. 4. It is contended by the learned counsel for the appellant that there is no satisfactory evidence that Manju was aged below 18 years on the day of occurrence. He submits that the evidence is only opinion evidence and only on such evidence it cannot be held that the girl was below 18 years. According to him the statement of the prosecutrix is not corroborated by any other evidence and as such only on her statement the conviction of the accused should not have been recorded by the trial court. 5. The question therefore, is as to whether the finding of the learned trial court that Manju was aged below 18 years on the date of the occurrence calls for an inference. In offence u/s 366, 363 and 376 IPC the age of the prosecutrix is very important because upon it depends the answer as to whether the girl was taken away by force for the purposes of intercourse and whether sexual intercourse with her if any was with her consent. If in else of rape the girl is below 16 years, then question of consent does not arise. Similarly in case under section 363 IPC, if the girl is aged below 18 years, then her consent in going away with the accused does not exonerate the accused either under section 366 IPC or under section 363 IPC. If in else of rape the girl is below 16 years, then question of consent does not arise. Similarly in case under section 363 IPC, if the girl is aged below 18 years, then her consent in going away with the accused does not exonerate the accused either under section 366 IPC or under section 363 IPC. In the instant case Laxmandas the father of the girl has appeared in the witness box and besides his statement there is also evidence of Dr. P. Dayal P.W. 5 about her age. Manju PW 1 had been married about six months back to the occurrence which allegedly took place on March 20, 1975. Laxmandas PW. 2, father of Manju states that he was married in the year 1954. The first son was born to him after one year of the marriage and thereafter after each year a daughter was born but both of them died. Thereafter a son was born and after him Manju was born. He thus gives a cycle of birth of a child each year after the marriage. According to his statement Manju is his fifth child. If his statement is looked into, it appears that according to him Manju should have been both sometime in the year 1959. The occurrence took place on Mach 20, 1975. Thus as per his statement Manju was aged about 16 years at the time of occurrence. The learned advocate submits that an entry from the birth register has not been produced though Laxmandas was employed in the Municipal Council for the purpose of making entries in the register maintained for births and deaths in the area. Laxmandas stated that at the time when Manju was born, he was not employed in the Municipal Council and there is no entry about her birth in the Municipal Counsel. Surprisingly, no cross-examination was done with regard to the statement of Laxmandas that he was married in the year 1954 and after each year there was birth of a child. He is unable to give the date of birth or the year in which Manju was born. Besides his statement, there is no other evidence with regard to the age of Manju. Manju PW 1 was unable to give her date of birth and rightly so, she being uneducated. He is unable to give the date of birth or the year in which Manju was born. Besides his statement, there is no other evidence with regard to the age of Manju. Manju PW 1 was unable to give her date of birth and rightly so, she being uneducated. Thus on the statement of Laxmandas it is not possible to hold positively that Manju was below 18 years on the date of occurrence. Now remain the statement of Dr. P. Dayal PW. 5 whose evidence as already stated earlier is only an opinion evidence. As observed by their Lordships of the Supreme Court in Sidheswar Ganguly v. State of West Bengal (AIR 1958 S.C., 143) in para 10,- "The only conclusive piece of evidence may be the birth certificate, but unfortunately, in this country such a document is not ordinarily available. The Court or the jury has to base its conclusions upon all the facts and circumstances disclosed on examining all the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available. As already observed above, the entry of birth has not been produced though Laxmandas stated that there was no entry as he was not employed in the Municipal Council when Manju was born. The employment in the Municipal Council was not necessary for an entry about the birth of the child. It is common knowledge that there is in Jodhpur a Municipal Council a register for entering the birth and death.No effort was made by the investigating officer to know that whether there is an entry about the birth of Manju in the register maintained in the Jodhpur Municipal Council. It was found that Manju was used for sexual intercourse and no report was lodged even though she hid left for the house immediately. The report was lodged after about 5 days of the occurrence when Manju returned. No doubt Dr P. Dayal has said that she was aged 14 years but it is common knowledge that there is a margin upto two years this way or that way in the opinion of the expert. At any rate, looking to the fact that the girl was used to sexual intercourse, only on the evidence of Dr. No doubt Dr P. Dayal has said that she was aged 14 years but it is common knowledge that there is a margin upto two years this way or that way in the opinion of the expert. At any rate, looking to the fact that the girl was used to sexual intercourse, only on the evidence of Dr. P. Diyal which evidence is only opinion evidence, it will not be safe to hold that Manju was aged 14 years at the time of the occurrence. 6. That apart, it will appear that no oath was administered to Manju because in the opinion of the Judge she did not understand the sanctity of oath but the learned Judge even did not certify that Manju understood the sanctity of speaking the truth. Though in a given case depending on the manner in which the statement is given by a child witness, the omission to give a certificate may not be fatal as the court can say that the fact the learned Judge, proceeded to record the statement goes to show that she knows the sanctity of speaking the truth. Their Lordships of the Supreme Court in Rameshwar Kalyan Singh v. State of Rajasthan (AIR 1952 S.C. page 54) in para 11 observed;- "I would add however that it is desirable that Judges and Magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the witness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether. But whether the Magistrate Judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate." In the instant case after going through the statement of Manju PW. 1, it can be said that the Judge only proceeded to examine her with a view that she understood the sanctity of speaking truth otherwise the learned Judge would not have proceeded to examine her. As already stated earlier, she did not understand the sanctity of oath administered and therefore, oath was not administered to her. 1, it can be said that the Judge only proceeded to examine her with a view that she understood the sanctity of speaking truth otherwise the learned Judge would not have proceeded to examine her. As already stated earlier, she did not understand the sanctity of oath administered and therefore, oath was not administered to her. In the instant case report was lodged after about 5 days of the occurrence, I am of the opinion that only on the statement of Manju, who is used to sexual intercourse it will not be safe to base the conviction of the accused even for an offence under section 363 IPC. 7. In the result, I allow the appeal, set aside the judgment of the learned Additional Sessions Judge convicting the accused appellant to the charge u/s 363 IPC. I hereby acquit the accused appellant of the charge u/s 363 IPC. He is in bail and need not surrender to his bail bonds which shall stand dismissed.Appeal Allowed. *******