Judgment :- Appellant / 1st Accused was convicted under S.376 (1) I.P.C. for committing Rape on P.W.2 - Nirmala by the Additional Sessions Judge / Fast Track Court No.III, Coimbatore in S.C.No.20 of 2002 (by the Judgment dated 05.12.2002) and sentenced to undergo Imprisonment for seven years and also imposed fine of Rs.10,000/-, in default to undergo Rigorous Imprisonment for a further period of one year. The Appellant / 1st Accused and co-accused - another Palanisamy were acquitted of the Charge of Kidnapping P.W.2 Nirmala under S.366 A I.P.C. 2. P.W.2 - Nirmala is the daughter of P.W.1 - Pujanga Gounder, who are residents of Therampalayam. At the time of occurrence, P.W.2 was studying in Plus 2. P.W.1's brother's son Senthilkumar married one Kalpana, who is closely related to A.1. Hence A.1 was nurturing grouse against the family of P.W.1 and was proclaiming that he would kidnap the daughter of P.W.1. 3. P.W.4 - Vellingiri is the resident of Pachanallur and P.W.5 - Sundaram is the resident of Therampalayam. On the evening of 19.08.1997, while P.Ws.4 and 5 were proceeding from Therampalayam to Pachanallur, P.W.2 - Nirmala was proceeding in front of them. At that time, Appellant / 1st accused and another person (Co-accused Palanisamy) had taken away P.W.2 in an Ambassador Car bearing Registration No.TN 49-5067. 4. On 19.08.1997, P.W.1 went to Kongunadu Hospital and came back to Therampalayam at about 7.00 p.m. He heard about the first accused and co-accused / A.2 kidnapping his daughter - P.W.2. P.W.1 and his family members searched for missing P.W.2; but her whereabouts were not traceable. 5. Registration of case and Investigation. Since the whereabouts of P.W.2 were not traceable, on 20.08.1997, P.W.1 - Pujanga Gounder gave Ex.P.1 - Complaint before Karamadai Police Station. On the basis of Ex.P.1 - Complaint, case has been registered in Crime No.357 of 1997 under S.366 I.P.C. under Ex.P.12 - First Information Report by P.W.15 - Sub Inspector of Police. 6. P.W.15 - S.I. of Police had taken up the initial investigation. Scene of occurrence was inspected in the presence of the Witnesses. Ex.P.2 - Observation Mahazar and Ex.P.13 - Rough Plan were prepared on the scene of occurrence. M.O.1 - Ambassador Car bearing Registration No.TN 49 5067 that was used for kidnapping the victim girl - P.W.2 was also seized on 20.08.1997. 7. Scene of occurrence was inspected in the presence of the Witnesses. Ex.P.2 - Observation Mahazar and Ex.P.13 - Rough Plan were prepared on the scene of occurrence. M.O.1 - Ambassador Car bearing Registration No.TN 49 5067 that was used for kidnapping the victim girl - P.W.2 was also seized on 20.08.1997. 7. On the evening of 03.09.1997, in Rengapalayam Bus Stop, P.W.2 - Nirmala was found in the company of A.1. A.1 was arrested and Statement of P.W.2 was recorded. On the basis of the Statement of P.W.2, the case of Girl Missing has been altered into S.376 I.P.C. under Ex.P.14 - Report. 8. P.W.2 - Nirmala and the Appellant / A.1 were sent for Medical Examination. P.W.9 - Dr.Giridhara Gopalakrishnan has examined P.W.2 for determining her age. From the X-ray appearance, P.W.9 opined that P.W.2 is Above seventeen years of age and is below eighteen years of age on the date of examination (12.09.1997). P.W.9 issued Ex.P.6 - Age Certificate. 9. P.W.12 - Dr.Thilagavathy examined P.W.2 - Nirmala noting that there was no evidence of wound in the external genitalia and things; no obvious lesion regarding forcible intercourse; Hymenal Origice normal admitted one finger easily; Hymen was opened and No discharge or bleeding seen. P.W.12 issued Ex.P.9 - Certificate. 10. A.1 was also sent for Medical Examination. There was no evidence of external injuries on both thighs. Since there was no erection of Pelvis during Medical Examination, there was no possibility of ejection of semen in the casualty. 