JUDGMENT : R.P. DHOLARIA, J. 1. The present appeal has been filed by the appellant-accused against the judgment and order dated 30.09.2003 passed by learned Additional Sessions Judge, Court No.18, Ahmedabad in Sessions Case No.226 of 2002, whereby the appellant-accused was convicted for the offence under Sections 363 and was acquitted from the charges of Sections 366 and 376 of the Indian Penal Code. The appellant was convicted and sentenced to undergo rigorous imprisonment for a period of five years and ordered to pay Rs.1,500/- fine, for offence under Section 363 of the Indian Penal Code, and in default, rigorous imprisonment of two months was imposed. 2. The case of the prosecution in short is that:- 2.1 Arun Chandulal Joshi of village Prantij a primary school teacher was living in Prantij with his wife Anandiben who was also a school teacher. The couple has two daughters; Archna aged 23 years and victim aged 17 years and 7 months and son namely Chirag aged 20 years. Since, his youngest daughter Arti was studying in B.D. Arts college, Ahmedabad instead of commuting from Prantij to Ahmedabad, victim was residing at the house of her maternal aunt Ramilaben who is residing at Ahmedabad. Hence, the victim of this case was lodged in the house of Ramilaben who was residing at Ahmedabad for college education. 2.2 It is alleged that the appellant kidnapped the prosecutrix, daughter of Arun Chandulal Joshi on 20.12.1997 at about 09.30 a.m. from the custody of her father and took her to various places like Godhra, Madras, Jaipur and Ahmedabad where they resided for about 1 month. It is also alleged that the appellant had sexual inter course with her several times saying that he would marry her. It is also alleged by the prosecution that prosecutrix had not completed age of 18 years but she was aged 17 years and 7 months and therefore she was not in a position to give consent. It is also the case of the prosecution that the appellant was in love with prosecutrix. 2.3 The day on which the prosecutrix ran way with the appellant, her father tried to search her out, however, she was not found. On inquiry from Ramilaben, sister-in-law of the complainant, it was found that the prosecutrix and the appellant ran away, therefore, her father filed a complaint before the Kakdapith Police Station, Ahmedabad City on 31.12.1997. 2.3 The day on which the prosecutrix ran way with the appellant, her father tried to search her out, however, she was not found. On inquiry from Ramilaben, sister-in-law of the complainant, it was found that the prosecutrix and the appellant ran away, therefore, her father filed a complaint before the Kakdapith Police Station, Ahmedabad City on 31.12.1997. Thereafter, investigation was carried out. 2.4 One month after the incident as the appellant and prosecutrix came back and presented themselves before police, they were sent for medical examination by the police and statement of the prosecutrix and other witnesses were recorded. Thereafter, the accused was arrested and sent to judicial custody. 2.5 The appellant's defence was that the prosecutrix was in love with him. He also stated that she was above 17 years of age and thus there was no offence made out. 2.6 Thereafter, charge sheet came to be filed against the accused in the Court of learned Magistrate. As the case was sessions triable the same was committed to the Court of Sessions. Thereafter, charge came to be framed and explained to the accused, to which the accused pleaded not guilty and claimed to be tried. 2.7 Thereafter, after filing closing purshis by the prosecution, further statement of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. The accused has denied the case of the prosecution and submitted that a false case is filed against him. 2.8 At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned Judgment, convicted the appellant-accused. 2.9 Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 30.09.2003 passed by learned Additional Sessions Judge, Court No.18, Ahmedabad in Sessions Case No.226 of 2002, the appellant accused has preferred the present appeal before this Court. 3. Learned Senior Advocate Mr.Yogesh S. Lakhani, assisted by Ms.Rinny Kantaria, learned Advocate for the appellant has taken this Court through the entire records and proceedings and argued that the accused came to be acquitted for the major offences punishable under Sections 366 and 376 of the Indian Penal Code, however convicted him under Section 363 of the Indian Penal Code on technical grounds holding that the victim was aged below 18 years, which is not sustainable at law. Ms.Kantaria further argued that no conclusive documents in order to prove the age of the victim was produced on record. According to her submission, the school leaving certificate which came to be produced at Exhibit 14 indicated her date of birth to be 25.05.1980 whereas the incident alleged to have been occurred on 20.12.1997. Consequently therefore, in view of the aforesaid school leaving certificate her age was determined by the learned trial Court to be 17 years and 7 months. However, the learned trial Court on the basis of deposition of the mother of the victim that at the time of school admission her age was undermentioned for about 1 year and even while seeking the school admission, the birth certificate was produced by her father but the same was not produced by the prosecution in order to prove the correct date of the birth which is maintained by the Registrar of Birth and Death Registration. 