JUDGMENT AND ORDER : Sonia Gokani, J. This is an appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short, 'the Code'), against the judgment and order passed by the learned Special Judge, Sessions Court, Patan, Dated: 10.09.2015, rendered in Special POCSO Case No. 34 of 2015 (Old No. Sessions Case No. 22 of 2014), whereby, it convicted the appellant for the offence punishable Sections 363, 366, 376, 506(2) and 114 of the Indian Penal Code and Sections 3(a) and 4 of the Protection of Children from Sexual Offences Act, 2012 2. The brief facts in the instant case are as under: It is the case of the prosecution that the complainant-prosecutrix gave a complaint before the Patan Taluka Police Station on 25.03.2013, wherein, she stated that, on 22.03.2013, there was a function, in the evening, at the house of her uncle, namely Rupsangji, where her entire family had gone and she alone had remained at home to feed the cattle. It is also her case that the appellant, namely Sanjay @ Chakaji Sovanji Thakor, intimated the complainant that he had come to pick her up as her parents had called her at her uncle's place. The appellant being her neighbour, she was familiar with him and chose to accompany him. The complainant-prosecutrix was also familiar with the co-accused, Jenaji Mafaji Thakor, who was standing on the road with an autorickshaw. After the complainant boarded the autorickshaw along with the appellant and the co-accused, the appellant asked the autorickshaw driver to take the autorickshaw towards Balisana and at that time the prosecutrix had protested such a move. However, she was threatened by the appellant and the co-convict of dire consequences, and therefore, she did not raise alarm. 2.1 It is, further, the case of the prosecution that when the autorickshaw reached near Patan cross-roads, the appellant and the coconvict had purchased some snacks from a hotel. Thereafter, the autorickshaw was taken towards Balisana and it was stopped near a borewell situated beside a large canal, lying between Balisana and Sunder villages, in the late night at about 01:30 a.m.. A couple was residing in a room constructed near the borewell. They appeared to be familiar with the appellant, who took the prosecutrix into room, where he is alleged to have raped her two to three times that night. A couple was residing in a room constructed near the borewell. They appeared to be familiar with the appellant, who took the prosecutrix into room, where he is alleged to have raped her two to three times that night. At that time, the said couple and the co-convict had stayed outside the room. On the next day also, the appellant committed rape on her two to three times at late night. Then, on the third day, at about 10:00 p.m., the appellant and the coconvict hired a passenger jeep and dropped the prosecutrix near her house. 2.2 In the meantime, the prosecutrix was being searched for by her parents. On her return on 25.03.2013, a complaint being I-C.R. No. 53 of 2013 came to be lodged with the Patan Taluka Police Station for the offence punishable under Sections 363, 366, 376, 506 and 114 of the IPC and Section 17 of the POCSO Act. The present appellant and the co-convict came to be arrested on 29.03.2013, whereas, the autorickshaw driver, i.e. original accused No.3, came to be arrested on 01.04.2013. Later on, accused Nos. 2 and 3 came to be released on bail by the trial Court concerned, whereas, the appellant has been in judicial custody, since then. 2.3 The IO filed the first charge-sheet before the Chief Judicial Magistrate, Patan, on 27.05.2013 and the case was initially registered as Criminal Case No. 1615 of 2013. However, since, the case was exclusively triable by the Court of Sessions, it was transferred to Sessions Court, Patan, and was renumbered as Sessions Case No. 22 of 2014. It appears that the IO concerned, subsequently, filed supplementary charge-sheet and the case was, therefore, again renumbered as Special POCSO Case No. 34 of 2015. 2.4 At the time of trial, since, the accused did not plead guilty, the prosecution examined as many as 12 witnesses to bring home the charges levelled against the accused persons. Prosecution Witness Number Name of the witness Exhibit number 1 Prosecutrix-Victim (the Original Complainant) 18 2 Bhagaji Madarji Thakor (Father of the Victim) 20 3 Dineshji Devaji, Panch witness of seizure of clothes of prosecutrix 22 4 Mohanji Jodhaji, panch witness of panchnama of place of offence 27 5 Bhakarji Chhalajji, Panch witness of seizure of autorickshaw 35 6 Dinaji Sagramji, Panch witness of seizure of autorickshaw 37 7 Kanubhai Ganeshbhai, Driver of jeep 38 8 Dr. Dhavalkumar Patel, CMO, who examined prosecutrix 39 9 Bharatkumar Laldas Sadhu 45 10 Shermohmmed Memon, Talaticum-Mantri for birth date of prosecutrix 52 11 Dr. Khusbuben Patel Gynecologist 55 2.5 Over and above the oral evidence, the prosecution also adduced the following documentary evidences: Documentary evidence number Particulars Exhibit number 1 Complaint 19 2 Panchnama of seizure of clothes of the victim 23 3 Panchnama of the house of the complainant-prosecutrix 26 4 Panchnama of the place of offence 29 5 Panchnama of physical examination of accused No.1 32 6 Panchnama of seizure of clothes of accused No.1 33 7 Panchnama of physical examination of accused No.3 36 8 Medical certificate of the victim 40 9 Police memorandum sent to Medical Officer, Dharpur 41 10 Original medical case papers of the victim 42 11 Depute order for police investigation 46 12 Memorandum sent by PI to PSO 47 13 Date of Birth certificate of the victim issued by Der Gram Panchayat 53 14 The extract of register of Birth and Death of Der Gram Panchayat 54 15 Medical certificate of accused No.1 56 16 Memorandum sent to Medical Officer, Dharpur, by police 57 17 Original medical case papers of the accused 58 18 Date of birth certificate of Kalpesh Bhajaji (brother) 60 19 Date of birth certificate of Nagrajsinh Bhajaji (Brother) 61 20 Date of birth certificate of Taraben Bhagaji (Sister) 62 21 Date of birth certificate of Ashaben Bhagaji (Sister) 63 22 Forwarding letter sent to FSL by the IO 64 23 Despatch note send to FSL 65 24 Forwarding letter received from FSL 66 25 FSL Report 67 26 Serological Report of FSL 68 27 Letter written for obtaining cellphone call details 69 2.6 On completion of the recording of the evidence, further statements of the accused came to be recorded under Section 313 of the Code and eventually the trial Court convicted the appellant and the co-accused No.2, namely Jenaji Mafaji Thakor, whereas, accused No.3-autorickshaw driver, namely Nazruddin Husainbhai Sindhi, was acquitted by the trial Court by giving him the benefit of doubt. 3. So far as the present appellant is concerned, he is convicted for the offence punishable under Sections 363, 366, 376, 506(2) and 114 of the IPC and under Sections 3(A) and 4 of the POCSO Act. 4. 3. So far as the present appellant is concerned, he is convicted for the offence punishable under Sections 363, 366, 376, 506(2) and 114 of the IPC and under Sections 3(A) and 4 of the POCSO Act. 4. The co-convict, Jenaji Mafaji Thakor, being aggrieved by the judgment and order of the trial Court preferred an appeal being Criminal Appeal No. 1573 of 2016, which, came to be allowed by this Court vide judgment and order dated 25.11.2017 and the co-convict, Jenaji Mafaji Thakor, came to be acquitted. While disposing of the said matter, this Court had also directed the jail authorities concerned to intimate the appellant the out come of the appeal filed by the co-convict so as to enable him to decide his future course of action, as no appeal was preferred by the present appellant, till then. The Court, therefore, observed and directed as under: "19. At this stage, it would be apt to refer to the decision of the Apex Court in 'PAWAN KUMAR VS. STATE OF HARYANA, (2003) AIR(Supreme Court) 2987', more particularly, Paragraphs- 15 and 16, thereof, so as to ensure that the ratio laid down in the said decision is made available to the nonappealing convict, namely Sanjayji @ Chakaji Sovanji Thakor. The relevant observations read thus: "15. In the case of Raja Ram and others V. State of M. P., (1994) 2 SCC 568 , while altering conviction of an accused in appeal preferred