11. Thereafter, on 26.09.1997, A.1 was examined by the Committee of Doctors headed by P.W.16 - Christopher Mariyadoss. On examination of accused, P.W.16 and other Doctors opined that there was nothing to suggest that A.1 is impotent. Ex.P.16 is the Potency Certificate of A.1. On completion of investigation, the Appellant / A.1 and co-accused (Palanisamy) were charge sheeted for the offence under Ss.366 A, 376 (1) and 344 I.P.C. 12. In the trial Court, to substantiate the Charges against the accused, P.Ws.1 to 17 were examined. Exs.P.1 to P.16 were marked. M.O.1 - Ambassador Car was remanded to Court. The accused were questioned under S.313 Crl.P.C. about the incriminating evidence and circumstances. Denying all of them, the accused had stated that a false case has been foisted against them. In the trial Court, to substantiate the Charges against the accused, P.Ws.1 to 17 were examined. Exs.P.1 to P.16 were marked. M.O.1 - Ambassador Car was remanded to Court. The accused were questioned under S.313 Crl.P.C. about the incriminating evidence and circumstances. Denying all of them, the accused had stated that a false case has been foisted against them. Appellant / A.1 has stated that only at the instance and with the consent of P.W.2 - Nirmala, they have travelled to Salem, Bangalore and other places. In the trial Court, he pleaded for mercy. 13. In consideration of the evidence adduced by the prosecution, particularly on the basis of Ex.P.7 - Birth Certificate of P.W.2, the learned Sessions Judge concluded that the date of Birth of P.W.2 - Nirmala is 03.07.1982 and that P.W.2 is proved to be a minor girl. The trial Court rejecting the prosecution case that P.W.2, a minor girl was Kidnapped and kept in illegal custody by the accused, acquitted Appellant / A.1 and another accused under S.366 A I.P.C. However, on the evidence of P.W.2 and the facts and evidence adduced, the trial Court convicted the Appellant / A.1 for the offence under S.376(1) I.P.C. for committing Rape on the victim girl, who was below 16 years at the time of occurrence, i.e., for the offence falling under S.375 I.P.C. - Sixth Clause. 14. Opposing the findings regarding the age of P.W.2 and the conviction, the main contention urged onbehalf of Appellant / A.1 is that the prosecution has not adduced evidence of Certainty proving that P.W.2 was below 16 years at the time of occurrence. Drawing the attention of the Court to the evidence of P.W.11 - Kamalamani, Headmistress of K.G.Women's Higher Secondary School and Ex.P.8 - School Certificate and the Medical Evidence, the learned counsel for the Appellant / A.1 has forcibly contended that there is convincing evidence to arrive at the conclusion that P.W.2 has completed 16 years at the time of the occurrence and therefore the conviction under S.376(1) I.P.C. is unsustainable. Further, he has interalia raised the following contentions:-(i) that the evidence on record that P.W.2 has traveled with Appellant / A.1 to various places and admittedly stayed with him for more than 15 days clearly indicates that P.W.2 has been a Consenting Party;(ii) While Ex.P.7 - Birth Certificate of P.W.2 is surrounded with several infirmities, the trial Court erred in accepting the same as a conclusive evidence to prove the age of the victim girl.Submitting that when the evidence regarding the offence of Kidnapping the victim girl was not accepted by the trial Court, the trial Court ought to have rejected the offence regarding the allegation of Rape also, particularly in the absence of any Medical Evidence corroborating the version of P.W.2. 