JUDGMENT : 1. Aggrieved by the judgment and order passed in Special Case No.76 of 2008 dated 30.6.2014 by the III Additional Sessions Judge and Special Court for Trial of Cases under SC/ST (Prevention of Atrocities) Act, 1989, Tumakuru, whereby the Special Court has convicted the accused for the offences punishable under Sections 376, 506 of Indian Penal Code and Sections 3(i)(xi) and 3(2)(v) of SC/ST (Prevention of Atrocities) Act, 1989, the accused has filed the instant criminal appeal. 2. The parties will be referred to as per their ranking in the Special Case before the Trial Court. 3. Case of the prosecution in brief is as follows: The accused belongs to Kunchitiga caste, which is an upper caste and the victim by name Kumari A.B. Annapoorna, a minor girl aged about 14½ years, belonged to Nayaka caste i.e., scheduled tribe caste. Whenever she went to take milk from the house of accused, they came in contact with each other. It is alleged that since seven months before the date of the complaint, by promising to marry the victim, the accused had committed rape forcibly on her. On the basis of the said allegation, an FIR came to be registered against the accused, on 27.3.2008 at about 7.00 a.m. for the offences punishable under Sections 376 and 506 of Indian Penal Code and Sections 3(i)(xi) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, (hereinafter referred to as ‘SC/ST Act’). Thereafter, investigation was taken up. A charge sheet was filed against the accused for the offences punishable under Sections 376, 506 of IPC and Sections 3(i)(xi) and 3(2)(v) of SC/ST Act. Before the trial Court, the accused pleaded not guilty and claimed to be tried. 4. The Trial Court formulated the following points for its consideration: 1. Whether the prosecution proves beyond all reasonable doubt that 8 months earlier to 27.03.2008 and subsequently 2 to 3 times at Ankasandra village accused in his house committed rape on Kumari A.B.Annapurna a minor girl aged about 14 ½ years by promising to marry her and she became pregnant of six months and thereby committed an offence punishable u/s 376 of IPC? 2. 2. Whether the prosecution proves beyond all reasonable doubt that accused on the above said date time and place accused committed criminal intimidation and threatened to murder and burn Kumari Annapurna a minor aged 14 ½ years in the forest and thereby threatened to her life with intent to cause alarm to her and thereby committed offence punishable u/s 506 of IPC? 3. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place accused not being a member of scheduled caste or scheduled tribe used force against Kumari Annapurna a minor belonging to scheduled tribe with intent to dishonor and outrage her modesty and thereby committed an offence punishable u/s 3(i)(xi) of SC/ST(PoA)Act? 4. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place accused not being a member of scheduled caste or scheduled tribe committed an offence of rape under Indian Penal Code punishable with imprisonment for a term of 10 years or more against Kumari Annapurna, a minor aged about 14 ½ years on the ground of such person was a member of scheduled tribe and thereby committed an offence punishable u/s 3(2)(v) of SC/ST(PoA) Act? 5. What order?” 5. In order to prove its case, the prosecution, in all, examined 17 witnesses and got marked 10 Exhibits. On behalf of the defence, no witness was examined, but two exhibits were marked. 6. On trial, the accused was convicted and sentenced as follows: “ORDER Accused is sentenced to under go imprisonment for 1 years for an offence punishable u/sec.376 of IPC and with fine of Rs.20,000/. In default of payment of fine, accused shall undergo imprisonment for 6 months. Accused is sentenced and punished to rigorous imprisonment for a period of one year for an offence punishable u/sec.506 of IPC. Accused is sentenced and punished to rigorous imprisonment for a period of three years for an offence punishable u/sec.3(i)(xi) of SC/ST(PoA) Act with fine of Rs.20,000/. In default of payment of fine, accused shall undergo imprisonment for 2 months. Accused is sentenced to under go imprisonment for life and with fine of Rs.25,000/for an offence punishable u/sec.3(2)(v) of SC/ST(PoA) Act. In default of payment of fine, accused shall undergo imprisonment for 6 months. All the above sentences shall run concurrently. In default of payment of fine, accused shall undergo imprisonment for 2 months. Accused is sentenced to under go imprisonment for life and with fine of Rs.25,000/for an offence punishable u/sec.3(2)(v) of SC/ST(PoA) Act. In default of payment of fine, accused shall undergo imprisonment for 6 months. All the above sentences shall run concurrently. Compensation of Rs.1,00,000/is awarded to the victim as per section 357(3) of Cr.P.C. Accused shall pay said compensation to the victim. Office is directed to issue free copies of judgment to accused u/sec.363 Cr.P.C. Office is directed to send a copy of findings and sentence to the District Magistrate, Tumkur u/sec.365 Cr.P.C. Issue conviction warrant to the jail.” 7. Aggrieved by the judgment of conviction and the order of sentence passed by the trial Court, the accused has preferred the instant criminal appeal. 8. Heard Sri Hasmath Pasha, learned Senior Advocate appearing for Sri Ranjan Kum P., learned Advocate for the appellant and Sri Vijayakumar Majage, learned Additional State Public Prosecutor for the respondent-State. 