Judgment : This appeal has been preferred against the judgment and sentence dated 30th November, 2004 passed by the learned Sessions Judge, Pithoragarh in Sessions Trial No. 45 of 2000. By the impugned judgment and sentence, the appellant before me has been convicted and punished to undergo rigorous imprisonment for three years and Rs.500/- as penalty, failing which, to undergo two months extra imprisonment u/S 363 I.P.C.; four years rigorous imprisonment and fine of Rs. 1,500/-, failing which, to undergo three months extra imprisonment u/S 366 I.P.C.; and seven years rigorous imprisonment and fine of Rs.4,000/-, failing which, to undergo six months extra imprisonment u/S 376 of I.P.C. All these sentences are to run concurrently. 2. The appellant before me was initially arraigned u/S 363 and 366 of I.P.C. at the time of lodgment of the F.I.R. and, thereafter, at the time of filing chargesheet, Section 376 of I.P.C. was added. The prosecution case, in brief, is put hereunder:- 3. On 18th August, 2000 at about 10:00 a.m., the accused/appellant, Daleeep Arya kidnapped Km. Vandana Bisht (hereinafter “victim”) who was aged about 16 years from a place situates at Kasba Champawat, Police Station Lohaghat, District Champawat without consent and permission of her father and natural guardian. At the time of incident, the victim was going to school and she was intercepted and taken into custody by the accused/appellant against her will and consent. Thereafter, she was taken to the forest forcibly. The accused/appellant committed rape upon her on and from 18th August, 2000 to 23rd August, 2000 during her stay in the forest. She could not raise any alarm due to fear of her life during her stay with the appellant for all those days. The accused/appellant threatened her if she would raise any alarm, she would be killed or defamed. When they came out of forest, some of her father’s acquaintances identified her and found her with the accused/appellant. Both of them were apprehended and handed over by them to the police. The father of the victim girl having found her missing on and from 18th August, 2000, lodged a complaint with the concerned Police Station u/S 363 and 366 I.P.C. Thereafter, both the persons were medically examined and their apparels (under garments) were also sent for chemical test. Both of them were apprehended and handed over by them to the police. The father of the victim girl having found her missing on and from 18th August, 2000, lodged a complaint with the concerned Police Station u/S 363 and 366 I.P.C. Thereafter, both the persons were medically examined and their apparels (under garments) were also sent for chemical test. After collecting all the materials and obtaining medical report of the doctors, and the statements of the victim girl, and other persons under Section 161 of Cr.P.C., chargesheet was filed under Sections 363, 366 and 376 of I.P.C. 4. It appears before the learned Trial Judge defence plea as it appears from the trend of cross examination as well as answers given u/S 313 of Cr.P.C., was that there was no rape committed, nor there was any abduction as girl was a major and alleged incident took place with the consent of the girl. It was further plea that there has been consensual sexual intercourse as they loved each other. 5. The prosecution has brought as many as seven witnesses and two of them were the father of the victim girl and the victim herself. That apart, two doctors who examined the girl and the principal of the school where the girl was studying were also examined. The serological report of the blood and semen collected from the under garments worn by the accused and victim were part of evidence. The defence did not examine any witness nor produced any other evidence. After analyzing the oral as well as documentary evidence, the learned Trial Judge found that the appellant was guilty of the offences charged. 6. Now, before me, the learned counsel for the appellant has pressed the application u/s 391 of Cr.P.C. filed for the first time in the appeal court for adducing additional evidence. With this application, I find that a copy of the marksheet of the High School examination said to have been conducted by Uttaranchal Education and Examination Board, has been annexed and also copies of the letters alleged to have been written by the victim girl to the accused. 7. Learned counsel for the appellant submits that from the documents annexed to the application as additional evidence, it would appear at the time of the trial that the appellant was below 18 years of age and was a juvenile. 