JUDGMENT T.K. CHANDRASHEKHARA DAS, J. This appeal is filed the judgment and order passed by the 4th Additional Sessions Judge, Thane dated 14.3.1995 whereby appellant was convicted under Section 376 of I.P.C. and sentenced to suffer R.I. for seven years and to pay a fine of Rs. 1000/- in default R.I. for six months. The appellant was the 1st accused in Sessions Case No. 630 of 1994 on the file of 4th Addl. Sessions Court , Thane. Appeal filed by the Second accused was already dismissed for default on 7.10.1997 as Cri. Appeal No. 212 of 1995. 2. The Prosecution case in short is that one Sunita is born on 4th May,1978 . Her father is no more; her mother is mentally retarded and unable to take proper care of herself and Sunita. Said Sunita and her mother used to stay at maternal grand mother who is 70 years old. Sunita for some time was working in one J.P. Company but had lost the job in or about February, 1994 and she was in search of a job. It is further case of the prosecution that on 17th February, 1994 at about 5.00 p.m. accused No. 2 Vaishali Shantaram More went in the house of Sunita and told her that she had a job for her and she should come with her. Sunita took the permission of her grandmother and went along with accused No. 2 Vaishali. The accused No. 2 Vaishali hired a rickshaw. Both of them sat in it and on the way, near the govt. Hospital , appellant sat in the rickshaw. The rickshaw was taken near one Hotel. Appellant got down from the rickshaw and asked Sunita to follow him. He took Sunita on the first floor of the building where the hotel was situated and asked for a room. He signed in the hotel register and then asked Sunita to accompany him in the said room. Sunita refused to do so, but she was forcibly taken in the said room and appellant in that room raped her. Appellant thereafter threatened Sunita that she should be killed if she would disclose this fact to any one and asked her to go. Sunita went to accused No. 2 and asked her why such thing was done to her. Then accused No. 2 offered her some money but she refused to accept the same. Appellant thereafter threatened Sunita that she should be killed if she would disclose this fact to any one and asked her to go. Sunita went to accused No. 2 and asked her why such thing was done to her. Then accused No. 2 offered her some money but she refused to accept the same. About a week thereafter accused No.2 called Sunita to her house where appellant was present. Appellant again raped sunita in the house of accused No. 2. Both of them again threatened Sunita that she would be done away if she would tell this fact to any one. About a week later, once again both the accused forced Sunita for an intercourse with Appellant. 3. According to prosecution, although Sunita kept mum for some days, it was unable for her to bear the ordeal she had under gone. She therefore, told this fact to the priest of Santoshi Mata Mandir which is near her house. Some other persons were also present there. They reduced into writing what Sunita had said and obtained her signature on a piece of paper. The priest of Santoshi Mata Mandir thereafter convened a meeting of some respectable persons where appellant was also summoned. Appellant however, totally denied the allegations of Sunita and refused to recognize authority of the priest and the panchas called by him. Sunita also disclosed this fact to her neighbor, who ultimately took her to police where she lodged report Exh. 13. An offence was registered. Sunita was sent for medical examination. Her school leaving Certificate was collected. Police seized the piece of paper which Sunita had signed in the temple. Sunita showed the hotel where she was raped first. Police seized the hotel Register to which the accused No.1 had signed. The blood samples, samples of vagina swab and pubic hair of Sunita which were collected at the time of her medical examination were sent to C.A. The blood samples of the appellant was also sent to C.A. The medical certificate of appellant revealed that he was potent and was capable of performing sexual intercourse. The medical certificate of Sunita revealed that she was subjected to sexual intercourse and her age was about 15years to 16 years. Thereafter statement of witnesses were recorded and the charge sheet was filed against both the accused. The medical certificate of Sunita revealed that she was subjected to sexual intercourse and her age was about 15years to 16 years. Thereafter statement of witnesses were recorded and the charge sheet was filed against both the accused. In the charge sheet the appellant was charged under Section 376 and Vaishali Accused No.2 was charged under Section 366-A,109 and 114 IPC. The chargesheet was filed before the learned Magistrate who in turn committed the case to the Sessions Court for trial. During the trial both, appellant No.1 and Accused No.2 pleaded not guilty and claimed to be tried. After trial the appellant was convicted under Section 376 as indicated in the opening paragraph of the judgment and accused No. 2 was convicted under section 366-A, 109 and 114 I.P.C. Before the Court Sunita was examined as P.W. 1. She says in her examination in chief the incident happened on 17.2.1994 and thereafter. She narrated the full story in her chief examination as stated above. The prosecution also examined P.W. 2 who is panch witness of recovery of hotel register. He says that on 1.5.1994 he was called by Police at police station. Police then took him to one Hotel. The police took one register in the lodge. P.W. 1 Sunita was also with them. Sunita showed particular entry in the register. Witness can read Tamil. The police showed him something written in Tamil and asked to read. The police seized the register and obtained signature on the panchanama. Panchanama is at Exh. 16. In the cross examination he says that he was shown entry No. 785 at page 77. The Tamil contents read "Mani". He further says that the said Hotel was on the third floor. There are commercial premises on the first and second floor in the said building. He further says that the room was also shown to him. The said room was at the distance of about 10 ft. from the counter. He admits that it is true that if somebody shouts in that room it would be audible to the person sitting at the counter. There are shops on the both sides of the road on which this building is situated. 