by him, this Court extended the same benefit to non appealing accused whose conviction was upheld by the High Court and the same attained finality no appeal having been preferred against the same. 16. In the instant appeal, the case of non-appealing accused Balwinder Singh, who never moved this Court, stands on a much better footing than the cases of the accused persons in the decisions referred to above whose applications for grant of special leave to appeal had been dismissed by this Court. In the case on hand, we have come to the conclusions that prosecution failed to establish its case beyond reasonable doubt against both the accused persons which means that conviction of none of the accused was possible. In the case on hand, we have come to the conclusions that prosecution failed to establish its case beyond reasonable doubt against both the accused persons which means that conviction of none of the accused was possible. This Court has repeatedly observed that wile hearing appeal of other accused, in case Court comes to the conclusions no conviction of any accused is possible meaning thereby non-appealing accused as well whose conviction had attained finality, no appeal having been preferred against the High Court judgment, the benefit of that decision must be extended to non-appealing accused in spite of the fact that he has not challenged judgment of the High Court upholding his conviction as this Court has set up a judicious precedent for the purpose of averting miscarriage of justice in similar situations. Reference in this connection may be made to the cases of Chellappan Mohandas and others V. State of Kerala, (1995) AIR(Supreme Court) 90, 'Dandu Lakshimi Reddy Vs. State of A. P., (1999) 7 SCC 69 , Bijoy Singh and another v. State of Bihar, (2002) 9 SCC 147 , Burucharan Kumar and another V. State of Rajasthan, (2003) 1 JT 60 and Suresh Chaudhary V. State of of Bihar, (2003) 4 SCC 128 wherein while hearing appeal of another accused against the judgment of High Court confirming the conviction, this Court set aside the same as it was found that the prosecution failed to prove its case against all the accused persons, including non-appealing one, and directed that the same benefit shall be extended to the non-appealing accused also though he did not prefer any appeal before this Court against his conviction.' 19.1 The jail authority concerned shall, therefore, intimate the convict-Sanjayji the outcome of this appeal to enable him to decide the future course of action so far as his conviction is concerned. Further, if, the convict-Sanjayji requires any legal aid, the Jail Authority shall also make proper arrangement for the same." The present appellant has already undergone about five years' sentence, since, due to paucity of funds he was unable to approach this Court by way of appeal. It is his case that the complainant's story is highly improbable and she had lot of chances to seek the help of others. It is his case that the complainant's story is highly improbable and she had lot of chances to seek the help of others. It is also his case that findings of this Court would apply to his case also and he should also be given the benefit of doubt on the basis of those findings. This Court has heard the learned Advocate, Mr. Bhatt, appearing in legal aid for the appellant, who strenuously urged that the judgment and order of this Court would be applicable in case of the present appellant and he should also be given the benefit of the same, as well. Learned APP, Mr. Patel, appearing for the Respondent-State urged this Court to pass an order, which is just and proper. Having heard both the sides, it can be noticed from the judgment of the co-convict that after the detailed examination of the material on record, this Court disbelieved the age of the prosecutrix so also the offence that has been alleged in relation to the same. Instead of giving separate reasonings in the instant case, it would be apt to reproduce the findings and observations made in the case of the co-convict, which read thus: "9. Having heard both the sides and also on carefully examining the entire material of the prosecution in the form of deposition of the witnesses and the documentary evidences, which have been adduced before the learned Special Judge, this Court notices that the deposition of prosecutrix-PW 1 is categorical, where, she stated that on the date of the offence she was all alone at her home, since, his family members had gone to her uncle's place, where a feast was organized by him. The main convict-Sanjayji went to pick her up by stating that her father was calling her. She accompanied the main convict-Sanjayji, where, the present appellant was standing with an autorickshaw. When, she found that the autorickshaw was going towards Balisana, she had shouted and also had resisted, at that stage, she was threatened by both the main convict-Sanjayji and the present appellant. Further, after the autorickshaw reached Patan cross-roads, the accused had purchased snacks. 9.1 The prosecutrix also gave the exact location of the place, where she was taken by the main convict-Sanjayji and the present appellant, which was a room adjoining a borewell, situated near a large canal, wherein a couple was residing. Further, after the autorickshaw reached Patan cross-roads, the accused had purchased snacks. 9.1 The prosecutrix also gave the exact location of the place, where she was taken by the main convict-Sanjayji and the present appellant, which was a room adjoining a borewell, situated near a large canal, wherein a couple was residing. The couple was aged about 30 years. After leaving them there, the autorickshaw driven had left from there. It was around 01:00 a.m. in the night, when, the aforesaid couple and the present appellant slept outside the room, whereas, the main convict-Sanjayji and the prosecutrix both slept in the room, where, the main accused-Sanjayji is alleged to have sexual intercourse with her two to three times that night. Next day, nothing happened during the day time. However, at night, the main convict-Sanjayji again had sexual intercourse with her two to three times. Thereafter, on the third day, in the night at about 10:00 p.m., both the accused hired a jeep car and dropped the prosecutrix back at her parental home. The parents of the prosecutrix were looking for her and on the next day of his return, an FIR came to be filed with Patan Taluka Police Station, whereupon, she came to be medically examined at Dharpur and her clothes came to be recovered by the police after drawing panchnama. The prosecutrix identified the main convict-Sanjayji, so also the the present appellant before the learned Special Judge. 9.2 In her cross-examination, she gave the details of her siblings and she stated that she was second daughter of PW-2 and she was two years younger to her elder sister, namely Kansuben, who was married at the age of eighteen years. The marriage of Kansuben were solemnized five years prior to the date of recording her evidence. She stated that she do not know her date of birth. She stated that, at time of incident, her father-PW 2 was looking after the field of Yogesbhai Patel, whereas, the father of the main convict-Sanjayji was used to plough the field of Prabhudas Patel and they used to reside on the room situated on the farm of said Prabhudas Patel. She conceded that she and her family members were familiar with the main convictSanjay and his family members. She, however, denied that she frequently visited the house of the main convict-Sanjayji. She conceded that she and her family members were familiar with the main convictSanjay and his family members. She, however, denied that she frequently visited the house of the main convict-Sanjayji. She agreed that two of her brothers used to go to the house of the main convict-Sanjayji for reading, since, in her house, they had no electricity connection. She agreed that the when the main convict-Sanjayji came with autorickshaw, Prubhudas Patel was present at borewell. She nonetheless maintained her stand that, since, the convicts had threatened her, she did not shout. She agreed that the autorickshaw was open from three sides. She also stated that she had communicated to the couple that she was forcibly brought by the main convict-Sanjayji and yet, they had not helped her. She denied of her having affair with the main convict-Sanjayji for the past more than 12 months. She also denied the suggestion that main convict-Sanjayji had purchased a cellphone for her. She, however, stated that Sanjahi had given her cellphone once to let her talk to her father. She denied the suggestion that prior to three days of the alleged offence, she had gone to Patan along with Sanjayji and his sister and that he frequently used to give money. 