JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. This appeal is filed by the State challenging the judgement of acquittal recorded by the learned Additional Sessions Judge, Vadodara dated 16.10.1993 in Sessions Case No. 89 of 1993. 2. Briefly stated, the prosecution version was that the daughter of the complainant, hereinafter referred to as the victim, was below 16 years of age. The accused No. 1, Ramanbhai Trikambhai Mayavanshi with the aid of his friend - accused No. 2 - Govindbhai Ishwarbhai Parmar forcibly kidnapped the victim at about 03.30 in the afternoon on 18.04.1992 when the victim had gone to fetch water at the village outside her house. The two accused forced her to sit in an autorickshaw and then took her to an isolated place in the ravines where the three spent a few days before the accused No. 2 left them. The accused No. 1 and the victim then went to the house of Jashodaben, sister of accused No. 1 at village Mogri from where the two were found by the complainant and his relatives. During such time, according to the prosecution, the victim was also raped by accused No. 1. A charge to this effect was framed at Ex. 1 alleging that the accused No. 1 was the principal offender of offences punishable under sections 363, 366, 376 IPC and against accused No. 2, these offences were charged with the aid of section 114 IPC. 3. Dr. Rajesh Tandon, P.W. 1, Ex. 8 had carried out the physical examination of accused No. 1. He had found him to be physically mature and able to perform sexual intercourse. 4. Dr. Vaishakhi Dave, P.W. 5, Ex. 20 had examined the victim girl. She had found her to be physically mature. Her hymen had old rupture. The doctor opined that she could be used to sexual intercourse. She had also carried out the ossification test and estimated the age of the girl to be 16 years, plus or minus six months. 5. Shankarbhai Parmar, P.W 2, Ex. 10, the father of the victim and the first informant deposed that his daughter - the victim was born on 21.05.1976. She had studied upto 09th standard. The incident took place on 18.04.1992 at about 03.30 pm. He was at home at that time. The victim had gone to fetch water but did not return for nearly half an hour. 10, the father of the victim and the first informant deposed that his daughter - the victim was born on 21.05.1976. She had studied upto 09th standard. The incident took place on 18.04.1992 at about 03.30 pm. He was at home at that time. The victim had gone to fetch water but did not return for nearly half an hour. One Kanchanbhai came to his house and informed him that his daughter was taken away by the two accused in an autorickshaw from near the water-stand. He had lodged a complaint to this effect which is produced at Ex. 11. He produced the birth certificate of the girl at Ex. 12. The girl was later on found from village Mogri on 26.04.1992. The ornaments which she was wearing at the time of incident were also missing. 5.1 In the cross examination, he denied that on the previous night there was a big quarrel between him and his daughter during which he had beaten her up because the daughter had a love affair with accused No. 1. He also denied that due to such reasons the daughter had left his house earlier also or that on the date of incident the victim had left voluntarily. Since the victim was his first child, the delivery was done at his in-laws' place at Ahmedabad. The registration of birth was also done by the in-laws. He also agreed that at the stand-post, the water is supplied at 06.00 in the morning and at 07.00 in the evening. His daughter's school time was from 11 am to 5 pm. 6. P.W. 3 was the victim herself whose deposition was recorded at Ex. 14. She deposed that on the date of incident, she had gone to the stand-post at about 02.00 or 02.30 pm. One autorickshaw was standing there at that time. Accused No. 2 pulled her in the rickshaw. Accused No. 1 also sat in the rickshaw. Before she could shout, they covered her mouth with a hand upon which she had fainted. She regained consciousness only when they had reached Gorwa village. They got down from the rickshaw at Gorwa and went to the ravines. They stayed there till 24th of April during which time the accused No. 2 took her ornaments also. On 25.04.1992, accused No. 1 took her to village Mogri. She regained consciousness only when they had reached Gorwa village. They got down from the rickshaw at Gorwa and went to the ravines. They stayed there till 24th of April during which time the accused No. 2 took her ornaments also. On 25.04.1992, accused No. 1 took her to village Mogri. There he was trying to locate his sister Jashodaben's house in near by factories. They spent the entire day in the factories and reached Jashodaben's house at 8O'clock in the night. Jashodaben pointed out that the girl was underage and suggested that she may be returned to her house. Accused No. 1 persuaded her to let them spend one night. Early in the morning, her father and other relatives reached Jashodaben's house upon which the accused No. 1 ran away from the back door. He had had forcible intercourse with her on two occasions at Jashodaben's house but not in the ravines. 