JUDGMENT 1. - This is an appeal against the judgment of learned Sessions Judge, Pratapgarh dated 01.09.1988 whereby, the accused appellant was convicted under Section 376 IPC & 366 IPC and sentenced to seven years rigorous imprisonment and four years rigorous imprisonment respectively. The accused appellant was also convicted under Section 411 IPC and was sentenced to six months rigorous imprisonment. No sentence of fine was imposed in all the three offences for which the accused appellant was held guilty, whereas under Section 376 and 366 IPC, fine should have also been imposed in addition to substantive sentence because there is no word "or" in between imprisonment and fine. 2. The prosecution story in brief is that an oral report was made before the S.H.O., Pratapgarh by one Shyam Sunder that on 10.04,1982. Raju Devi who was studying in class VIII, went to school but did not return from school till 11.45 A.M. At about 2.30 P.M., one Raziya Bano came to the house and told mother of Raju Devi that she has come to teach English to her daughter. Upon this, mother of Mst. Raju Devi told her that Raju had gone to school. She did not return tilt 5.00 P.M. 3. It has been stated in the report that Raziya Bano, a notorious lady, her mother Kursia and niece Rukhsana have kidnapped Mst. Raju Devi. It was also stated in the report that certain ornaments were also stolen from the house. It was apprehended that Raju Devi might be in the house of Pyare Minya. The police registered a case under Section 366 & 380 IPC. 4. On 11.05.82, Mst. Raju was recovered with accused Pyare Minya at bus stand, Tonk. After obtaining school certificate etc. it was found that Mst. Raju was born on 14.07.1967 and her age is below 18 years. Thereafter, challan was filed against four accused. 5. During trial, accused Mst. Kursiya expired. Therefore, the trial proceeded against the accused appellant Pyare Minya alongwith Raziya and Rukhsana who were later on acquitted by the impugned judgment. 6. The accused appellant Pyare Minya was charged under Section 366, 376 and 411 IPC to which he pleaded not guilty and claimed trial. Rest of the accused who were acquitted, were charged under Section 366 IPC except accused Raziya who was charged under Section 380 IPC. 7. The prosecution examined 15 witnesses. 6. The accused appellant Pyare Minya was charged under Section 366, 376 and 411 IPC to which he pleaded not guilty and claimed trial. Rest of the accused who were acquitted, were charged under Section 366 IPC except accused Raziya who was charged under Section 380 IPC. 7. The prosecution examined 15 witnesses. The statement of accused were recorded under Section 313 Cr.P.C. In defence, they produced certain documents during cross-examination. 8. Learned Counsel for the appellant while assailing the judgment of learned trial Judge vehemently argued that there is no evidence of connecting the accused with the offence under Section 366 or 376 or 411 IPC, because from the evidence of prosecutrix Mst. Raju herself, she went with accused Pyare Minya with her will and her age has also not been proved to be less than 18 years. In this connection, he has drawn attention towards various correspondence which took place between Mst. Raju and Pyare Minya and also the testimony of the doctor. 9. The most important evidence in this case is of prosecutrix Mst. Raju herself who has stated in her statement recorded that while she was talking about learning English during school hours with her friends, at about 10.00 A.M. on the day of occurrence, Raziya Bano started hearing their conversion. She took her forcibly to her house where Pyare Minya locked the door of upper floor and asked the ornaments of her mother while showing knife. Upon this, she pointed out the ornaments to the accused from where Raziya Bano took her mother's ornaments, which she handed over to the accused Pyare Minya. They put off her school clothes and took her in a bus forcibly. Pyare Minya was having a knife in his pocket. They came to Chittor and boarded train for Udaipur. Accused Pyare Minya committed rape at Chittorgarh in the night and also in the hotel at Udaipur for five times. Then he took her to Jaipur and stayed in Muslim Musafir Khana for 3-4 days and they stayed at the residence of Kannu Dokri. There also she was raped. She was never allowed to leave alone. Thereafter, she was taken to Tonk and stayed at the residence of Bundan Aapa for 15-20 days. There also she was raped. She was caught hold by the police at Tonk bus stand alongwith Pyare Minya when they were leaving Tonk. 10. There also she was raped. She was never allowed to leave alone. Thereafter, she was taken to Tonk and stayed at the residence of Bundan Aapa for 15-20 days. There also she was raped. She was caught hold by the police at Tonk bus stand alongwith Pyare Minya when they were leaving Tonk. 10. When she was cross-examined and was confronted with the letters Ex. D2 to Ex. D17, she admitted that the letters Ex. D2 and Ex. D5 were written by her but rest of the letters were written by her in an unconscious condition. She has admitted in her last line of cross-examination that she did not tell the police about these letters. 