4. The prosecution have examined Sou. Shalini Popatrao Kapadnis as P.W. 3 who is Headmistress of Yashwant Vidyalaya run by Shriram Shikshan Prasarak Mandal to prove the age of the prosecutrix. There are shops on the both sides of the road on which this building is situated. 4. The prosecution have examined Sou. Shalini Popatrao Kapadnis as P.W. 3 who is Headmistress of Yashwant Vidyalaya run by Shriram Shikshan Prasarak Mandal to prove the age of the prosecutrix. She deposed that she maintained a register of pupils. Yashwant Vidyalaya had opened in June, 1985. She brought the register in which the name of the students who took admission in that school from May, 1985 to June, 1990 were entered. On 20.7.1987 one Hole was Headmaster of the said school. Many of the entries in this register are in her handwriting after she took over as Headmistress. She says that at Sr. No. 107 there is entry that Sunita Shankar Gaikwad was admitted in that school on 20.7.1987. As per the register, the date of Birth of Sunita is 4th May, 1978 . She had taken admission in III standard. Before that she was studying in Municipal Primary School No. 30. On 30.4.1991, Sunita left the School and the entry for the admission register was marked as Exh. 19. Zerox copy is kept on record. She also proved certificate issued by her at Exh. 20. She also proved school leaving certificate of Sunita which was produced at the time of her admission. She says that nowadays mostly all the parents bring the birth certificate at the time of admission of their children. If someone does not bring the birth certificate they ask to get it collected from the place of birth. If nothing is available, they ask the parents to swear affidavit. A suggestion was put to her to which she denied that the illiterate persons tell the date of birth approximately. 5. P.W.4 is one Ramsharay Baldin Gupta. He says that on 3.5.1995 he was called in the police station. Another panch Rajendra and one Gupta were also present in the police station. Gupta handed over one paper in his presence to police. Police took that paper which is at Exh. 14. He says that this paper was signed by some persons containing statement of Sunita made in the precinct of Santoshima temple. 6. Then we have the evidence of P.W. 5 Sashebrao Govindrao Wadile who was head master of Municipal School No. 30 at Ulhasnagar . Police took that paper which is at Exh. 14. He says that this paper was signed by some persons containing statement of Sunita made in the precinct of Santoshima temple. 6. Then we have the evidence of P.W. 5 Sashebrao Govindrao Wadile who was head master of Municipal School No. 30 at Ulhasnagar . He produced the school register and stated that on 22.6.1984 Sunita was admitted in their school. As per the said register the date of birth was shown as 4th May, 1978 . He says that Sunitas date of birth was given by Sunitas mother according to that register. The original register was produced and the entry of Sunita is at page no. 139 at Serial No. 819 which was extracted from the original register. He also says that at the time of admission, school authorities insist for the birth certificate. However, he does not know whether in the year 1978 rules were as strict as they are today. 7. Then P.W. 6 Kiran Harish Shrivatri Medical Officer who examined Sunita. He proved the certificate issued by him after examination of Sunita. He says that Sunita had 7 teeth in each guadrant. Her general condition was good. She was thin built. Secondary sex characters had developed. Axillary and pubic hair present breast well developed. She noticed no external injury. However, Hymen was absent. No congestion was noticed. On examination of her vagina, one finger could pass easily. Uteral antiverted on per specular examination no injury over posterior fornix., cavix was found to be normal. She says that Sunita must be of 15 to 16 years of age. In the cross examination she denies that ossification test can differ because of climate. According to her error in such case may be of six months at either side. Taking into account her evidence, the age of Sunita is 14.1/2 and 16.1/2 on the date of examination. 8. P.W. 7 is Haridas Anandrao Avad, Police Inspector, Vithalwadi Police Station, Ulhasnagar , Thane. he says that he registered the crime on 29.04.1994 and he took up investigation and arrested the accused No. 2 on 29.4.1994 and arrested the appellant on 30.4.1994. He says that on 1.5.1994 the prosecutrix showed the Queens Lodge. When he visited the Queens Lodge, he (had) taken panchas with him. One of the panchas was knowing tamil language. he says that he registered the crime on 29.04.1994 and he took up investigation and arrested the accused No. 2 on 29.4.1994 and arrested the appellant on 30.4.1994. He says that on 1.5.1994 the prosecutrix showed the Queens Lodge. When he visited the Queens Lodge, he (had) taken panchas with him. One of the panchas was knowing tamil language. After seeing the signature, he said that it was "Mani". He seized the register in the presence of panchas vide Exh.16. After recording the statement he lodged chargesheet before the learned Magistrate. In the cross examination, he denied the suggestion that the accused had not signed the hotel register. He admitted the priest had accompanied the prosecutrix to the police station and Gopi had also accompanied the prosecutrix. 