Judgment H.R. Panwar, J.-The instant criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, "the Code") is directed against the Judgment and order dated 10.01.2005 passed by the Additional Sessions Judge (Fast Track), Parbatsar (for short, "the trial Court" hereinafter) in Sessions Case No. 21/2004 (16/2004), by which the trial Court convicted the accused-appellant for the offence under Section 376 IPC, and sentenced him to rigorous imprisonment for ten years and a fine of Rs. 10,000/-and in default of payment of fine further to undergo three months simple imprisonment. 2. The facts giving rise to this criminal appeal, in a nut shell, are that on 28.04.2004, complainant PW. 2 Ramdhan lodged a written report with Police Station, Chitawa, district Nagaur, stating therein that his sister PW. 1 Kumari Manju, the prosecutrix, is a student of Class IV in Rajiv Gandhi Swaran Jayanti Pathshala, Lalas (Gudeli Nadi) and the accused-appellant is working as a teacher in that school. It is alleged that the appellant seduced the prosecutrix and committed rape for eight to ten times by assuring her that he would give colourable marks to her in examination and also provide new pen and bra. When the students and other person came to know about this repeated act of rape by the appellant on the prosecutrix, the prosecutrix narrated the incidents to the complainant. It has further been alleged that the appellant threatened the prosecutrix that she is maiden and if the villagers and neighbours would come to know about the incident, it would create difficulty in her marriage and as such the prosecutrix did not narrate the incident earlier to her family members. After investigation, the police filed challan against the appellant for the offence under Section 376 IPC. After trial, the trial Court, vide impugned Judgment and order, convicted and sentenced the accused-appellant, as stated above. Hence, this appeal. 3. I have heard learned Counsel for the appellant and the Public Prosecutor for the State. Perused the Judgment and order impugned, as also the record of the trial Court. 4. PW. 1 Kumari Manju, the prosecutrix, in her statement has stated that she was student of Class V and appellant was their teacher, who is a resident of her village. I have heard learned Counsel for the appellant and the Public Prosecutor for the State. Perused the Judgment and order impugned, as also the record of the trial Court. 4. PW. 1 Kumari Manju, the prosecutrix, in her statement has stated that she was student of Class V and appellant was their teacher, who is a resident of her village. She has specifically stated that the appellant never retained her after school hours, nor he took her naked photographs, nor evteased or committed any rape upon her. She has stated that the report Exhibit P-1 was not lodged by her, nor the signatures form A to B on the report Exhibit P-1 are of her. The prosecutrix was declared hostile. She was subject to lengthy cross-examination, wherein she has denied the lodging of report with regard to rape on her as well as her signatures on it. She has stated that on being threatened by the police, she made statement Exhibit P-5 under Section 164 CrPC, and denied the contents from A to B. She has categorically stated that appellant has not committed rape on her. 5. PW. 2 Ramdhan is the brother of the prosecutrix PW. 1 and has stated that he did not lodge the report Exhibit P-1 before the police. Though he admitted his signatures from C to D on the report Exhibit P-1 as well as on Chak FIR Exhibit P-6 and other documents but he has specifically stated that he never gave any statement to police regarding committing rape by the appellant on the prosecutrix, nor the prosecutrix told her about rape having been committed on her by the appellant. In cross-examination by the Additional Public Prosecutor, he stated that the report Exhibit P-1 was written by the police and it only bears his signatures. He further stated that he had not gone through the contents of Exhibit P-1. He has specifically denied commitment of rape on the prosecutix. 6. PW 3 Rajuram is the uncle of the prosecutrix. He has stated that on 24.04.2004, the prosecutrix came weeping but what she told, he does not know as he was sitting in his shop. He was declared hostile. In cross-examination, he has denied the contents of Exhibit P-8, wherein there is mention that the appellant used to put-in his finger in the vagina of the prosecutrix. 7. PW. 4 Dr. He was declared hostile. In cross-examination, he has denied the contents of Exhibit P-8, wherein there is mention that the appellant used to put-in his finger in the vagina of the prosecutrix. 7. PW. 4 Dr. Dinesh Sharma was the then Medical Officer and Member of Medical Board, who medically examined the prosecutrix PW. 1 and the appellant. He has stated that in the opinion of Medical Board, PW.1 prosecutrix was not habitual to sexual intercourse. However, there were two fresh tears on lateral aspect of hymen with red swallow. For ascertaining recent sexual intercourse, the vaginal swab and smear were taken and sent for chemical examination. He also medically examined the appellant and found him capable to perform sexual intercourse. 8. PW. 5 Dara Singh, Police Constable, is the person who took the sealed samples from Police Station to the Office of the Superintendent of Police, Nagaur and thereafter to the State Forensic Science Laboratory, Jaipur. In cross-examination, he has stated that an objection was raised by the FSL, what was that objection, he does not know because it was in written in English. 