JUDGMENT H.R. Panwar, J.— This criminal appeal under Section 374(2) Cr. P.C., is directed against the judgment and order dated 10-10-2003 passed by the learned Additional Sessions Judge No. 2, Chittorgarh (for short, “the trial court” hereinafter) in Sessions Case No. 46/2003, whereby the trial court convicted the appellant for the offences punishable under Section 363, 366 and 376 IPC and sentenced him as under :- Sec. 363 IPC — Five years simple imprisonment and a fine of Rs. 500/- and in default of payment of fine further to undergo one month’s simple imprisonment. Sec. 366 IPC — Seven years simple imprisonment and a fine of Rs. 500/- and in default of payment of fine further to undergo one month’s simple imprisonment. Sec. 376 IPC — Ten years simple imprisonment and a fine of Rs. 1000/- and in default of payment of fine further to undergo two months simple imprisonment. All the substantive sentences were directed to run concurrently. Aggrieved by the impugned judgment of conviction and order of sentence under appeal, the appellant has filed the instant appeal. 2. Briefly stated, the facts of the case, to the extent they are relevant and necessary for the decision of this appeal, are that PW 1 Raj Kumar lodged a report Ext. P/1 with Police Station, Rawatbhata, district Chittorgarh, on 15-3-2003, inter alia, alleging therein that his daughter Seema, aged about 14 years and a student of Class IX, has been missing since 14-3-2003 and despite search and inquiries being made, her where abouts could not be found; he suspects appellant Sita Ram because he has been working as a mason and on inquiry, he too was not found at the place, which creates suspicion as he was in visiting terms to his family. The police registered Crime Report vide Ex. P/2. On 2-4-2003, vide Ex. P/3, the prosecutrix was found and taken in custody by the police. After perusal investigation, the police filed challan against the appellant for the offences noticed above. Charges were framed; the appellant denied the charges and claimed trial. The prosecution adduced evidence by examining as many as 9 witnesses and produced documents Ex. P/1 to Ex.P/11. The appellant made statement under Section 313 Cr. After perusal investigation, the police filed challan against the appellant for the offences noticed above. Charges were framed; the appellant denied the charges and claimed trial. The prosecution adduced evidence by examining as many as 9 witnesses and produced documents Ex. P/1 to Ex.P/11. The appellant made statement under Section 313 Cr. P.C., denied the allegations and in his statement he stated that the prosecutrix was pregnant by some other person, her parents wanted him to marry her, to which he did not agree and, therefore, a false case has been lodged against him. Documents Ex. D/1 to Ex. D/3 were also tendered in defence by the appellant. The trial court, at the conclusion of the trial, on appreciation of the evidence, found the appellant guilty of the offences noticed above and accordingly he was convicted and sentenced as stated at the very out-set. 3. It was contended by the learned amicus curiae appearing for the appellant that the age of the prosecutrix, on the relevant date of occurrence, was more than 18 years the prosecutrix. It was further contended that the prosecutrix voluntarily left her parents house as she was tourchered by her mother which is evident from the letter Ex. D/1 left behind by the prosecutrix at the time of leaving her parents house, it was further contended that the prosecutrix left the house all alone and she was not accompanied by the appellant, even according to the statement of the prosecutrix herself, in a bus from Rawatbhata to Kota. 4. Learned Public Prosecutor appearing for the State supported the judgment of conviction and order of sentence passed by the trial court and contended that even if the prosecutrix was a consenting party, her consent is immaterial as one the relevant date of the occurrence, she was below 16 years of age and in support of his contention, he has relied upon the medical evidence showing her age between 14 to 16 years. 5. I have heard learned counsel for the parties; perused the impugned judgment and other under appeal and also carefully gone through the record, as also scanned, scrutinized and evaluated the evidence on record. 6. PW 1 Raj Kumar, the father of the prosecutrix, stated the age of the prosecutrix as 14 years and stated that she was a student of Class IX. 6. PW 1 Raj Kumar, the father of the prosecutrix, stated the age of the prosecutrix as 14 years and stated that she was a student of Class IX. The appellant was known to his family as he was doing measonary work by constructing lavoratory and bath-room etc. in the locality. He stated that the appellant took his daughter without his consent. He proved the report Ex. P/1, on which Chak FIR Ex. P/2 was registered. In cross-examination, he admitted that when the prosecutrix left the house, she left the letter Ex.D/1. The letter Ex. D/1 is written in the handwriting of the prosecutrix Seema. In the letter Ex.D/1 written by the prosecutrix and addressed to her father, she stated that she feel shy in saying that she is leaving the house; perhaps she would never return, no efforts should be made to search her, the matter be not reported to the police and in case the matter is reported to police, it will not result in srepute of the family and she would not be available for ever; her mother used to find her guilty for everything; if some-one asks you as to where Seema has gone then say that she had gone to her aunt who is residing at Khundalawali. This fact has also been admitted by prosecutrix PW 8 Seema. 