JUDGMENT Mr. M. Jeyapaul, J. (Oral) - Accused Dharminder and Pala Ram @ Pali who is the father of first accused Dharminder were convicted for the offence under Section 363, 366 and 376 IPC. The maximum sentence awarded was 10 years R.I. for the offence under Section 376 IPC. They have preferred the present appeal. 2. Accused Pala Ram who was virtually accommodated by PW3 Gurdip Singh, father of the prosecutrix in a brick-kiln of Vinod Kumar Sekhri where he was working as a brick-kiln labourer, kidnapped the prosecutrix who was examined as PW4 in this case from near her house when she went out to pass urine. She was taken to an old brick-kiln where accused Dharminder raped her. They also took her to a brick-kiln at Kahanpur. She was kept there for about 20 days. Both the accused beat her and exploit her sexually. Thereafter they took her to village Sarai Khas to the house of their relative. 3. On the basis of the FIR given by PW3 Gurdip Singh on 17.1.2006, the prosecutrix was recovered from the custody of accused Dharminder on 1.3.2006. Accused Dharminder also was arrested on the said day. 4. PW1 Dr. Adarsh Sood, medico-legally examined the prosecutrix on 2.3.2006 at about 3.30 p.m. She found that the hymen was torn. The vagina admitted two fingers tightly. Two vaginal swabs were taken for examination. The report of the chemical examiner disclosed that no spermatozoa was detected in the apparels recovered. It is her opinion that hymen would have been torn due to sexual intercourse. PW5 Dr. Prem Nath Dutta examined accused Dharminder and certified that he was physically fit to have sexual intercourse. 5. PW7 Shakuntal Kaur, a Teacher attached to the school where the prosecutrix reportedly studied produced the admission register Ex.PW7/A and School Leaving Certificate Ex.PW7/C and deposed about the date of birth of the prosecutrix as 2.1.1992. 6. PW12 having completed the investigation laid final report as against both the accused. 7. The trial Court having adverted to the evidence of PW7 came to a decision that the prosecutrix was just 14 years of age at the time when the occurrence took place. 6. PW12 having completed the investigation laid final report as against both the accused. 7. The trial Court having adverted to the evidence of PW7 came to a decision that the prosecutrix was just 14 years of age at the time when the occurrence took place. In the background of the evidence of the prosecutrix who was examined as PW4, the trial Court arrived at a conclusion that she was kidnapped from lawful guardianship of PW3 with an intention to subject her to intercourse and commit rape upon her. It is further held that the medical evidence supported the case of the prosecution. Hence, conviction was recorded as stated supra by the trial Court. 8. Learned counsel appearing for the appellants would vehemently submit that the date of birth approximately given by the parents at the time of admission of a child cannot be a proof beyond doubt as to the age of the child. The birth certificate was suppressed by the prosecuting agency. The photographs filed by the defence would go to show that she was found to be well-matured and she posed to the photographs as a beautiful smiling bride. The testimony of DW1 establishes that accused Dhaminder had got married the prosecutrix. No allegation of rape was seriously made by the prosecutrix as against accused No.2. Therefore, it is her submission that the trial Court without properly adverting to the evidence on record returned a verdict of conviction. 9. Mr. T.S. Salana, DAG, Punjab appearing for the State would vehemently submit that the testimony of the prosecutrix cannot be discarded. No motive was attributed as against the prosecutrix for coming out with such a serious allegation of rape committed upon her. The school certificate produced by PW7 would establish that the prosecutrix was born only on 2.1.1992. The medical evidence also would go to establish that the prosecutrix was subjected to intercourse. Therefore, it is his submission that the trial Court has rightly rendered the verdict of conviction as against both the accused. 10. I find that it is an unfortunate case where the second accused, namely, Pala Ram @ Pali was accused of rape of the prosecutrix, when there was no material to establish that she was raped by accused Pala Ram. 11. It is very much relevant to refer to the evidence of PW4, prosecutrix in this case. 10. I find that it is an unfortunate case where the second accused, namely, Pala Ram @ Pali was accused of rape of the prosecutrix, when there was no material to establish that she was raped by accused Pala Ram. 11. It is very much relevant to refer to the evidence of PW4, prosecutrix in this case. She has deposed that she was an illiterate person. Her version is that she stood at the place near her house at about 4.00 a.m. on the date of occurrence for about one hour after passing urine. In the cross-examination she would simply state that accused came over there and she went alongwith them. In fact, the accused had come on two bicycles and she sat on the front portion of the bicycle of accused Dharinder and went away. 12. It had taken 2 hours to reach the village Kahanpur. Many people had passed through that way. But she had not informed of the kidnapping to anybody whom she met on the way. Many houses also were located on the way of Kahanpur. In fact, she had taken tea at a shop alongwith the accused. The damaging version found in the testimony of PW4 is that she in fact started living with first accused Dharminder with her consent. 