4. In the alternative, Ms. Kantaria argued that since the learned trial Court believed that the victim accompanied voluntarily and stayed with the present appellant-accused at different places like Godhra; Madras, Jaipur and Ahmedabad for more than 30 days and no attempt was made to go to such places which indicates that there was no abduction or no sort of enticement from lawful guardianship of her parents. Whereas on the contrary, the victim accompanied voluntarily and stayed along with the present accused at different places at her own will and volition as there was love between them and they used to exchange love letters and that fact also she admitted in her cross examination. If the prosecution failed to prove the offence punishable under Sections 366 and 376 of the Indian Penal Code then there would be no willful purpose in enticing away the victim merely so as to make the act punishable under Section 363 of the Indian Penal Code. 5. Ms.Kantaria further points out that the learned trial Court passed the mechanical order merely holding that she was minor and the consent of the parents was not taken, the offence is being constituted under Section 363 of the Indian Penal Code which is not sustainable at law. 6. Learned advocate Ms. Rinny Kantaria points out that during the pendency of this proceedings for about more than two decades, the accused got married with another woman and is having two children. 6. Learned advocate Ms. Rinny Kantaria points out that during the pendency of this proceedings for about more than two decades, the accused got married with another woman and is having two children. She also points out that the victim has also got married and is living separately with her husband. On that count also, after passage of about two decades, technically, the conviction so recorded deserves to be quashed. 7. On the other hand, Mr.K.P.Raval learned Additional Public Prosecutor supported the judgment of learned trial Court and argued that in absence of any other better evidence on record the Court has rightly placed reliance upon the school leaving certificate and deposition of mother of victim for determining the age of the victim which was came to be proved before the learned trial Court in accordance with the law. According to the submission of Mr.K.P.Raval since the age of victim was proved to be below 18 years and undisputedly there was no consent from the parents of the victim, the offence is normally made out under Section 363 of the Indian Penal Code and the learned trial Court has rightly convicted the appellant-accused which calls for no interference. 8. Heard Mr.Yogesh Lakhani, Sr. Advocate assisted by Ms.Rinny Kantaria, learned Advocate for the appellant and Mr.K.P.Raval, learned A.P.P. for the State. 9. As per the prosecution version, the appellant-accused abducted the victim from the lawful guardianship of her parents and took her to various places like Godhra; Madras; Jaipur and Ahmedabad and indulged into sexual activities over her and thereby committed offence punishable offences punishable under Sections 363, 366 and 376 of the Indian Penal Code. 10. As narrated above, after the conclusion of trial and hearing, learned trial Court acquitted the accused for the offences punishable under Sections 366 and 376 of the Indian Penal Code and convicted him for the offence punishable under Section 363 of the Indian Penal Code. 11. P.W.7, Victim deposed that at the time of incident she was residing along with her parents at Prantij and she used to visit Ahmedabad as she studied upto 12th standard at Prantij and thereafter she got admission in the college at Ahmedabad. 11. P.W.7, Victim deposed that at the time of incident she was residing along with her parents at Prantij and she used to visit Ahmedabad as she studied upto 12th standard at Prantij and thereafter she got admission in the college at Ahmedabad. On 20th December, 1997, when she was proceeding to Prantij from Ahmedabad at that time, the accused intercepted her and took her over his scooter as she was having acquaintance with him as he was running studio nearby and thereafter she was taken to the guest house at Godhra and thereafter she was taken to Madras in train where they stayed in a guest house for about 20 days. At that time, respondent undertook sexual intercourse with her and thereafter they arrived at Jaipur and Ahmedabad. In the cross examination she admitted that while buying the ticket from Godhra railway station to Madras she also accompanied the accused to the railway station. She also admitted that while boarding the guest house at Madras, over the counter of guest house, she also introduced herself and actively participated. Simultaneously, while moving from Madras to Jaipur also, she behaved in normal manner. She also admitted that while she stayed for about 30 days with the accused she had never made any complaint to anybody that she has been kidnapped or enticed away by the accused. She also admitted that they were used to meet in private and both were in love. 12. As regard to the proof of age of victim, the evidence of school leaving certificate at Exhibit 14 as well as oral evidence of P.W. 3 – mother of the victim are decisive on record. The school leaving certificate indicate date of birth to be 25.05.1980. In that view of the matter, her age turns out to be 17 years and 7 months at the time of incident. Whereas as regard to the said date of birth mentioned in the school leaving certificate, her mother in the cross examination clearly admitted that while she got admitted in the school, her husband carried out the birth certificate along with him and her birth date was mentioned 1 year less before the school. 