7. PW 2 Smt. Anita, the mother of the prosecutrix, stated that her daughter left the house; she did not as to where she had gone. On search having been made, she was not found. Later on, they came to know that the appellant had taken her daughter. She stated that she was married to PW 1 Raj Kumar 20 years ago and after two years of her marriage, her eldest daughter Seema, the prosecutrix, was born. 8. PW 8 Seema the prosecutrix, stated that the appellant used to come to her parents house; he was on the visiting terms; he asked her to come to his house, on which she went to his house; she was offered sweet and after taking sweet, she lost the consciousness and started doing whatever the appellant said to her. The appellant took her in a bus to Loonkarasar, where his aunt (Mausi) is residing. They stayed there for 15 days, during which period, she was subjected to forcible sexual intercourse. The appellant took her in a bus to Loonkarasar, where his aunt (Mausi) is residing. They stayed there for 15 days, during which period, she was subjected to forcible sexual intercourse. She stated that after vomiting at Churu railway station, she gained the consciousness. She did not make any hue and cry for help at the railway station. She stated as to how she went with appellant without knowing him, she cannot say. However, she admitted that the appellant was in visiting terms to her parents’ house. She admitted that from Rawatbhata, she went all alone in a bus to Kota and from Kota bus stand to Kota railway station in an auto rickshaw. She admitted the letter Ex. D/1 was written by her and stated that it is in her handwriting. She denied having any illicit relation with any other person. She has stated that the appellant took her in a temple and garlanded her. On being confronted with her previous statement Ex. D/2 wherein therein is no mention of offering sweet to her by the appellant, she stated that she does not know why it has not been written in her previous statement Ex. D/2. She categorically stated that the letter Ex. D/1 was left behind by her at the time of leaving her house. The prosecutrix was medically examined by PW 4 Dr. Kamal Bhargava and PW 5 Dr. Madhu Khabiya. PW 4 Dr. Kamal Bhargava stated that the prosecutrix was examined by PW 5 Dr. Madhu Khabiya vide Ex. P/6. On being examined by the Radiologist, she was found between the age of 14 to 16 years on the basis of the report of Radiologist Dr. Maheshwari, with regard to rape, the prosecutrix was examined by PW 5 Dr. Madhu Khabiya vide Ex. P/7. He stated that on being examined, it was found that the prosecutrix was well developed and she was physically and mentally sound. His opinion regarding age of the prosecutrix, vide Ex. P/6, is approximate and there can be a variance of two years. 9. PW 5 Dr. Madhu Khabiya examined the prosecutrix Ex. P/7 and on examination, she found the prosecutrix well developed, habitual to sexual intercourse and prima facie found her to be pregnant, therefore, she suggested for pregnancy test. She did not notice any injury on the private parts of the prosecutrix. 10. PW 7 Dr. 9. PW 5 Dr. Madhu Khabiya examined the prosecutrix Ex. P/7 and on examination, she found the prosecutrix well developed, habitual to sexual intercourse and prima facie found her to be pregnant, therefore, she suggested for pregnancy test. She did not notice any injury on the private parts of the prosecutrix. 10. PW 7 Dr. Ramesh Chandra Maheswari, the Radiologist, who exami-ned the prosecutrix for determination of her age, stated that on the basis of ossification tests vide Ex. P/8 and Ex. P/9, in his opinion, the age of the prosecutrix was between 14 to 16 years. He started that the age opined by him can very either side. 11. PW 9 Ishwar Singh is the investigating officer. He admitted that the portion C to D in Ex. D/2, the previous statement of the prosecutrix, was recorded by him as stated by the prosecutrix. In his investigation, he came to know that from Rawatbhata to Kota, the prosecutrix went all alone. He was confronted with Ex. P/3, the Furd recovery of garments of the prosecutrix, which hears the signatures of the Motbirs but the carbon copy of Ex. P/3 does not bear the signatures of the Motbirs. 12. PW 3 Aheervaran Lal and PW 6 Shanta Ram are the witnesses to Ex. P/3 and Ex. P/4. However, there is no FSL report regarding examination of the garments recovered vide Ex. P/3 and Ex. P/4. 13. The appellant was medically examined vide Ex. P/5. He was found capable of performing sexual intercourse. 14. The pertinent question arises for consideration in this case is with regard to the age of the prosecutrix. PW 1 Raj Kumar and PW 2 Smt. Anita, the parents of the prosecutrix, have stated she the prosecutrix was a student of Class IX. The prosecution did not produce any documentary from the school record. Neither the admission form of the prosecutrix while she was admitted to the school, nor any school record of scholar of the school register showing her date of birth, has been produced by the prosecution. The prosecution has not examined any person from the school, to which she was initially admitted. Even PW 1 Raj Kumar has not disclosed the date of birth of the prosecutrix. The prosecution has not examined any person from the school, to which she was initially admitted. Even PW 1 Raj Kumar has not disclosed the date of birth of the prosecutrix. PW 2 Smt. Anita, the mother of the prosecutrix, admitted that she was married to PW 1 Raj Kumar 20 years ago and after