9. Sri Hasmath Pasha, learned Senior Advocate appearing for the appellantaccused would vehemently contend that the prosecution has miserably failed to prove the fact that the victim was aged below 16 years as on the date of the first forcible intercourse that took place between them. It is his submission that no reliance could be placed upon the copy of the school admission register, as the Head Master, who was examined as P.W.8 before the trial Court, has not affirmed the same and has denied that the entries were made by him and he does not know the age of the victim. The learned Senior Advocate would further contend that the Lady Medical Officer (P.W.13) of the Government Hospital examined the victim and found that the victim was a pregnant of 26 weeks and stated that her age would be between 14 and 15 years, at the relevant point of time. But, P.W.13 categorically admitted that the statement made by her was on the basis of the report of the radiologist. Neither the report was marked nor the radiologist was examined before the trial Court. Thus, it is the contention of the learned Senior Advocate that on both counts, the prosecution has failed to establish beyond all reasonable doubt that the victim was below 16 years of age. It is further contended that, at best, it was a case of consensual sex. Thus, it is the contention of the learned Senior Advocate that on both counts, the prosecution has failed to establish beyond all reasonable doubt that the victim was below 16 years of age. It is further contended that, at best, it was a case of consensual sex. But he would submit that the promise of marriage and the breach of promise is not a charge that is framed against the accused. The learned Senior Advocate would contend that there is gross delay of more than 7 months in lodging the complaint against the accused. If it were to be a case of rape, the complaint would have been lodged without any loss of time. Since it was a consensual act, which went on for 67 months, and the victim, being fully aware of the fact that her menstruation had stopped, did not chose to lodge a complaint against the accused on the alleged rape. It is the submission of the learned Senior Advocate that all the factors above narrated would make it unmistakably clear that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt and that the trial Court has grossly erred in over looking these material discrepancies in the evidence, which would clear the guilt of the accused. 10. Per contra, the learned Additional State Public Prosecutor appearing for the complainant-State would support the judgment and order rendered by the trial Court and contends that there is a clear evidence that the victim was below 16 years of age, on the strength of the School Admission Register and on the opinion of the radiologist. It is also evident that the accused had intercourse with the victim by promising to marry her and she became pregnant by the said act, broke the promise and refused to marry her. 11. We have given our anxious consideration to the contentions advanced by the learned Senior Advocate and the learned Additional State Public Prosecutor at the Bar and have perused the materials available on record. 12. The following points would arise for our consideration: (i) Whether the prosecution has proved beyond all reasonable doubt that, as on the date of the incident, the victim –P.W.11 was aged below 16 years ? (ii) Whether there was consensual sex between the victim and the accused on the promise of marriage ? 12. The following points would arise for our consideration: (i) Whether the prosecution has proved beyond all reasonable doubt that, as on the date of the incident, the victim –P.W.11 was aged below 16 years ? (ii) Whether there was consensual sex between the victim and the accused on the promise of marriage ? (iii) Whether the judgment of conviction and order of sentence are liable to be set aside ? 13. Re. Point No.1: In order to consider the issue as to whether the age of the victim was below 16 years, the evidence of the victim (P.W.11), her father (P.W.6), the Lady Medical Officer (P.W.13) and the document at Ex.P.5 i.e., the school record pertaining to the date of birth of the victim, are to be considered. The prosecution has heavily relied upon the extract of Ex.P.5 to contend that the date of birth of the victim was 15.9.1993 and she was below 16 years of age as at the relevant point of time. When the prosecution relies upon a document, it is expected to prove the same beyond all reasonable doubt. In the crossexamination of the victim (P.W.11), she has admitted that she was aged 20 years and to this admission, the father of the victim (P.W.6) has not denied the same. The School Admission Register that was produced before the trial Court and when it was put to the Head Master (P.W.8) of the school, where the victim was studying, he has deposed that he is not the person who had entered the date of birth in the Register nor could he testify the date of birth that was entered by some one else and he does not know the age of the victim. Even the evidence of the Head Master makes it clear that the age of the victim was still at doubt. 