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Gujarat High Court · body

2015 DIGILAW 1014 (GUJ)

Chhaganbhai Badhabhai Jadav v. State of Gujarat

2015-10-09

K.M.THAKER

body2015
JUDGMENT K.M. Thaker, J. 1. The appellant in this Criminal Appeal filed under Section 374(2) of the Criminal Procedure Code, 1973 is the original accused and he has preferred present Appeal against the judgment and order dated 24.1.2013 passed by the learned Session Judge, Amreli in Sessions Case No. 89 of 2011. The appellant was charged with commission of offence punishable under Sections 363, 366 and 376 of the Indian Penal Code. 2. By the impugned judgment and order the accused - appellant is convicted and after recording conviction against present appellant for offence under Sections 363, 366 and 376 of the Indian Penal Code the learned trial Court has sentenced the appellant to undergo rigorous imprisonment for offence under Section 363 for two years and also to pay a fine of Rs. 2,000/- in default to further undergo simple imprisonment of four months and for offence under Section 366 of the IPC the appellant - original accused is directed to undergo RI for five years and also to pay a fine of Rs. 3,000/- and in default to further undergo SI for 6 month and for offence under Section 376 of IPC the appellant - original accused was directed to under go RI for 10 years and also to pay a fine of Rs. 5,000/- and in default to further undergo simple imprisonment of one year. 3. Briefly stated the case of the prosecution was that the appellant abducted the victim girl, aged 15 years and 7 months, from the custody of her parents and forced her to enter into physical - sexual relation with him by enticing her with promise to marry her with intention to commit sexual intercourse outside marriage. 3.1 The mother of the victim girl filed the complaint on 4.4.2011. The compliant was registered. 3.2 Thereafter investigation was undertaken. According to the prosecution sufficient material was available during investigation and therefore chargesheet came to be filed against the accused - appellant. 3.3 The case being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions and was registered as Sessions Case No. 89 of 2011. 3.4 Then the learned trial Court framed the charge against the accused - present appellant for commission of offence under Sections 363, 366 and 376 of the Indian Penal Code. 3.5 The statement of the accused - present appellant was recorded. 3.4 Then the learned trial Court framed the charge against the accused - present appellant for commission of offence under Sections 363, 366 and 376 of the Indian Penal Code. 3.5 The statement of the accused - present appellant was recorded. Upon being asked by the learned trial court the accused - appellant pleaded not guilty and claimed to be tried. 3.6 So as to bring home the guilt and to prove the case - charge against the accused - present appellant the prosecution examined below mentioned 13 witnesses and also relied on below mentioned 14 documentary evidences:- Oral Evidence 1. Dr. Laljibhai Becharbhai Doga Exhibit-9 2. Panch Raghubhai Nathabhai Ratadiya Exhibit-25 3. Panch Chaprajbhai Hathibhai Vala Exhibit-27 4. Complainant Champaben Ramjibhai Jadav Exhibit-29 5. Victim Ramjibhai Jadav Exhibit-32 6. Milan Bakul Katariya Exhibit-34 7. Shitalben Mansukhbhai Nimbark Exhibit-37 8. Head Constable Virabhai Dadubhai Likhada Exhibit-38 9. C.P.I. Virambhai Sibidbhai Parmar Exhibit-40 10. Panch Ratilal Tapubhai Vadhasiya Exhibit-46 11. Panch Anilbhai Bavabhai Maru Exhibit-48 12. PSI Manubhai Alubhai Jiniya Exhibit-49 13. Panch Khodabhai Virabhai Sagathiya Exhibit-51 Documentary Evidence 1. Order of P.S.O. Vadia entrusting investigation to PSI Vadiya Exhibit-39 2. Complaint of Complainant Exhibit-30 3. Birth Certificate of Victim Exhibit-35 4. Panchnama of place of offence Exhibit-47, 28 5. Telephone Details Exhibit-50 6. Arrest panchnama of Accused Exhibit-26 7. Panchnama of recovering clothes of victim Exhibit-41 8 Panchnama of ceisure of motorcycle used in offence Exhibit-42 9. Medical case papers of accused Exhibit-16 10. Receipt of Muddamal received by FSL Exhibit-43 11. OPD case of accused Exhibit-11 12. OPD case papers of the victim from Vadiya Hospital Exhibit-13 13. Report of FSL Exhibit-45 14. Necessary extract of general register of Bhukhil Sathali Primary School Exhibit-36 3.7 After examining the witnesses the learned Court recorded further statement of the appellant - accused, under Section 313 of Criminal Procedure Code when he was informed all incriminating evidence against him the appellant - accused stated that he had performed marriage with the victim in a Temple and the victim and he had stayed as husband and wife and her mother has filed false complaint. 3.8 After considering oral as well as documentary evidence placed on record and after hearing the parties, the learned trial court, by judgment and order dated 24.1.2013 which is impugned in present appeal, found the appellant guilty and recorded conviction against him for the offence mentioned above and sentenced him as mentioned hereinabove. Feeling aggrieved by the said judgment and order the appellant has taken out present appeal. 