two years of marriage, she gave birth to the prosecutrix, who is her eldest daughter. PW 4 Dr. Kamal Bhargava stated that the age of the prosecutrix opined by him vide Ex. P/6 is approximate and it can very two years. PW 5 Dr. Madhu Khaviya stated that the prosecutrix was well developed and she was habitual to sexual intercourse. PW 7 Dr. Ramesh Chandra Maheswari, the Radiologist, has opined that the age of the prosecutrix was 14 to 16 years and there can be a variance of two years either side and this benefit also goes to the appellant. Thus, the finding of the learned trial court regarding the age of the prosecutrix below 18 years, which is based on the marks sheet, which was never filed alongwith the challan by the prosecutrix nor it was exhibited or stressed by the prosecution. The said marks sheet is not a part of the record. Neither it is a certified copy nor its genuineness has been verified before relying upon it by the learned trial court. Moreso, no question pertaining to the said marks sheet has been put to the appellant in his statement recorded under Section 313 Cr. P.C., nor any copy of that uncertified marks sheet had been supplied to the appellant so that he may put his defence thereon. In this view of the matter, the finding of the trial court based on the said marks sheet is unsustainable and liable to be set-aside. 15. In Birad Mal Singhvi v. Anand Purohit1, the Hon’ble Apex Court held that if the entry in the scholar’s register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value and merely because the documents such as extract of school register, mark list or certificate of Education Board etc. are proved, it does not mean that the contents of documents are also proved. Mere proof of such documents would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. The Apex Court further held as under :- “To, render a document admissible under Section 35, three conditions must be satisfied, firstly entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.” 16. Thus, the reliance placed by the learned trial court on the untendered, non-exhibited and unproved marks sheet is erroneous and cannot be sustained in the eyes of law. 17. The prosecutrix, in her statement Ex. D/2, stated that at about 5.00 PM in the evening, she went from her parents house, without disclosing of her going to her mother, to the room of the appellant. She has also admitted in her statement before the police as well as the court that before she left the house, she left behind the letter Ex. D/1 written by her in her own handwriting. She also admitted that from Rawatbhata to Kota, she travelled all alone in a bus and from bus stand Kota to railway station, Kota in an auto-rickshaw and the appellant met her at the Railway Station, Kota and thereafter she accompanied the appellant. She had visited various places with the appellant at various bus stands and railway stations and came across various persons. However, at no point of time, she raised any objection, nor sought help from any one. She had visited various places with the appellant at various bus stands and railway stations and came across various persons. However, at no point of time, she raised any objection, nor sought help from any one. The sequence of events goes to establish that it was the prosecutrix who left her parent’s house at her sweet will because she was being found guilty on all counts by her mother and therefore she left her parents house. Right from the beginning, she was willing to go with the appellant as they were previously known to each other. 18. The medical evidence suggests that when she was examined by PW 5 Dr. Madhu Khaviya, she was pregnant. She went from her parents house on 14-3-2003 and she was medically examined on 5-4-2003, i.e. within 20 days. Thus, the prosecutrix had the affairs with the appellant prior to her leaving the house on 14-3-2003, or with some one else, as suggested in defence. 19. On close scrutiny of the statement of the prosecutrix, coupled with the admitted fact of leaving the letter Ex. D/1 by her before leaving her parents house all alone, conclusively establishes that she was not kidnapped by the appellant from the lawful custody of her parents and as such, the finding of the learned trial court, holding the appellant guilty for the offences under Section 363 and 366 IPC, in view of the aforesaid fact-situation, cannot be sustained and the same is liable to be set-aside. 20. So far as the offence under Section 376 IPC is concerned, firstly it has been established from the admitted facts and also by other evidence on record that on the relevant date of the occurrence, the prosecutrix was 18 years of age. At any rate, she was above 16 years of age. She left her house at her own sweet will, which is evident from the letter Ex. D/1 which is in her own handwriting. In her statement to the police Ex. D/2, recorded under Section 161 Cr. P.C., as also in her statement before the Court, the prosecutrix admitted that she went all alone from Rawatbhata to Kota in a bus and thereafter from Kota bus stand to Kota railway station in an auto-rickshaw. It also appears from the evidence that she had affairs with the appellant and it was at her instance that the appellant accompanied her to various places. It also appears from the evidence that she had affairs with the appellant and it was at her instance that the appellant accompanied her to various places. She voluntarily offered herself for sexual intercourse to the appellant which is also evident from her evidence that she did not raise any objection, nor made any hue and cry at the places like the bus stands and railway stations. It is also clear from her statement that she was free to move. If she was not a consenting party, she could have run away and sought help from others. These facts conclusively show that she was a willing and consenting party for the sexual intercourse by the appellant. 