JUDGMENT Nirmal Singh, J. - This judgment will dispose of Criminal Appeal Nos. 137-SB of 1997 (Anita v. State of Haryana) and 225-SB of 1997 (Rakesh Kumar v. State of Haryana) arising out of judgment dated 22.1.1997 passed by learned Additional Sessions Judge, Ambala convicting and sentencing the appellants in the manner indicated below. Anita, appellant was sentenced as under :- (i) Rigorous imprisonment for a period of three years and to pay a fine of Rs. 5000/- for the offence punishable under Section 366 Indian Penal Code In default of payment of fine, she shall undergo further R.I. for a period of one year. (ii) R.I. for two years and to pay a fine of Rs. 2000/- for the offence punishable under Section 363 Indian Penal Code In default of payment of fine, she shall undergo further R.I. for six months. (iii) R.I. for one year and fine of Rs. 1000/- for the offence punishable under Section 344 Indian Penal Code In default of payment of fine, she shall undergo further R.I. for six months. Rakesh Kumar, appellant was sentenced as under : (i) R.I. for a period of ten years and to pay a fine of Rs. 5000/- for the offence punishable under Section 376 Indian Penal Code In default of payment of fine, he shall undergo further R.I. for a period of one year. (ii) R.I. for five years and to pay a fine of Rs. 2000/- for the offence punishable under Section 366 Indian Penal Code In default of payment of fine, he shall undergo further R.I. for a period of one year. (iii) R.I. for a period of three years and to pay a fine of Rs. 1000/- for the offence under Section 363 Indian Penal Code In default of payment of fine, he shall undergo further R.I. for six months. (iv) R.I. for two years and fine of Rs. 1000/- for the offence punishable under Section 344 Indian Penal Code In default of payment of fine, he shall undergo further R.I. for six months. The prosecution story in brief is that appellant Rakesh Kumar was residing as a tenant in one room in the house of Sikander alongwith his sister Anita. On 14.6.1992, Laxmi-prosecutrix, who is grand daughter of Karma (father of Sikander) saw a movie on the TV in the house of her grand father upto interval and then went towards her house. The prosecution story in brief is that appellant Rakesh Kumar was residing as a tenant in one room in the house of Sikander alongwith his sister Anita. On 14.6.1992, Laxmi-prosecutrix, who is grand daughter of Karma (father of Sikander) saw a movie on the TV in the house of her grand father upto interval and then went towards her house. However, she did not return on the resumption of the movie. She told her mother that she was going to see the movie but she did not reach the house of her grand father. The mother of Laxmi enquired about Laxmi from her father-in-law, Karma. A search was made for Laxmi. Karma took Gurdev Singh, Sarpanch with him. Prem Singh told them that he had seen Laxmi, Rakesh Kumar and Anita while going towards Village Mauli. On the basis of that, Karma made a statement (Ex.PJ) to the police on 30.6.1992 that his grand daughter Laxmi had been kidnapped by accused Rakesh Kumar and his sister Anita. He also stated that his grand daughter was minor. On the basis of the statement made by Karma, FIR, Ex. PJ/1 was recorded. 3. Investigation of the case was entrusted to SI Suraj Bhan. On 28.1.1993, SI Suraj Bhan received an information that Rakesh Kumar and Laxmi were present near Dhurbeen Chowk, Ambala Cantt. He alongwith, Khairdin, uncle of Laxmi, went to Dhurbeen Chowk. Laxmi was found in the company of Rakesh Kumar. Accused Rakesh Kumar was arrested. Both Laxmi and Rakesh Kumar were sent for medico-legal examination. After completion of the investigation, challan was presented before the Illaqa Magistrate. The Illaqa Magistrate committed the case to the Court of Sessions vide order dated 7.2.1994. The case was entrusted to Additional Sessions Judge, Ambala, who charge-sheeted both the appellants under Sections 363, 366 and 344 Indian Penal Code. Appellant Rakesh Kumar was also charge-sheeted under Section 376 Indian Penal Code The appellants pleaded not guilty to the charges and claimed trial. 4. The prosecution examined PW-1, Dr. Veenu Arora, Medical Officer, PW-2 Udey Bhan, Draftsman, PW-3 Prem Singh, PW-4 Gurdev Singh, Sarpanch of the village, PW-5 Jagjit Singh, Head Master, PW-6 Dr. Ashok Sabharwal, PW-7 Khairdin, PW-8 Karma, complainant, PW-9, Brij Bhusan, PW-10, Sham Sunder, ASI, Investigator, PW-11, prosecutrix Laxmi @ Parveen and PW-12 Suraj Bhan, Sub Inspector, Investigator and closed the evidence. 5. Veenu Arora, Medical Officer, PW-2 Udey Bhan, Draftsman, PW-3 Prem Singh, PW-4 Gurdev Singh, Sarpanch of the village, PW-5 Jagjit Singh, Head Master, PW-6 Dr. Ashok Sabharwal, PW-7 Khairdin, PW-8 Karma, complainant, PW-9, Brij Bhusan, PW-10, Sham Sunder, ASI, Investigator, PW-11, prosecutrix Laxmi @ Parveen and PW-12 Suraj Bhan, Sub Inspector, Investigator and closed the evidence. 