JUDGMENT : K.J. Thaker, J. The present appeal has been filed by the appellant-accused against the judgment and order dated 5.7.1990 passed by learned Additional Sessions Judge, Ahmedabad Rural in Sessions Case No. 103 of 1989, whereby the appellant-accused was convicted for the offence under Sections 363, 366 and 376 of the Indian Penal Code. The appellant was sentenced to undergo rigorous imprisonment for a period of seven years and ordered to pay Rs.1,000/- fine for offence under Sections 363 and 366 of the Indian Penal Code. The appellant was convicted and sentenced to rigorous imprisonment for ten years and ordered to pay fine of Rs.2,000/- for offence under Section 376 of the Indian Penal Code, and in default of payment of fine, simple imprisonment for a period of one year was imposed. 2. The case of the prosecution in short is that:- 2.1 The appellant kidnapped the prosecutrix, daughter of Kantiji Mafaji Thakore on 11.11.1988 at 12-00 noon from the custody of her father and took her to various places like Hansalpur, Sarkhej, Sanand and Surat where they resided for about 1 month; that it is alleged that the appellant had sexual inter course with her several times saying that he would marry her; that it is alleged by the prosecution that prosecutrix had not completed age of 16 years but she was Aged 15 years and 10 months and 10 days and therefore she was not in a position to give consent. The appellant was arrested on or about 20- 12-1988 at Viramgam. It is also the case of the prosecution that the appellant was in love with prosecutrix and since she was betrothed at Aslali, she did not like to marry there and therefore she had eloped with the appellant with some ornaments and Rs.200/-. Thereafter, the appellant and the prosecutrix went to Surat, where they resided as husband and wife by taking a hut on rent. 2.2 The day on which the prosecutrix ran way with the appellant, her father tried to search her out, however, she was not found. On inquiry from Kanuji Karsanbhai, it was found that the prosecutrix and the appellant ran away, therefore, her father filed a complaint before police on 19.11.1988. 2.2 The day on which the prosecutrix ran way with the appellant, her father tried to search her out, however, she was not found. On inquiry from Kanuji Karsanbhai, it was found that the prosecutrix and the appellant ran away, therefore, her father filed a complaint before police on 19.11.1988. 2.3 One month after the incident as the appellant and prosecutrix came back and presented themselves before police, they were sent for medical examination by the police to Viramgam Municipal Hospital and statement of the prosecutrix and other witnesses were recorded. Thereafter, the accused was arrested and sent to judicial custody. 2.4 The appellant's defence was that the prosecutrix was in love with him and she did not like where she was betrothed and therefore she suggested that they should elope and at her instance the appellant accompanied her. He also stated that she was above 17 years of age and thus there was no offence made out. 2.5 Thereafter, investigation was carried out and charge sheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions triable the same was committed to the Court of Sessions. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 2.6 In order to bring home the charges against the accused, prosecution has examined following witnesses: Sr. No. Name of the witness Exh. 1 Kantiji Mafaji-Complainant 15 2 Prosecutrix 18 3 Dr.Kiritbhai Jayantibhai Patel 19 4 Vaghaji Hariji 24 5 Somabhai Shankarbhai 25 6 Bhikhiben Kantiji, mother of the victim 26 7 Kanubhai Karshanbhai 27 8 Juvansinh Gulabsinh Rathod, PSI 25 9 Nanubhai Dholaji Parmar, PSI, Viramgam. 29 2.7 The State relied on several documentary evidences to support the oral evidence. 2.8 Thereafter, after filing closing purshis by the prosecution, further statement of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused has denied the case of the prosecution and submitted that a false case is filed against him. 2.9 At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, convicted the appellant-accused. The accused has denied the case of the prosecution and submitted that a false case is filed against him. 2.9 At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, convicted the appellant-accused. 2.10 Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 5.7.1990 passed by learned Additional Sessions Judge, Ahmedabad Rural in Sessions Case No. 103 of 1989, the appellant - accused has preferred the present appeal before this Court. 3. It is submitted by Mr. Buddhbhatti, learned advocate for the appellant that had the learned trial Judge gone through decisions of the Apex Court he would not have convicted the accused. He submitted that it is an admitted position that the appellant was hardly 19 years of age and as per the birth record, birth date of the girl was 28.9.1971 and the incident occurred in the year 1988. Therefore, Mr. Buddhbhatti has submitted that the trial Court has committed serious error in not appreciating the fact that the Birth Date of the prosecutrix was proved to be 28-9-71 as per the school Register and she cannot be considered minor at the time of offence. He also submitted that the Court below has gravely erred in putting reliance on Birth Register of Mangrda village where birth date is shown to be 28-12-1972, as no source for recording above date is produced or it was a doubtful entry. He further submitted that the Court below has seriously erred in not appreciating the fact that the prosecutrix was in love with the appellant and she was has stated on oath that at her instance appellant accompanied her. He also submitted that the Court below has seriously erred in taking cognizance of offence of rape which is committed at Surat. It is submitted that Court below has failed to consider the medical evidence which shows the age of the prosecutrix to be 17 years, and, therefore, the evidence also supports defence. He further submitted that the Court