JUDGMENT V.K. Agrawal, J. 1. The accused/Appellants stand convicted under Section 363, and 368 of I.P.C. and have been sentenced to undergo rigorous imprisonment for two years, for each of the offences under Section 363 and 368 of I.P.C. and rigorous imprisonment for three years under Section 366 of I.P.C., by judgment dt. 31.10.1988 in Sessions Trial No. 151/87 by Ist Additional Sessions Judge, Damoh. 2. Undisputably, Appellants Refigue Khan and Kabbo Bai are brother and sister. The prosecutrix Dropadi was the neighbour of Appellant No. 2 Kabbo Bai. Prosecutrix as well as Appellant No. 2 used to prepare 'bidis'. Prosecutrix Dropadi (P.W.1) resided with her parents and her brother complainant Kalicharan (P.W.2) at village Wardha. 3. The prosecution case briefly stated is that on 28.6.87, the Appellant No. 2 Kabbo Bai asked prosecutrix Dropadi (P.W.1) to go alongwith her to the Forest Range Office at village Madiadoh for realishing the amount of 'bidi' leaves. Though Dropadi (P.W.1) initially was disinclined to accompany Appellant No. 2 Kabbo Bai, as her parents and brothers were not at home, but on the insistence of Kabbo Bai, Dropadi accompanied her to Madiadoh. Appellant No. 2 Kabbo Bai had thereafter persuaded the propsecutrix Dropadi to go alongwith her to village Patera, where the parents of Appellant Kabbo Bai resided. Appellant No. 2 Kabbo Bai insisted that prosecutrix Dropadi should marry her brother accused/Appellant No. 1 pafique Khan. Prosecutix Dropadi refused to yield to the request and persuasion as above of Appellant No. 2 Kabbo Bai. The accused/Appellant No. 1 Raftque thereafter on the pretext of escorting her back to her village Wardha, accompied her. However, instead of taking Dropadi to her parents, the accused/Appellant No. 1 Rafique took her to Narsinghgarh. When they were siting in a hotel at Narsinghgarh, the police came there and apprehended them. Dropad- was taken to the Police Chowki Narsinghgarh and thereafter to Police Station Damoh. 4. When Dropadi (P.W.1) was found missing from her home, her brother Kalicharan (P.W.2) lodged report (Ex. P.1) dt.4.7.87 at Police Station Domoh Dehat. Since the incident related to police Station Madiadoh, the matter was transferred there. F.I.R. (Ex. P-6) was recorded at police Station Madiadoh and offence was registered. Kotwari register was seized from Kotwar Pitaia (P.W.7). The copy of relevant entry is (Ex. P-5/A). P.1) dt.4.7.87 at Police Station Domoh Dehat. Since the incident related to police Station Madiadoh, the matter was transferred there. F.I.R. (Ex. P-6) was recorded at police Station Madiadoh and offence was registered. Kotwari register was seized from Kotwar Pitaia (P.W.7). The copy of relevant entry is (Ex. P-5/A). According to the said entry, the prosecutrix Dropadi (P.W.1) was born on 1.9.1971 and was thus aged less than 16 years at the time of incident. After concluding investigation, chargesheet was filed against the accused/Appellants by police Madiadoh, District Damoh. 5. Learned trial Court framed charges for offences punishable under Section 363, 366 and 368 of I.P.C. against both the accused/Appellants for having kidnapped or abducted minor prosecutrix Dropadi with an intention that she would be forced to illicit intercourse and for having wrognfully confined her. By the impugned judgment, me learned trial Court found all the charges proved against both the Appellants and they were accordingly convicted and sentenced. 6. Learned Counsel for Appellants has submitted that there is no satisfactory evidence that the age of prosecutrix Dropadi (P.W.1) was below 18 years. It was also submitted that the conduct of Dropadi clearly indicates that she had willingly gone with the Appellant No. 2 Kabbo Bai and that the accused/Appellants did not entice or by force compelled her to go with them. It has also been submitted that the accused/Appellants never wrongfully confined the prosecutrix Dropadi. Thereafter, it has been urged that the conviction of accused/Appellants is not justified. 7. Learned Counsel for Respondent/State has submitted that the entry in Kotwari book indicated that the prosecutrix was bom on 1.9.71 and her age was therefore much below 18 years at the time of incident. She was deceitfully enticed by Appellant No. 2 Kabbo Bai to go with the latter. Kabbo Bai had pressurised the prosecutrix to marry Appellant No. 1 Rafique. Thereafter Appellant No. 1 Rafique had taken her to Narsinghgarh. Therefore, the learned Counsel for Respondent State has submitted that the conviction as well as the sentence of the accused/Appellants is well merited. 