JUDGMENT & ORDER : 1. This is an appeal under Section 374 of Cr.P.C. against the judgment and order of conviction and sentence dated 20.02.2015, passed by the learned Sessions Judge, Gomati District, Udaipur in Case No. ST 10(ST/U) of 2014 whereby the accused-appellant has been convicted and sentenced to suffer Rigorous Imprisonment for 7 (seven) years and to pay a fine of Rs.10,000/-, in default to suffer Simple Imprisonment for 3(three) months for commission of offence under Section 376(i) of IPC and the accused-appellant has further been convicted and sentenced to suffer Rigorous Imprisonment for 5(five) years and to pay a fine of Rs.1000/-, in default to suffer Simple Imprisonment for 2(two) months for commission of offence under Section 366 of IPC. Both the sentences shall run concurrently. 2. The facts giving rise to this appeal, as projected by the prosecution, may be referred to briefly at the outset. On 28.03.2011, the informant namely Md. Wab Ali lodged an FIR with the Officer-in-charge, R.K.Pur Police Station, inter alia, alleging that on 22.03.2011, the daughter of the informant went out for private tuition but the said daughter thereafter did not return back. Thereafter a missing diary was lodged by the informant. The informant then learnt that his daughter went to Dimapur with the accused-appellant Jhutan Dey and accordingly, he lodged the FIR. 3. On receipt of the FIR, O.C., R.K.Pur P.S. registered R.K.Pur P.S. Case No. 113 of 2011 under Section 366(A) of IPC and pursuant to the investigation, the police submitted charge-sheet against the accused–appellant under Sections 366 and 376(2)(i) of IPC. 4. The learned Chief Judicial Magistrate, Udaipur, South Tripura District (Now Gomati District) on receipt of the charge-sheet took cognizance of the offence under Sections 366/376(2)(i) of IPC and committed the case for trial to the Court of learned Sessions Judge. 5. The learned Sessions Judge has framed charge against the accused person under Section 366/376(2)(i) of IPC which is reproduced below:- “CHARGE Firstly:-That you on 22.03.2011 at about 0600 hours at Bagabasa near the house of Haradhan Gan, under P.S.-R.K.Pur, Dist-Gomati Tripura, abducted Miss ‘Rossy’(name changed) with intent that she may be compelled to marry against her will or knowing it to be likely that she will be seduced to illicit intercourse with you and you thereby committed an offence punishable under Section-366 of I.P.C. and within my cognizance. Secondly:-That you 22.03.2011 to 26.03.2011 at Dimapur in the Popular hotel, Dist-Assam, committed rape upon Miss. ‘Rossy’ (Age about 14 years) and you thereby committed an offence punishable Under Section-376(2)(i) of I.P.C. and within my cognizance. And I hereby direct that you be tried on the said charges by this court. (Sri A. Pal) Sessions Judge, South Tripura, Udaipur.” 6. In course of trial, prosecution examined as many as 9 witnesses in support of its case and also proved 6(six) documents. 7. On the basis of the implicating materials as recorded as evidence, the accused was examined under Section 313,Cr.P.C. He declined to give any evidence. However, in his examination under Section 313 Cr.P.C. to a question – Do you want to say anything else? The accused answered –“victim P.W.3 (name kept withheld) insisted me to go with her. She threatened to commit suicide if I do not go”. 8. P.W.3, the girl who after her recovery during her statement recorded under Section 164(5) of the Cr.P.C. by the Magistrate has stated that she was having love affairs with Jhutan and she and the accused Jhutan were decided to get married. She also stated that she herself had asked Jhutan to take her and on the basis of that, Jhutan took her and stayed at Agartala on 22.03.2011 A.D. After staying there for one day, according to her, Jhutan took her to Nagaland by train and there they stayed at the sister’s house of accused Jhutan. Both of them had stayed at a hotel. After that they were recovered from the hotel by her brother. During her statement before the Magistrate she has specifically stated that the accused-appellant did not do any misbehaviour with her. Her statement under Section 164(5) of Cr.P.C. has been recorded on 30.03.2011 by the Chief Judicial Magistrate, South Tripura, Udaipur. 9. I have scrutinized her statement made in her deposition at the time of trial as P.W.3. She has deposed that they proposed for love, though she did not agree at the first occasion but after that she agreed. The accused-appellant told her that he is Mulsim and after that the girl, P.W.3 agreed to marry him. She left her house to marry him and went to Agartala. From Agartala they went to Dimapur where they. She has deposed that they proposed for love, though she did not agree at the first occasion but after that she agreed. The accused-appellant told her that he is Mulsim and after that the girl, P.W.3 agreed to marry him. She left her house to marry him and went to Agartala. From Agartala they went to Dimapur where they. stayed at the house of the sister of the accused-appellant and they also stayed in hotel for a day from where both of them were recovered by the brother of the P.W.3. She has further stated that during her stay with the accused-appellant they were involved in sexual intercourse. She also admitted that she made her statement before the Magistrate and the said statement was identified and her signature was marked as Exbt.P-4/1. 