below has failed to consider that the prosecutrix was matured enough to understand the act of sexual intercourse and it cannot be said that such act was done with force or coercion. He also relied upon the statement of Natvardan Shankardan Ratnu, Exh.32, who is the Head Master of Viramgam Kumar Shala No. 4. He further submitted that the Court below has failed to consider that the prosecutrix was matured enough to understand the act of sexual intercourse and it cannot be said that such act was done with force or coercion. He also relied upon the statement of Natvardan Shankardan Ratnu, Exh.32, who is the Head Master of Viramgam Kumar Shala No. 4. It is stated by the accused that the prosecutrix was studying in the aforesaid school and her date of birth is 28.9.1971. He also stated that Somabhai Shankarbhai, who is Talati-cum-mantri, was also examined by the prosecution, however, since entries regarding date of birth of the prosecutrix are made subsequently by him, such entries cannot be believed and according to school record her date of birth is 28.9.1971 and she cannot be considered as minor. Therefore, he submitted that he has not committed any offence and he may be acquitted. 4. Mr. Buddhbhatti further submitted that there was absence of any force or coercion on the part of the appellant and therefore offence of kidnapping is also not made out. He also contended that the complaint was lodged after 8 days and the delay is not explained satisfactorily. He also submitted that the Court below has seriously erred in not weighing the evidence on record and has failed to appreciate the admitted facts which were in favour of the appellant. He further submitted that Court below has failed to consider that this was a teen-age affair; that both were of the same cast and were known to each other since long; that therefore this was not a case of rape or kidnapping. He lastly submitted that the Court below has erred in relying upon the say of the prosecutrix that appellant told her that he would marry her next day and did not marry; that this fact alone is not sufficient to prove the offence against the appellant. He submitted that in view of above, this appeal may be allowed and the judgment and order of the lower Court may be reversed. 5. Learned Counsel for the appellant has taken this Court through the entire evidence and even the operative part of the conviction. He submitted that in view of above, this appeal may be allowed and the judgment and order of the lower Court may be reversed. 5. Learned Counsel for the appellant has taken this Court through the entire evidence and even the operative part of the conviction. As pointed out, in light of the provisions of Sections 363, 366 and 376 of the Indian Penal Code, when there is a doubt about the age of the prosecutrix, the learned trial Judge ought not to have convicted the accused just on the say of the complainant and against the medical evidence. It is further submitted that the prosecutrix and the accused were both very young and were having a love affair. It is also submitted that the prosecutrix had eloped with the accused from 11.11.1988 to 20.12.1988 and they both volunteered to appear before the police authorities and were thereafter taken in custody. Therefore, the consent of the prosecutrix was a relevant factor. He relied on the following authorities, in support of his submission. (a) Alamelu v. State reported in (2011) 2 SCC 385 , (b) Mohd. Imran Khan v. State (Govt. of NCT of Delhi) reported in (2011) 10 SCC 192 , (c) S. Varadarajan v. State of Madras reported in AIR 1965 Supreme Court 942, (d) Shyam and Another v. State of Maharashtra reported in AIR 1995 Supreme Court 2169, (e) Bhartiben W/o. Sureshbhai Bhikhabhai Chauhan v. Sushilaben Kanubhai Tevar and Anr. reported in 2009 3 G.L.H. 664, (f) Mussauddin Ahmedabad v. State of Assam reported in (2009) 14 SCC 541 and (g) Bhupatbhai Somabhai Sardiya v. State of Gujarat reported in (2012) 31 GHJ 140. 6. Per contra, Ms. Shah has taken this Court through the evidence and has submitted that the judgment of the learned Trial Judge is not such which calls for interference on the facts and the conviction of the accused should not be interfered with. She has submitted that the age of the prosecutrix was below 16 years and the fact that she was forced to leave the parental home without consent of her parents would be the material aspect and, therefore, Sections 363 and 366 of the IPC would be attracted. She submitted that since the prosecutrix was minor, her consent cannot be taken into consideration. She submitted that since the prosecutrix was minor, her consent cannot be taken into consideration. She has submitted that the judgments cited by learned Counsel for the appellant would not apply to the facts of this case as the age of the prosecutrix was below 16 years; even if she was a consenting party, that fact is of no consequence. She also relied on the latest decision of the Apex Court reported in Naushad v. State of Uttar Pradesh (Criminal Appeal No. 4505/2005, decided on 16.03.2007). She has therefore submitted that in view of the fact the accused had promised her to marry and later on did not marry her, this is a ground to uphold the judgment of the learned trial Judge. Ms.Shah has also tried to distinguish the decision reported in the case of Bhartiben W/o. Sureshbhai Bhikhabhai Chauhan v. Sushilaben Kanubhai Tevar and Anr. reported in 2009 3 G.L.H. 664 and has stated that the girl in the said case was more than 18 years. Therefore, the said decision will not apply to the facts of this case. She has further submitted that the appellant-accused has committed sexual intercourse by giving false promise to her that he would marry her, therefore, the trial Court has rightly appreciated the evidence on record and convicted the accused. She, therefore, submitted that the impugned judgment may not be interfered with and it may be confirmed. 