14. The Lady Medical Officer (P.W.13), who examined the victim has stated in her evidence that she examined the victim when she was brought to the hospital for her pregnancy. At the time when she was brought to the hospital, she was a pregnant of 26 weeks. She has also deposed in her evidence that the age of the victim that she has indicated in her examination inchief is between 14 and 15 years, which not her opinion but it is the opinion of the radiologist. At the time when she was brought to the hospital, she was a pregnant of 26 weeks. She has also deposed in her evidence that the age of the victim that she has indicated in her examination inchief is between 14 and 15 years, which not her opinion but it is the opinion of the radiologist. In the crossexamination, it is clearly admitted by the doctor that the report of the radiologist is not given to the prosecution nor the radiologist is examined. Even on this count, the age of the victim is not conclusive. It can be safely inferred that there is no proof that would drive home the age of the victim in categorical terms as below 16 years. The evidence of all the three witnesses namely, father of the victim (P.W.6), Head Master of the victim’s school (P.W.8), the victim herself (P.W.11) and the Lady Medical Doctor (P.W.13), who examined the victim, all of which are inconclusive about the age of the victim. Thus, the prosecution has failed to prove the age of the victim beyond all reasonable doubt. The evidence of the victim herself on a question being put to her that she was aged 20 years as at the relevant point of time, is not denied by her. 15. In all criminal cases, it is trite that the burden is always on the prosecution to prove the guilt beyond all reasonable doubt. It would be apposite to refer to the judgment of the Hon’ble Supreme Court in the case of YOGESH SINGH VS. MAHABEER SINGH AND OTHERS reported in (2017) 11 SCC 195 , at para Nos.14 to 18, which reads thus: “14. Further, in Ganga Kumar Srivastava v. State of Bihar [Ganga Kumar Srivastava v. State of Bihar, (2005) 6 SCC 211 : 2005 SCC (Cri) 1424] , this Court added one more ground, namely, where the appreciation of evidence and finding is vitiated by any error of law or procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence. 15. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. 15. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. Here, it is worthwhile to reproduce the observations made by Venkatachaliah, J. in State of U.P. v. Krishna Gopal [State of U.P. v. Krishna Gopal, (1988) 4 SCC 302 : 1988 SCC (Cri) 928] : (SCC pp. 31314, paras 2526) “25. … Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. 26. The concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimisation of trivialities would make a mockery of administration of criminal justice.” [See also Krishnan v. State [Krishnan v. State, (2003) 7 SCC 56 : 2003 SCC (Cri) 1577] ; Valson v. State of Kerala [Valson v. State of Kerala, (2008) 12 SCC 241 : (2009) 2 SCC (Cri) 208] and Bhaskar Ramappa Madar v. State of Karnataka [Bhaskar Ramappa Madar v. State of Karnataka, (2009) 11 SCC 690 : (2010) 1 SCC (Cri) 133] .] 16. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. (Vide Kali Ram v. State of H.P. [Kali Ram v. State of H.P., (1973) 2 SCC 808 : 1973 SCC (Cri) 1048] , State of Rajasthan v. Raja Ram [State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 : 2003 SCC (Cri) 1965] , Chandrappa v. State of Karnataka [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] , Upendra Pradhan v. State of Orissa [Upendra Pradhan v. State of Orissa, (2015) 11 SCC 124 : (2015) 4 SCC (Cri) 309] and Golbar Hussain v. State of Assam [Golbar Hussain v. State of Assam, (2015) 11 SCC 242 : (2015) 4 SCC (Cri) 384] .) 17. However, the rule regarding the benefit of doubt does not warrant acquittal of the accused by resorting to surmises, conjectures or fanciful considerations, as has been held by this Court in State of Punjab v. Jagir Singh [State of Punjab v. Jagir Singh, (1974) 3 SCC 277 : 1973 SCC (Cri) 886] : (SCC pp. 28586, para 23) “23. A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures.” 18. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures.” 18. Similarly, in Shivaji Sahabrao Bobade v. State of Maharashtra [Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Cri) 1033], V.R. Krishna Iyer, J., stated thus: (SCC p. 799, para 6) “6. … The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community.” On a consideration of the judgment extracted hereinabove, two factors that would emerge are, that, in all criminal cases, the burden is on the prosecution to prove the guilt of the accused beyond all reasonable doubt and in the event of benefit of doubt, the Court should lean in favour of the accused. 16. Keeping in mind the aforesaid position of law, the evidence before the trial Court in the instant case is required to be noticed and if noticed, it becomes unmistakably clear that the prosecution has miserably failed in discharging its burden of proving the guilt of the accused beyond all reasonable doubt with regard to the age of the victim as in terms of Section 35 of the Evidence Act, 1872, the document, though admissible in evidence, will have to be proved. Section 35 of the Evidence Act reads thus: “35. Section 35 of the Evidence Act reads thus: “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 [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.” Notwithstanding the admissibility of the admission register, which is a public document under Section 35 of the Evidence Act, 1872, it is a cardinal principle of law that mere marking of document will not amount to its proof. The document namely, Admission Register extract is not proved by the evidence of the competent person admitting to the fact of the age of the victim. 17. In the circumstances, we answer point No.1 against the prosecution and in favour of the accused that the age of the victim was not below 16 years, to bring the case of the prosecution within Section 376 of IPC. 18. Re. Point No.2: It is the evidence of P.W.11victim, that she used to go to the house of the accused to get milk and had developed acquaintance and in fact, were involved with each other. On the promise of getting married, the victim and the accused had sexual intercourse on several occasions. It is her evidence that she used to have sexual intercourse with the accused three times a week and this went on for about 7 months and during this period, she became pregnant. 