9. On behalf of defence, Kaniyalal Sumariprasad Gupta was examined as D.W. 1. He says in his evidence that he is residing in Geeta colony, Ulhasnagar . He is a social worker. He is taluka Secretary of Bharatiya Kranti Dal. He is Chairman of Kalyankari Samajsevi Sanghatana having its Head office at Pune. His house is at a distance of about 150ft. from Santoshimata mandir. He knows the Priest of the said Mandir. The house of Sunita is at the distance of about 100ft. from his house. Sunita was brought by her mother. He says that he is aware that there is dispute between the appellant and the priest on account of an open plot of about 15 x 20 - ft to the North of the Santoshimata Mandir. Therefore, there is enmity between the priest and the appellant. He says that Gopi is bootlegger and indulges in other illegal activities. He says that one Sunitas mother told him that she had an affair with a boy working in the factory. He had advised her mother that she should accompany Sunita to the factory. He had also directed her mother to lodge the complaint but she did not give. As per his knowledge, Sunita has affairs with 2/3 boys. In fact Sunita was removed from J.P. Company. He had gone to employer to enquire as to why she was removed. He stated that he did not want the girls having the affairs with others. He says that at the time of incident, Sunita was ordinarily residing in the temple. In that locality two maternal uncles of Sunita were also residing. He had gone to employer to enquire as to why she was removed. He stated that he did not want the girls having the affairs with others. He says that at the time of incident, Sunita was ordinarily residing in the temple. In that locality two maternal uncles of Sunita were also residing. She was staying in the temple because she used to get good food. The room in which the priest stays in the temple admeasured 12x 20 ft. The priest is about 42 years old. Sunita and priest were sleeping in the same room. Many persons in the locality had complained him about that. He had gone to priest and had said to him that it was not proper that Sunita staying with him but he didnt say anything. Once the priest and Gopi had called him in the temple. They told him that the appellant had raped Sunita but he didnt believe it. Sunita was present there at that time. He has reduced it in writing what Sunita had said at that time. It was 3.4 days prior to the days on which the offence was registered. Thereafter he had called Sunita to his house and again asked her about it. At that time, she told that what she has stated in the temple was not true. The priest had told her to say so. She also stated that the priest had assured her of a room and money after he would get the land. This witness was shown Exh. 14 and he identified his handwriting and signature. 10. In the light of the evidence stated above, we have only evidence of Prosecutrix to convict the appellant. No other evidence or other circumstances, however, remote it would be, is there to, connect the offence with the appellant. In the cross examination of P.W. 1 Sunita, it was suggested to her that she was demanding the appellant to marry her. It is also suggested her that she demanded the appellant to discard the women with whom he was staying. It has come in the cross examination that in narrating the incident to Gopi 4/5 days, about 3rd March, she denied the suggestion that Gopi had said that they will extract amount of Rs. 30,000/- from the appellant. It was also suggested that Gopi had told that he was prepared to keep her at his house. It has come in the cross examination that in narrating the incident to Gopi 4/5 days, about 3rd March, she denied the suggestion that Gopi had said that they will extract amount of Rs. 30,000/- from the appellant. It was also suggested that Gopi had told that he was prepared to keep her at his house. After the incident, she admitted that she had stayed with the priest for about 15 days in the temple. Suggestion was put to her that the Priest had called meeting to pressurize appellant to marry her. She admits that in the said meeting was conveyed by the priest. She also admits that in the meeting the appellant had told that he had no concern with her and he did not recognize the said meeting. It is pertinent to note that Gopi was not examined with whom she disclosed the incident nor the priest was examined. Another very important latches in the prosecution case that we find is that nobody in the hotel has been examined for having taken the room by the appellant on that day. No witness is forth coming to say that in the hotel premises, the appellant and Sunita were seen together. In the nature of case set up by the prosecution it is quite natural or essential that somebody in the hotel should have been examined to prove this aspect of the case. The medical evidence also do not help us to connect in whatsoever manner the offence with the appellant. 