7. Before considering the case on merits, it would be profitable to refer to the Provisions of Section 363, 366 and 376 of the Indian Penal Code, which are as under :- "363. Punishment for kidnapping :- Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. XXX XXX XXX 366. Punishment for kidnapping :- Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. XXX XXX XXX 366. Kidnapping, abducting or inducing woman to compel her marriage, etc.- Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid]. XXX XXX XXX 376. Punishment for rape: - (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (1) Whoever: -(a) Being a police officer commits rape- (i) Within the limits of the police station to which he is appointed; or (ii) In the premises of any station house whether or not situated in the police station to which he is appointed; or (iii) On a woman is his custody or in the custody of a police officer subordinate to him; or (b) Being a public servant, takes advantage of his official position and commits rape on a woman is custody as such public servant or in the custody of a public servant subordinate to him; or (c) Being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or (d) Being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or (e) Commits rape on a woman knowing her to be pregnant; or (f) Commits rape when she is under twelve years of age; or (g) Commits gang rape, Shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years." 8. Following aspects emerge from the record of this case. (a) The prosecutrix had moved from place to place with the accused and she did not at all complain. (b) There were no marks of injury on the person of the accused. (c) The important aspect is that the prosecutrix had time to complain but she had never stated that the accused had raped her by showing a knife, though she had chances. It cannot be said that there was threat or inducement on part of the accused. (d) The Birth Certificate reveals her age to be more than 17 years on date of incident. 9. It cannot be said that there was threat or inducement on part of the accused. (d) The Birth Certificate reveals her age to be more than 17 years on date of incident. 9. At this stage, it is relevant to reproduce herein below certain observations made by the respective Courts :- 9.1 In S. Varadarajan v. State of Madras (supra) "She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own that perhaps an unlettered girl hailing from a rural area." 9.2 In Bhartiben W/o. Sureshbhai Bhikhabhai Chauhan (supra) "We have heard learned Counsel for the respective parties and have perused the oral as well as documentary evidence on record. It is a matter of record that the prosecutrix went missing from her house in the noon hours of 07.09.2004. The document on record at Ex.11 is the School Leaving Certificate of the prosecutrix, which is a conclusive piece of evidence for the purpose of ascertaining the age of a person. In the said document, the date of birth has been shown as 31.08.1986. Even otherwise, the said date of birth has not been disputed by the prosecution. Therefore, admittedly and evidently, on the day when the prosecutrix went missing from her house, she was more than 18 years of age." 9.3 In Bhupatbhai Somabhai Sardiya (supra) "8.1 The prosecutrix then goes on to depose that similar act was committed repetitively by accused - Bhupat not only at mine, but at other places including the hut and that time, there were other persons present in the hut during the night. At that point of time, she did not raise any cry for help. At that point of time, she did not raise any cry for help. It also emerges from her evidence that she had moved with accused - Bhupat at different places in public transport as well and on motorcycle and she did not raise any shout for help at that time also." 10. Having considered the evidence on record, it is clear that the prosecutrix had moved with the accused from place to place. The date of birth recorded in the school records, which she had left much before the incident, shows that her date of birth is 28.9.1971 and since the offence is committed in the year 1988, learned Judge has committed grave error in considering her age to be 16 years which was not borne out from the record. The learned trial Judge has disbelieved the school leaving certificate just because it was issued after the incident. In my view, the school authorities have no reason to issue a false certificate. It appears that learned trial Judge has convicted the accused on conjecture and surmises and the judgment is not based on evidence, which is borne out from record. 11. Considering the facts and circumstances of the case and evidence on record, I am of the opinion that the decision in the case of Bhartiben W/o. Sureshbhai Bhikhabhai Chauhan v. Sushilaben Kanubhai Tevar and Anr. would apply to the facts of this case as in this case also, it is not proved beyond reasonable doubt that the girl was below the marriageable age. She having moved from place to place with the accused, it would not be out of place to state that she was a consenting party. It cannot be said that she was abducted or was seduced. Therefore, when the age of the prosecutrix is more than 16 years and she has voluntarily moved from place to place, the accused cannot be convicted for offence under Section 376 of the IPC. 12. The Criminal Appeal is allowed. The judgment and order dated 5.7.1990 passed by the learned Additional Sessions Judge, Ahmedabad Rural, in Sessions Case No. 103 of 1989 is quashed and set aside. The accused is acquitted of the charges levelled against him. As the accused is on bail, the bail bond stands cancelled. Surety, if any, shall stand discharged. Fine, if any, paid by the accused shall be refunded to him by the respondent-State. The accused is acquitted of the charges levelled against him. As the accused is on bail, the bail bond stands cancelled. Surety, if any, shall stand discharged. Fine, if any, paid by the accused shall be refunded to him by the respondent-State. Record and Proceedings be sent back to the trial Court concerned forthwith. Appeal allowed.