8. In view of the rival contentions as above, the first question that needs consideration is whether the prosecutrix Dropadi (P.W.1) was below the age of 18 years at the time of incident ? 9. Therefore, the learned Counsel for Respondent State has submitted that the conviction as well as the sentence of the accused/Appellants is well merited. 8. In view of the rival contentions as above, the first question that needs consideration is whether the prosecutrix Dropadi (P.W.1) was below the age of 18 years at the time of incident ? 9. In the above connection the learned trial Court has relied upon the entry (Ex.P-5/A) in the Kotwari book, which indicated that the birth date of prosecutrix is 1.9.71 and he has also relied upon the oral evidence of Kalicharan (P.W.2) and Guddi (P.W.5) the brother and father of prosecutrix Dropadi (P.W.1). besides the statement of prosecutrix Dropadi (P.W.1) herself. 10. It may be noticed in the above connection that prosecutrix Dropadi (P.W.1) has herself admitted that she does not know what is her age, as would be clear from her candid admission in para 5 of her statement. Her father Guddi (P.W.5) has stated that he has a son and three daughters. He stated that his son Kalicharan (P.W.2) is aged about 25 years and after his birth three daughters namely Vidya, Leela and prosecutrix Dropadi were born and the difference in the age of his children is three years. However, it may be noticed that in his cross-examination Guddi (P.W.5) has admitted that he had stated in his police diary statement that he had only two daughters. Obviously, therefore the statement as above that he has three daughters including the prosecutrix Dropadi is an afterthought, improvised in order to reduce the age of prosecutrix. Therefore, the above statement cannot be relied upon. 11. Kalicharan (P.W.2), brother of prosecutrix has admitted that he is aged 25 years and that he does not remember the date of birth of his sister Dropadi (P.W.1) and that he is not even in a position to say as to what is the gap between his birth and the birth of his sisters. Therefore his statement that Dropadi is only aged 15 years can only be treated as his guess work, in view of his admission as above and cannot be relied upon. There is no other oral evidence on record regarding the age or date of birth of the prosecutrix Dropadi. 12. Kotwari book was produced by Kotwar Pitaia (P.W.7) in the trial Court. The relevant entry of said Kotwari Book is (Ex.P-5/A). There is no other oral evidence on record regarding the age or date of birth of the prosecutrix Dropadi. 12. Kotwari book was produced by Kotwar Pitaia (P.W.7) in the trial Court. The relevant entry of said Kotwari Book is (Ex.P-5/A). In his examination-in-chief Kotwar Pitaia (P.W.7) states that he had made the entry (Ex. P-5/A) in the Kotwari book. However, in cross-examination in para 4 he has admitted that he is not literate at all, and puts his thumb impression and admits that he has not made entry in (Ex. P-5/A) and entry in the book on the said entry has been made by Zamindar Hiralal. Therefore, obviously his earlier statement that he himself made the entry (Ex. P-5/A) in the Kotwari book is false. 13. It may also be noticed that in the Kotwari book the entry (Ex. P-5/A) is made in black ink, while none of the other entries of the said Kotwari book appear to be in black ink. It is also abundantly clear even on cursory persual of the Kotwari book that the entry (Ex. P-5/A) appars to be an interpolation and appears to have been made much after the other entries preceding and succeeding that entry. The hand writing of (Ex. P-5/A) is also entirely different with the hand writing of the remaining entries of Kotwari book. Therefore, the above entry (Ex. P-5/A) obviously was not routinely made and the same appears to be an interpolation, as has been urged on behalf of defence. Moreover, the said entry having not been made by Kotwar Pitaia (P.W.7) himself, cannot be relied upon and made use under Section 35 of the Evidence Act. 14. In Brij Mohan Singh v. Priya Brat Narain Sinha and others. ( AIR 1965 SC 282 ), it has been observed that if the entry in the book maintained for recording the births is not made by public servant himself, but somebody else, then such an entry would not come within the purview of Section 35 of the Evidence Act. In Brij Mohan Singh v. Priya Brat Narain Sinha and others. ( AIR 1965 SC 282 ), it has been observed that if