10. From the statement of P.W.3 in her deposition at the time of trial as well as her statement under Section 164(5) of Cr.P.C. before the Magistrate amply proves that P.W.3 voluntarily left her parental house with a view to marry the accused-appellant. As such, I cannot say that the accused-appellant had kidnapped the girl and raped her. There was sexual intercourse, even if, then also it was with the consent of P.W.3. 11. Now, it is settled proposition of law that if there is any sexual intercourse with the consent of the girl then it does not tantamount to rape and does not fall within the purview of definition of Section 375 of IPC. 12. The only question, as such, to be decided in this case is as to whether the age of the girl at the time of occurrence was below 18 years and whether the age of the girl has been proved beyond reasonable doubt on the basis of the evidence. 13. The learned trial Court has arrived at a finding that though the girl was a consenting party, yet she was minor at that point of time and she was forced or seduced to have an illicit intercourse with the accused-appellant after being kidnapped and having been arrived at this finding, the learned trial Court held that the accused Jhutan Dey committed offence punishable under Section 366 and 376(2)(i) of IPC. Accordingly, the learned Sessions Judge has convicted and sentenced the accused to suffer Rigorous Imprisonment for 7 years and fine of Rs.10,000/-, in default to suffer Simple Imprisonment for 3 months for commission of offence punishable under Section 376(i) of IPC and further sentenced to suffer Rigorous Imprisonment for 5 years and fine of Rs.1000/-, in default to suffer Simple Imprisonment for 2 months for commission of offence punishable under Section 366 of IPC and sentences shall run concurrently. 14. Situated thus, I have gone through the standard of evidence led before the trial Court in proof of the age of the girl, P.W.3. 15. Learned counsel, Mr. A. Bhowmik appearing on behalf of the accused-appellant would contend that only on the basis of a certificate issued by the Headmaster of the Bagabasa High School, the age of the girl cannot be said to be proved. I have perused the school certificate which has been marked as Exbt.4 in which the date of issue was written. 05.04.2011. The incident was occurred on 23.03.2011 i.e. the certificate was issued after 12 days of the occurrence and during the course of investigation of the instant case only for the purpose of using the said certificate in support of the prosecution case. 16. Also heard Mr. A. Roy Barman, the learned Addl. P.P. 17. Now, the deciding factor is whether the said document has been proved in accordance with established principle of law. The prosecution has produced the Headmaster of Bagabasa High School, namely, Sri Samarendra Roga to prove the said certificate and examined him as P.W.4. During his examination at the time of trial, he has deposed that on 05.04.2011 he was posted as Headmaster in Bagabasa School and on that day, in consultation with the Admission Register, he issued a certificate in favour of P.W.3 indicating her date of birth. He also stated that the P.W.3 was reading in Class-IX at the relevant point of time. The witness identified the school certificate which is marked as Exbt.P/4. During his cross examination, he has admitted that the “opening certificate was not written.” 18. The evidence of P.W.4 leads me to test its veracity in terms of Section 35 of the Evidence Act. The witness identified the school certificate which is marked as Exbt.P/4. During his cross examination, he has admitted that the “opening certificate was not written.” 18. The evidence of P.W.4 leads me to test its veracity in terms of Section 35 of the Evidence Act. Let me reproduce Section 35 of the Evidence Act hereunder, for convenience: “35.Relevancy of entry in public [record or an electronic record] made in performance of duty.—An entry in any public or other official book, register or [record or an electronic record], stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or [record or an electronic record] is kept, is itself a relevant fact.” 19. Determination of age of a person sometimes poses a different question. In absence of any statutory rule having been framed, no doubt, the provisions of Section 35 of the Evidence Act are required to be strictly complied with. 20. In the case in hand, the Headmaster of the School, .P.W.4 has only stated that he consulted with the admission register of the school. If that be so, the said admission register of the school is well existed and available and the Investigating Officer could have easily seized the said register. There is nothing on record to show that the said date of birth was recorded in the register maintained by the school in terms of the requirement of law as contained in Section 35 of the Evidence Act. No statement has further been made by P.W.4 that either of the parents of the girl who accompanied her to the school at the time of her admission made any statement or submitted any proof in regard thereto. It is evident from the prosecution case that the said certificate dated 05.04.2011 was issued only for the purpose of investigation and not in the ordinary course of business. It is also not revealed in the evidence that before being entered the age of the P.W.3 in the admission register, her age was verified. If any register in regular course of business was maintained in the school, there was no reason as to why the same had not been produced. 