10. The deposition of PW-2, Bhagaji Madarji Thakor, is along the line of deposition of his daughterPW-1 and he reiterated the details given by her, which does not require any reiteration. 10.1 In his cross-examination, PW-2, admitted that at the distance of about 100 feet, there is a borewell and a room on the filed of Prabhudas Patel, where, the convict-Sanjayji and his family was residing. He stated that the convict-Sanjayji was residing at Unjha and used to come frequently to meet his parents. He agreed that on the date of the offence, when the prosecutrix went missing, till her return on the third day, police was not informed. He, further, stated that after discussing the matter amongst the family members, they chose to approach the police, and therefore, after two days FIR came to be lodged. He denied of any affair between his daughter and the convict-Sanjayji. He also denied the suggestion that the prosecutrix had left home on her own, since, he wanted to get her marry elsewhere. 11. He denied of any affair between his daughter and the convict-Sanjayji. He also denied the suggestion that the prosecutrix had left home on her own, since, he wanted to get her marry elsewhere. 11. Dineshji Devaji-PW-3 is one of the panch witnesses of the panchnama of physical examination of the prosecutrix and the seizure of her clothes. This witness supported the case of the prosecution. He happened to be the uncle of the prosecutrix and he admitted that father of the prosecutrix, i.e. PW2, had given the complaint in the police station and soon thereafter, her clothes were seized by the police. 12. Mohanji Jodhaji, PW-4, is another panch witness in show presence panchnama of the place of offence was done. He was also called at the time of of drawing of panchnama of seizer of clothes of the accused. He was on good terms with the main accused so also his family. However, after the alleged offence, their relations had been strained. He agreed that the road up to the canal and borewell, where the convict-Sanjayji had taken the prosecutrix remains full of travellers and many people were traveling on that road on the date when panchnama was carried out. 13. So far as the evidence of Bhakarji Chhalajji-PW-5 and Dinaji Sagramji-PW-6 are concerned, they are the panch witnesses of the panchnama of seizure of autorickshaw. However, they did not support the case of the prosecution and were declared hostile. 14. Kanubhai Ganeshbhai-PW-7 is the driver of the jeep in which the prosecutrix was dropped back at her parental house. This witness chose not to support the case of the prosecution and was declared hostile. He, however, agreed that he plies maxi jeep bearing registration No. GJ-8-V-3285. He stated that he was given a sum of Rs.750/- by Sursangji. He denied of having given any statement before the police on 31.03.2013. In his cross-examination, however, he admitted that while he was coming from Thara, he was hired from the road, itself. 15. At this stage, the evidence with regard to the date of birth of the prosecutrix deserves mention. 15.1 Shermohmmed Memon-PW-10, who was not a regular witness and was an additional witness, who was permitted to be examined by the learned Special Judge after an application under Section 311 of the Code was made to him. 15. At this stage, the evidence with regard to the date of birth of the prosecutrix deserves mention. 15.1 Shermohmmed Memon-PW-10, who was not a regular witness and was an additional witness, who was permitted to be examined by the learned Special Judge after an application under Section 311 of the Code was made to him. He was, at the relevant point of time, discharging duties as Talati-cum-Mantri at village Der since 20.11.2013. This witness had brought the original register of registration of birth and death of the year 1996, where at Sr. No.36 the date of birth of the daughter of PW-2 is registered as 01.10.1996, which came to be recorded on 29.10.1996, where, no name of the child is mentioned against the said entry. However, the name of the mother is mentioned as Lilaben and that of father as Bhagaji. It was a girl child and her other details were entered. It is noteworthy that the details of the birth was given by one Female Social Worker, Public Health Centre, Der. This register was torn and it was difficult to read even the full names. 15.2 Along with the evidence of PW-10, here, relevant it would be to examine the evidence of Dr. Dhavalkumar Patel-PW-8, who had examined the prosecutrix and before whom, she had given the history that main convict-Sanjayji had taken her away to an unknown place on 22.03.2013 and had committed offence of rape with her and that she was dropped back at her parental house, where after, she had given a police complaint. This history was given by her in the presence of lady Police Constable and staff nurse. She was sent to Dr. Mayankbhai (Dentist), who stated that her age was between 14 to 16 years, whereas, Dr. Umeshbhai, who carried out radiological examination of the prosecutrix, stated that her age was between 16 to 18 years. 15.3 In his cross-examination, PW-8 admitted that for carrying out the medical examination of the prosecutrix, the consent of her parents was not taken. Further, her marital status was also not shown in the certificate. There was no sign of any external injury on the person of the prosecutrix. He, however, was unable to state anything with regard to the opinions given by the dentist and the radiologist. Since, he simply had brought x-rays and the reports. Further, her marital status was also not shown in the certificate. There was no sign of any external injury on the person of the prosecutrix. He, however, was unable to state anything with regard to the opinions given by the dentist and the radiologist. Since, he simply had brought x-rays and the reports. 15.4 The Investigating OfficerPW-12, in his detailed examination at Exhibit-59, admitted that register of the Dar Gram Panchayat, Exhibit-54, does not bear the name of the girl child. He also admitted that, at the time of lodging FIR there was no proof of the birth date or the birth date certificate brought of the prosecutrix. The complaint was given belatedly, after three days. He conceded that he did not record the statement of Principal of School so far as birth certificates, Exhibits-60 and 63, are concerned. 16. Having heard both the sides, taking firstly the question of the age of the prosecutrix, it is quite apparent that the prosecution has examined only one witness, i.e. PW-10, who was discharging duties as Talati-cum-Mantri, Der Gram Panchayat and that too, after the prosecution made an application under Section 311 of the Code that he was permitted to be examined by the learned Special Judge. It is quite apparent from the deposition of PW-10 and the relevant documents that he had produced, in support of his version, that the entry made in the year 1996 in the register of Birth and Death is at the behest of a Female Social Worker from PHC. The details of birth were not given by any of the parents, but, by the said Female Social Worker. Thus, what can be noticed from the said evidence is that the said child was the third girl child of PW-2, whose name was not mentioned, therein. 