the entry in the book maintained for recording the births is not made by public servant himself, but somebody else, then such an entry would not come within the purview of Section 35 of the Evidence Act. The observation of Apex Court in this regard are as follows: The reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high. That probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. We have therefore come to the conculsion that the High Court is right in holding that the entry made in an official record maintained by the illiterate Chowkidar, by somebody else at his request does not come within Section 35 of the Evidence Act. 15. In Birad Mai Singhvi v. Anand Purohit AIR 1988 SC 1796 ) the entry in the Scholar's Register and admission form were relied upon to prove the age. It was observed therein that the entry made in Scholar's register ragarding the date of birth, on the basis of information given by parents, would have evidentiary value, but if it is given by a stranger or by some one else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. It was held in that case that the proof of documents placed on record, would not tantamount to proof of the correctness of date of birth stated in the document. 16. In the case in hand, as noticed above Kotwar Pitaia (P.W.7) has admitted that the entry (Ex. P-5/A) has not been made by him. He is an illiterate person and the entry was made by one Hiralal. Hiralal has not been examined. 16. In the case in hand, as noticed above Kotwar Pitaia (P.W.7) has admitted that the entry (Ex. P-5/A) has not been made by him. He is an illiterate person and the entry was made by one Hiralal. Hiralal has not been examined. Moreover Guddi (P.W.5) the father of prosecutrix has in para 7 of his statement admitted that he does not know as to who went to inform and to get recorded the date of birth of prosecutrix Dropadi in the Kotwari book. He has stated that whenever the Kotwar comes, the birth of the child is got recorded. Therefore, the oral statement of Guddi (P.W.5), the father of prosecutrix clearly discloses that the entry (Ex.P-5/A) was not got recorded by him and he is also not in a position to say as to who got the entry (Ex. P-5/A) recorded. Moreover, the entry (Ex. P-5/A) in the original kotwari book also appears to be doubtful. 17. In the circumstances, the entry (Ex. P-5/A) cannot be relied upon and on that basis it cannot be held that the birth date of prosecutrix Dropadi (P.W.1) is 1.9.71. 18. Thus both oral as well as documentary evidence on record as above, regarding the age of prosecutrix Dropadi (P.W.1) does not seem to be reliable. It may also be noticed that no ossification test verification of the age of prosecutrix, has been conducted during investigation. In view of above, the finding of the learned trial Court that the prosecutrix Dropadi was below 16 years does not seem to be based on proper appreciation of evidence adduced by the prosecution. 19. In Balwant Singh v. State of M.P. (1965 M.P.L.J. 3) it has been observed that the Courts have to be very strict about the proof of age and if there is any doubt about it, the advantage of the same has to be given to the accused. In the instant case, the prosecution has failed to porve by satisfactory evidence that Dropadi Bai was below the age of 18 years at the time of incident. 20. Now the next question that arises for consideration is as to whether Dropadi (P.W.1) was kidnapped or abducted by the accused/Appellant Kabbo Bai? 21. In the instant case, the prosecution has failed to porve by satisfactory evidence that Dropadi Bai was below the age of 18 years at the time of incident. 20. Now the next question that arises for consideration is as to whether Dropadi (P.W.1) was kidnapped or abducted by the accused/Appellant Kabbo Bai? 21. It may be noticed that the prosecutrix Dropadi (P.W.1) has stated that the Appellant Kabbo Bai had come to her house in the morning and asked her to come alongwith her to village Madiadoh for realising the amount of tendu leaves. Dropadi (P.W.1) further states that she expressed her unwillingness to go with Kabbo and told the letter that her parents are not at home and she would accompany Kabbo Bai only after the return of her parants. This witness further states that Kabbo Bai persuaded her and told her as to why she is feeling apprehensive, and that they will go and return by bus from village Madiadoh. She further states that at Madiadoh, Dropadi got down from the bus and thereafter Kabbo Bai had taken her to the house of