5. After examination of the prosecution witnesses, accused were examined under Section 313 Criminal Procedure Code Both the accused pleaded false implication. The accused examined DW-1 Sanjay Goyal, Junior Engineer, Municipal Committee, Ambala Cantt. 6. After hearing counsel for the accused and the Public Prosecutor, the Learned Additional Sessions Judge convicted and sentenced the appellants in the manner indicated above. Aggrieved by the same, present appeals have been filed. 7. Mrs. Kiran Bala Jain, learned counsel for the appellants vehemently contended that prosecution has concocted a false story and has fabricated the evidence against the appellants. She admitted that Laxmi, prosecutrix was above the age of 16 years on the date of the alleged occurrence, but prosecution has produced school leaving certificate of Parveen, who is younger sister of the Laxmi. She submitted that Karma, grandfather of Laxmi, who has lodged the complaint, has improved his version subsequently by producing school leaving certificate of Parveen that Laxmi is also known as Parveen. She further submitted that if Laxmi is also known as Parveen, Karma must have mentioned this fact while lodging the complaint. Her other contention is that if Laxmi is known as Parveen, this fact must have been mentioned in the school leaving certificate as Laxmi @ Parveen or vice-versa, but there is no mention of it. She also submitted that Karma PW-8, complainant for the first time has deposed in his statement that Laxmi is also known as Parveen. He has admitted that his elder son Sikander is having four children, elder is son namely Jagdish, aged 20 years, younger to him is son namely Baljeet, aged 18 years, younger to him is a daughter namely Laxmi @ Parveen aged 14 years and the youngest is again a daughter aged 10-12 years. Mrs. Jain stated that Karma has intentionally not mentioned the name of the youngest daughter, because her name is Parveen. Mrs. Jain stated that Karma has intentionally not mentioned the name of the youngest daughter, because her name is Parveen. She further submitted that Laxmi was illiterate and did not study in any school, but the prosecution by producing school leaving certificate of Parveen has tried to prove that Laxmi has studied in a school and she is below the age of 16 years. She submitted that Laxmi, while appearing as PW-11 has admitted in her cross-examination that she is illiterate and she does not know reading and writing. She then stated that Karma, complainant has improved his version that Laxmi is also known as Parveen. She contended that no reliance can be placed on the improved version. 8. The learned counsel further submitted that the school leaving certificate is not the conclusive proof regarding the date of birth of the proseecutrix. She submitted that (PW-5) Jagdish Singh, Headmaster had admitted that when Parveen was admitted in the school, he was not posted there and there is no mention in the record of admission that when the child was admitted in the school, the birth certificate was produced or not. When the birth certificate is not produced, no reliance can be placed on the school leaving certificate. In support of her arguments, she has placed reliance on State of Punjab v. Darshan Singh, 1992(3) RCR 314, Kala Singh v. State of Punjab, 1996(3) RCR 343, Gordhan v. State of Haryana, 1983(2) CLR 528 and Ranbir v. State of Haryana, 1992(1) CLR 262. 9. Shri Sanjeev Dahiya, learned AAG submitted that Laxmi was minor at the time of occurrence. He submitted that it has been proved from the ocular version given by the complainant Karma that Laxmi is known as Parveen. He further submitted that as per the school leaving certificate Ex. PD, age of Laxmi @ Parveen was less than 16 years. He submitted that even if it is taken as a case of consent, only then the accused Rakesh Kumar has committed the offence under Section 376 Indian Penal Code 10. I have considered the rival contentions and also perused the record minutely. 11. The first point for determination in this appeal is "Whether the proseecutrix Laxmi was below the age of 16 years at the time of occurrence ?" 12. The prosecution has relied upon the school leaving certificate Ex.PD. I have considered the rival contentions and also perused the record minutely. 11. The first point for determination in this appeal is "Whether the proseecutrix Laxmi was below the age of 16 years at the time of occurrence ?" 