Judgment :- 1. In Sessions Case No. 4 of 1987, the Assistant Sessions Judge, Tirur acquitted the respondent of offences punishable under S.363 and 376 of the Indian Penal Code with which he was charged by the Sub Inspector of Police, Kalpakancherry. Aggrieved by the acquittal, the State has come up in appeal. 2. PW 2, Sulekha, is the minor aged 15 alleged to be the victim. PW 1, Kathiakutty, is her mother. The allegation is that at about 12.50 PM on 17-10-1986, she was kidnapped by the respondent from the lawful guardianship of her parents. She was taken by the respondent to various places, including the residence of his brother at Perintalmanna, and had sexual intercourse also with her. 3. PWs 1 and 2 are in affluent circumstances. A new building was under construction at Ponmondu itself (where PWs 1 and 2 reside) for Koya-kutty, brother of PW 2. Respondent was one of the employees engaged for the construction of the building under the contractor examined as PW 10. While so, intimacy developed between PW 2 and the respondent. They eloped on the 17th of October 1986. On the 19th morning at 4.30 AM, PWs 7 and 9, who were deputed to trace them out, while going in a jeep found the respondent and PW2 going together. They were taken in that jeep itself and the matter was reported to the Pandikkad Police Station. 4. I do not think that it is necessary to consider the entire items of evidence in detail. The two questions that arise for consideration mainly are: (i) whether there was taking or enticing a minor girl under the age of 18 as alleged; and (ii) whether there was sexual intercourse with her which amounts to rape. 5. PW 1, who gave the first information statement on 18-10-1986, only said that her daughter is missing. But she now admits that even then she had the information from PWs 3 and 4 that PW 2 went with the respondent. That may not be very relevant for us. The fact that both went together to different places now stands amply proved. It is not disputed also. There is the evidence of not only PW 2, but PWs 3 and 4 also. PW 17 is the wife of the brother of the respondent. That may not be very relevant for us. The fact that both went together to different places now stands amply proved. It is not disputed also. There is the evidence of not only PW 2, but PWs 3 and 4 also. PW 17 is the wife of the brother of the respondent. It was at her residence that the respondent stayed with PW 2 during the night of 17-10-1986. She gave evidence to that fact. So also we are having the evidence of PWs 7 and 9 that they saw the respondent and PW 2 going together. They took them in the jeep and produced before the police. From these items of evidence, there is absolutely no difficulty in coming to the conclusion that PW 2 and the respondent went away together and stayed together for 2 days. 6. PW 2 gave evidence that they had free sex also more than once. Medical evidence of PW 15 and Ext.P9 certificate issued by her show that hymen was torn. There was bleeding from small abrasions on the posterior aspect of fourchette. On the basis of these and other symptoms, PW 15 expressed the opinion that there was recent sexual intercourse. PW 14 examined the respondent and issued Ext.P8 certificate stating that he is potent. The evidence clearly indicate that PW 2 accompanied the respondent on her own accord and submitted herself willingly for sexual connection. 7. The first question to be decided for attracting an offence defined in S.361 of the Indian Penal Code and made punishable under S.363 thereof is whether PW 2 was a minor under 18 years. Only if that is found, the further question arises whether she was under lawful guardianship from which she was 'taken' or 'enticed away'. Therefore the first thing to be established by the prosecution is the age. 8. The relevant items of evidence are Exts. P4 and P11 as well as the testimonies of PWs 1, 2,8 and 16. PW 8 is the Headmaster of the school where PW 2 was studying. Ext. P4 is the extract of the admission register. Date of birth is recorded in it as 25-5-1972. If that is accepted, PW 2 was only less than 15 on 17-10-1986, when she went with the respondent. Ext. P11 is the age certificate issued by PW. 16 (Assistant Professor, Forensic Medicine) after radiological examination. Ext. P4 is the extract of the admission register. Date of birth is recorded in it as 25-5-1972. If that is accepted, PW 2 was only less than 15 on 17-10-1986, when she went with the respondent. Ext. P11 is the age certificate issued by PW. 16 (Assistant Professor, Forensic Medicine) after radiological examination. PW 2 was stated to be above 14 and below 16. The Assistant Sessions Judge refused to accept these items of evidence in deciding the age of PW 2. I think he is justified in so doing. 9. PW 1, the mother, is undoubtedly a witness competent to swear to the date of birth and age of her daughter, PW 2. Both PWs 1 and 2 did not mention date of birth. They only gave an approximate assessment of age. PW 1 further admitted that date of birth while admitting PW 2 to school was given only on the basis of an approximate assessment. No attempt was made to ascertain the date of birth given in the birth register. Extract from the same was not produced and proved. There is no evidence that birth of PW 2 was not reported. 