a Muslim, where they had taken water and thereafter, Kabbo Bai told her that the amount of 'bidi' leaves would not be paid to her and she should come to her parents house at Patera. Thereafter, Kabbo Bai forcibly took prosecutrix Dropadi (P.W.1) to her parents home, where they stayed for three days. 22. Dropadi (P.W.1) has further stated that she told Appellant No. 2 Kabbo Bai that her (Dropadi's) parents must be getting annoyed and that she should return back. Appellant No. 2 Kabbo Bai thereafter told the prosecutrix Dropadi that she wuold be sent alongwith Appellant No. 1 Rafique, brother of Appellant No. 2 Kabbo to Wardha. Dropadi (P.W.1) thereafter accompanied Rafique and they went to Narsinghgarh. At Narsinghgarh they went to a hotel where police personnel met them. Dropadi further states that the police personnel told Dropadi and Appellant Rafique that since they have no place to lie down they will manage the same for them and they had taken them to the Police Chowki Narsinghgarh and thereafter they sent them to sleep at a Muslim household. On the next morning the police called them at Police Chowki Narsinghgarh where from they were brought to Police station Damoh Dehat, where prosecutrix met her brother Kalicharan (P.W.2). On the next morning the police called them at Police Chowki Narsinghgarh where from they were brought to Police station Damoh Dehat, where prosecutrix met her brother Kalicharan (P.W.2). She then narrated the incident to her brother Kalicharan (P.W.2). 23. It may be noticed that Dropadi (P.W.1) has stated that she accompained the Appellant No. 2 Kabbo to take the amount of 'bidi' leaves. However, in cross examination she has admitted that price of 'bidi' leaves was not to be paid to her, but it was to be paid to her mother. She also admitted in her cross-examination in para 6 that there was no intimation from the Range Office for payment of any amount regarding the payment of 'bidi' leaves. If that was so, the prosecutrix Dropadi would certainly have not gone with Appellant No. 2 Kabbo, who had asked her to come alongwith her only to receive the amount of 'bidi' leaves. It may also be nocticed in the above context that though Dropadi has admitted that when Appellant No. 2 Kabbo Bai had asked her to go alongwith her to Madiadoh, sister-in-law of prosecutrix Dropadi was at home. However Dropadi neither intimated nor consulted her sister-in-law as to whether she should go alongwith Appellant No. 2 Kabbo Bai. 24. The above circumstances clearly belie the statement of Dropadi (P.W.1) that she accomanied Appellant No. 2 Kabbo Bai and went to Madiadoh for receiving the amount of 'bidi' leaves; as the amount was neither payable to prosecutrix Dropadi and she was not entitled to receive the amount. Moreover, there was also no intimaiton from the Range Office that she or her mother should come to receive the amount. Moreover, even if she wished to accompany Appellant No. 2 Kabbo Bai; she would normally have intimated and asked permission of her sister-in-law to go alongwith Kabbo Bai. But she does not appear to have done so. 25. It may also be noticed that Dropadi (P.W.1) did not state even in her examination-in-chief that they went to the Range Office at Madiadoh at all. As noticed earlier her statement in this regard is that after reaching Madiadoh to the house of a Muslim person and after drinking water they proceeded to village Patera to the house of parents of Appellant No. 2 Kabbo Bai. As noticed earlier her statement in this regard is that after reaching Madiadoh to the house of a Muslim person and after drinking water they proceeded to village Patera to the house of parents of Appellant No. 2 Kabbo Bai. If the ostensible purpose for which Appellant No. 2 Kabbo Bai had taken Dropadi was to realise the amount of 'bidi' leaves from the Range Office, the prosecutrix Dropadi would have certainly insisted that they should go to the Range Office to find out as to whether the amount would be paid to them. In cross-examination Dropadi (P.W.1) has admitted that at Madiadoh she did not tell the Appellant No. 2 Kabbo Bai that they should go to the Range Office for receiving the amount fo 'bidi' leaves. 26. Clearly, therefore the conduct as above of Dropadi (P.W.1) raises serious doubt about the truthfullness of her statement that she accompanied Kabbo Bai on the latter's representation and persuasion to receive the amount of 'bidi' leaves. Thus the reason as to why prosecutrix Dropadi (P.W.1) left her home in the company of Appellant No. 2 Kabbo Bai seems to be doubtful. Therefore, the very core of prosecution case appears to be shrouded in mystery and therefore the whole prosecution case is rendered doubtful. 