21. In State of Karnataka v. Sureshbabu Puk Raj Porral 2, the prosecut-rix went with accused voluntarily to several places and staying with him in lodges; evidence regarding her age was doubtful and not convincing; he medical evidence showed that she was used to sexual intercourse and in such factual matrix, the Hon’ble Apex Court held that when age is doubtful, the question of taking her away from lawful guardian-ship is not made out. The Supreme Court further held that where such victim willingly went with the accused to see places and moved together for 10-11 days in different towns, the accused could not be held to have taken her out of the keeping of her lawful guardian and something more like inducement should have been shown. 22. In Beeru Lal alias Birbal Ram v. State3, the appellant was tried for the offences under Sections 363, 366 and 376 IPC. There was evidence on record showing that the prosecutrix was not below the age of 16 years, the accused was known to the prosecutrix and he used to bring sweets for her; on the date of incident the appellant offered to take her to Sri Ganganagar for excursion; during along journey with the accused, the prosecutrix lived at the house of various relatives of the appellant but never disclosed anything to any body and the prosecutrix and the appellant lived together for about a month. In such facts and circumstances, the appellant was held entitled to acquittal. 23. In Balu Singh & Ors. In such facts and circumstances, the appellant was held entitled to acquittal. 23. In Balu Singh & Ors. v. State of Rajasthan4, this court held that conclusive evidence of the girl’s age may be the birth certificate, if it is not available then in conjunction with such oral testimony as may be available. The Court further held that Doctor’s estimate age is not a sturdy substitute for proof as it is only his opinion. It was further held that when doctors have opined that the age of the prosecutrix was between 15 to 17 years, therefore, her age, if margin of error is two years on either side, can be about 17 years and therefore, from every point of view, her age can be concluded or assessed near about 18 years and thus, she cannot be regarded as minor girl. In that case, the prosecutrix roamed at several places in the company of the accused but did not make any complaint and put her signatures on the application for marriage. In such eventualities, the Court found the prosecutrix as a consenting party. 24. In Munshi Ram v. State of Rajasthan5, a co-ordinate Bench of this Court held that ossification test is not a surest test and conviction cannot be based solely on this evidence. 25. In Jagia alias Jagdish Kumar v. State of Rajasthan6 there was no reliable evidence regarding age of the prosecutrix; the doctors stated that the age of the prosecutrix was between 14 to 16 years but they themselves admitted that variance of 2 years of either side is possible and in such factal matrix, the Court, while acquitting the appellant held as under :- “It cannot be positively held on the basis of material available on record that prosecutrix was less than 18 years of age on the date of incident and thus, she might be above the age of 17 years or she might be near the age of 18 years or she might have cross 18 years. Thus, findings of conviction of accused appellant u/s. 366 IPC as recorded by learned Sessions Judge cannot be sustained when there is element of consent and accused appellant is entitled to acquittal for offence under Section 366 IPC.” 26. In the instant case, there is clear evidence that prosecutrix left her parents house cut of her own sweet while left behind the letter Ex. In the instant case, there is clear evidence that prosecutrix left her parents house cut of her own sweet while left behind the letter Ex. D/1 showing the reason for her leaving the house; travelled all alone from Rawatbhata to Kota and Kota bus stand to Kota railway station; appellant accompanied her from Kota railway station; the appellant was previously known to the prosecutrix and he had visiting terms with the family of the prosecutrix; she was found habitual to sexual intercourse and also pregnant at the time of her medical examination, her mother’s evidence shows that she was a major girl; no convicting and reliable evidence of school record etc. has been led by the prosecution to show that she was below 18 years of age; she never complained against the appellant despite so many occasions available to her etc. lead only to the conclusion that she was major and a consenting party. As such, that the appellant is entitled for acquittal for the above offences. 27. Consequently, the appeal filed by the appellant is allowed; the judgment of conviction and order sentence dated 10-10-2003 passed by the learned Additional Sessions Judge No. 2, Chittorgarh in Sessions Case No. 46/2003 is set-aside and appellant Sita Ram S/o Bhanwar Lal Nayak is acquitted of the offences under Sections 363, 366 and 376 IPC. He is in jail. He shall be set at liberty forthwith not required in any other case. Appeal allowed. 1. AIR 1088 SC 1796. 2. 1994 SCC (Crl.) 435. 3. 2004 (1) Cr.L.R. (Raj.) 90. 4. 2002 (2) R.Cr.D. 418 (Raj.). 5. SB Cr. Appeal No. 245/1977 decided on 8-3-1983. 6. 2002 (3) R.Cr.D. 307 (Raj.).