11. Another important aspect is that the very Scriber of letter Exh. 14, who has been examined as Defence witness, belied the entire prosecution story. He deposed in all specific details as to what had happened on the date in which Exh. 14 was written in the precinct of Santoshi Mata Mandir. We do not find any reason to disbelieve his version. He is author of Exh. 14 and his evidence has completely destroyed the prosecution case. Assuming that what Sunita has reported to the police is correct, there is no manner of protest forthcoming from her if she was forced for sexual intercourse by the appellant. No resistance have been shown by her. He is author of Exh. 14 and his evidence has completely destroyed the prosecution case. Assuming that what Sunita has reported to the police is correct, there is no manner of protest forthcoming from her if she was forced for sexual intercourse by the appellant. No resistance have been shown by her. Further, inspite of the fact of her bitter experience in the company of the appellant and accused No.2 she continued to go to the house of accused No.2 and whenever she had gone to Accused no 2, Appellant has sexual intercourse with her. Apart from that we are at loss to understand after she decided to tell this secret to the police, why she has chosen to disclose to the Priest and not reported the police first. On the suggestion put to p.w. 1 there is discordial realation with the priest and the appellant with regard to the building site and it is also relevant to examine suggestion that Gopi Bootlagger in the locality and at his insistence the appellant was implicated. On the close scrutiny of the defendants witness D.W. 1, we have no reason to suspect his testimony. He says that he is social worker and he several times tried to help Sunita in getting her employment and he also participated in the meeting of the local people before whom Sunita disclosed her story. In the circumstances it is not safe to rest the conviction solely on the version of P.W. 1 in the absence of atleast any remote circumstances or other materials to connect the appellant with the offence. 12. Going back, as we have noted earlier, the Medical officer has stated that he conducted Ossification test on the prosecutrix and her age will be 15.1/2 to 16. 1/2 years. Though an attempt was made to prove that the age of Sunita is below 16 years through witnesses P.W. 3 and 5, it is not conclusive as to her age. It is well settled that the school record cannot be relied upon for deciding the age of the individual. Unless there is material to show that the source of entry in the school register is the certificate of birth. Two Head Masters deposed before the Court that they insist for production of birth certificate at the time of the admission of the child. Unless there is material to show that the source of entry in the school register is the certificate of birth. Two Head Masters deposed before the Court that they insist for production of birth certificate at the time of the admission of the child. But in this case P.W. 5 in whose school Sunita was first admitted, has not stated that Sunitas parents has produced the birth certificate. Therefore, in that circumstances, it is not safe to come to the conclusion to arrive at the age of Sunita on the basis of school leaving certificate. Doctor says on Occification test that she is between 14.1/2 to 16.1/2 years of age. In that circumstances there is no assurance that Sunita is minor at the time of the incident. If that is the case, there are material in her own evidence that the sexual acts alleged to have been committed on her by appellant are with her consent. At this juncture, we have to address the argument of the leanred A.P.P. Ms. Usha Kejriwal that the prosecution can be sustained solely on the statement of prosecutrix. We do not dispute that proposition in general. In certain circumstances, the court will have to rely upon the version of the prosecutrix alone for sustaining the prosecution. That depends upon the time, circumstance and situation in which the prosecutrix is raped. But here, it is not the case. Even, in Medical evidence, there is no material to connect the appellant with the offence. The only medical evidence is that he was potent and capable of sexual intercourse. The evidence is totally lacking that the appellant has gone to the lodge and booked a room and Sunita was taken to the said room with him. It has come out in the evidence that there are commercial premises on first and second floor in the building and the panch witness P.W. 3 admits that if anyone resists or voice is raised, it would have been heard in the counter. Therefore, there is absolutely no evidence to show that the appellant has any sexual connection with Sunita. It has come out in the evidence that there are commercial premises on first and second floor in the building and the panch witness P.W. 3 admits that if anyone resists or voice is raised, it would have been heard in the counter. Therefore, there is absolutely no evidence to show that the appellant has any sexual connection with Sunita. The contention of the learned A.P.P. cannot be acceptable on the following circumstances: (1) Gopi and priest were not examined: (2) The manager or any other person in the Management of the lodge was not examined to show that the appellant has come on that particular date along with Sunita there: (3) The manner in which the signature of the appellant is proved is not at all the legal and quite unknown to law. Panch witness for the recovery of the register only saw the word "Mani" in the register. (4) The complaining of the prosecutrix before the priest even without complaining before the grand mother and police. (5) Prosecution has not established beyond doubt that Sunita was minor and the sexual intercourse were without her consent. 13. When these important circumstances stare on the prosecution case, it is very difficult to sustain the prosecution. The prosecution failed totally to prove the guilt of the appellant beyond any reasonable doubt. 14. In the result, the appeal is allowed. The JUDGMENT and order passed by the 4th Additional Sessions Judge, Thane dated 13th April, 1995 in Sessions case No. 630 of 1994 is set aside. The appellant is acquitted of the offence for which he was tried. He is in Jail. He is directed to be released forthwith, unless is required in any other case. Appeal allowed.