6.1 In the cross examination, she stated that on the date of the incident, her school was working, but in the morning session because of the exams. She denied that she knew accused No. 1 but later on agreed that she knew that he had a cycle repair shop in the village and that is how she knew about him. She denied that she had a love affair with accused No. 1 or that the two had taken out photographs together. She also denied having written love letters to him. She agreed that at the stand-post, water supply would be available at 07.00 in the morning and at 06.00 in the evening but clarified that low pressure supply would be available throughout the day. After accused No. 2 left them on 20.04.1992, she and accused No. 1 had stayed in the ravines till 24.04.1992. When they reached Mogri from Gorwa on 25.04.1992, it took them about half an hour by autorickshaw, during which time she did not complain to the rickshaw driver of being kidnapped. At Mogri also, when they were looking for the house of Jashodaben in the factories, many people were present to whom also she had not complained. When they reached Jashodaben's house at 8 O'clock at night, in the locality there were many other houses. There also she had not made any complaints. 7. Savitaben Shankarbhai, mother of the victim, P.W. 6, Ex. When they reached Jashodaben's house at 8 O'clock at night, in the locality there were many other houses. There also she had not made any complaints. 7. Savitaben Shankarbhai, mother of the victim, P.W. 6, Ex. 23 also deposed that the victim was born on 21.05.1976 at L.G. Hospital, Maninagar, Ahmedabad. In the cross examination, however, she could not remember after what period of time her birth was registered. 8. Dahyabhai Mayavanshi, P.W. 11, Ex. 34 was a Junior Clerk of St. Joseph High School where the victim had studied. He produced her School Leaving Certificate at Ex. 35. In the cross-examination, he stated that he had not brought the certificate of the primary school from where the student had left to join his school. He agreed that the school maintains such a register but had not produced any such register. 9. Tapubhai Khachar, P.W. 10, Ex. 28 was the Investigating Officer. He narrated the steps taken for carrying out the investigation. In the cross examination, he agreed that on the road passing through the place of incident, there were many factories. Barely 60 feet away, there is a store relating to postal stationery. Around the locality of the victim's house, there was one Engineering Company and a little away was the godown of Vadilal Ice-cream and other couple of factories. He agreed that the area was fully developed with sufficient factories and the road had heavy traffic. 10. The defence examined two witnesses. D.W.1, Girishbhai Macwan, Ex. 42 was employed at Johnson Electric Company which according to him was next to the cycle repair shop of the accused No. 1. He deposed that the shop was situated in a highly developed area and the victim used to come to the shop often and speak to accused No. 1. The people in the area knew that the two had an affair. 11. D.W. 2, Kamlesh Patil, Ex. 44 was a photographer who had taken out the photographs of accused No. 1 and the victim. He, however, could not produce the negatives of these photographs and the photographs were, therefore, not exhibited. 12. On the basis of these evidences, the learned Additional Sessions Judge came to two important conclusions. According to her, the victim was a consenting partner in the entire episode without which the incident as alleged could not have taken place. He, however, could not produce the negatives of these photographs and the photographs were, therefore, not exhibited. 12. On the basis of these evidences, the learned Additional Sessions Judge came to two important conclusions. According to her, the victim was a consenting partner in the entire episode without which the incident as alleged could not have taken place. In that view of the matter, the age of the victim became crucial. The learned Judge found insufficient evidence to conclusively establish that the victim was less than 16 years of age. On the basis of these two findings, the learned Judge acquitted the two accused. Hence, this State appeal. 13. We may assess the evidence on record. The evidence regarding the complicity of the victim herself is sufficiently clear. Though the victim, in her deposition before the court, claimed to have been forcibly abducted by the two accused there are large number of improbabilities in such version. Since neither the victim's parents or other relatives nor any other witness could throw much light on the precise nature of the incident, the deposition of the victim in this context would be crucial. According to her, when she had gone to fill water for the family in the afternoon at the stand-post, the two accused took her in an autorickshaw and whisked her away to a different village where they discarded the autorickshaw and walked up to the ravines where they spent close to six days in the open. In the meantime, accused No. 2 left them. Accused No. 1 and the victim girl came to the house of Jashodaben from where they were found next day early morning. 