16.1 It is an admitted fact that at the time of lodging of FIR, the proof of age of the prosecutrix was not supplied to the police. Thereafter also, the only detail which had been furnished to the Court is in the form of evidence of Pws-10 and 11 and the Register of Birth and Death, which does not contain the name of the child. According to the deposition of PW-2 and that of the prosecutrix, she is the second daughter of PW-2. Thereafter also, the only detail which had been furnished to the Court is in the form of evidence of Pws-10 and 11 and the Register of Birth and Death, which does not contain the name of the child. According to the deposition of PW-2 and that of the prosecutrix, she is the second daughter of PW-2. According to the prosecutrix, she is two years younger to her elder sister, who was married, at the age of 18 years, before about five years prior to the date of recording of her evidence. Of course, there is no contemporaneous record available for verifying the details provided by the prosecutrix. But, going by her versions, if, her sister in the year 2009 was 18 years of age, then, she would be of 16 years of age in the year 2009. Therefore, the prosecutrix would be above 16 years of age in the year 2011. Meaning thereby, the birth of the elder sister of the prosecutrix being in the year 1991, her birth would be in the year 1993. Going by the same, the details recorded in the register stated the birth of the third girl child of PW-2 in the year 1996. The birth certificate given by the Principal, Der Primary School for Taraben is dated 15.01.1998 and that of the her sister is 01.06.2003. If, one goes by these certificates, the certificate, Exhibit-53, issued by Der Gram Panchayat and the register which reflects the age, the age of the prosecutrix in the year 1996 requires to be believed. However, neither the Principal of the school was examined nor as per the version of the IO-PW-12 any statement recorded either of the concerned officer or the principal for confirming the truthfulness of the contents of the certificate in relation to the age of the siblings of the prosecutrix. 16.2 Worthwhile, it would be to refer to decision of the Apex Court in 'SURESHBHAI MAGANBHAI VAGHELA (TADPADA) VS. STATE OF GUJARAT, (2017) 2 GLR 1029 ', where, refereeing to the various decisions, the Court did not believe the age of the prosecutrix. 16.2 Worthwhile, it would be to refer to decision of the Apex Court in 'SURESHBHAI MAGANBHAI VAGHELA (TADPADA) VS. STATE OF GUJARAT, (2017) 2 GLR 1029 ', where, refereeing to the various decisions, the Court did not believe the age of the prosecutrix. Referring to the decision of 'BIRAD MAL SINGHVI V. ANAND PUROHIT, (1988) AIR(Supreme Court) 1796', the Apex Court held that entries recording death and birth contained in the school register and the secondary school certificate have no probative value as nobody, on whose information, the date of birth of the concerned candidate was mentioned in the school record, was examined. The Apex Court, thereby, did not accept the evidence of the prosecution in relation to the age. The relevant observations read thus: "The question then arises whether the respondent has proved in accordance with law that Hukmi Chand and Suraj Prakash Joshi whose nomination papers were rejected by the Returning Officer had attained the age of 25 years on 1.1.1984. In the election petition the respondent pleaded that Hukmi Chand's nomination paper was improperly mentioned his age as 23 years while his correct date of birth was 13.5.1956 as evidenced by the certificate issued by the Head Master of the New Government School Jodhpur. The respondent had further pleaded that the nomination paper of Suraj Prakash Joshi was rejected on the sole ground that in the electoral roll his age was recorded as 23 years on 1.1.1984 but the entries contained in the electoral roll were not final and conclusive. The date of birth of Suraj Prakash Joshi was not mentioned in the election petition and there was no further pleading that on the date of filing his nomination Suraj Prakash Joshi had actually attained the age of 25 years. However it was pleaded that since Suraj Prakash Joshi had given a declaration that he had completed 25 years of age there was no reason to disbelieve him as no objection had been raised against the declaration made by him and therefore the returning officer acted improperly in rejecting his nomination nation paper. However it was pleaded that since Suraj Prakash Joshi had given a declaration that he had completed 25 years of age there was no reason to disbelieve him as no objection had been raised against the declaration made by him and therefore the returning officer acted improperly in rejecting his nomination nation paper. In his written statement the appellant denied the allegations made by the election petitioner and asserted that the Returning Officer acted rightly in rejecting the nomination papers of Hukmi Chand and Suraj Prakash Joshi as they were not qualified to contest the election as they had not completed 25 years of age on the date of nomination. The respondent produced oral and documentary evidence to support his contention. Even before the High Court none of the two candidates whose nomination papers were rejected appeared nor their parents were examined by the respondent nor any person having special knowledge about the dates of birth of the two candidates was examined by the respondent. As regards Hukmi Chand the respondent produced Ex. 8 (a copy of scholars register) Ex. 9 (counter-foil of certificate of Board of Secondary Education) Ex. 10 (mark-sheet of Hukmi Chand) Ex. 11 (a copy of counter foil of certificate of Board of Secondary Education) relating to Suraj Prakash Joshi, and Ex. 12 (Tabulation record of marks obtained by Suraj Prakash Joshi) . These documents were sought to be proved by Anant Ram Sharma PW 3 and Kailash Chand Taparia PW 5. Ex. 8 is a copy of the scholars register issued by the Head of the Government Higher Secondary School and entries contained therein show that Hukmi Chand had joined Government Middle School Palasani on 24.6.1972 and he had left the same on 10.6.1976 after having passed Viiith class. In this document 13.6.1956 is mentioned as the date of birth of Hukmi Chand son of Sardar Mal. Ex. 9 is a certificate issued by the Board of Secondary Education Rajasthan certifying that Hukmi Chand Bhandari son of Sardar Mal Bhandari passed Secondary School Examination of 1974 from New Government Higher Secondary School Jodhpur, it also shows 13.6.1956 as date of birth of Hukmi Chand. Ex. 10 is a tabulation record containing the details of the marks obtained by Hukmi Chand at the Secondary School Examination 1974. In this document also his date of birth is mentioned as 13.6.1956. Ex. 10 is a tabulation record containing the details of the marks obtained by Hukmi Chand at the Secondary School Examination 1974. In this document also his date of birth is mentioned as 13.6.1956. Placing reliance on these three documents the High Court held that Hukmi Chand's date of birth was 13.6.1956 and therefore his age on 1.1.1984 was more than 15 years. The High Court further held that view of the entry in Ex.11. certificate issued by the Board of Secondary Education Rajasthan Suraj. Prakash was born on 11.3.1959 and therefore the was qualified to contest the election as he was not less than 25 years of age. On these findings the High Court held that the respondent had successfully proved that the nomination papers of Hukmi Chand and. Suraj Prakash Joshi had been wrongly rejected. Before the High Court appellant raised a contention that there was no evidence to prove that Ex. 8, 9, 10, 11 and 12 related to Hukmi Chand and Suraj Prakash Joshi and therefore the documents could not be pressed into service. A further contention was raised that the election petitioner had failed to place any evidence before the Court to show that entries of age in the documents Ex. 8, 9, 10, 11 and 12 had been made on the basis of information furnished either by the parents or by any one else having special knowledge about the date of birth of Hukmi Chand and Suraj Prakash Joshi. In the absence of such evidence the entries in the documents had no evidentiary or probative value. The High Court rejected this submission on the ground that the appellant had raised no such plea in his written statement nor he produced any evidence to prove that the documents did not pertain to Hukmi Chand or Suraj Prakash Joshi or that any other persons having the same parentage by the name of Hukmi Chand and Suraj Prakash Joshi existed. The High Court committed error. The question of appreciation of evidence is not to be pleaded instead it was the duty of the Court to consider whether the