4. Learned advocate for the appellant assailed the judgment on the ground that learned trial Court erred in not appreciating that the victim had travelled at different places with the appellant and stayed with him for about 4 months which establishes that she had willingly gone with the appellant and she was consenting partner for their physical and sexual relation. Learned advocate for the appellant also submitted that there is love affair between the appellant and the victim. He also submitted that the learned trial Court failed to appreciate and consider that upon physical - medical examination of the appellant any marks or sign of any external or internal injury were not found which established that the appellant had not forcibly committed sexual intercourse with the victim and the learned trial Court passed the impugned judgment convicting the appellant and sentenced him to undergo imprisonment without having regard to the said fact and medical evidence. The learned Counsel for the appellant relied on the decisions dated 8.5.2015 in case between R.K. Chauhan vs. State of Gujarat (Criminal Appeal Against Conviction) No. 399 of 2014. 4.1 Learned APP, in his submissions supported the conviction and sentence and while supporting the judgment he submitted that at the relevant time the victim girl was minor i.e. she was under 16 years of age. He also submitted that so as to establish the age of the victim and to prove that at the relevant time she was minor, the prosecution examined Talati-cum-Mantri who placed on record the birth and death register. The learned APP submitted that even in his further statement the appellant himself has admitted that he and the victim had stayed at Ashram as husband and wife. Learned APP also submitted that the victim girl was pregnant on account of physical relation with the appellant and the pregnancy was aborted. The learned APP submitted that even in his further statement the appellant himself has admitted that he and the victim had stayed at Ashram as husband and wife. Learned APP also submitted that the victim girl was pregnant on account of physical relation with the appellant and the pregnancy was aborted. The learned APP submitted that the victim claimed that pregnancy was aborted however the victim claims that it was aborted accidentally since she slipped and fell down when she had gone to fetch water. Learned APP submitted that there is direct and conclusive evidence by victim also who has in her deposition before the Court admitted physical - sexual relation with the appellant. Learned APP submitted that in view of the evidence that at the relevant time victim was minor, and that therefore even if her consent is assumed then also such consent would be immaterial and the appellant cannot derive any benefit of such consent. Learned APP submitted that the judgment and the sentence do not warrant interference. 5. Having considered the impugned judgment and order and having heard learned Counsel for the parties and having examined the material on record the only question that arises for determination in this appeal is whether a learned Trial court has committed any error in holding the appellant guilty for the offence under Sections 363, 366 and 376of the Indian Penal Code and whether the impugned judgment warrants interference in this appeal. 6. The learned trial Court has taken into account the deposition and evidence by victim, the evidence with regard to the age of the victim and the statement of the accused - appellant under Section 313 wherein the appellant admitted that he and the victim had stayed as husband and wife. 6.1 In light of the evidence of the victim the learned trial Court found that the victim was compelled to leave her parental home even after she declined to accompany him that coupled with the evidence about victim's age and the medical and forensic evidence as well as in light of evidence of the victim and the statement of the appellant physical relation - sexual intercourse by the appellant with the victim is proved and that consequently the charge against the accused - appellant are proved. 7. The doctor who first examined the victim girl is examined as P.W.-1 and his evidence is recorded at exhibit 9. 7. The doctor who first examined the victim girl is examined as P.W.-1 and his evidence is recorded at exhibit 9. In his deposition P.W.-1 mentioned that he examined victim on 21.8.2011. In his evidence P.W.-1 mentioned that on examination of the victim girl any sign or any mark of any force was not found and any sign or any mark of internal or external injuries were also not found. P.W.-1 also mentioned in his evidence that when he examined the victim girl she was pregnant and was carrying pregnancy since 4 months and on her physical examination it was noticed that she had frequently entered into sexual relation. 7.1 The P.W.-1 also examined the accused-appellant. In his evidence the P.W.-1 mentioned that on examination of the accused - appellant any sign or mark of injury or resistance by force were not found. P.W.-1 had collected samples of the victim as well as appellant and handed over the samples to I.O. for forensic test. 7.2 The panch witness turned hostile. 7.3 The prosecution then examined the mother of the victim girl as P.W.