14. The victim admitted that when they got down from the autorickshaw in the village she had not complained to anyone. Even if one were to believe her version of a constant vigil by the two accused in the ravines, this could have continued only upto 20th of April since according to her, accused No. 2 left at that point of time. Thus, the victim and accused No. 1 remained in the ravines alone from 20.04.1992 to 24.04.1992. During this period, obviously the victim would have had multiple opportunities to set herself free. More importantly, the two came to village Mogri where the sister of accused No. 1 lived. They spent entire day in different factories asking about the location of Jashodaben's house. During this period, obviously the victim would have had multiple opportunities to set herself free. More importantly, the two came to village Mogri where the sister of accused No. 1 lived. They spent entire day in different factories asking about the location of Jashodaben's house. All throughout, the victim had multiple opportunities to complain to the people about her being kidnapped. Even when they reached the house of Jashodaben, the area was surrounded by many other houses. In fact she had candidly stated that upon reaching the house of Jashodaben, Jashodaben pointed out that the girl was underage and that she be returned to her parents. Accused No. 1 pleaded that they may be allowed to spend one night before returning. 15. The fact that the house of the victim and the water stand where she had gone to collect water were situated in highly developed localities has come on record through the evidence of the Investigating Officer. There were godowns, shops and factories in the region, making the task of forcibly taking away a girl unnoticed by others quite improbable. Besides the victim as well as her father both agreed that the water supply was available only during morning and evening hours making the version of the victim that she had gone to the water stand to collect water in the afternoon completely unacceptable. Her explanation that throughout the day water supply at low pressure was available was neither probable nor in consonance with what her father had to state on this score. 16. The learned Additional Sessions Judge therefore correctly came to the conclusion that there was no forcible kidnapping of the victim girl by either of the two accused. The question of consent of the victim would be relevant only if she had crossed 16 years of age. The assessment of her age would, therefore, become important. We have noticed that the prosecution had relied on her School Leaving Certificate, more importantly, on her birth certificate. Though originally these documents would provide a safe guide for the determination of the age of the victim, in fact in the facts of the present case, we would not disturb the findings of the trial court for reasons mentioned hereinafter. 17. First and foremost the doctor estimated the age of the girl to be 16 years with error margin of plus or minus six months. 17. First and foremost the doctor estimated the age of the girl to be 16 years with error margin of plus or minus six months. Thus, the medical evidence was not clinching with respect to the age of the girl. Secondly, the birth certificate did not mention the name of the child. We are conscious that it is neither necessary nor in the Indian context possible to mention the name of the child on the birth certificate particularly when the birth is registered almost immediately after the birth. In the present case, however, the birth certificate Ex. 12 would show that the birth was registered on 25.05.1977 i.e. almost a year after the birth. If that be so, there is no reason why the birth certificate should not have contained the name of the child since atleast a year after the birth one would have safely expected the child to have been named. The original of the birth certificate, Ex. 12 contains water marks on crucial spots carrying the date of birth making it difficult to decide for whether the date recorded was 21.05.1976 or 21.05.1973. This birth certificate, therefore, would be highly unsafe to come to the conclusion that the date of birth of the child was 21.05.1976 and the child so born was none other than the victim girl herself. These factors coupled with the fact that the learned Additional Sessions Judge had acquitted the accused would persuade us not to reverse the same. 18. In the result, the appeal is hereby dismissed. The judgement and order dated 16.10.1993 passed by the 4th Additional Sessions Judge, Baroda in Sessions Case No. 89 of 1993 is confirmed. Bail bond, if any, shall stand cancelled. R & P to be transferred to the trial court forthwith.