JUDGMENT Chandra Bhushan Bajpai, J. 1. Challenge in this appeal is to the judgment of conviction and order of sentence dated 13-1-1999 passed by the 2nd Additional Sessions Judge, Sessions Division, Jagdalpur in Sessions Trial No. 224/1995 whereby and whereunder learned trial Court after holding the appellant guilty for commission of offence under Sections 363, 366 and 376 of Indian Penal Code (in brevity 'IPC') for kidnapping the prosecutrix P.W. 1 (name not mentioned) from lawful guardianship, inducing her to compel for illicit intercourse and for committing rape against her will and consent, sentenced to undergo for each count R.I. for 7 years and also to pay a fine of Rs. 1,000/-, in default of payment of tine to further undergo additional R.I. for 6 months for each count with a direction to run all the substantive jail sentences concurrently. Conviction is impugned on the ground that without there being an iota of evidence, learned Court below has convicted and sentenced the appellant as aforementioned and thereby committed illegality. 2. The case of the prosecution in brief is that on 7-6-1995 at about 9.45 am, P.W. 2 Mukund Ram, father of the prosecutrix reached to the police station, Frezarpur and lodged FIR Ex. P-6 which was registered as Crime No. 203/95 against the appellant stating that the appellant by false promise to marry kidnapped minor prosecutrix P.W. 1 on 24-5-1995 in the evening at about 6.00 am. She was recovered from the appellant on 7-6-1995 at about 4.00 am from Junaguda, Bastar by the Investigating Officer P.W. 5 KM Tiwari who prepared recovery memo Ex. P-2 and gave the prosecutrix to her father on Supurdnama. Before this, P.W. 2 Mukundram lodged missing person report in Rojnamcha Sanha No. 6/95. As per missing report, on 23-5-1995, the prosecutrix told her father that she is going to foreign then P.W. 2 her father gave her Rs. 100/- and further inquire as to with whom she would accompany then she informed that she would go along with the appellant resident of Junaguda. On 24-5-1995 in morning 8.00 am, her daughter left her house and thereafter the appellant made a search but not received any information regarding her daughter. Then he lodged a missing person report written by the police at Rojnamcha Sanha. He also gave description of her daughter in the Rojnamcha Sanha. After recovery, FIR was lodged by P.W. 2. On 24-5-1995 in morning 8.00 am, her daughter left her house and thereafter the appellant made a search but not received any information regarding her daughter. Then he lodged a missing person report written by the police at Rojnamcha Sanha. He also gave description of her daughter in the Rojnamcha Sanha. After recovery, FIR was lodged by P.W. 2. During investigation, undergarments of the prosecutrix were seized through seizure memo Ex. P-1. Police also seized mark sheet Ex. P-3 of the prosecutrix of Class 3 vide Ex. P-4 in which her date of birth was written as 28-12-1983. Police also seized underwear of appellant and made his arrest. After obtaining necessary permission, the prosecutrix was sent for medical examination. P.W. 6 Dr. A. Chandra examined her and gave her report Ex. P-8 in which she opined that there was no external or internal injury present over the body of the prosecutrix, no definite opinion may be given regarding recent intercourse with the prosecutrix. She also prepared slides from vaginal swab and handed over to the concerned constable. She also-examined clothes of the prosecutrix and referred the same to chemical analyst as she noticed dirty stains on it. Statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure (in brevity 'Code'). After completion of investigation, charge sheet was filed on 1-7-1995 before the Chief Judicial Magistrate, Jagdalpur who in turn committed the case to the court of Session, Jagdalpur. Learned Additional Sessions Judge received the case on transfer for trial. During trial charges were framed against the appellant under Sections 363, 366 and 376 of the IPC. The appellant denied the charges and prayed for trial. 3. In order to prove guilt of the appellant, the prosecution examined six witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure (in brevity 'Code') in which he denied the circumstances appearing against him and pleaded innocence and false implication in the crime in question. 4. After affording opportunity of hearing to the parties, learned trial Court convicted and sentenced the appellant as aforementioned. 5. I have heard learned counsel for the parties and perused the record of the trial Court. 6. Learned counsel for the appellant vehemently argued that the age of the prosecutrix P.W. 1 is core issue in the matter. 4. After affording opportunity of hearing to the parties, learned trial Court convicted and sentenced the appellant as aforementioned. 5. I have heard learned counsel for the parties and perused the record of the trial Court. 6. Learned counsel for the appellant vehemently argued that the age of the prosecutrix P.W. 1 is core issue in the matter. In the present case, the only document which may reflect some light on the point of age is Ex. P-3 i.e. mark sheet of the prosecutrix in which her date of birth is mentioned as 28-12-1983. As per this document, age of the prosecutrix can be assessed as 11 years and 4 months and 26 days. No other document is collected or presented during trial. Though the prosecutrix is studying in school and she is educated upto 5th standard but in her entire deposition, she has not said anything regarding her date of birth, month or year. Her father P.W. 2 Mukundram also gave a general statement that her daughter is presently 13 years of age but he did not recollect the date of birth or year of the prosecutrix. P.W. 3 Kanakbai, mother of the prosecutrix has also not said anything specific regarding the age of the prosecutrix. Police also failed to collect the entries of village kotwar which is registered in the birth and death registered officially maintained by the Kotwar. Even for proving the mark sheet