-4. In her deposition the victim's mother mentioned that she and her husband had left the house in the morning on 4.4.2011 for daily labour work and when she returned home her elder daughter i.e. victim was not at home. She inquired about her elder daughter with her other two daughters who told her that elder daughter was not at home since about 10 a.m. Therefore she made an inquiry with the neighbors and her other relatives. She also mentioned in her evidence that son of her brother in law informed her that she had seen the victim with appellant on a motorcycle and they were going outside the village. With such information when the victim's mother and her father went to the appellant's house for further inquiry they were informed that the appellant was not at home since 10.00 a.m. The mother of the victim also lodged complaint on 4.4.2011 alleging that the accused - appellant had enticed her daughter with false promise of marriage and abducted her with intention to draw her into sexual relation. In her deposition the P.W.-4 mentioned that about 4-5 months after she lodged the complaint the police informed her that they had traced the girl and the girl was at the police station. In her deposition the P.W.-4 mentioned that about 4-5 months after she lodged the complaint the police informed her that they had traced the girl and the girl was at the police station. P.W.-4 also mentioned that it was then that she came to know that her daughter was pregnant. P.W.-4 identified the appellant as the person who had enticed her daughter and abducted her and committed offence. 7.4 The prosecution then examined the victim - victim as P.W.-5. In her evidence the victim girl mentioned that on 4.4.2011 appellant had called her on telephone at about 8 a.m. and asked her to elope with him. The P.W.-5 - victim girl also mentioned in her evidence that since at that time her engagement with other boy was already finalized she had declined to elope with the appellant and that when she declined to go with the appellant he told her if she did not elope with him then he will commit suicide. The victim girl also mentioned in her evidence that because of such pressure by appellant viz. that he will commit suicide if she did not elope with him, she disconnected the phone call. After some time she went out to fetch water. When victim was drawing water at water pump the appellant approached her and again told her that if she did not go with him then he will commit suicide. The victim also mentioned in her evidence that when the appellant again said same thing so she got frightened that he would really commit suicide, hence she sat on the motorcycle and appellant drove her away outside their village. 7.5 The victim P.W. 5 also mentioned in her evidence that first they had gone to village Lathi and stayed at the house of appellant's elder brother and thereafter they went to Saibaba Ashram in Galkotadi village and they stayed there. The victim also mentioned in her evidence that appellant introduced her as his wife and that during night time they used to have physical - sexual relation. In her evidence, the victim also mentioned that she and the appellant had frequently entered into physical relation and when police traced them she was pregnant. At the time of her deposition the victim - P.W.-5 declared her age, to the Court and mentioned that at that time she was 17 years old. In her evidence, the victim also mentioned that she and the appellant had frequently entered into physical relation and when police traced them she was pregnant. At the time of her deposition the victim - P.W.-5 declared her age, to the Court and mentioned that at that time she was 17 years old. 7.6 A copy of the victim's birth certificate is found on the record. The said birth certificate reflects name of the victim and the date of birth mentioned in the certificate, (which reflects victim's name) is 5th August 1995. The said certificate seems to have been issued on 26.8.2011 and according to the certificate the birth was registered on 11.8.1995. 7.7 According to the date mentioned in the birth certificate age of the victim girl on the date of incident would be 15 years and 8 months. 7.8 Learned trial Court has relied on the birth certificate (Exh. 35) and the photocopy of the extract of register for the month/year August 1995 and reached to the conclusion that on the date of incident i.e. 4.4.2015 the age of the victim was 15 years 7 months and 24 days. 7.9 The statement - reply by the appellant himself coupled with the deposition by the victim that the appellant had said that if she did not elope with him then he will commit suicide, leaves no room for doubt as to the fact that the appellant induced and enticed the victim by putting emotional pressure on her that if she did not join him then he will commit suicide, which put the victim being minor girl of tender age of 15 years under fear and such emotional pressure that she eloped with the appellant. The appellant lured the victim into sexual relation by making her believe that they had got married and they were husband and wife. By making the victim believe that the marriage was performed and he was the husband, appellant established and committed sexual relation and intercourse with the victim. Before that the appellant emotionally pressurized the victim girl to elope with him and thereby the appellant took her away from custody and guardianship of her parents. By making the victim believe that the marriage was performed and he was the husband, appellant established and committed sexual relation and intercourse with the victim. Before that the appellant emotionally pressurized the victim girl to elope with him and thereby the appellant took her away from custody and guardianship of her parents. Though the victim had refused, (when the appellant had called her on telephone and asked her to elope with him) to do so, but when the victim had gone to fetch water, the appellant met her and repeated the same appeal viz. that he will commit suicide if she did not elope with him which ultimately put the victim under emotional pressure put by the appellant and she went with him without informing her parents. The said facts and aspects are established from conjoint reading of the evidence of the victim and the appellant's own statement under Section 313 of the Code. Thus, the learned trial Court is right and justified in holding that offence under Section 363 and 366 is established. 