21. It is also not revealed in the evidence that before being entered the age of the P.W.3 in the admission register, her age was verified. If any register in regular course of business was maintained in the school, there was no reason as to why the same had not been produced. 21. From the evidence of P.W.4, it is clear that the very basis of issuing a certificate is the entry of the date of birth of the P.W.3 in the admission register of the school. Section 35 requires the following conditions to be fulfilled before a document is held to be admissible there under: (Emphasis supplied) (i) it should be in the nature of the entry in any public or official register; (ii) it must state a fact in issue or relevant fact;(iii) entry must made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country; and (iv) all persons concerned indisputably must have an access thereto. 22. Situated thus, admitting the fact that there is admission register on the basis of which P.W.4, the Headmaster had issued the certificate is very much relevant to prove the truthfulness of the date of birth recorded in the certificate dated 05.04.2011. Even then, there cannot be any dispute that the said admission register has to be proved in accordance with law i.e. it has to be proved by the author who made the entries in the said admission register or it may be proved by any other person knowing the hand writing of that person who made entries in discharge of his official duty. 23. In Birad Mal Singhvi Vrs. Anand Purohit, reported in (1988) Supp. SCC 604, the Apex Court held: (SCC p.619, para 15) “To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.” 24. Considering the manner in which the facts recorded in a document may be proved, the Apex Court in Birad Mal Singhvi (supra) observed as follows:(SCC pp.618-19, para 14) “14 …..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 Exts. 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 Exts. 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.” (emphasis supplied) 25. The same proposition of law is reiterated by the Apex Court in Narbada Devi Gupta Vrs. Birendra Kumar Jaiswal, reported in (2003) 8 SCC 745 where the Apex Court observed as follows:(SCC P.751 Para 16) “16. The same proposition of law is reiterated by the Apex Court in Narbada Devi Gupta Vrs. Birendra Kumar Jaiswal, reported in (2003) 8 SCC 745 where the Apex Court observed as follows:(SCC P.751 Para 16) “16. ……The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the ‘evidence of those persons who can vouchsafe for the truth of the facts in issue’.” 26. In my opinion, had the register been produced, the Court should see the way the entries were made in the register in proof of her date of birth and also on the basis of what the entry in regard to the age was entered upon. 27. In the case of Ram Suresh Singh Vrs. Prabhat Singh alias Chhotu Singh & Anr., reported in (2009) 6 SCC 681 , the Apex Court in Para 14 held that— “14.There cannot furthermore be any doubt whatsoever that the same standard is required to be applied for the purpose of Section 35 of the Evidence Act both in civil as also criminal proceedings, as was held by this Court in Ravinder Singh Gorkhi v. State of U.P. (2006) 5 SCC 584 , stating: "38. The age of a person as recorded in the school register or otherwise may be used for various purposes, namely, for obtaining admission; for obtaining an appointment; for contesting election; registration of marriage; obtaining a separate unit under ceiling laws; and even for the purpose of litigating before a civil forum e.g. necessity of being represented in a court of law by a guardian or where a suit is filed on the ground that the plaintiff being a minor he was not appropriately represented therein or any transaction made on his behalf was void as he was a minor. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. A court of law for the purpose of determining the age of a party to the lis, having regard to the provisions of Section 35 of the Evidence Act will have to apply the same standard. No different standard can be applied in case of an accused as in a case of abduction or rape, or similar offence where the victim or the P.W.3 although might have consented with the accused, if on the basis of the entries made in the register maintained by the school, a judgment of conviction is recorded, the accused would be deprived of his constitutional right under Article 21 of the Constitution, as in that case the accused may unjustly be convicted." 