Ex. P-3, no teacher of the school was examined where she was studying. As per statement of P.W. 2 Mukundram at the time of admission of her daughter in the school he obtained the date of birth, month and year from Sarpanch in a written paper and thereafter the prosecutrix was admitted in the school. Age of the prosecutrix was written by the sarpanch after seeing the diary of the village kotwar. Said sarpanch was not examined. Concerned kotwar was not examined. Only on the basis of mark sheet, it may not be held that the prosecutrix was minor at the time of incident. He further submitted that as per para 6 of cross-examination of P.W. 2 Mukundram, his son Ramchandra is aged about 30-35 years. His daughter Hasti is two years younger than Ramchandra and the prosecutrix is two years younger than Hasti. Meaning thereby the prosecutrix may be 26-27 years of age. He further submitted that as per para 6 of cross-examination of P.W. 2 Mukundram, his son Ramchandra is aged about 30-35 years. His daughter Hasti is two years younger than Ramchandra and the prosecutrix is two years younger than Hasti. Meaning thereby the prosecutrix may be 26-27 years of age. It may be well assessed that at the time of incident, she was about 26-27 years of age. Therefore the prosecutrix was major as the Ex. P-3 was not proved as required. Ex. P-3 is also not duly proved from the concerned teacher of the school who either gave mark sheet from his own signature or made entries in the school register regarding admission of prosecutrix. Therefore, the prosecution has "not proved its case that at the time of incident the prosecutrix was minor i.e. below the age of 18 years and if this view is taken then another issue is to be looked into. Even as per FIR Ex. P-6 in which there is also entry of missing person No. 6/95 recorded by P.W. 2 father of the prosecutrix and therein father very clearly informed police that on demand he gave Rs. 100/- to the prosecutrix. Prosecutrix informed him that she will go to picnic (Videsh). When asked by P.W. 2 with whom she will accompany, the prosecutrix answered that she will accompany the appellant resident of Junaguda. Thereafter P.W. 2 gave money and next day morning his daughter left the house and was recovered after 14 days by the police which goes to show that father was aware with whom her daughter was going and even after due knowledge a day prior to her departure, the father did not object, it shows that indirectly he gave permission to her daughter to go for picnic (Videsh) along with the appellant. Hence the offence under Section 363, IPC is not made out. Also the offence under Section 366, IPC is not proved because the prosecutrix was accompanying the appellant with implied permission of her father. 7. So far as offence under Section 376, IPC is concerned that too was not proved by the prosecution as there was no medical corroboration. No external or internal injury was noticed by P.W. 8 Ex. A. Chandra who noticed old ruptured hymen and other symptoms which do not support forcible rape. 7. So far as offence under Section 376, IPC is concerned that too was not proved by the prosecution as there was no medical corroboration. No external or internal injury was noticed by P.W. 8 Ex. A. Chandra who noticed old ruptured hymen and other symptoms which do not support forcible rape. On the other hand, as per para 8 of cross-examination of the prosecutrix, the appellant along with her family members including sister Pramila resided in the village Bastar and the prosecutrix used to visit his house and she also used to stay for few days. From school she used to go to Prarhila's house and after staying-there she used to go to school. She also admitted that she had not left her house in presence of her father. She left her house when nobody was in the house. She also not informed her mother that where she is going. She further admitted that when the appellant visited her house, she left her house along with him at night without informing anybody. She further admitted in para 9 that she went to the house of the appellant by bicycle and as she does not think it proper to inform his father, she did not inform him. She further admitted that when she went to the house of the appellant then after one or two days, her father reached there and then after 8 days her father again reached to the house of appellant with police and she came with her father. She also admitted that without informing her father and mother, she of her own went to the house of the appellant. Learned counsel submitted that these facts narrated by the prosecutrix go to show that she was a consenting party for the act. Hence the prosecution failed to prove the guilt against the appellant. He may be acquitted from the charges and the appeal may be allowed. 8. Learned counsel for the appellant placed reliance upon the judgment of Hon'ble Supreme Court in the matter of Alamelu and another Vs. State 2011 (2) SCC 385 , wherein it is held in para 42 as under:-- "42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit (1988 Supp. State 2011 (2) SCC 385 , wherein it is held in para 42 as under:-- "42. Considering the manner in which the facts recorded in a document may be proved, this Court in the case of Birad Mal Singhvi Vs. Anand Purohit (1988 Supp. SCC 604), observed as follows:-- "......The date of birth mentioned in the scholars register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined......Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In, the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted." 9. Learned counsel for the appellant further submitted that Ex. P-3 is not proved. Hence the same may not be given any waitage for assessment of age. 10. Per contra, learned counsel for the respondent State while supporting judgment of conviction and sentence against the appellant, opposed the arguments advanced on behalf of the appellant and submitted that the judgment of the trial Court is well founded. There is no scope for interference. As per Ex. P-3 at the time of incident, she was aged 12 years. Father also corroborated the same in para 4 of his cross-examination. The prosecutrix deposed that the appellant committed forcible intercourse with her. There is no scope for interference. As per Ex. P-3 at the time of incident, she was aged 12 years. Father also corroborated the same in para 4 of his cross-examination. The prosecutrix deposed that the appellant committed forcible intercourse with her. The prosecution has proved its case against the appellant that he kidnapped the minor prosecutrix from the lawful guardianship of her father and mother for illicit intercourse. The appellant committed rape against her will and consent. Hence the appeal may be dismissed. 11. In order to appreciate the arguments advanced on behalf of the parties, I have perused the evidence adduced by the prosecution. 12. No doubt age is core issue in the present case. Admittedly no kotwari entry, no birth certificate is collected or produced during trial though prosecutrix was resident of same village. She studied till 5th standard. There was no reason why kotwari entries are not collected and adduced for assessment of age of the prosecutrix. Sarpanch who gave note of the entries of birth of prosecutrix to her father upon his request was also not examined. In the present case, Kotwar was also not examined by the prosecution. There is no reason why they were not listed as witnesses and examined. Even the head mistress or any other teacher is not examined for proving Ex. P-3 and age of the prosecutrix. When at the time of incident she was studying in a school, the 10 can very well collect the evidence regarding date of birth. 10 can very well examine the concerned teacher or head mistress which is required to prove the said document. Therefore, in view of the above factual position, I am of the considered opinion that as per judgment of Hon'ble Supreme Court in the Alamelu 2011 (2) SCC 385 , (supra) in which the Hon'ble Supreme Court discussed the principles laid down in Birad Mal Singhve Vs. Anand Purohit 1988 Supp SCC 604, that the date of birth mentioned in the scholars' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. In the present case since the person who gave the mark sheet or the person who made entry regarding date of birth" is not examined, hence Ex. P-3 is of no help to the prosecution. 13. In the present case since the person who gave the mark sheet or the person who made entry regarding date of birth" is not examined, hence Ex. P-3 is of no help to the prosecution. 13. Even the prosecution did not attempt for ossification test and no reason for this is given. Hence in view of this Court there is no document or medical evidence to prove the age of prosecutrix. 14. So far as other evidence is concerned, prosecutrix P.W. 1 has not said anything regarding her date, month or years of her birth. Virtually she had not uttered even a single word for her age. P.W. 2 her father Mukundram said in para 4 that her daughter is presently of the age of 13 years but he answered in para 6 of his statement that at the time of incident her daughter was 25-26 years of age. Though it appears to be vague but this fact came out from mouth of P.W. 2 the father. Mother also has not deposed anything regarding the age of the prosecutrix. 15. Upon considering the entire facts and circumstances, the prosecution has failed to prove that at the time of incident, the prosecutrix was minor. If prosecution failed to prove this fact then benefit must go to the appellant that the prosecutrix was not minor at the time of incident. 16. So far as charge for kidnapping of the prosecutrix against the appellant for illicit intercourse and committing rape against her will and consent is concerned, there is no other eye witness of the incident. After missing she was recovered after a span of 16 days. When we look for her cross-examination, in para 8-9, it is clear that she herself accompanied the appellant and her entire cross-examination shows that she was a consenting party for the act. Merely putting a word forcible intercourse in the examination-in-chief does not wash the factual position of para 8 and 9 of her cross-examination. Also the missing person report lodged by father himself very next day which is a part of the FIR goes to show that she very well informed her father that she is going along with the appellant for picnic and she demanded Rs. Also the missing person report lodged by father himself very next day which is a part of the FIR goes to show that she very well informed her father that she is going along with the appellant for picnic and she demanded Rs. 100/- from her father which was given, meaning thereby, her father was knowing well that her daughter had planned to go to picnic (Videsh) along with appellant and after this information next day she was not found at her house and after 14 days she was recovered from the custody of the appellant at his resident at Juna Guda (Bastar). It all goes to show that there was no forcible intercourse. She had many occasion to make protest, inform other person with whom she was living i.e. the housemates of the appellant including friend of prosecutrix Pramila. Not doing any resistance during all these 14 days shows that she was a consenting party and commission of rape is not proved. 17. Considering above facts and circumstances of the case and in view of the principles laid down in the above cited cases, I am of the opinion that the prosecution has failed to prove commission of rape of minor girl by kidnapping the girl from the lawful guardianship of her father thereby commission of offence punishable under Sections 363, 366 and 376 of the IPC. 18. In the result, the appeal filed by the appellant is allowed. Conviction and sentence imposed on him by the trial Court is set aside. The appellant is acquitted of the charges. Fine amount if paid be refunded. The appellant is stated to be on bail. His bond shall continue for a further period of 6 months as per requirement of Section 437-A of the Code.