8. Likewise, on conjoint reading of the appellant's statement under Section 313 of the Code and the victim's deposition also bring out, and leaves no room for doubt as to the fact, that the appellant established and committed sexual relation - intercourse with the victim during the period of about 4 months they stayed together initially at village Lathi and thereafter at an Ashram. The fact that victim was subjected to sexual intercourse is also corroborated by evidence of the doctor i.e. P.W. No. 1 who had examined the victim after the police traced the appellant and victim and brought them back to the house of victim's parents. The certificate by the doctor also established that the victim was 3/4 months pregnant when the doctor examined her. 9. Now it is relevant to note that further case of the prosecution is that the appellant committed sexual intercourse with the victim, who was under 16 years of age at relevant time. Therefore in view of the age of the victim girl, who was under 16 years of age at the relevant time, the clause (fourthly) and/or (sixthly) of Section 375 and clause (i) of sub-section (2) Section 376 are attracted in present case. In the facts of the case and in light of the evidence on record, the said conclusion is not erroneous. In the facts of the case and in light of the evidence on record, the said conclusion is not erroneous. 9.1 On this count it is relevant to mention at this stage that the prosecution had examined the employee from the Gram Panchayat as P.W. No. 6, whose evidence is recorded at Exh. 34. 9.2 In his deposition, which is based on the record/register maintained under provision of the Registration of Births and Deaths Act 1969, the P.W. 6 mentioned that the victim's birth date, according to the entry in the register, i.e. Exh. 36 is 11.8.1995 and in the birth certificate i.e. Exh. 35 the date mentioned is 5.8.1995 and the learned Court had dealt with the minor discrepancy of 4 days in paragraph No. 11 of the judgment and the decision does not warrant interference. 9.3 The said P.W. 6 had placed original register for the year 1995 on the record of the Court. He identified the certificate issued on the basis of the register and also identified his signature and mentioned that he had prepared and signed the certificate. 9.4 At this stage it is relevant to take into account decision in case of Jarnailsingh vs. State of Haryana (2013 [7] SCC 263). In the said decision Hon'ble Apex Court has considered the issue related to determination of minor's age. With reference to the said issue Apex Court considered the provision under Juvenile Justice (Care and Protection of Children) Act 2000 as well as Rules framed thereunder viz. Juvenile Justice (Care and Protection of Children) Rules 2007, more particularly Rule 12 thereof. 9.5 The said issue was considered in a case where the victim of the crime was subjected to kidnapping and gang rape. The Apex Court, in the said decision observed that the procedure prescribed under Rule 12 of the aforesaid 2007 Rules can be availed for the purpose of determining - ascertaining the age of the victim of rape. The relevant part of the observation in said decision read thus:- 22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under: "12. Procedure to be followed in determination of age.-(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining- (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule(3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law." 23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the victim VW-PW 6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion. 24. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion. 24. Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the victim VW-PW 6 could not be determined on the basis of the matriculation (or equivalent) certificate as she had herself deposed, that she had studied up to class 3 only, and thereafter, had left her school and had started to do household work. The prosecution in the facts and circumstances of this case, had endeavored to establish the age of the victim VW-PW 6, on the next available basis, in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW 4), to prove the age of the victim VW-PW 6. Satpal (PW 4) was the Head Master of the Government High School, Jathlana, where the victim VW-PW 6 had studied upto class 3. Satpal (PW 4) had proved the certificate Exhibit-PG, as having been made on the basis of the school records indicating, that the victim VW-PW 6, was born on 15.5.1977. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are therefore of the view, that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the victim VW-PW 6. It would also be relevant to mention, that under the scheme of Rule 12 of the 2007 Rules, it would have been improper for the High Court to rely on any other material including the ossification test, for determining the age of the victim VW-PW 6. The deposition of Satpal-PW 4 has not been contested. Therefore, the date of birth of the victim VW-PW 6 (indicated in Exhibit P.G. as 15.7.1977) assumes finality. Accordingly it is clear, that the victim VW-PW 6, was less than 15 years old on the date of occurrence, i.e., on 25.3.1993. In the said view of the matter, there is no room for any doubt that the victim VW-PW 6 was a minor on the date of occurrence. Accordingly it is clear, that the victim VW-PW 6, was less than 15 years old on the date of occurrence, i.e., on 25.3.1993. In the said view of the matter, there is no room for any doubt that the victim VW-PW 6 was a minor on the date of occurrence. Accordingly, we hereby endorse the conclusions recorded by the High Court, that even if the victim VW-PW 6 had accompanied the accused-appellant Jarnail Singh of her own free will, and had had consensual sex with him, the same would have been clearly inconsequential, as she was a minor. 9.6 Thereafter, recently in case of State of M.P. vs. Anoopsingh ( 2015 7 SCC 773), Hon'ble Apex Court again considered issue about appropriate evidence/document which may be relied on while determining the issue related to age of minor victim. In the said recent decision by Hon'ble Apex Court in case of State of M.P. (supra) Hon'ble Apex Court has observed, inter alia, that:- "12. We believe that the present case involves only one issue for this Court to be considered, which is regarding the determination of the age of the victim. 13. In the present case, the central question is whether the victim was below 16 years of age at the time of the incident. The prosecution in support of their case adduced two certificates, which were the birth certificate and the middle school certificate. The date of birth of the victim has been shown as 29.08.1987 in the Birth Certificate (Ext. P/5), while the date of birth is shown as 27.08.1987 in the Middle School Examination Certificate. There is a difference of just two days in the dates mentioned in the abovementioned Exhibits. The Trial Court has rightly observed that the birth certificate Ext. P/5 clearly shows that the registration regarding the birth was made on 30.10.1987 and keeping in view the fact that registration was made within 2 months of the birth, it could not be guessed that the victim was shown as under-aged in view of the possibility of the incident in question. We are of the view that the discrepancy of two days in the two documents adduced by the prosecution is immaterial and the High Court was wrong in presuming that the documents could not be relied upon in determining the age of the victim. 14. We are of the view that the discrepancy of two days in the two documents adduced by the prosecution is immaterial and the High Court was wrong in presuming that the documents could not be relied upon in determining the age of the victim. 14. This Court in the case of Mahadeo S/o. Kerba Maske Vs. State of Maharashtra and Anr., (2013) 14 SCC 637, has held that Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, is applicable in determining the age of the victim of rape. Rule 12(3) reads as under: "Rule 12(3): In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining- (i) the matriculation or equivalent certificates, if available; and in the absence whereof; (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) the birth certificate given by a corporation or a municipal authority or a panchayat; (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law." 15. This Court further held in paragraph 12 of Mahadeo S/o. Kerba Maske (supra) as under: "Under rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical opinion can be sought for. This Court further held in paragraph 12 of Mahadeo S/o. Kerba Maske (supra) as under: "Under rule 12(3)(b), it is specifically provided that only in the absence of alternative methods described under Rule 12(3)(a)(i) to (iii), the medical opinion can be sought for. In the light of such a statutory rule prevailing for ascertainment of the age of the juvenile in our considered opinion, the same yardstick can be rightly followed by the courts for the purpose of the ascertaining the age of a victim as well." (Emphasis supplied) This Court therefore relied on the certificates issued by the school in determining the age of the victim. In paragraph 13, this Court observed: "13. In light of our above reasoning, in the case on hand, there were certificates issued by the school in which the prosecutrix did her V standard and in the school leaving certificate issued by the school under Exhibit 54, the date of birth has been clearly noted as 20.05.1990 and this document was also proved by PW 11. Apart from that the transfer certificate as well as the admission form maintained by the Primary School, Latur, where the victim had her initial education, also confirmed the date of birth as 20.05.1990, the reliance placed upon the said evidence by the Courts below to arrive at the age of the victim to hold that the victim was below 18 years of age at the time of occurrence was perfectly justified and we do not find any grounds to interfere with the same." 16. In the present case, we have before us two documents which support the case of the victim that she was below 16 years of age at the time the incident took place. These documents can be used for ascertaining the age of the victim as per Rule 12(3)(b). The difference of two days in the dates, in our considered view, is immaterial and just on this minor discrepancy, the evidence in the form of Exts. P/5 and P/6 cannot be discarded. Therefore, the Trial Court was correct in relying on the documents. 