13. Whereas as regard to the said date of birth mentioned in the school leaving certificate, her mother in the cross examination clearly admitted that while she got admitted in the school, her husband carried out the birth certificate along with him and her birth date was mentioned 1 year less before the school. 13. In view of the aforesaid nature of evidence, the prosecution miserably failed to prove conclusively the age of the victim to be 17 years and 7 months as admitted by the mother of the victim that her age was undermentioned for a year in order to seek admission in the school. Normally in the rural areas as well as other such areas, the age of admitting the student as prevailing in the State of Gujarat is six years. If the child has not attained the age of six years the prevailing practice then, as prevailing over the entire State is to say orally the age of student and upon such oral instructions the school administration used to enter the date of birth which can't be considered to be a decisive evidence as regard to the birth date of a student. Undisputedly, the Hon'ble Supreme Court in several judgments has laid down that the conclusive age of a person could be proved by producing abstract from the Birth and Death Register maintained in the State. Undisputedly, the prosecution has not at all produced and proved the birth certificate came to be issued by the Registrar of Birth and Death though the mother of the victim admitted in the cross examination that her birth date was registered with the Registrar of Birth and Death. 14. For the reasons mentioned above, the prosecution miserably failed to prove the age of the victim conclusively therefore, the judgment of the learned trial Court based upon such finding of age is not sustainable at law. Even otherwise also, long staying and cohabitation between the victim and accused at very distance places of Godhra; Madras; Jaipur and Ahmedabad, away from the native place of victim and all through out the victim has not raised any dispute that she was enticed away or abducted by the present accused-appellant; even when traced out also, she had not complained at all. The complaint came to be lodged by the father of the victim. The complaint came to be lodged by the father of the victim. In her deposition before the learned trial Court, she has admitted that there was love between them. In that view of the matter, the offence punishable under Sections 366 and 376 of the Indian Penal Code could not be made out, then what purpose would be served for punishing the present appellant-accused under Section 363 of the Indian Penal Code. The learned trial Court in the impugned judgment and order in para 25 has observed as under: - “25. The most significant point goes against prosecution is the express consent of the victim which clearly speaks for herself. Right from the time, she was made to sit on scooter till her cohabitation and company with the accused at no point of time, she raise alarm or made hue and cry. She does not put up any struggle against any force employed by the accused. In her cross examination, she admitted to have remained not only passive but consenting party. Her letters exh.26 and 27 are eloquent evidence to prove her consenting party since the letters don't appears to have had dictated under threat. At the fag-end of cross examination, she has made so many admission. Her total conduct and behaviour during 17 days appears to be a conduct of a consenting party. Her total testimony with regard to rape is so exaggerated and concocted which can termed to be a cock and bull story prepared after well planned tutoring by her parents. Hence, I am not inclined to digest the theory of prosecution that her behaviour was a passive submission under threat or inducement. So looking to medical evidence, matured age of above 16 years and surrounding circumstances prosecution has miserably failed to bring home the charge against the accused u/s.376 of the IPC. Thus, I decide this point in the negative.” 15. For the reasons recorded above, the judgment and order of conviction recorded by the learned trial Court is not sustainable at law and deserves to be quashed and set aside. The Criminal Appeal stands allowed. The judgment and order dated 30.09.2003 passed by the learned Additional Sessions Judge, Court No.18, Ahmedabad, in Sessions Case No.226 of 2002 stands quashed and set aside. The accused is acquitted of the charges levelled against him. As the accused is on bail, the bail bond stands cancelled. The Criminal Appeal stands allowed. The judgment and order dated 30.09.2003 passed by the learned Additional Sessions Judge, Court No.18, Ahmedabad, in Sessions Case No.226 of 2002 stands quashed and set aside. The accused is acquitted of the charges levelled against him. As the accused is on bail, the bail bond stands cancelled. Surety, if any, shall stand discharged. Fine, if any, paid by the accused shall be refunded to him by the respondent-State. Record and Proceedings be sent back to the trial Court concerned forthwith.