15. Laying emphasis upon Ex.P.7 - Birth Certificate, wherein the Date of Birth of P.W.2 - Nirmala is stated to be 03.07.1982, Mr.V.M.R.Rajendran, learned Additional Public Prosecutor has submitted that the prosecution has convincingly proved that the age of the victim girl was below 16 years at the time of occurrence. Taking the Court through the evidence of P.Ws.4 and 5 and P.W.2 - the victim girl, the learned Additional Public Prosecutor has further submitted that the prosecution has satisfactorily proved the taking away of P.W.2 in an Ambassador Car and the Appellant / A.1 staying with P.W.2 and having Sexual Intercourse with her. He has further urged that S.375 - Sixth Clause is attracted and prayed to sustain the conviction under S.376 (1) I.P.C. contending that there is no reason warranting interference. 16. Upon careful consideration of the Judgment of the trial Court, contentions of the Appellant / A.1 and prosecution and careful analysis of the evidence and materials on record, the following points arise for consideration in this appeal:- (i) Whether the prosecution has proved with evidence of Certainty that the age of P.W.2 was below 16 years at the time of occurrence ? (ii) Whether the act of the Appellant / A.1 is the offence punishable under S.375 - Sixth Clause and whether the conviction under S.376(1) I.P.C. is sustainable ? 17. From the evidence, it is brought on record that the Appellant / A.1 was aged about 42 years at the time of occurrence; P.W.2 - Nirmala was studying in Plus 2; that the Appellant / A.1 had kidnapped P.W.2 on the evening of 19.08.1997. 17. From the evidence, it is brought on record that the Appellant / A.1 was aged about 42 years at the time of occurrence; P.W.2 - Nirmala was studying in Plus 2; that the Appellant / A.1 had kidnapped P.W.2 on the evening of 19.08.1997. P.W.4 - Velliyangiri is the resident of Pachanallur and P.W.5 - Sundaram is the resident of Therampalayam. At the time of occurrence, both of them were proceeding from Therampalayam to Pachanallur. P.W.2 - Nirmala was proceeding in front of them. At that time, Appellant / A.1 and Co-accused (Palanisamy) had taken away P.W.2 in M.O.1 - Ambassador Car, bearing Registration No.49 5067. That the Appellant / A.1 had taken the custody of P.W.2 is proved by the own admission of A.1 during questioning under S.313 Crl.P.C., wherein he has stated as:-" 19/08/1997 md;W eph;kyh md;D}Uf;F vd;id tuf; TwpapUe;jhh;/ mjd; mog;gilapy; School Bag bfhLj;Jtpl;L ehDk; eph;kyht[k; gazk; brd;Wtpl;nlhk;/ nryk;. bg';fS:h;. jpUg;gjp. cwhrd;. jpUj;jzp. ntY}h;. ikN:h; Mfpa ,lk; brd;nwhk;/ ". This is also reinforced by recovery of the custody of the victim girl on the evening of 02.09.1997 at Rengapalayam Bus Stop from the custody of A.1. 18. From the date of occurrence, i.e., from 19.08.1997 to 02.09.1997, P.W.2 - Nirmala was with the Appellant / A.1. During that period, P.W.2 was taken to Salem, Bangalore (20.08.1997), Hasan, Tirupati (21.08.1997), Thiruthani (23.08.1997), Vellore (24.08.1997), Bangalore (27.08.1997), Kolar (28.08.1997), Vellore (30.08.1997 and 31.08.1997) and Thairpallam (02.09.1997) where she was rescued at about 3.00 a.m. at the Bus Stand. 19. From the evidence on record, two formidable circumstances are to be borne in mind, viz.,(i) P.W.2 - Nirmala was in the company of Appellant / A.1 for nearly two weeks from 19.08.1997 to 02.09.1997 and stayed in several places; during such stay, the Appellant / A.1 is alleged to have had Sexual Intercourse with P.W.2.(ii) There was no resistance from P.W.2 to the Sexual Intercourse or there was no attempt to escape from the custody of A.1. Being a Student of Plus 2, P.W.2 must have been little worldly wise in trying to contact her parents. But there was no such attempt on the part of P.W.2.(iii) The Prosecutrix accompanied the Appellant / A.1 to several places and stayed there for about two weeks, not disclosing the occurrence to anybody and not making efforts to come out; Prima facie inference could be drawn that she was a Consenting Party. But there was no such attempt on the part of P.W.2.