17. The High Court also relied on the statement of PW-11 Dr. A.K. Saraf who took the X-ray of the victim and on the basis of the ossification test, came to the conclusion that the age of the victim was more than 15 years but less than 18 years. Therefore, the Trial Court was correct in relying on the documents. 17. The High Court also relied on the statement of PW-11 Dr. A.K. Saraf who took the X-ray of the victim and on the basis of the ossification test, came to the conclusion that the age of the victim was more than 15 years but less than 18 years. Considering this the High Court presumed that the girl was more than 18 years of age at the time of the incident. With respect to this finding of the High Court, we are of the opinion that the High Court should have relied firstly on the documents as stipulated under Rule 12(3)(b) and only in the absence, the medical opinion should have been sought. We find that the Trial Court has also dealt with this aspect of the ossification test. The Trial Court noted that the respondent had cited Lakhan Lal Vs. State of M.P., 2004 Cri.L.J. 3962, wherein the High Court of Madhya Pradesh said that where the doctor having examined the victim and found her to be below 18 1/2 years, then keeping in mind the variation of two years, the accused should be given the benefit of doubt. Thereafter, the Trial Court rightly held that in the present case the ossification test is not the sole criteria for determination of the date of birth of the victim as her certificate of birth and also the certificate of her medical examination had been enclosed. 18. Thus, keeping in view the medical examination reports, the statements of the prosecution witnesses which inspire confidence and the certificates proving the age of the victim to be below 16 years of age on the date of the incident, we set aside the impugned judgment passed by the High Court and uphold the judgment and order dated 24.04.2006 passed by the IIIrd Additional Sessions Judge, Satna in Special Case No. 123/2003. 9.7 On the basis of the said document and in absence of any contrary evidence the learned trial Court relied on the entry in the birth and death register (maintained under the provisions of the Registration of Births and Deaths Act 1969) supported by the deposition of P.W. No. 6, and reached to the conclusion that at the relevant time the victim's age was 15 years and 7 months i.e. victim was under 16 years of age. The said decision does not warrant interference. 10. In this view of the matter the claim by the appellant that his sexual intercourse with the victim was consensual and the victim was consenting partner is immaterial and of no avail to the appellant so far as the charge of commission of offence under Section 376 is concerned. The alleged or so-called consent by the victim is immaterial, and it has to be ignored and cannot be taken into account. 10.1 Under the circumstances the conclusion by the learned trial Court that offence under Section 376 is proved and established, cannot be faulted. 10.2 The deposition and evidence by the victim girl is trustworthy, there are no contradictions. Nothing emerges from the evidence of the victim to indicate that the victim gave evidence under any influence. There is nothing in the evidence of the victim which would convince the Court to doubt her evidence. 11. Besides this, as mentioned earlier, her evidence is corroborated by evidence of the doctor who examined her and also from the fact that she was found to be 3-4 months pregnant. Further, the appellant himself stated in his further statement under Section 313 of the Code that he and the victim had stayed like husband and wife. Under the circumstances there is no reason or ground to doubt the evidence of the victim. 12. In this background learned advocate for the appellant relied on the decision dated 8.5.2015 in Criminal Appeal No. 399 of 2014. He submitted that in the said case age of the victim was 15 years and 5 months. Learned advocate for the appellant submitted that in the cited decision the Court, relying on the decision in case of S. Varadarajan vs. State of Madras (AIR 1965 SC 2169) and the decision in case of Bhartiben W/o. Sureshbhai Bhikhabhai Chauhan vs. Sushilaben Kanubhai Tevar ( 2009 3 GLH 664 ) and considering the fact that the victim in the cited decision had moved from place to place with the accused/appellant and there was no injury marks on the accused or victim and that the victim did not claim that the accused had committed rape, and relying on the decision in case of State of Chhattisgarh vs. Lekhram ( AIR 2006 SC 1746 ), while confirming the conviction reduced the sentence to 2 and 1/2 years. 13. 13. However, in the facts of present case the said decision does not assist the appellant and does not take his case any further. In light of the above discussion and for the foregoing reasons the judgment and order passed by the learned trial Court and impugned in present appeal does not warrant any interference and the appeal does not deserve to be accepted and granted. Therefore, the appeal is dismissed. The record and proceedings be sent back to the concerned learned trial Court forthwith. Accordingly the appeal stands dismissed. Appeal Dismissed