11. After perusing these letters, learned trial Judge was of the view that it is clear that Mst. Raju Devi and accused appellant were having love affairs and Mst. Raju Devi was attracted to Pyare Minya on account of sexual desire. Learned trial Judge disbelieved the theory of committing sexual intercourse against the will of Mst. Raju and opined that Mst. Raju tried to speak lie in the Court and it is proved that she went with Pyare Minya at her will. On the basis of the evidence brought on record about the school certificate and the medical evidence, he was of the opinion that the age of the prosecution was 17 years on the date of occurrence, therefore, she was kidnapped from lawful guardianship without their consent and held that accused Pyare Minya guilty for all the offences. 12. As regards the age, the most important evidence is of the doctor Ashok Kumar PW8 who examined Mst. Raju on 12.05.1982. According to him, the age of girl was 17 years and in between 16 & 18 years on the date of occurrence. But in the cross-examination, he has stated that due to ossification of bones, there may be a difference of two years in the age depending on the food habits, climate and heredity. If this statement of doctor is read with the statement of Shyam Sunder PW4 who is the brother of Mst. Raju who has said that her age is 17 years. According to him, the age of Mst. If this statement of doctor is read with the statement of Shyam Sunder PW4 who is the brother of Mst. Raju who has said that her age is 17 years. According to him, the age of Mst. Raju should be 13 years on the day of occurrence but if his statement is read in the light of his cross-examination, he has said that his date of birth was 04.12.1962 and Mst. Raju is his younger sister and he cannot say whether she is two years younger to him. 13. Firstly, he is telling lie about the age because in the statement, he says that age of Mst. Raju was 13 years on the date of occurrence but in the FIR Ex. P6, he had written it to be 16 years and if his cross-examination is read in the light of two years difference in between him and his sister's birth, her age should have been somewhere in 1964 which means she was approximately 18 years of age on the date of occurrence. 14. One School certificate Ex. P10 has been produced in which the age of Mst. Raju has been shown as 14.10.1967 and the same is issued by headmaster of Middle School of Kaimpura, Pratapgarh. These documents have been proved by Gautam Lal PW5 who prepared the birth certificate Ex. P9 in which the date of birth has been shown to be 14.10.1967. If these certificates are looked into, then the age of Mst. Raju is in between 15 and 16 years. But these documents have not been proved as required under the Evidence Act. Ex. P8 and Ex. P10 have been issued by the Headmaster of the school, who has not been examined by the prosecution. 15. A birth chart has been prepared by Gautam Lal PW5 who is the father of Mst. Raju. A father can prepare a chart showing any date of birth of his daughter and his evidence cannot be looked into as a conclusive proof of age. The conclusive proof would have been either the birth certificate issued by Municipal Board entered into the birth register, but the same has admittedly not been produced and the school certificate has not been proved by the concerned Headmaster alongwith the application for admission, in which the correct date is given. 16. The conclusive proof would have been either the birth certificate issued by Municipal Board entered into the birth register, but the same has admittedly not been produced and the school certificate has not been proved by the concerned Headmaster alongwith the application for admission, in which the correct date is given. 16. In the absence of these material piece of evidence, the finding arrived at by the learned Sessions Judge that Mst. Raju was minor on the date of occurrence is contrary to record. When Mst. Raju was not a minor on the date of occurrence, as discussed above, the conviction of the accused appellant under Section 366 IPC is also not proper. It appears from the record as put forth, particularly the letters written by Mst. Raju namely, Ex. D2 to Ex. D17 that she went with Pyare Minya with her consent to satisfy her sexual desire and took ornaments with her. Therefore, the judgment of the learned Sessions Judge (convicting the accused appellant under Section 376, 366 and 411 IPC cannot be sustained and is liable to be set aside. 17. Consequently, this appeal is allowed. The judgment of the learned Sessions Judge convicting the accused appellant under Section 376, 366 and 411 IPC is set aside and he is acquitted of the charges levelled against him. He is on bail in this case. His bails bonds are cancelled.Appeal allowed. *******