10. Relevancy under S.35 of the Evidence Act is not confined to entries in any public or other official book, register or record, stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty. It also extends to any such entry in such records made by any other person in the performance of a duty specially enjoined by the law of the country in which such book, register or records is kept. Admission registers of schools come within that category: Entries in admission registers of Government and Municipal schools undoubtedly come within that area. Entries in admission registers of private schools were not considered to come within that group and as such, not treated as evidence. But that position had undergone change after the advent of the Kerala Education Act which made it a duty to maintain such records. Therefore, now even admission registers of private schools are also relevant under S.35 of the Evidence Act. In the absence of proof to the contrary there can be a presumption also that the date of birth shown therein is correct. Therefore, now even admission registers of private schools are also relevant under S.35 of the Evidence Act. In the absence of proof to the contrary there can be a presumption also that the date of birth shown therein is correct. That is because the entry is on the basis of the date of birth given in the application submitted by a competent person who knows when the child was born. The age could be presumed to be correctly given till the availability of the presumption is shaken. 11. But, as in this case, the availability of that presumption is not there when the mother PW 1 who made the application categorically admitted that the date mentioned in the application for admission to the school does not represent the correct date of birth, but it is only an approximate assessment. In the light of that admission, the date given in Ext. P4 cannot be accepted for fixing criminality. In such a situation date of birth may have to be proved by the prosecution by some better evidence. When it comes to a question of choosing as between the dates of birth in the admission register, electoral rolls and birth register, preference is only to the birth register provided identity of the individual is established. Entries in birth registers may be the best evidence regarding date of birth even in the absence of the examination of the person who gave the information or made the entry or is maintaining the record unless it is shown to be wrong. When disputed and tested in relation to birth certificate such a sanctity and persuasiveness may not be available to the admission register. That is because those entries are made on the basis of dates given in the application for admission by a person who is interested in the future of the child. Reduction of the age of the child by one or two years or as much as possible, will stand the child in good stead in future life. Possibilities of giving wrong dates of birth reducing the age of the child are there. Such possibilities could be ruled out if there is a procedure to verify the correctness of the date of birth in the application at the time of admission with reference to authenticated records like birth certificate or the like. Possibilities of giving wrong dates of birth reducing the age of the child are there. Such possibilities could be ruled out if there is a procedure to verify the correctness of the date of birth in the application at the time of admission with reference to authenticated records like birth certificate or the like. I find support on these aspects from the decisions in Kunhiraman v. Krishna Iyer (1962 K. L. J. 289), Abdul Majeed v. Bhargavan and others (ILR 1962 (2) Kerala 65), Brij Mohan v. Priya Bhat (A.I.R. 1965 S.C 282) and Krishnarajan v. Doraswamy Chettiar (1966 K. L. T 1129). 12. For the purpose of admission in an educational institution or for entry into the public service or for deciding the date of superannuation, entries in the school certificates or service records based on the admission register or other relevant records may be sufficient. In such cases there may not be any challenge and the legal presumption of correctness may be there. But in a case like this where criminality itself has to be fixed on the correctness of the date of birth which is in serious dispute and the mother admits that the date given is wrong, the presumption of correctness of the date of birth stands rebutted. Sidheswar Ganguly v. State of West Bengal (A.I.R 1958 S.C. 143) and Harpal Singh and another v. State of Himachal Pradesh (1981 (1) SCC 560) relied on by the Public Prosecutor also accepted the position that the only best pice of evidence regarding age may be the birth certificate. But the first decision further said that in this country such a document is not ordinarily' available and therefore the court may have to base 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. That is a case from West Bengal. How far those observations are applicable to Kerala is a matter which has to be seriously doubted. Here we had the statutory provision and facilities for registration of births and deaths from very early times. Those facilities are normally being availed of also. The investigation was not directed in that line and no evidence was adduced to show that the birth of PW 2 was not registered. In these circumstances, Ext. Here we had the statutory provision and facilities for registration of births and deaths from very early times. Those facilities are normally being availed of also. The investigation was not directed in that line and no evidence was adduced to show that the birth of PW 2 was not registered. In these circumstances, Ext. P4 is only of little value. 13. Medical evidence, which ascertained the age only by a radiological examination, is only an opinion evidence. Variations in the physical developments of individuals concerning bones, on which alone mainly the ascertainment of age is made, is there depending upon the climatic condition of the place where one is born and brought up. That aspect is well recognised by authorities on Medical Jurisprudence and Toxicology and it has been accepted by courts also. Opinion given on the basis of such an examination can have margin of errors on either side upto a period of two years. Therefore, it may be unsafe to fix criminality by merely deciding the age on the basis of such opinion. In this respect also, authorities are not lacking. 