9. PW. 6 Narain Ram has stated that the appellant was a teacher in Rajiv Gandhi Pathshala and he does not know whether to prosecutrix was a student of that school. He has stated that neither he heard about staying the prosecutrix in the school, nor about any wrong act done with her. 10. PW. 8 Bhawani Singh is the investigating officer, who has stated the steps taken during investigation. In cross-examination, he has admitted that on the report Exhibit P-1, there are no signatures of the prosecutrix. He has admitted that the clothes of the prosecutrix were brought by the prosecutrix and her brother after eight days from the date of lodging the report. He has denied the suggestion that the prosecutrix was threatened by him to give statement under Section 164 CrPC, and stated that she suo moto gave this statement. 11. PW 9 Harji Ram was the Malkhana Incharge of the concerned police station and has given statement that the seals on the article handed over to him remained intact. 12. PW 10 Smt. Kamla has stated that the prosecutrix had come to her house from the school and told her that the teacher had done wrong with her and did not say anything more. She was declared hostile by the prosecution. 12. PW 10 Smt. Kamla has stated that the prosecutrix had come to her house from the school and told her that the teacher had done wrong with her and did not say anything more. She was declared hostile by the prosecution. She has resiled from her police statement Exhibit P-18 and denied the suggestion that she was giving false statement to save the appellant. 13. PW 11 Parmi Devi is the mother of the prosecutrix. She has specifically stated that the proxecutrix did not state anything to her. In cross-examined by the Additional Public Prosecutor, she resiled from her police statement Exhibit P-19. She has further stated that it is wrong to suggest that the appellant committed rape on the prosecutrix and she was giving false statement before the Court on account of compromise having been arrived at between the parties. 14. PW. 1 prosecutrix, her brother complainant PW. 2 Ram Dhan, uncle PW. 3 Rajuram, aunt Smt. Kamla and mother PW. 11 Premi Devi, as also the independent witness PW. 6 Narain Ram have turned hostile. They have not supported the prosecution case regarding commitment of rape by the appellant on the prosecutrix. PW. 7 Kumari Maina was also produced as a prosecution witness but she was found unable to speak and understand, as such her statement could not be recorded regarding the incident. The appellant, in his statement under Section 313 CrPC, has stated that he is innocent and has been falsely implicated on account of animosity. However, over-looking all these material aspect, the trial Court convicted and sentenced the appellant on the basis of the statement of PW. 10 Smt. Kamla, who is the aunt of the prosecutrix and observed that her statement finds corroboration from the medical evidence. It is pertinent to mention her that PW. 4 Dr. Dinesh Sharma has specifically stated that no opinion can be given regarding recent sexual intercourse and he has not found the prosecutrix habitual to sexual intercourse, however, he preserved vaginal swab and smear for chemical examination but the FSL returned the sample and there is no FSL report on record. Further, the trial Court erred in basing conviction on the statement of PW. 10 Kamla, the aunt of the prosecutrix though she did not support the prosecution case and was declared hostile by the prosecution. Further, the trial Court erred in basing conviction on the statement of PW. 10 Kamla, the aunt of the prosecutrix though she did not support the prosecution case and was declared hostile by the prosecution. Further, according to her, the prosecutrix told the incident to her in the presence of all the members of the family but none of the other members of the family has come forward to support her version. Again, what she stated in the examination-in-chief is that the prosecutrix told her that the teacher had done wrong with her. Who was the teacher and what wrong had been done with the prosecutrix, have not been explained by her. She further admitted in the examination-in-chief that the prosecutrix did not tell anything to her. Though, there is no evidence of committing rape on the prosecutrix and the fact that prosecutrix and other prosecution witness have turned hostile, yet the trial Court convicted the appellant on the basis of the statement of the prosecutrix Exhibit P-5 alleged to have been recorded under Section 164 of the Code by the Additional Chief Judicial Magistrate, Makrana. The said statement was not subjected to cross-examination. More so, PW. 1 prosecutrix herself categorically denied having made such statement voluntarily, on the contrary, when she was confronted with her previous statement Exhibit P-5 under Section 164 of the Code, she clearly stated that statement Exhibit P-5 A to B has not been made by her. She only admitted her signature. She has categorically stated that she was pressurized by the police to make statement which she voluntarily did not make. Be that as it may, the statement under Section 164 of the Code cannot be preferred as against the statement made on oath by PW. 1 during the trial of the case, which was tested in cross-examination. It appears from perusal of the Judgment of the trial Court