(iii) The Prosecutrix accompanied the Appellant / A.1 to several places and stayed there for about two weeks, not disclosing the occurrence to anybody and not making efforts to come out; Prima facie inference could be drawn that she was a Consenting Party. Only on the ground that P.W.2 was a Consenting Party in accompanying the Appellant / A.1 to various places, the learned Sessions Judge has acquitted the Appellant / A.1 and another accused for the Charge of Kidnapping. In such circumstance, if P.W.2 was not a minor, the Appellant / A.1 is entitled to acquittal on the charge of Rape also. In that view of the matter, evidence regarding the age of P.W.2 is of fundamental importance. 20. Before convicting the Appellant / A.1 for the offence under S.376(1) I.P.C. for committing Rape on the minor girl, it is the duty of the Judge to obtain the evidence of certainty that the victim girl was under 16 years at the time of occurrence. In the light of the evidence adduced, let us consider whether such evidence of Certainty is adduced by the prosecution to prove that P.W.2 was a minor at the time of occurrence. 21. As noted earlier, during 1997-98, P.W.2 - Nirmala was studying in Plus 2 in K.G. Women's Higher Secondary School. More probably, she was above 16 years (five years + ten + one). P.W.11 - Kamalamani, is the Headmistress of K.G. Women's Higher Secondary School, where P.W.2 studied her Plus 2 during 1997-98. As per School Certificate (Ex.P.8), Date of Birth of P.W.2 is 15.07.1981. Thus at the time of occurrence, P.W.2 has completed 16 years as per Ex.P.8 - School Certificate as noted below:- Date of Occurrence : 19 08 1997 Date of Birth as per Ex.P.8 : 15 07 1981 ------------- 4 1 16 -------------Courts have held that the School Admission Register cannot be regarded as the sole clinching factor. 22. Radiological Examination to P.W.2 - Nirmala was done by P.W.9 - Dr.Giridhara Gopalakrishnan. From the X-ray appearance, P.W.9 opined that P.W.2 is aged above 17 years of age and is below eighteen years of age on the date of examination - 12.09.1997. 22. Radiological Examination to P.W.2 - Nirmala was done by P.W.9 - Dr.Giridhara Gopalakrishnan. From the X-ray appearance, P.W.9 opined that P.W.2 is aged above 17 years of age and is below eighteen years of age on the date of examination - 12.09.1997. Courts have held that only an authentic Birth Register should be given preference over Medical Opinion, since there is no certainty of correct age in Medical Opinion, which may vary Plus or Minus two years as per Medical Jurisprudence. 23. During trial, Ex.P.7 - Birth Register Extract of P.W.2 was produced to show that her Date of Birth is only 03.07.1982. Thus as per Ex.P.7, P.W.2 has completed only 15 years at the time of occurrence as noted below:- Date of Occurrence : 19 08 1997 Date of Birth as per Ex.P.7 : 3 07 1982 ------------- 16 1 15 -------------Ex.P.7 was produced through P.W.10 (Mani) - Sanitary Inspector of Mettuppalayam Panchayat. From the entries in Ex.P.7, it is seen that the name of father and mother of P.W.2 has been stated as -- Name of Father / Mother : Buffangappan / BaghavathyName of P.W.1 is Pujanga Gounder and name of P.W.2's mother is Bhagya. Thus the entry regarding the name of father and mother of P.W.2 is wrong and it is difficult to connect Ex.P.7 to P.W.2. Curiously, it is also to be noted that the name of P.W.2 - Nirmala herself is mentioned in Ex.P.7 as daughter, perhaps to establish stronger link evidence connecting Ex.P.7 with P.W.2. It is highly improbable that even on the date of birth, the name of the Child would have been recorded in the Birth Register Extract. The application for obtaining the Birth Register Extract was submitted to Mettupalayam Municipality on 14.05.1999 long after the occurrence. No doubt, Birth Certificate is a conclusive evidence to prove the Date of Birth. But when Ex.P.7 was obtained