14. The decision in Jaya Mala v. Home Secretary (A.I.R 1982 S.C. 1297) considered this aspect and said: "However it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is 2 years on either side". In Parameswaran Rajappan v. State of Kerala (I.L.R 1960 Kerala 481) also, a similar question came up for consideration before a Division Bench. The law laid down was: "Much reliance cannot be placed on the opinion of the Radiologist, particularly when Medico legal opinion is that owing to the variations in climatic, dietetic, hereditary and other factors affecting the people of different States of India it cannot reasonably be expected to formulate a uniform standard for the determination of the age by the extent of ossification and the union of epipbyses in bones". Marudevi Avva v. Kerala State (A.I.R 1958 Kerala 8) also considered a similar question and said: "The table given in Modi at page 33 shows that in the case of Madrassis the fusion of the crest of the ilium takes place between the age of 14 and 18 and that likewise the fusion of the lower ends of the radius and ulna takes place between the same ages. PW 10 no doubt said that due to climatic, dietetic, hereditary and other factors it was not possible to formulate a uniform standard for the determination of the age by fusion of the bones". 15. A very recent decision of the Delhi High Court in Satish Kumar v. State (1988 Crl. L. J. 565) also said: "Where there is conflicting views as to the age recorded in the school leaving certificate and as ascertained from the medical record/ evidence, the benefit of uncertainty must go to the accused" Therefore, it naturally follows that the two types of evidence adduced in the case cannot be taken to have established the age of PW 2 conclusively. The benefit arising from that reasonable doubt could go only to the accused and not to anybody else. 16. When the prosecution failed to establish that PW 2 was a minor, the question of kidnapping from lawful guardianship may notarise. Still that aspect also is being considered since it was argued in detail. The main question for consideration is whether there was taking or enticing. The relevant considerations and the principles involved are discussed in detail and decided. by the Supreme Court in two leading decisions in Varadarajan v. State of Madras (A. I. R.1965 S. C. 942) and Thakorlal D. Vadgama v. State of Gujarat (A. I. R 1973 S. C 2313). S.361 uses the expression "whoever takes or entices any minor". The word 'takes' means, physical taking though it need not necessarily be by use of force or fraud. The word 'entice' involves inducement or allurement by giving rise to hope or desire in the other. That may be by immediate action or by a continuous and gradual process in achieving the purpose of successful inducement. It is enough for the prosecution to establish that though no active part was played by the accused immediately before the minor left the guardian, he laid the foundation by an earlier solicitation or persuasion. If evidence is lacking regarding immediate and earlier inducement the accused cannot be held guilty. If the minor voluntarily left the guardian and joined the accused and he only helped her in her design not to return to her guardian's house by taking her along with him he cannot be said to have taken or enticed her even though the part played by him could be regarded as helping fulfilment of her intention. If the minor voluntarily left the guardian and joined the accused and he only helped her in her design not to return to her guardian's house by taking her along with him he cannot be said to have taken or enticed her even though the part played by him could be regarded as helping fulfilment of her intention. But that falls short of inducement and cannot amount to taking. The two words taken together means that if the girl leaves home uninfluenced by any promise, offer or inducement the offence of kidnapping cannot be said to be made out. If atleast on one point of time there was inducement, allurement or threat, etc and it could be considered to have influenced the minor and weighed with her in leaving home and joining him, the accused cannot plead innocence. An earlier solicitation or inducement of any manner to leave her father's protection by conveying or indicating an encouraging suggestion that he would give her protection and shelter will be sufficient. These are the main guidelines on the basis of which the evidence will have to be analysed. 17. Even though in chief examination PW 2 said that she was invited by the respondent and then again he induced her by a statement that nothing is going to happen and she can return home safe, she further admitted that she went away with the respondent on her own accord. They were in love with each other and she wanted to go away with him and become his wife. She slept with him in the same cot at his brother's residence throughout one night and willingly submitted herself to completed sexual intercourse twice. Thereafter she went with him from place to place. They went to a document writer and voluntarily executed Ext. D1 document of marriage stating that she is 20 years of age. These facts were suppressed by her consciously. All these aspects are capable of creating suspicion in her evidence when she said that she was induced. Respondent is atleast entitled to the benefit of doubt. PW2 is not entitled to the normal credence which a prosecutrix in a sex assault is entitled Further there is the question that her age has not been proved. All these aspects are capable of creating suspicion in her evidence when she said that she was induced. Respondent is atleast entitled to the benefit of doubt. PW2 is not entitled to the normal credence which a prosecutrix in a sex assault is entitled Further there is the question that her age has not been proved. Sexual intercourse was with full consent and the sixth clause of S.375 is not applicable since PW 2 is not proved to be under 16 years of age. The result is that the prosecution was not able to establish successfully the offences under S.363 and 376 of the Indian Penal Code. Acquittal has only to be confirmed. Criminal appeal is, therefore, dismissed.