JUDGMENT 1. - The petitioner has challenged the judgement dated 23.07.2009 passed by Additional Sessions Judge (Fast Track) No.3 Ajmer, Camp Kishangarh, whereby the learned Judge has acquitted the respondents No.2 to 5 of the charges under sections 363, 366, 376 and 120B IPC. 2. In a nutshell, the facts of the case are that on 04.11.2001, the petitioner had lodged a report at Police Station Madanganj, Kishangarh, wherein he had claimed that on 22.10.2008 respondents No.2 to 5 had kidnapped his minor daughter, Gulshan. The police registered a FIR, FIR No.528/2008 for offences under sections 363 and 366 IPC. However, after Gulshan was recovered, offences under sections 376 and 120B IPC were added against respondents No.2, 3 and 4. Subsequently, a charge sheet was filed against respondents Nos.2 to 5. In order to prove its case, the prosecution examined fourteen witnesses and exhibited twenty seven documents. In defence, the accused did not examine any witness, but did exhibit a document. After going through the oral and documentary evidence, the learned trial judge, as mentioned above, acquitted the accused respondents No.2 to 5 of all the charges. Hence, this petition before this Court. 3. Mr. Neeraj K.Tiwari, the learned counsel for the petitioner, has vehemently contended that according to petitioner's testimony his daughter was a minor. Secondly, even if there is a conflict, within the prosecution evidence, with regard to age of the pro secutrix, the testimony of her parents, and the date of birth as reflected in the school certificate should be relied upon by the Court in order to determine the pro secutrix's age. According to the school certificate, the pro secutrix was, indeed, minor. In order to support his contention the learned counsel has relied upon Vishnu @ Undrya v. State of Maharashtra, 2006 ACJ 713 (SC) : 2006 (1) Criminal Court Cases 493 (SC) : 2006 (1) WLC (SC) Cri 103 : 2006 (1) SCC 283 and on State of Maharashtra v. Gajanan Hemant Janardhan Wankhede, 2009 (1) CCC 204 (SC) : 2008 (8) SCC 38 . He has further contended that in her testimony the prosecutrix has vividly described the gang-rape to which she was subjected. On the basis of her testimony, the learned trial Judge should have convicted the accused respondents. 4. On the other hand, Mrs. He has further contended that in her testimony the prosecutrix has vividly described the gang-rape to which she was subjected. On the basis of her testimony, the learned trial Judge should have convicted the accused respondents. 4. On the other hand, Mrs. Alka Bhatnagar, the learned Public Prosecutor, has strenuously argued that the petitioner did not state in his testimony about the exact date of the prosecutrix's birth. He merely made a vague statement that on the date of occurrence the prosecutrix was 15 years and 6 months old. Secondly, the admission ticket of the prosecutrix (Ex.P21) shows that the person who declared her date of birth was one Manphool. However, Manphool was not examined by the prosecution. Thirdly, Bhanwar Lal Sharma PW14, the Principal of the school, has clearly admitted in his cross-examination that he cannot state on what basis the said date was recorded in the admission ticket. Therefore, the prosecution has not proved the prosecutrix's actual date of birth. Fourthly, in absence of cogent evidence on this point, the only other evidence upon which the learned trial judge could have relied, would be the medical evidence. According to Dr.Sheela Rani PW3, the Radiologist, who had carried out the examination for age of the prosecutrix, the pro secutrix was between 18-19 years on 22.12.2008. The said testimony has been corroborated further by the testimony of Dr.Hemendra Bhaktani PW4. Therefore, on the basis of testimony of both the doctors, the learned trial court was justified in holding that the pro secutrix was major on the date of occurrence. Fifthly, the pro secutrix is not a witness of sterling worth, as she has exaggerated the facts of the case to the extent that they amount to contradictions. According to statements of the pro secutrix under section 161 Cr.P.C. Mahendra Sahu (respondent No.5) had taken her and had committed rape upon her. However, in her testimony in the Court, she further claimed that she was raped by Amar Chand (respondent No.2), Ramesh Chand (respondent No.4) and by one Mangla. However, the police did not charge-sheet Mangla. Thus, part of the pro secutrix's story was found to be unreliable by the police. Sixthly, according to prosecutrix herself, she had travelled with the three alleged rapists from Chittorgarh to Neemach, from Neemach to Agra, from Agra to Rewari. In Rewari, she stayed with the rapists for about two months. However, the police did not charge-sheet Mangla. Thus, part of the pro secutrix's story was found to be unreliable by the police. Sixthly, according to prosecutrix herself, she had travelled with the three alleged rapists from Chittorgarh to Neemach, from Neemach to Agra, from Agra to Rewari. In Rewari, she stayed with the rapists for about two months. However, during this entire period and during the travel, she neither protested, nor tried to escape from the clutches of the alleged rapists. Therefore, her conduct is highly unnatural. Lastly, considering the fact that the pro secutrix happens to be a Muslim girl, considering that fact that she happens to be a neighbour of Mahendra Sahu (respondent No.5), considering the fact that she is major, considering the fact that she herself claimed that she and Mahendra Sahu were 'on friendly terms', the possibility of elopement with a Hindu boy cannot be ruled out. Since it is inter-community union, a false case has been created by the petitioner. Therefore, the learned Public Prosecutor has supported the impugned order. 