28. The condition laid down in Section 35 of the Evidence Act for proving an entry pertaining to the age of a student in the admission register has to be considered for the purpose of determining the relevance thereof. An entry in a school register may not be a public document and, thus, must be proved in accordance with law, as has been held by the Apex Court in Birad Mal Singhvi (supra). According to me, in this case the said entry has not been proved in accordance with law in conformity with the principles enunciated in the aforesaid authorities. 29. I have given my conscious look to the deposition of P.W.1 who being the father of the girl also has not stated that on the basis of his statement and materials placed by him before the School authority, the date of birth of her daughter, P.W.3 was recorded by the school authority. 30 In Bishnudas Behera Vrs. State of Orissa, reported in, 1997 Cri. L.J. 2207 (Orissa), the said High Court has held in Para 9 that –“Testing by the aforesaid touchstone, the school admission register cannot be regarded as the sole clinching factor for determination of the age…………” 31. The most important and significant aspect of the prosecution case is that neither ossification test nor any kinds of radiological test was conducted by the prosecution for determining the age of the girl, P.W.3. Needless to say, that ossification test and the radiological test might provide some kinds of evidence in respect of the age of the girl, P.W.3 since these tests were very much relevant in determining the age. Needless to say, that ossification test and the radiological test might provide some kinds of evidence in respect of the age of the girl, P.W.3 since these tests were very much relevant in determining the age. More so, the doctor who examined the P.W.3 has not been examined by the prosecution. According to me, non-conducting of ossification and radiological test of the P.W.3 is a serious infirmity in the process of investigation. (emphasis supplied) 32. To sum up the entire case, from the deposition of the girl as well as her statement recorded under Section 164(5) of Cr.P.C., it has not been proved beyond reasonable doubt that the accused-appellant had enticed or induced the girl (P.W.3) to accompany him with the object of marrying her. From her statement, it has also been revealed that the intercourse was not forcible but with the consent of the P.W.3. 33. Learned Sessions Judge at the very beginning of the examination of P.W.3 (girl) has passed his remarks that the maturity of understanding of the girl is tested by putting several questions to her and she was found matured to understand questions and give reply. 34. In view of this, the prosecution case and the charge framed against the accused-appellant under Section 366 of IPC has miserably been failed. 35. I have already held that on the basis of the certificate issued by the Headmaster stating her date of birth cannot form the basis of a conclusive proof of the age of the girl, P.W.3. Above all, the prosecution did not feel it necessary to conduct the ossification as well as the radiological test of the girl for determination of her age despite requisition given by the doctor. Even the doctor who had examined the girl after recovery, has not been examined by the prosecution. 36. I am at a loss to understand how the learned Sessions Judge has arrived at the finding and convicted the accused in absence of conclusive proof of the document in the nature of school certificate and medical examination of the girl, P.W.3. 37. In my opinion, since the age of the girl has not been proved in accordance with law, the burden of proof has not been discharged by the prosecution. 38. 37. In my opinion, since the age of the girl has not been proved in accordance with law, the burden of proof has not been discharged by the prosecution. 38. In such circumstances, I am constrained to hold that the learned Sessions Judge without examining the factual and the legal issues has reached to the conclusion that the girl, P.W.3 was a minor at the time of alleged abduction and intercourse. There is no satisfactory evidence to come to a definite conclusion that she was a minor. 39. In the above conspectus, it is clear that the accused-appellant at no point of time had committed any overt act from which it can be inferred that the P.W.3 was forcibly abducted and developed sexual relation without her consent. 40. The only conclusion that flows from her evidence that she was a voluntary party who willingly followed the path paved by the appellant. It appears that the prosecution story has been concocted for reasons best known to the prosecution. 41. In my opinion, the conclusions recorded by the learned Sessions Judge are wholly perverse. The appellant is clearly entitled to the benefit of doubt. 42. In view of the above, the appeal is allowed. The judgment and order of conviction and sentence dated 20.02.2015, passed by learned Sessions Judge, Gomati District, Udaipur in case No. S.T. 10(ST/U)/2014 is set aside. 43. The accused-appellant Sri Jhutan Dey is given the benefit of doubt. He is acquitted of the charge framed against him and set at liberty from custody at once, if not required in any other cases. 44. Send back the L.C.Rs along with a copy of this judgment.