documents produced by the respondent proved the facts in issue. As regards the evidentiary value of Ex. The High Court committed error. The question of appreciation of evidence is not to be pleaded instead it was the duty of the Court to consider whether the documents produced by the respondent proved the facts in issue. As regards the evidentiary value of Ex. 8, 9, 10, 11 and 12 the High Court took note that there was no evidence as to who gave the information regarding the date of birth of Hukmi Chand at the time of his admission in Government Middle School Paslasani and even the initial application form for admission to the school was not produced and subsequent form for admission to the Government Multipurpose Higher Secondary School Jodhpur from where he passed the Secondary examination was also not produced, as it observed "No attempt was made by the parties to get the application form for admission and transfer certificate produced from the New Government Higher Secondary School Jodhpur and similarly no application form for admission was got produced from the Government Middle School, Palasni. But still it can be presumed that the date of birth recorded in the Scholar's Register is based on the date of birth given in the application form initially submitted a Palasni continued in the transfer certificate and the same was mentioned at the time of admission in the Government Multipurpose Higher Secondary School, Jodhpur". After making the aforesaid observations the High Court held that these documents were public documents within the meaning of Section 74 of the Evidence Act and therefore there was a presumption about the correctness of the date of birth mentioned therein. The High Court was conscious of the fact that in the absence of the evidence of the person who may have given information regarding the date of birth, the entries contained in the scholar's register or certificate had no probative value as would be clear from the following observations: "It is true that it would have been better if the person who gave the information regarding the date of birth would have been examined but failure to examine such a person would not in any way affect the genuineness of the entries and also their probative value unless in comparison to these entries, any other weighty evidence having greater probative value is produce . The entry in the scholar register may be contradicted by the birth entry or entry in the vaccination register or reliable horoscope or any other reliable or weighty oral or documentary evidence but in the absence of such contradicting weighty evidence, the entries in the scholar register and other records of the educational institution would, in my opinion, certainly enjoy such probative value." After making aforesaid observations the High Court held that in view of the Ex. X, 9, 10, 11 and 12 the election petitioner had discharged the burden in proving that Hukmi Chand and Suraj Prakash Joshi both had attained the age of 25 years on the relevant date. The High Court drew adverse inference against the appellant on the ground that though Hukmi Chand and Suraj Prakash Joshi had been cited as witnesses by the appellant but they were not examined. The High Court proceeded on the assumption that if these witnesses had been examined they would not have supported the respondent. After drawing adverse inference against the appellant and placing reliance on the aforesaid documentary evidence the High Court held that Hukmi Chand and Suraj Prakash Joshi both were qualified to contest the election as they had completed 25 years of age on 1.1.1985 and the returning officer had improperly rejected their nomination papers which materially affected the result of the election. The High Court in our opinion committed serious error of law in appreciating the evidentiary value of the documentary evidence produced by the respondents as a result of which its findings are not sustainable. We would now consider the evidence produced by the respondent on the question of age of Hukmi Chand and Suraj Prakash Joshi. The respondent examined Anantram Sharma PW 3 and Kailash Chandra Taparia PW5. Anantram sharma PW 3 has been the Principal of New Government Higher Secondary School, Jodhpur since 1984. On the basis of the scholar's register he stated before the High Court that Hukmi Chand joined school on 24.6.1972 in 9th class and his date of birth as mentioned in scholar's register was 13.6.1956. He made this statement on the basis of the entries contained in the scholar's register Ex. 8. He admitted that entries in the scholar's register are made on the basis of the entries contained in the admission form. He could not produce the admission form in original or its copy. He made this statement on the basis of the entries contained in the scholar's register Ex. 8. He admitted that entries in the scholar's register are made on the basis of the entries contained in the admission form. He could not produce the admission form in original or its copy. He stated that Hukmi Chand was admitted in 9th class on the basis of transfer certificate issued by the Government Middle School, Palasni from where he had passed 8th standard. He proved the signature of Satya Narain Mathur the then Principal who had issued the copy of the scholar's register Ex. 8. Satya Narain Mathur was admittedly alive but he was not examined to show as to on what basis he had mentioned the date of birth of Hukmi Chand in Ex. 8. The evidence of Anantram Sharma merely proved that Ex. 8 was a copy of entries in scholar's register. His testimony does not show as to on what basis the entry relating to date of birth of Hukmi Chand was made in the scholar's register. Kailash Chandra Taparia PW 5 was Deputy Director (Examination) Board of Secondary Education, Rajasthan, he produced the counter foil of Secondary Education Certificate of Hukmi Chand Bhandari. a copy of which has been filed as Ex. 9. He also proved the tabulation record of the Secondary School Examination 1974, a copy of which has been filed as Ex. 10. In both these documents Hukmi Chand's date of birth was recorded as 13.6.1956. Kailash Chandra Taparia further proved Ex. 11 which is the copy of the tabulation record of Secondary School Examination of 1977 relating to SuraJ Prakash Joshi. In that document the date of birth of Suraj Prakash Joshi was recorded 11.3.1959 Kailash Chandra Taparia stated that date of birth as mentioned in the counter foil of the certificates and in the tabulation form Ex. 12 was recorded on the basis of the date of birth mentioned by the candidate in the examination form. But the examination form or its copy was not produced before Court. 12 was recorded on the basis of the date of birth mentioned by the candidate in the examination form. But the examination form or its copy was not produced before Court. In substance the statement of the aforesaid two witnesses merely prove that in the scholar's register as well as in the Secondary School examination records the date of birth of a certain Hukmi Chand was mentioned as 13.6.1956 and in the tabulation record of Secondary School Examination a certain suraj Prakash Joshi's date of birth was mentioned as 11.3.1959. No evidence was produced by the respondent to prove that the aforesaid documents related to Hukmi Chand and Suraj Prakash Joshi who had filed nomination nation papers. Neither the admission form nor the examination form on the basis of which the aforesaid entries relating to the date of birth of Hukmi Chand and Suraj Prakash Joshi were recorded was produced before the High Court. No doubt, Exs. 8, 9, 10, 11 and 12 are relevant and admissible but these documents have no evidentiary value for purpose of proof of date of birth of Hukmi Chand and Suraj Prakash Joshi as the vital piece of evidence is missing, because no evidence was placed before the Court to show on whose information the date of birth of Hukmi Chand and the date of birth of Suraj Prakash Joshi were recorded in the aforesaid document. As already stated neither of the parents of the two candidates nor any other person having special knowledge about their date of birth was examined by the respondent to prove the date of birth as mentioned in the aforesaid documents. Parents or near relations having special knowledge are the best person to depose about the date of birth of a person. If entry regarding date of birth in the scholars register is made on the information given by parents or some one having special knowledge of the fact, the same would have probative value. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved. The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The testimony of Anantram Sharma and Kailash Chandra Taparia merely prove the documents but the contents of those documents were not proved. The date of birth mentioned in the scholar's register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made in the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents Exs. 8, 9, 10, 11 and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouch safe 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. The High Court held that in view of the entries contained in the Ex. 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. The High Court held that in view of the entries contained in the Ex. 8, 9, 10, 11 and 12 proved by Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5, the date of birth of Hukmichand and Suraj Prakash Joshi was proved and on that assumption it held that the two candidates had attained more than 25 years of age on the date of their nomination. In our opinion the High Court committed serious error. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. 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 to 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. In Raja Janaki Nath Roy & Ors. v. Jyotish Chandra Acharya Chowdhury, (1941) AIR(Cal) 41 a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. v. Jyotish Chandra Acharya Chowdhury, (1941) AIR(Cal) 41 a Division Bench of the Calcutta High Court discarded the entry in school register about the age of a party to the suit on the ground that there was no evidence to show on what material the entry in the register about the age of the plaintiff was made. The principle so laid down has been accepted by almost all the High Courts in the country, see Jagan Nath v. Moti Ram Moti Ram & Ors., (1951) AIR(Punjab and Haryana) 377; Sakhi Ram & Ors. v. Presiding Officer, Labour Court, North Bihar, Muzzafarpur & Ors., (1966) AIR(Pat) 459; Ghanchi Vora Samsuddish Isabhai v. State of Gujarat, (1970) AIR(Gujarat) 178 and Radha Kishan Tickoo & Anr. v. Bhushan Lal Tickoo & Anr., (1971) AIR(J&K) 62. In addition to these decisions the High Courts of Allahabed, Bombay, Madras have considered the question of probative value of an entry regarding the date of birth made in the scholar's register or in school certificate in election cases. The Courts have consistently held that the date of birth mentioned in the scholars register or secondary school certificate has no probative value unless either the parents are examined or the person on whose information the entry may have been made, is examined, see Jagdamba prasad v. Sri Jagannath Prasad & Ors., 42 ELR 465; K. Paramalali v. L.M. Alangam & Anr., 31 ELR 401 and Krishna Rao Maharu Patil v. Onkar Narayan Wagh, 14 ELR 386. In Brij Mohan Singh v. Priyu Brat Narain Sinha & Ors., (1965) 3 SCR 861 a question arose whether the returned candidate had attained the age of 35 years on the date of his nomination. The High Court had set aside the election of the returned candidate on the ground that he was below the age of 25 years on the date of filing the nomination. This Court set aside the order of the High Court and upheld the election of the returned candidate on the ground that the burden of proving that the returned candidate had not attained the age of 25 years on the date of his nomination was on the election petitioner and since he had failed to prove that, the election of the returned candidate could not be set aside. This Court held that an entry recorded in the birth register maintained by an illiterate Chowkidar by somebody else at his request, was not admissible and had no probative value within Section 35 of the Indian Evidence Act. In Ram Murti v. State of Haryana, (1970) AIR(Supreme Court) 1029 the date of birth of a girl mentioned in the school certificate was not accepted. However in Mohd. Ikram Hussain v. State of U. P. & Ors., (1964) AIR(Supreme Court) 1625 this Court accepted the date of birth of a girl as mentioned in the school certificate as the date of birth mentioned therein was supported by an affidavit filed by the father of the girl. The appellant was declared elected as he had polled majority of valid votes. His election could not be set aside unless the respondent-election petitioner was able to prove that Hukmichand and Suraj Prakash Joshi had attained the age of 25 years on the date of nomination by producing cogent and reliable evidence before the High Court. The burden to prove that fact was on the respondent throughout and he could not and did not discharge that burden merely by producing the documentary evidence Ex. 8, 9, 10, 11 and 12 or on the basis of oral testimony of Anantram Sharma PW 3 and Kailash Chandra Taparia PW 5. As discussed earlier these documents do not conclusively prove the dates of birth of Hukmi Chand and Suraj Prakash Joshi. The entries regarding dates of birth contained in the scholar's register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates was mentioned in the school record was examined. In the absence of the connecting evidence the documents produced by the respondent, to prove the age of the aforesaid two candidates have no evidentiary value. The High Court committed serious documents. In our view the High Court's entire approach in considering the question of dates of birth was wholly misconceived. The burden to prove the fact in issue, namely, the dates of birth of Hukmichand and Suraj Prakash Joshi was on the respondent who was the election petitioner. The High Court committed serious documents. In our view the High Court's entire approach in considering the question of dates of birth was wholly misconceived. The burden to prove the fact in issue, namely, the dates of birth of Hukmichand and Suraj Prakash Joshi was on the respondent who was the election petitioner. The respondent could not succeed if no evidence was produced by the appellant on the question of age of the aforesaid candidates and his election could not be set aside merely on the ground that the respondent had made out a prima facie case that the entry contained in the electoral roll regarding the age of two candidates was incorrect. It appears that in his list of witnesses the appellant had included the name of Suraj Prakash Joshi and his father Maghdutt Joshi as witnesses but they were not examined by him. Similarly, Hukmi Chand was also cited by the appellant but he was also not examined instead Navratan Mal Bhandari, brother of Hukmi Chand was examined as PW 4 and Ghanshyam Chhangani was examined as PW 6 by the appellant, who supported the appellants case that Hukmi Chand and Suraj Prakash Joshi had not attained the age of 25 years on the date of nomination. Since the appellant had not examined Hukmi Chand. Suraj Prakash Joshi or their parents, the High Court drew adverse inference against him. The High Court committed serious error in doing so. There was no question of drawing adverse inference against the appellant, as the burden to prove the age of Hukmi Chand and Suraj Prakash joshi was on the election petitioner and since he had failed to prove the same by cogent evidence no adverse inference could be drawn against the appellant. In fact. burden was on the respondent to prove his case by producing the Hukmichand and Suraj Prakash Joshi, or their parents to prove and corroborate the dates of birth as mentioned in the school register and the certificate. If he failed to do that he could not succeed merely because appellant had not produced them. In fact. burden was on the respondent to prove his case by producing the Hukmichand and Suraj Prakash Joshi, or their parents to prove and corroborate the dates of birth as mentioned in the school register and the certificate. If he failed to do that he could not succeed merely because appellant had not produced them. In the circumstances no adverse inference was at all possible to be drawn against the appellant for not examining Hukmi Chand and suraj Prakash Joshi or their parents." It can, thus, be said that what is required to be proved, while proving the age of the prosecutrix, is the reliable evidence on the basis of which one can vouch as to the correctness of the date or birth. 