13. If at all she had not made herself ready to go alongwith the accused Dharminder, she would not have remained at a place where she passed urine for about one long hour. Secondly, it is highly impossible for any person to accommodate a girl with well-built physique in the front portion of the bicycle and took her to a far-off place for about 2 hours when she was not a consenting party. If the girl had resisted it would have been quite impossible for a person to take her away from the village. It is her admission that many people passed through the way. She proceeded to Kahanpur alongwith the accused. If at all she had been kidnapped by the accused, she would have definitely disclosed the factum of kidnapping to at least some of the persons she encountered on the way. Very leisurely, it appears that she had taken tea in a shop alongwith the accused. It is expected of prudent girl to share the offence committed by the accused to some of the persons who were there at the tea shop. Very leisurely, it appears that she had taken tea in a shop alongwith the accused. It is expected of prudent girl to share the offence committed by the accused to some of the persons who were there at the tea shop. As per her version, it appears that she lived with the first accused Dharminder on her own volition. Rather, there was no compulsion on the part of accused Dharminder to make her stay alongwith him. 14. It is found that the second accused was a brick-kiln labourer. After all, the son, the first accused Dharminder, had visited his father at the brick-kiln. They could produce the photographs Mark ‘A’ and ‘B’ to show that no force was used, nor was any compulsion exerted on the prosecutrix. It is true that the negatives were not produced by the defence. Considering the illiterate status of the accused, I find that there is nothing wrong to rely upon Mark ‘A’ and ‘B’, the vital photographs produced by the defence, in spite of the fact that the negatives were not produced by the accused. Pressing for production of the negatives for marking photographs would definitely lead to injustice in this case, more especially, in the special facts and circumstances emerged in this case. Therefore, without any hesitation, with a view to delve deep into the root of the truth, I find that there is nothing wrong in relying upon Mark ‘A’ and ‘B’ photographs produced even without negatives. The photographs produced by the defence would establish that there was a marriage between accused Dharminder with the prosecutrix. She posed as a smiling bride. She does not look like a bride compelled to agree for some forcible marriage. It is found that the prosecutrix as well as her father who lodged a complaint after about 17 days of the occurrence on 17.1.2006, completely suppressed the factum of marriage solemnized by accused Dharminder with the prosecutrix. 15. As far as the marriage is concerned, DW1 Pitma, the very mother of appellant No.1 and wife of appellant No.2 has spoken about the solemnization of marriage of the prosecutrix with the first accused. The testimony of DW1 cannot be discarded in the face of the photographs Mark ‘A’ and ‘B’ produced by the defence. I do not doubt the veracity of the photographs produced for establishing the marriage. The testimony of DW1 cannot be discarded in the face of the photographs Mark ‘A’ and ‘B’ produced by the defence. I do not doubt the veracity of the photographs produced for establishing the marriage. DW2 Manpal who in fact participated in the marriage between the first accused and the prosecutrix has also lend support to the defence. 16. In the above special facts and circumstances of this case when the age of the prosecutrix was under serious challenge, the prosecution should have produced the birth certificate of the prosecutrix to clinchingly establish without any pale of doubt that the prosecutrix was aged below 16 years. Of course, PW7 Shakuntal Kaur, a Teacher attached to the school would speak to the admission register Ex.PW7/A and School Leaving Certificate Ex.PW7/C according to which it appears that the prosecutrix was born on 2.1.1992. 17. No ossification test was conducted in the absence of birth certificate to zero-in on the exact age of the prosecutrix. In other words, the prosecutrix was not subjected to any medical examination to establish her age in the absence of birth certificate. Of course, in all cases the Court cannot expect the birth certificate to be produced. But in the instant case, I find that PW3 Gurdip Singh has deposed that his daughter was admitted to the school at the age of 3. Whereas, the prosecutrix has come out with a version that she was an illiterate woman. The school authorities would speak to the fact that the child would be admitted only after he/she attained the age of 6. When such a variation is there as to the age of a child at which she is admitted to the school, it would be unfair to rely upon the admission register and School Leaving Certificate produced by PW7 to establish the exact date of birth of the prosecutrix. 18. In my considered view the prosecutrix would have crossed 18 years of age. The photographs produced by the defence creates a doubt in the mind of the Court as regards the minority of the prosecutrix. Therefore, I find that the prosecution has failed to establish beyond reasonable doubt that the prosecutrix was below 18 years of age. 19. I have also discussed the voluntary accompaniment of the prosecutrix with the accused and the marriage that was solemnized between the first accused Dharminder and the prosecutrix. Therefore, I find that the prosecution has failed to establish beyond reasonable doubt that the prosecutrix was below 18 years of age. 19. I have also discussed the voluntary accompaniment of the prosecutrix with the accused and the marriage that was solemnized between the first accused Dharminder and the prosecutrix. No wonder, under such circumstances, accused Dharminder had intercourse with the prosecutrix with her full consent. If there was no consent on the part of the prosecutrix, she would have alerted the persons who passed-by or the shopkeepers or the neigbours of the village where she lived for about two months with her consent. If at all she was raped not only by accused Dharminder, but also by his father Pala Ram, as alleged by her, she would not have lived alongwith Dharminder for two months with her full consent. 20. The materials on record would go to establish that the prosecutrix was not at all kidnapped by the accused. She had voluntarily left her house to join the company of first accused Dharminder and got him married. The prosecution also failed to establish that the prosecutrix was below 18 years of age. 21. In view of the above, the judgement of conviction and sentence recorded by the trial Court as against both the accused is set aside. Both the accused-appellants are acquitted of the charges under Section 363, 366 and 376 IPC. They be set at liberty forthwith, if their custody is not required in connection with any other criminal case. 22. Consequently, the appeal is allowed. ----------------