27. It may further be noticed that Dropadi (P.W.1) has stated that from Madiadoh on the asking of Kabbo Bai she went alongwith Kabbo Bai to Patera at the latter's parental home and stayed there for three days. This is again unnatural and improbable. If for some reason the amount of 'bidi' leaves was not payable at Madiadoh, and if Dropadi had come alongwith Appellant No. 2 Kabbo Bai without even informing her parents and other family members, she would have normally insisted that she would return back to her village Wardha, rather than accompanying Kabbo to Patera. Further, even after reaching Patera Dropadi (P.W.1) continued to stay there for three days, without protest. The statement of Dropadi (P.W.1) itself indicates that she asked Appellant Kabbo Bai to send her back to her house after three days of their stay at Patera. The conduct as above of prosecutrix Dropadi cearly indicates that she had willingly gone with Appellant No. 2 Kabbo Bai and stayed with her at Patera for three days willingly. 28. The statement of Dropadi (P.W.1) itself indicates that she asked Appellant Kabbo Bai to send her back to her house after three days of their stay at Patera. The conduct as above of prosecutrix Dropadi cearly indicates that she had willingly gone with Appellant No. 2 Kabbo Bai and stayed with her at Patera for three days willingly. 28. It may further be noticed that Dropadi (P.W.1) in her examination-in-chief in para 2 stated that on return journey, while she was going with Appellant No. 1 Rafique, she had enquired on the bus arriving there,as to where it was going. Upon which Appellant Raffique had told her that they would go to her village Wardha after having a round of some places. It appears that even thereafter she accompanied the Appellant Rafique without protest and went with her to Narsinghgarh. Clearly, therefore she did not object in going with the Appellant No. 1 Rafique to Narsinghgarh. 29. It is further noticed that at Narsinghgarh she met police personnel at the Hotel, but she did not complain that Rafique had forcibly compelled her to come to Narsinghgarh alongwith him. It may be noticed in the above context that though Dropadi (P.W.1) has stated that she was threatened not to disclose the incident to anybody, but there is conspicuous omission in this regard in her police diary statement (Ex. D-1), and therefore her explanation that she could not tell the police personnel that she was forcibly taken to Narsinghgarh, because of the threat extended by Appellant No. 1 Rafique is not worthy of credence. 30. Obviously therefore the prosecutrix had all the coportunity to resist and protest the proposal of Appellant No. 1 Rafique to go with him from Patera to Narsinghgarh. Again, she could have informed about it to other passengers in the bus, by which she was taken by Rafique and also to the Police personnel at Narsinghgarh, had she been forcibly taken to Narsinghgarh against her wishes. But she does not appear to have done so. 31. The statement of Dropadi (P.W.1) as above does not indicate that she was enticed by Appellant No. 2 Kabbo Bai to go alongwith her nor does it show that she was froced to go with Appellant No. 1 Rafique to Narsinghgarh. 32. But she does not appear to have done so. 31. The statement of Dropadi (P.W.1) as above does not indicate that she was enticed by Appellant No. 2 Kabbo Bai to go alongwith her nor does it show that she was froced to go with Appellant No. 1 Rafique to Narsinghgarh. 32. In view of the above, testimony of prosecutrix Dropadi (P.W.1) it is not established that she was enticed or compelled to go with them by the appellats and thus it is not proved that either of the Appellants kidnapped or abducted her. There is also no evidence that she was confined by the accused/Appellants. Infact it appears that the prosecutrix willingly accompanied Kabbo Bai to Madiadoh and Patera and thereafter willingly went with Appellant Rafique to Narsinghgarh. The prosecutrix is not shown to be below the age of 18 years. Hence, none of the offences under Section 363, 366 or 368 of I.P.C. are made out against any of the Appellants. The finding in that regard of learned trial do not appear to be justified. 33. Accordingly, the appeal deserves to be and is hereby allowed. Both the Appellants are acquitted to all the charges. Their bail bonds shall stand discharged.