that the learned trial Court swayed by certain sentimental feelings while convicting the appellant on the material which is otherwise not admissible in evidence regarding the school certificate showing her age, the statement Exhibit P-5 under Section 164 of the Code and to some extent misread the evidence. It appears from perusal of the Judgment of the trial Court that the learned trial Court swayed by certain sentimental feelings while convicting the appellant on the material which is otherwise not admissible in evidence regarding the school certificate showing her age, the statement Exhibit P-5 under Section 164 of the Code and to some extent misread the evidence. Exhibit P-15, a certificate issued by the school showing the date of birth of the prosecutrix has not been proved in accordance with law inasmuch as this document has been tendered in evidence by the investigating officer PW. 8 Bhawani Singh. In the instant case, neither the headmaster, who issued certificate, has appeared in the witness-box and proved the certificate nor the original form of admission, wherein the date of birth of prosecutrix was shown, had been produced and proved, and therefore, document Exhibit P-15 has not been proved in accordance with law, yet the trial Court has relied on this document. In this regard, the reference may be made to the decision of the Honble Supreme Court in Birad Mal Singhvi vs. Anand Purohit, AIR 1988 SC 1796 , whrein the Honble Supreme Court observed that to render a document admissible under Section 35 of the Evidence Act, 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 facts, 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. The Apex Court further observed that 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 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. The Apex Court further held as under:- "If the entry in the scholars 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 evidentiary value. 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." 15. The prosecutrix in her statement before the Court stated her age as 18 years. She was medically examined to determine her age. The medical board was of the view that the age of prosecutrix is between 16-17 years. That document is on record but the prosecution has not tendered in evidence and as such has not been proved. Even otherwise, the factum of age has no relevancy for the reason that there is absolutely no evidence that the prosecutrix was subjected to rape. Had there being any evidence of rape, then the question of consent or without consent would have to be gone into. The trial Court held that even if the prosecutrix was consenting party to the sexual intercourse, then also, she was less than 16 years of age and consent is immaterial. Before the prosecution, it was nobodys case that the prosecutrix consented for sexual intercourse. Neither the prosecution has established the offence of rape nor the accused-appellant took the plea that the prosecutrix was consenting party to the sexual intercourse. So much so, there is not iota of evidence to establish that any sexual intercourse was performed with the prosecutrix by the appellant. The prosecutrix has categorically stated that nothing has been done to her by the appellant much less the sexual intercourse against her wishes. The trial Court relied on the statement under Section 164 of the Code Exhibit P-5 on a ground that had the prosecutrix died, it would have been admissible under Section 32 of the Evidence Act. The prosecutrix has categorically stated that nothing has been done to her by the appellant much less the sexual intercourse against her wishes. The trial Court relied on the statement under Section 164 of the Code Exhibit P-5 on a ground that had the prosecutrix died, it would have been admissible under Section 32 of the Evidence Act. This shows that the trial Court proceeded on surmises and conjectures to base the conviction of the appellant without there being any iota of legal evidence to hold the conviction. The trial Court further held that from medical evidence, it has been established that a sexual intercourse has been performed with the prosecutrix. 16. I have carefully gone through the statement of PW . 4 Dr. Dinesh Sharma, who examined the prosecutrix. He nowhere stated that there was sexual intercourse with the prosecutrix. What has been stated by this witness in his statement is that in order to ascertain as to whether there was any recent sexual intercourse with the prosecutrix, a slide of vaginal swab of prosecutrix was sent for chemical analysis. No FSL Report is on record. Thus, the learned trial Court misread the evidence while concluding the guilt of the appellant. Having closely scrutinised the evidence on record, I am of the considered view that there is absolutely no evidence on record to establish that the appellant committed rape on the prosecutrix and, therefore, the prosecution has utterly failed to establish its case against the appellant beyond reasonable doubt. Thus, the trial Court fell in error in convicting and sentencing the appellant as noticed above. In view of the aforesaid discussion, his conviction and sentence cannot be sustained and deserve to be set aside. 17. Consequently, the appeal is allowed. The impugned Judgment and order dated 10.01.2005 passed by the trial Court is set-aside and the appellant is acquitted of the offence under Section 376 IPC. He is on bail. His bail bonds stand discharged.