19. It is the further evidence of the victim that she had began to menstruate three years prior to the incident and her menstrual cycling was in order. Thus, the victim was aware of her periodical menstrual cycle and when that had stopped, she did not reveal it to anyone. These factors would unequivocally reveal that the sexual intercourse between the accused and the victim was a consensual sex. 20. Thus, the victim was aware of her periodical menstrual cycle and when that had stopped, she did not reveal it to anyone. These factors would unequivocally reveal that the sexual intercourse between the accused and the victim was a consensual sex. 20. It is for the first time that after about 7 months of the stoppage of menstruation, on becoming pregnant and when the accused refused to take her in marriage, she has revealed the said fact to P.W.1 – Shivamma, who is the elder sister of the victim, before whom she has confessed that she was going to the house of the accused to collect milk and she had intercourse with the accused on a promise that he would marry her. There was breach of promise and hence, a Panchayat was held in the village, where the father of the accused refused to take the victim in marriage to the accused, after which, a complaint was lodged against the accused. This is the evidence of A.L. Bommaiah (P.W.2), who was one of the members of the Panchayath, who spoke about the Panchayath before the trial Court. Thus, there is gross delay in lodging the complaint against the accused which would be a proof of the fact of consensual sex between the accused and the victim. 21. The Hon'ble Supreme Court in the case of UDAY VS. STATE OF KARNATAKA reported in (2003) 4 SCC 46 , has held at para Nos.24 to 26 as follows: “24. There is another difficulty in the way of the prosecution. There is no evidence to prove conclusively that the appellant never intended to marry her. Perhaps he wanted to, but was not able to gather enough courage to disclose his intention to his family members for fear of strong opposition from them. Even the prosecutrix stated that she had full faith in him. It appears that the matter got complicated on account of the prosecutrix becoming pregnant. Therefore, on account of the resultant pressure of the prosecutrix and her brother the appellant distanced himself from her. 25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. 25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent. 26. In view of our findings aforesaid, we do not consider it necessary to consider the question as to whether in a case of rape the misconception of fact must be confined to the circumstances falling under Section 375 fourthly and fifthly, or whether consent given under a misconception of fact contemplated by Section 90 has a wider application so as to include circumstances not enumerated in Section 375 IPC.” The law declared by the Apex Court as extracted herein above, is applicable to the facts of the case on hand on all fours. There is evidence to prove conclusively that the accused intended to marry her but it is only that he could not gather enough courage to refute the opinion of his father before the Panchayat. It is also in the evidence of the victim that the accused met on several occasions and she had permitted him with liberty to have intercourse. It is clear that, in this case, the victim willfully consented to have sexual intercourse with the accused, not only because he promised to marry her, but she also desired so. In our considered view, it is a clear case of consensual sex. Thus, we answer point No.2 in favour of accused and against the prosecution. 22. Re. It is clear that, in this case, the victim willfully consented to have sexual intercourse with the accused, not only because he promised to marry her, but she also desired so. In our considered view, it is a clear case of consensual sex. Thus, we answer point No.2 in favour of accused and against the prosecution. 22. Re. Point No.3: The trial Court, in its judgment, has glossed over and ignored all the material discrepancies in the evidence and has straight away believed the evidence that could be attached with no credibility. The trial Court has ignored the fact that the complaint was lodged after a delay of seven months that too, at the time when the victim was seven months pregnant. Inconclusive evidence of P.W.8 and nontrustworthy evidence of P.W.2 are relied on by the trial Court. The trial Court has further erred in invoking the provisions of SC/ST Act, to convict the accused. Since our view on both the points are in favour of the accused and the reasons indicated herein, the judgment of the trial Court warrants appropriate interference and requires to be set aside. Accordingly, point No.3 is answered in favour of the accused. 23. For the foregoing reasons, we pass the following: ORDER Criminal Appeal No.580 of 2014 is allowed. The judgment of conviction and the order of sentence dated 30.06.2014, passed by the Third Additional Sessions Judge and Special Court for Trial of Cases under SC/ST (Prevention of Atrocities) Act, 1989, Tumakuru in Special Case No.76 of 2008 is setaside. The appellant-accused, namely, Sri.Mohan Kumar @ Kumara, son of Kariyanna, is acquitted of all the charges leveled against him. He shall be set at liberty, forthwith, if not required in any other case/s. Registry to communicate the operative portion of this order to the Superintendent, Central Prisons, Parapanna Agrahara, Bengaluru, forthwith for necessary action.