12. The prosecution has relied upon the school leaving certificate Ex.PD. As per this certificate, date of birth of Laxmi is 24.1.1978. The occurrence alleged to have taken place on 14.6.1992. If the date mentioned in the school leaving certificate is taken to the correct, then the prosecutrix at the time of occurrence is below the age of 16 years. But from the evidence placed on record, it established that this certificate does not relate to Laxmi, rather it relates to Parveen, the younger sister of Laxmi. In the certificate there is no indication about the fact that Laxmi is known as Parveen. Karma, grandfather of the prosecutrix has not mentioned this fact at the time of lodging the FIR. Later on when Karma appeared as PW8 he deposed that his elder son Sikander is having 4 children, two sons and two daughters. The elder son namely Jagdish is aged 20 years, younger to him is Baljeet aged 18 years and younger to him is Laxmi @ Parveen aged 14 years and the youngest one is a daughter aged 10-12 years. The name of the fourth child has not been mentioned by Karma intentionally or purposely. If name of the fourth child is mentioned by Karma, the truth would have come out from his mouth that the school leaving certificate is of the 4th child i.e. a daughter, whose name is Parveen. Karma has admitted in his cross-examination that he cannot tell the date of birth of Laxmi nor he can tell the date of birth of any of the children of Sikander. He has also deposed that Laxmi was got admitted in the school by her father i.e. Sikander. He cannot tell the day, month or year of her admission in the school. 13. Laxmi has appeared as PW-11. In her cross-examination, she has admitted that she is illiterate and she does not know reading and writing. However, she has deposed that she had attended the school for 3-4 years. If a child has attended the school for 3-4 years, he/she must know the alphabets of reading or writing. 13. Laxmi has appeared as PW-11. In her cross-examination, she has admitted that she is illiterate and she does not know reading and writing. However, she has deposed that she had attended the school for 3-4 years. If a child has attended the school for 3-4 years, he/she must know the alphabets of reading or writing. This clearly establishes that the school leaving certificate produced as Ex.PD by the prosecution is not with regard to Laxmi, rather this certificate is of Parveen, the younger sister of Laxmi. 14. Laxmi has given her age as 15 years at the time of the alleged occurrence i.e. on 14.6.1992. She was examined in the Court on 25.1.1996. At that time also, she gave her age as 14-15 years. Dr. Veenu Arora, PW-1 who has medico- legally examined the prosecutrix has mentioned her age as 15 years in the MLR. Laxmi has mentioned in her cross-examination that she did not tell anything to the doctor, who examined her. Her parental uncle was with her. He might have talked with the doctor. This fact shows that the particulars of the prosecutrix have not been got recorded by Laxmi herself, rather the particulars have been given to the doctor by her parental uncle. While medico-legally examining Laxmi, doctor has referred her for radiologically/ossification test, but prosecution has not placed on record report of the ossification test with regard to the age of Laxmi. Once it was referred by the doctor for ossification test, it shows that doctor was not certain about the age of the prosecutrix and for coming to the right conclusion, she referred for ossification test, which was must in this case. 15. The School leaving certificate Ex.PD is not a reliable document, because it is not believable that a grandfather is not aware of the nick name of his grand daughter. If Laxmi would have known as Parveen, this fact must be in the knowledge of Karma at the time of lodging the FIR. When the prosecution has tried to give a false evidence by placing on record the school leaving certificate of Parveen, then no reliance can be placed on this certificate as well on the evidence of PWs. Dr. Veenu Arora has also given the age of Laxmi as 15 years on clinical examination. When the prosecution has tried to give a false evidence by placing on record the school leaving certificate of Parveen, then no reliance can be placed on this certificate as well on the evidence of PWs. Dr. Veenu Arora has also given the age of Laxmi as 15 years on clinical examination. As it has been observed above, ossification test has not been conducted for determining the correct age of the prosecutrix. So there is no evidence on the record on the basis of which it can definitely be said that prosecutrix was below the age of 16 years at the time of the occurrence. 