5. Heard learned counsel for the parties, considered the impugned judgement and the material available on record, and considered the case law cited at the Bar. 6. According to the admission ticket, Ex.P21, the date of pro secutrix's birth was 23.08.1993. Therefore, on 04.11.2008 the pro secutrix would be 15-16 years. However, according to the said exhibit, the said date was declared by one Manphool and not by pro secutrix's parents. In fact, the petitioner, Shahbuddin, PW2, does not reveal the correct and exact date of birth of the pro secutrix in his examination-in-chief. Instead, he makes a general statement that his daughter was 15 years and 6 months old. Unfortunately, Manphool has not been produced by the prosecution. Therefore, the very basis on which the date of birth was declared by Manphool is unknown to the Court. According to Bhanwar Lal Verma (sic-Sharma?) PW14, although he was the Principal of the school, he was not in a position to reveal the basis on which the pro secutrix's date of birth had been entered in the admission ticket. Hence, there is no cogent evidence, available on record, to establish that the pro secutrix was, indeed, born on 23.08.1993. 7. Hence, there is no cogent evidence, available on record, to establish that the pro secutrix was, indeed, born on 23.08.1993. 7. In a case where age determination is a vital issue, if there is conflict between the age given by the parents and the school documents on one hand, and the age as determined by the medical evidence on the other hand, the question arises as to out of these two sets of evidence, which one should be relied upon? No universal rule can be laid down as each case has to be tested on its peculiar facts and circumstances. However, what can be stated is that before school document can be relied upon, the authenticity and veracity of the contents of the document have to be established by the prosecution. For, it is a known fact that generally the exact date of birth is not revealed. Thus, the age of the child continues to be unknown. Many a times, in rural areas, and even in cities, in order to bestow future benefits upon a child, the exact date of birth is not revealed. Therefore, the date, as stated in the school record, cannot be accepted ipse dixit. Moreover, it a is the duty of the prosecution to produce the person, who had disclosed the date of birth in the school record. After all, only such a person can reveal the basis on which the specific date was mentioned by him. Thirdly, the parents should state the exact date of birth. In absence of cogent and convincing evidence, corroborating the date of birth as shown in the school certificate, the trial court has no other option, but to rely upon the medical evidence as expressed by the medical experts. Although, it is true that medical opinion is merely an opinion, therefore, it is not absolutely binding on the trial court. But one cannot overlook the fact that the said opinion is based on empirical scientific method. Determination of age is based on objective criteria. Since the age is assessed on objective basis, it can neither be held to be fanciful, nor to be imaginary. Therefore, in a conflict between the ocular evidence and medical evidence, in case the prosecution fails to establish the veracity and authenticity of the school record, then the medical evidence should prevail. It should be accepted by the trial court. 8. Therefore, in a conflict between the ocular evidence and medical evidence, in case the prosecution fails to establish the veracity and authenticity of the school record, then the medical evidence should prevail. It should be accepted by the trial court. 8. In the present case, the petitioner, although the father of the pro secutrix, merely makes a general statement and does not specify the exact date of birth of the pro secutrix. Moreover, Manphool, who had gotten the pro secutrix admitted in the school, is conspicuously absent. His absence should be read adversely, as the prosecution has failed to produce a material and independent witness. Furthermore, in absence of Manphool no witness has revealed the basis for recording the pro secutrix's date of birth as 23.08.1993. Lastly, Bhanwar Lal Verma PW14, clearly states that he is not in a position to either reveal the name of the person, who had recorded the date of birth of pro secutrix, or to vouch for the veracity of the said date. Hence, the prosecution has failed to prove the pro secutrix's actual date of birth. Her actual date of birth continues to remain in the realm of surmises and conjectures. 