16.3 The Division Bench of this Court in the case of 'STATE OF GUJARAT VS. OSMAN I. SANGAR', has provided the guidelines, particularly, referring to the rules of the Bombay Primary Education Rules, as to in what manner the IO to find out the exact date of birth, at the time of getting the child admitted. The Court also had held that the law, as on date, in the criminal case is that it is the duty of the prosecution to establish the guilt of the accused in accordance with law and while a document is proved, the contents of the document is required to be proved, as per the procedure laid down. In the matter of prosecutrix, there are judgments to the effect that age should be established beyond reasonable doubt. The Court also referring to the decision in 'RAMESHBHAI SHARMA VS. STATE OF GUJARAT, 1989 2 GLH 8 (U.J.) ', held that non-examination of the radiologist was fatal to the case of the prosecution. 16.4 In the matter before the Division Bench, the father of the prosecutrix had admitted that birth of the prosecutrix was not registered and there he was not having anything in writing with regard to the birth date of the prosecutrix. Further, he had not gone to the school to give birth date of his daughter. The prosecution also had not examined the person, who had gone to school to prove the date of birth of the prosecutrix and in such circumstances, the Court had dismissed the appeal. Further, he had not gone to the school to give birth date of his daughter. The prosecution also had not examined the person, who had gone to school to prove the date of birth of the prosecutrix and in such circumstances, the Court had dismissed the appeal. The Court eventually went on to state that it finds itself in helpless condition due to indifferent and ineffective investigation and it dismissed the appeal. 16.5 So far as the case of 'STATE OF MADHYA PRADESH VS. MUNNA @ SHAMBHOO NATH' is concerned, the school certificate was not proved proved and the medical evidence relied on by the trial Court was not believed by the High Court, since, the doctor, who had conducted ossification test was not examined. X-ray report was also not believed by the High Court. Further, the technical opinion of the doctor was also not produced for perusal of the Court. The State when challenged the acquittal of the accused, the two grounds were mainly taken that the act of sexual intercourse was not consensual and the prosecutrix was below 16 years of age. On the second issue, the Court held that to prove the case, the opinion of the doctor, who conducted medical examination of the prosecutrix, i.e. bone ossification test, would need to be examined to bring home the case of the prosecution. Mere having x-ray reports is not sufficient to prove the age of the prosecutrix and the prosecution failed to prove the age of the prosecutrix. The relevant observations read as under: "The High Court while setting aside the Trial Court judgment rightly appraised the evidence on record and held that the sexual intercourse was consensual. In her statement the prosecutrix (PW5) states that she was sleeping between her mother and brother and the accused had reached her after hopping over them and he dragged her into another room on the point of a knife. However, sneaking in with such ease is highly doubtful. Even if the accused made it through to the prosecutrix, it seems unnatural that the prosecutrix was not alarmed by the knife upon being awaken from her sleep. It is also to be noted that the prosecution never recovered any knife. However, sneaking in with such ease is highly doubtful. Even if the accused made it through to the prosecutrix, it seems unnatural that the prosecutrix was not alarmed by the knife upon being awaken from her sleep. It is also to be noted that the prosecution never recovered any knife. Further examination of the statement of PW5 that the accused and the prosecutrix remained in the room for couple of hours and it was only when her mother and elder sister came searching for her that the prosecutrix was found in the room with the accused, hiding behind the bags. The above narration leads to the inference that the prosecutrix was a consenting party. Section 375 (as it stood before the Criminal Law Amendment Act, 2013) of the Indian Penal Code, 1860 states "A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- Sixthly With or without her consent, when she is under sixteen years of age..." In light of the aforementioned provision, the second issue regarding the determination of age of the prosecutrix is crucial to establish whether the respondent is liable for rape or not. To prove its case, the prosecution produced evidences including school certificate, opinion of the doctor who conducted medical examination of the prosecutrix, bone ossification test, but the High Court held that none of them could bring home the case of the prosecution. The prosecution produced school certificate of the prosecutrix and examined the Principal of Babu Manmohandas Hitkarini Girls Higher Secondary School, Dixitpura (PW1), where the prosecutrix studied in her 9th standard. In his crossexamination, PW1 stated that the age of the prosecutrix was noted at the time of admission but he had no knowledge about the fact as to what date of birth would have been mentioned in her letter of declaration. The examination-inchief of PW8 (Dr. Nisha Sahu) does not support the prosecution story. In her opinion, the girl could not have attained the age of 14 years, but further in her examination-in-chief and cross-examination, she stated that she could not opine about the present intercourse. Other findings of PW8 are mere opinions and cannot be relied upon completely to establish the guilt of the accused. Nisha Sahu) does not support the prosecution story. In her opinion, the girl could not have attained the age of 14 years, but further in her examination-in-chief and cross-examination, she stated that she could not opine about the present intercourse. Other findings of PW8 are mere opinions and cannot be relied upon completely to establish the guilt of the accused. From the X-ray report of the ossification test, the doctor opined that the age of the prosecutrix could not be more than 14 years. However, since the doctor was never examined, the X-ray report is not sufficient to prove the age of the prosecutrix. The prosecutrix was examined as PW5 but the prosecution failed to question the prosecutrix on her age, therefore no fact could be gathered from her regarding the issue of age. PW6 Malti Devi mother of the prosecutrix was examined where she stated the age of prosecutrix to be 13 years. However, in her cross-examination, she stated that her marriage was performed about 20 years ago and after two years of her marriage the elder daughter (Sunita) was born, and 2-3 years thereafter the prosecutrix was born. It means that the prosecutrix was aged about 15- 16 years at the time of the incident. But this is not sufficient to come to any conclusion about the exact age of the prosecutrix. It appears that the Ossification Test X-ray report is not sufficient to prove the age of the girl. Further, the mother of the prosecutrix also was not able to give the exact age of the prosecutrix. No question was also asked to the prosecutrix by the prosecution about her age. Taking into account all these facts, the High Court correctly came to the conclusion that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident. No question was also asked to the prosecutrix by the prosecution about her age. Taking into account all these facts, the High Court correctly came to the conclusion that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident. Therefore, the High Court presumed that the girl was more than 16 years of age and was competent to give her consent." 