16. The prosecution has also examined Gurdev Singh, Sarpanch as PW4. He has deposed in his statement that on 14.6.1992, Karma of his village came to him and told him that his grand-daughter namely Laxmi had gone to watch T.V. programme to his tenant Rakesh Kumar and that she has not returned home. They made a search of the girl. However, she was not traceable. If Laxmi would have known as Parveen, then Karma must have also disclosed this fact to the Sarpanch. Gurdev Singh, Sarpanch has introduced a new story by stating that Laxmi had gone to the house of Rakesh Kumar to watch T.V. programme, whereas this is not the case of the prosecution. 17. There is delay of 15 days in lodging the FIR. This delay has been consumed by the prosecution to concoct a story and to procure the school leaving certificate of Parveen, younger sister of the prosecutrix and with this document, prosecution has tried to establish that the age of Laxmi at the time of alleged occurrence was below 16 years. Normally delay in rape cases is immaterial because some times the parents of the girl do not want to disclose this fact for the sake of honour of the family, but in the instant case, the occurrence was not kept concealed. Karma, complainant has reported the matter to Gurdev Singh, Sarpanch of the village. Even one other co-villager has come to know about the occurrence, who while appearing as PW3 (Prem Singh) has deposed that on 14.6.1992, he had seen the accused with a girl, who was the grand daughter of Karma of his village, who were going towards railway station via kutcha path. That fact was told by Prem Singh to Karma on the next day. That fact was told by Prem Singh to Karma on the next day. He also disclosed this fact to the Sarpanch of the village at a gathering in the village. He has also admitted in his cross-examination that on the same day at about 10.30 a.m., the police came in the village and that fact was also told to the police as well, but he does not know if any FIR was lodged on that day or the next day. So from the evidence of Prem Singh, it is crystal clear that every villager came to know about the occurrence on the next day. Once the occurrence was in the knowledge of the villagers, then there was no necessity to conceal it. Furthermore, in this case, as per Prem Singh, police came to the village next day. He narrated the fact that he had seen the accused in the company of grand daughter of Karma, but no explanation is forthcoming from the prosecution why the case has not been got registered on that very day. Under these circumstances, the delay in lodging the FIR in this case is fatal. 18. From the evidence of prosecution, it has not been established that prosecutrix was kidnapped. Laxmi has not deposed that she was kidnapped by the accused, rather she stated that she was allured by the accused on the pretext of giving good clothes and ornaments and in that allurement, she accompanied the accused. They boarded a bus and took her to Hardwar. From their, they took her to village Tigri and a room was taken on rent. They stayed there for 3-4 days. No doubt Laxmi has deposed in her statement that Rakesh, accused had forcible intercourse with her by showing a knife and his sister Anita, used to sleep outside the room, this version of Laxmi is not believable. As per statement of Laxmi, they boarded a bus to Hardwar. During he journey, she had not disclosed this fact to any person in the bus. Laxmi remained in the company of the accused for more than six months. It is strange to note that while Laxmi remained with the accused in a rented room, she could not get any chance to disclose the story to any person residing nearby. So from the evidence of Laxmi, it is established that she eloped with accused Rakesh Kumar wutg her own consent. 19. It is strange to note that while Laxmi remained with the accused in a rented room, she could not get any chance to disclose the story to any person residing nearby. So from the evidence of Laxmi, it is established that she eloped with accused Rakesh Kumar wutg her own consent. 19. The learned trial Court has mis-read the evidence while concluding that Laxmi was below the age of 16 years. The trial Court has erroneously held that the school leaving certificate is of Laxmi, whereas the said certificate is of Parveen, younger sister of Laxmi. The finding recorded by the trial Court that Laxmi was kidnapped by both the accused is palpably erroneous. Laxmi herself has not deposed in her statement that she was kidnapped by force by the accused. So this is not a case of kidnapping, but is a case of consent. 20. For the reasons recorded above, the appeals are accepted. The conviction and sentence awarded to the appellants Anita and Rakesh Kumar is set aside as the prosecution has miserably failed to prove its case beyond shadow of reasonable doubt. The appellants are discharged of the offences charged. The fine, if already deposited, be refunded to the appellants. The bail bounds and surety bounds be discharged. Appeal allowed.