7. Learned counsel for the appellant submits that from the documents annexed to the application as additional evidence, it would appear at the time of the trial that the appellant was below 18 years of age and was a juvenile. He further contends that this Court should examine other documentary evidences that could not be adduced at the time of trial. After hearing the learned counsels on this application, this Court is of the view marksheet wherein date of birth of the accused recorded needs consideration to find relevancy. It also appears that he appeared in the examination after trial was over. By consent of the parties, this Court adopts following course of action, since it is an old matter:- (i) For the purpose of examining as to admissibility and correctness of the contents of the marksheet only, the matter may be remanded to the learned trial Sessions Judge. (ii) At the same time, this Court will examine the correctness of judgment and sentence based on evidence available at the time of trial. (iii) In the event appeal is allowed otherwise then order of remand is not to be made operative. (iv) If the appeal is dismissed, this would be subject to the decision of the learned Sessions Judge meaning thereby if the learned trial Judge finds that the appellant at the time of trial he was juvenile, entire judgment will stand set aside and the appeal will stand allowed on that ground alone and the appellant would be retried by the competent forum. If learned Sessions Judge finds he was not juvenile, this judgment so to be passed herein will stand. Above course of action is taken to cut short time for final decision of an old matter. 8. Taking note of the submission of the learned counsels, I find in this appeal only question is whether the learned Trial Judge has recorded the correct findings or not. It was the plea raised by defence before me as well as the learned Trial Judge, that the girl was not minor rather she was a major. Thus, it cannot be kidnapping nor abduction as she went with him voluntarily. There has been consensual sexual intercourse as it would appear from the facts and circumstances of the case as also from the fact that there has been prolong courtship between the accused/appellant and the victim. 9. Thus, it cannot be kidnapping nor abduction as she went with him voluntarily. There has been consensual sexual intercourse as it would appear from the facts and circumstances of the case as also from the fact that there has been prolong courtship between the accused/appellant and the victim. 9. The learned Trial Judge has appreciated the evidence of the father of the victim who has proved the age of the victim, and without his consent and knowledge, the accused took away forcibly the victim. I have also examined the evidence of the father of the victim. He has stated that the victim was 16 years of age and he has also stated that without his permission and consent she was taken into custody and kidnapped by the accused/appellant. It appears from the cross examination, this evidence cannot be dented in any manner whatsoever. Therefore, I hold the testimony of the father, being natural guardian, that the victim was below 16 years of age and she was taken custody by the appellant without his consent and permission is absolutely believable and acceptable. Therefore, the elements of sections 363 and 366 of I.P.C. have been proved. 10. Learned counsel for the appellant further submits that Radiologist (PW5) has opined that the girl was about 18 years of age. In view of this evidence, the evidence of the father (PW2) and evidence of the Principal of the school (PW1) cannot be accepted. The learned Trial Judge has painstakingly dealt with this aspect. The learned Trial Judge has correctly found that the evidence of the father (PW2) as well as the evidence of PW1 who has proved the school leaving certificate, are acceptable in preference to PW5, as opinion of PW5, in my view, cannot partakes the character of the evidence. According to me, ascertainment of age by undertaking ossification test by the doctor is always approximate and cannot be said to be accurate. Father of the victim is one of the best persons who can prove the age of his daughter and he has proved so. Moreover, at the time of admission to the School, date of birth must be told by the guardian, namely, father of the victim and school authority recorded as such. Based on such recording, this school certificate has been prepared in usual course of business, not in anticipation of any case being instituted. Moreover, at the time of admission to the School, date of birth must be told by the guardian, namely, father of the victim and school authority recorded as such. Based on such recording, this school certificate has been prepared in usual course of business, not in anticipation of any case being instituted. Therefore, the evidence given by PW5 cannot outweigh the evidence of PW2 and PW1. I, therefore, accept findings of the learned Trial Judge that the girl was below 16 years of age at the time of incident. 