16.6 Going by the ration laid down by the Apex Court and this Court in various decisions, this Court notices that the prosecution in a slip-shod manner conducted the matter before the trial Court, where, the only evidence that had been adduced in relation to the age of the prosecutrix is the certificate of the Der Gram Panchayat and also the extract of the Birth and Death Register, as mentioned herein above, based on the version of female social worker from Primary Health Centre, who is also not examined as a witness. The father of the prosecutrix also had not been put any question in relation to the said certificate. The age of the prosecutrix, thus, is in the realm of suspicion and is as held by the Apex Court, no conviction should be based on approximate age. Even if, one goes by the submission of the learned APP, who submitted that the reference made by the trial Court of the third child is a mere mistake and as per the version of the prosecutrix and PW-2, her birth is in the year 1996 and the same gets confirmed from the version of PW-10 and the record that he had provided, this, according to this Court, is again not the exact evidence of the date of birth of the prosecutrix and the same cannot be given much importance. More particularly, when parents are unasure of the birth date and registration of birth based on the version of PHC worker, who was not before the Court. Entire gamut of facts on the subject when examined, a hazy detail emerges which is not potent enough to hold the prosecutrix responsible. 17. More particularly, when parents are unasure of the birth date and registration of birth based on the version of PHC worker, who was not before the Court. Entire gamut of facts on the subject when examined, a hazy detail emerges which is not potent enough to hold the prosecutrix responsible. 17. Now, if, the conduct of the prosecutrix is examined, it emerges from the record that they travelled from her residence to the canal, where, she was taken by the main convict-Sanjayji and the present appellant, which is situated at a distance of 20 kilometers from her house. It is also a matter of record that when she travelled from her house to the canal, the road was busy and it was large drive on the said road. The independent witness examined by the prosecution has also confirmed this aspect. It is also a matter of record, at this stage, that the vital witnesses, whose statements were recorded, were not examined as prosecution witnesses by the IO, i.e. namely Sursangji and Surekha, the couple, who had given the place to stay to the main convict-Sanjayji and the prosecutrix, on the day on which the prosecutrix was taken away by the convict-Sanjayji and the present appellant. Their deposition would have been very vital, as they were one, who, according to the prosecution, had made the arrangements for stay of the prosecutrix and the convict-Sanjayji. She is alleged to have been raped two to three times on that very day and on the next day, in the night at about 10:00 p.m., she was dropped back at her home in the jeep car owned by PW-7. Going by the time that had been spent by the prosecutrix with the convict-Sanjayji and the present appellant at the place of offence, it is quite strange and unlikely that a girl, who, otherwise, is major enough to narrate the details, which she had after her return, would not raise any hue and cry about the illtreatment that was allegedly meted out to her and about the commission of rape. If, initially, as per her version, she was threatened by the convict-Sanjayji and the appellant, then, it is her version that they had alighted from the autorickshaw near Patan cross roads and had purchased snacks and thereafter also, the autorickshaw had covered substantial distance before it actually reached the place of offence. If, initially, as per her version, she was threatened by the convict-Sanjayji and the appellant, then, it is her version that they had alighted from the autorickshaw near Patan cross roads and had purchased snacks and thereafter also, the autorickshaw had covered substantial distance before it actually reached the place of offence. Further, the absence of any injury on the person of the prosecutrix or the convict-Sanjayji, which are corroborated by the depositions of the independent witnesses in the form of Medical Officers, who were examined by the prosecution. The condition of her clothes and that of the convict-Sanjayji also corroborates this verision. Some of the questions, which had been denied, of course in the cross-examination, clearly indicate that her acquaintance with the main convict-Sanjayji and her subsequent conduct also go to show that her version is clearly an afterthought on her return from the place of offence, where she was taken by the convicts. This conduct would assume importance, since, she is not proved to be minor, otherwise, theory of her consent would have no bearing on the aspect of agreeing / consent, had there been cogent and clinching evidence of age. 17.1 In the opinion of this Court, the prosecution miserably failed in establishing the age of the prosecutrix, and therefore, the offence under Section 363 and 366 of the IPC cannot be sustained qua the present appellant nor the offence under Section 17 of the POCSO Act, which speak of the abetment. 17.2 Considering the fact that the present appellant is convicted under Section 17 of the POCSO Act, when this Court is holding that the prosecution did not establish the age of the prosecutrix beyond reasonable doubt, and therefore, she would not fall within the definition of a child, as provided under Section 2(d) of the POCSO Act, which would mean that a person is below 18 years of age. The conviction of the present appellant, therefore, needs to be quashed. 17.3 It is vital to make a mention at this stage that the trial Court had not specified anything on record as to the appellant's involvement in the offence punishable under Section 363, 366 and 376 of the IPC, but merely, in the operative portion had convicted him for the offence punishable under Section 114 of the IPC, which is not a substantial offence and which does not provide for any separate sentence. Section 114 of the IPC states that whenever any person, who is absent would be liable to be punished as an abettor, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence. 17.4 In the opinion of this Court, it was a patent error on the part of the trial Court concerned to convict the present appellant under Section 114 of the IPC without any reference of any provisions of law. Believing that to be a simple error, the main fulcrum of the case of the prosecution is of the prosecutrix being below 18 years of age, which this Court has not believed, and therefore, the conviction of the appellant under Section 17 of the POCSO Act would have no leg to stand." 5. Applying the very reasonings in the instant case, since, the prosecution failed to establish the age of the prosecutrix and in wake of her conduct during the entire incident and when she is not proved to be a minor in absence of ingredients of Sections 363 and 366 so also Section 376 of the IPC would fail. With regard to the evidence of doctor, as referred to in paragraph-15.2 in the matter of the co-convict, there was no external or internal injury found on her body and with other details, it can be held that the prosecution had not succeeded in proving any ingredient of the IPS nor of the POCSO Act in absence of the proof of the age of the prosecutrix. 6. In the result, this appeal succeeds and is allowed. The judgment and order of the learned Special Judge, Sessions Court, Patan, Dated: 10.09.2015, rendered in Special POCSO Case No. 34 of 2015 (Old Sessions Case No. 22 of 2014) is quashed and set aside to the extent it convicts the present appellant for the offence punishable under Sections 363, 366, 376, 506(2) and 114 of the Indian Penal Code and Sections 3(a) and 4 of the Protection of Children from Sexual Offences Act, 2012. The appellant is ordered to be released, Immediately, if he is not required in connection with any other offence by canceling his bail bonds. The amount of fine, if any, paid by the appellant, be refunded to him. The appellant is ordered to be released, Immediately, if he is not required in connection with any other offence by canceling his bail bonds. The amount of fine, if any, paid by the appellant, be refunded to him. R&P be sent back to the trial Court concerned, forthwith. Direct service is permitted.