after the occurrence and when the same is with several infirmities regarding the entries, it would be unsafe to arrive at the conclusion that P.W.2 was below the age of 16 years at the time of occurrence. This is all the more so, when P.W.2 was admittedly studying in Plus 2 at the time of occurrence. This is all the more so, when P.W.2 was admittedly studying in Plus 2 at the time of occurrence. This Court is of the view that the trial Court has not properly considered Ex.P.7 in the light of the discrepancies and erred in finding that P.W.2 was aged below 16 years at the time of occurrence. The finding of the trial Court that P.W.2 was below 16 years at the time of occurrence is to be reversed. 24. We are left with the only question whether the Appellant / A.1 could be convicted for the offence punishable under S.376 (1) I.P.C. for committing Rape on the minor girl. In her evidence, P.W.2 - Nirmala has stated that she was raped at Thiruthani Lodge (on 23.08.1997) and Kolar Lodge (on 27.08.1997). P.W.2 has further stated that the Appellant / A.1 had Sexual Intercourse with her at several times in Alankar Lodge in Vellore (On 30.08.1997 and 31.08.1997). According to P.W.2, she has objected to the act of Appellant / A.1 and even then, he had forcible Sexual Intercourse with her and she sustained injuries in her thighs and there was bleeding also. 25. P.W.2 was rescued on 02.09.1997. She was medically examined by P.W.12 - Dr.Thilagavathy on 08.09.1997. During Medical Examination, P.W.12 has noted that there was no evidence of wound in the external Genitalia and thighs; no obvious Lesion regarding forcible intercourse; Hymenal Origice was normal and admitted one finger easily. Though P.W.2 is of the tender age, since she had been repeatedly subjected to Sexual Intercourse, her Vaginal origice admitted one finger easily. P.W.12 has examined P.W.2 after few days of the alleged Sexual Intercourse. There was no evidence of wound in the external genitalia and thighs since the traces of Intercourse might have been effaced by the passage of time. 26. We may note that P.W.2 was with the Appellant / A.1 from 19.08.1997 to 02.09.1997. When P.W.2 has accompanied the A.1 to various places and stayed at several places, she did not make efforts to come out of the situation, the only inference that could be drawn is that P.W.2 was a Consenting Party. When P.W.2 was not below 16 years at the time of occurrence, it is to be held that P.W.2 was a Consenting Party. When P.W.2 was not below 16 years at the time of occurrence, it is to be held that P.W.2 was a Consenting Party. When P.W.2 was a Consenting Party to the act of Sexual Intercourse, the conviction of the Appellant / Accused under S.376 (1) I.P.C. cannot be sustained. 27. In careful analysis of the evidence on record and reasonings of the trial Court, this Court is of the view that the trial Court erred in accepting the age of P.W.2 as 03.07.1982 as per Ex.P.7 - Birth Certificate. Ex.P.7 - Birth Certificate is surrounded with infirmities and the same cannot form the basis for fixing the age of the victim girl - P.W.2. Hence, S.375 - Sixth Clause is not attracted and the conviction of the Appellant / Accused under S.376 (1) I.P.C. is to be set aside and this appeal is to be allowed. 28. Therefore, this appeal is allowed setting aside the Judgment of the Additional Sessions Judge / Fast Track Court No.III, Coimbatore in S.C.No.20 of 2002 (dated 05.12.2002) convicting the Appellant / Accused under S.376 (1) I.P.C. and the sentence of Rigorous Imprisonment of Seven years and the fine amount imposed on him. The Appellant / Accused is acquitted of the Charge under S.376(1) I.P.C. The Appellant / Accused is ordered to be released forthwith, unless his presence is required in connection with any other case. The fine amount paid, if any, is ordered to be refunded to him.