11. Then, it is submitted that no rape was committed by the accused/appellant. This fact has also been considered by the learned Trial Judge who has appreciated oral testimony of the victim PW3 supported by the overwhelming corroborating evidence both documentary and oral of the doctor viz. PW4 which is again repeated by this Court as follows:- 12. It is admitted position that the girl and the appellant were in mutual company in the forest for a number of days, namely, from the date of kidnapping on and from 18th August, 2000 till 23rd August, 2000. There is no story of involvement of any third person. They came out from the forest together for search of food and they were apprehended by some acquaintances of the victim girl’s father and both of them were handed over to the police. Medical examination and evidence of PW4 clearly establish incident of rape and it was committed by no person other than the appellant. It is the appellant who is supposed to explain as to who could commit rape. In any event, under the provision of 114 A of the Indian Evidence Act, there is strong presumption against appellant even if the victim is assumed to be major, as she deposed that rape was committed against her wish and forcibly for a number of days. The accused failed to rebut such presumption. In the medical report, the doctor has found as follows:- “Examination of private parts – Auxiliary, public hair well developed black in colour. Breast well developed. Areola brown in colour. Labia majora, labia minora well developed. - Two vaginal smears from post fornix made. - No injury marks on her private parts. - Hymen torn. - Vaginal admits 2 fingers hardly. Bleed mixed discharge p/r utras size was small. Rectum found loaded. -------- - Opinion - (1) Sexual intercourse has been done. Breast well developed. Areola brown in colour. Labia majora, labia minora well developed. - Two vaginal smears from post fornix made. - No injury marks on her private parts. - Hymen torn. - Vaginal admits 2 fingers hardly. Bleed mixed discharge p/r utras size was small. Rectum found loaded. -------- - Opinion - (1) Sexual intercourse has been done. (2) Age of the girl is about 16 years.” 13. Therefore, it is proved beyond doubt that the victim was kidnapped and raped by the appellant, as no other male person had come into picture. It is also established that victim was below 16 years and rape has been committed upon her. Therefore, I think recording of conviction and awarding punishment, in my view, are absolutely correct. Hence, the judgment and sentence is hereby affirmed. However, aforesaid findings of this fact by this Court shall be subject to the following order:- 14. Since the plea has been taken before me that at the time of trial the appellant was juvenile, though this plea was never taken either putting any suggestion or cross examination at the time of trial, this Court cannot overlook the document produced in the appeal. In exercise of power under Section 391 of Cr.P.C., I think that this evidence needs consideration for acceptance but this cannot be accepted until and unless the said document is proved by cogent evidence that the appellant at the time of trial was juvenile and below 18 years of age as this was brought and saw the light of the day at the appellate stage. Even at the time of trial, no such plea was taken. I think that it is the duty of the court to take step to remove any element of flaw in conducting trial. Accordingly, I remand this matter only for the limited issue as under :- 1. Whether the appellant was juvenile at the time of trial ? 2. Whether the document produced before appellate Court, namely, High School marksheet is acceptable document and whether date of birth recorded therein is correct or not ? 15. Accordingly, I remand this matter only for the limited issue as under :- 1. Whether the appellant was juvenile at the time of trial ? 2. Whether the document produced before appellate Court, namely, High School marksheet is acceptable document and whether date of birth recorded therein is correct or not ? 15. After taking evidence, if the learned Sessions Judge finds that the appellant was not a juvenile, then the appeal will stand dismissed as decided above, and if it is found that he is juvenile at the time of trial, then obviously the conviction and sentence recorded by the learned Trial Court will stand set aside. 16. Thus, the appeal is disposed of accordingly. 17. The learned Sessions Judge will complete the aforesaid exercise within two months from the date of production copy of judgment and order. It is made clear both the parties will be free to adduce evidence on the above limited issues in accordance with law. 18. In the event, the appellant is found to be juvenile, then the matter will be sent to the Juvenile Justice Board for re-trial and, such re-trial shall be concluded within three months from the date of the receipt of the record.