9. Against the vagueness of date of birth of the pro secutrix as 23.08.1993, the court is offered the medical evidence by the prosecution. According to testimony of Dr.Sheela Rani PW3 the elbow, the wrist, the pelvic bone and the knee joints of pro secutrix were x-rayed. According to these reports, the pro secutrix was between the age of 18 and 19 years, During her medical examination, it was also discovered that she was pregnant for the last eleven weeks. Thus, according to medical evidence, the pro secutrix was major on the date of occurrence. Therefore, in absence of a cogent documentary evidence with regard to exact date of birth, and in presence of medical opinion, the learned trial judge was justified in rightly relying upon the medical evidence in order to conclude that the pro secutrix was major on the date of the occurrence. 10. The learned counsel for the petitioner has relied upon the case of Vishnu @ Undrya (supra) to argue that medical evidence is not binding on the court. In case of conflict, the ocular evidence should be preferred. For, medical officer is not a witness of fact. 10. The learned counsel for the petitioner has relied upon the case of Vishnu @ Undrya (supra) to argue that medical evidence is not binding on the court. In case of conflict, the ocular evidence should be preferred. For, medical officer is not a witness of fact. Instead, the medical officer merely provides an advisory opinion to the court. However, the said observation was made in a different factual matrix. In that case, the pro secutrix's parents had submitted the register of the hospital where the pro secutrix was born and had examined the doctor. Register of the hospital had given the pro secutrix's specific date of birth of the pro secutrix. The said document was proved by the doctor. However, in the present case, only the register of school has been produced. The person who had entered the date in the said register has not been examined. And most importantly, the person, who stated the date, Manphool has not been produced as a witness. Moreover, even the father, the petitioner, does not reveal the exact date of birth of the pro secutrix. In catena of cases, the Hon'ble Supreme Court has observed that its observation should not be applied as though they are provisions of a statute. Each case has to be considered and appreciated in the peculiar facts of the individual case. Therefore, the case of Vishnu @ Undrya (supra) does not come to the rescue of the petitioner. 11. The case of Gajanan Hemant Janardhan Wankhede (supra) also does not buttress the contention of learned counsel for the petitioner. In that case, the High court had discarded the documentary evidence without assigning any reason. However, in the present case, the learned trial court has given cogent reasons for disbelieving prosecutrix's date of birth as mentioned in the school register. 12. Although, it is true that an accused can be convicted solely on the basis of pro secutrix's testimony, but the pro secutrix has to be a witness of sterling worth. After all, the settled principle of criminal jurisprudence is that an accused can be convicted on the basis of testimony of a sole witness, provided the sole witness is of sterling worth. The same principle would apply In the case of rape, where the prosecution proposes to convict an accused only on the sole testimony of the pro secutrix. After all, the settled principle of criminal jurisprudence is that an accused can be convicted on the basis of testimony of a sole witness, provided the sole witness is of sterling worth. The same principle would apply In the case of rape, where the prosecution proposes to convict an accused only on the sole testimony of the pro secutrix. However, a bare perusal of the testimony of pro secutrix reveals that she is not a witness of sterling worth. In her statements under Section 161 Cr.P.C. she does not reveal that she had been raped by Ramesh Chand, Amar Chand and one Mangla. She makes this allegation, for the first time, before the trial court. When she is confronted with this part of contradiction, she merely states that she had revealed this fact to the police, but she has no idea why the police has not recorded the same. However, according to testimony of the investigation Officer, her statement was recorded, as given by her. Hence, there is exaggeration made by her, which amounts to a contradiction on a major point. 13. Even her conduct is not above doubt. According to her own testimony, she allegedly travelled from Chittorgarh to Neemach, from Neemach to Agra, from Agra to Rewari, along with the alleged rapists, and Renu, wife of Ramesh Chand (respondent No.4). At Rewari she stayed in a house, for almost two months. It is, indeed, surprising that a woman would travel with her alleged rapists without protesting, without trying to escape from the clutches of the rapists, and without revealing her condition to any of the co -passengers, or to any other person. Even, at Rewari, the pro secutrix maintained a studied silence. It is, only after she was recovered, that she claimed that she has been gang raped by the accused respondents. Considering the fact that she admitted that she and Mahendra Sahu (respondent No.5) were 'on friendly terms', considering the fact that Mahendra Sahu happens to be Hindu boy, and the pro secutrix happens to be Muslim girl, considering the fact that relationship is in between a Hindu boy and a Muslim girl, the possibility of false case being fabricated cannot be ruled out. Therefore, the story narrated by the pro secutrix seems to be highly doubtful. 14. For the reasons mentioned above, this revision petition is devoid of any merit. It is, hereby, dismissed.Revision Dismissed. *******