JUDGMENT : A.P. THAKER, J. 1. The present appeal has been filed by the appellant-accused against the judgment and order dated 1.7.2004 passed by learned Additional Sessions Judge, Dhrangadhra in Sessions Case No. 13 of 2003, whereby the appellant-accused was convicted for the offence under Sections 363 and 366 of the Indian Penal Code. The appellant was sentenced to undergo rigorous imprisonment for a period of seven years and ordered to pay Rs. 5,000/- fine for offence under Sections 363 of the Indian Penal Code and in default of payment of fine, further rigorous imprisonment of one and a half year was imposed. The appellant was sentenced to suffer rigorous imprisonment for ten years and ordered to pay fine of Rs. 10,000/- for offence under Section 366 of the Indian Penal Code and in default of payment of fine, rigorous imprisonment for a period of two years was imposed. Both the sentences were ordered to be served separately. 2. The case of the prosecution in short is that on 8.10.2002 the appellant-accused kidnapped the prosecutrix, minor daughter of Shankerlal Sharma with mala-fide intention. It is alleged in the complaint that the complainant is residing with his wife and daughter at Patdi and on the fateful day, the complainant went out after taking dinner and his wife and daughter were alone at home. When he returned, his wife told him that their daughter went to play Garba after taking dinner, however, she did not return. Upon inquiry, it is revealed that as the accused came in contact with the prosecutrix, he might have kidnapped the prosecutrix. With these allegations, the complaint was registered with Patdi Police Station Patdi Police Station being C.R. No. I-89/2002 for the offence under Section 363 and 366 of IPC. After about one and a half month, on 14.11.2002, present appellant himself surrendered along with the prosecutrix before police. The prosecutrix was sent for medical examination and offence under Section 376 of IPC was added against the accused. After completion of investigation, charge sheet for the offences under Section 363, 366 and 376 of IPC came to be filed against the appellant in the Court of JMFC, Patdi. Thereafter, the case was committed to the Court of Sessions by learned JMFC and it came to be registered as Sessions Case No. 13 of 2003. After completion of investigation, charge sheet for the offences under Section 363, 366 and 376 of IPC came to be filed against the appellant in the Court of JMFC, Patdi. Thereafter, the case was committed to the Court of Sessions by learned JMFC and it came to be registered as Sessions Case No. 13 of 2003. Thereafter, charge was framed against the accused and the accused pleaded not guilty to the charge and claimed to be tried. 2.1 During the course of trial, the prosecution has laid following oral as well as documentary evidence:- Oral Evidence: S. No. Name Exhibit 1. Bhagvanbhai Bhaichandbhai Patel 10 2. Dr. Dipakbhai Dahyabhai Dulera 16 3. Dr. Mangalsinh Ramsingji 21 4. Prasottambhai Ramvallabh 25 5. Chandaben Parsottambhai Sharma 27 6. Rajendrabhai Ramlal Sharma 28 7. Kalpeshbhai Somabhai 29 8. Kamleshbhai Popatbhai Shah. 32 9. Manjuben Ajaybhai Pujara 35 10. Bhanvarlal Madanlal Sharma 36 11. Kamlaben Harjivanbhai 37 12. Nitin Janakray Dave 38 13. Dayaben Ghanshyambhai 40 14. Firozkhan Ashrafkhan Pathan 42 15. Becharbhai Arjanbhai Solanki 44 16. Mahendrasinh Bahadursinh Raol 45 Documentary Evidence: S. No. Name Exhibit 1. School leaving certificate of the victim. 11 2. Extract of general register of the school. 12 3. Report for physical examination of the accused. 17 4. Form for medical examination of the victim by medical officer. 18-19 5. Letter written by Circle Police Inspector to Medical Officer, Patdi for medical examination of the victim. 20 6. Police yadi. 22 7. Forwarding letter for examination of the victim. 23 8. Certificate of examination of the victim. 24 9. Original complaint. 26 10. Police yadi for postmortem of the deceased. 30 11. Postmortem report of victim. 31 12. Yadi sent from Police Station for recording dying declaration of the deceased. 33 13. Dying declaration. 34 14. Injury certificate of the victim. 39 15. Panchnama of recovery of clothes of the victim. 41 16. Panchnama of physical condition of the accused. 43 17. Report of FSL, Junagadh. 46 18. Extract of station diary. 47 19. Form of Muddamal sent to FSL. 48 20. Report of FSL sent to Circle Police Inspector, Surendranagar. 49 2.2 Thereafter, further statement of the accused was also recorded under section 313 of the Criminal Procedure Code wherein he has denied the incriminating evidence led by the prosecution. After completion of trial, learned Judge convicted the accused for the offence, as aforesaid. 3. 48 20. Report of FSL sent to Circle Police Inspector, Surendranagar. 49 2.2 Thereafter, further statement of the accused was also recorded under section 313 of the Criminal Procedure Code wherein he has denied the incriminating evidence led by the prosecution. After completion of trial, learned Judge convicted the accused for the offence, as aforesaid. 3. Being aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellant-accused has preferred the present appeal before this Court. 4. Mr. Premal Joshi, learned advocate for the appellant submitted that learned trial Judge has not properly appreciated the evidence on record and committed an error in convicting the present appellant. He submitted that though it is alleged that the prosecutrix was minor at the time of alleged offence, prosecution has not produced any cogent material on record to show that she was minor. He submitted that birth certificate of the prosecutrix is not produced by the prosecution in support of its case. He further submitted that the accused was having good relation with the complainant, therefore, there is no question of kidnapping the daughter of the complainant and it seems that with a view to extract money from the accused, false complaint is filed against him. He further submitted that there is no eye witness and there is no corroborative evidence to show that the accused had kidnapped the victim. 4.1 Mr. Premal Joshi further submitted that there was absence of any force or coercion on the part of the appellant and therefore offence of kidnapping is also not made out. He also submitted that the Court below has seriously erred in not weighing the evidence on record and has failed to appreciate the admitted facts which were in favour of the appellant. He further submitted that Court below has failed to consider that this was not a case of rape or kidnapping. He lastly submitted that the Court below has erred in relying upon the say of the prosecutrix that appellant told her that he would help her to get a good job; and this fact alone is not sufficient to prove the offence against the appellant. 4.2 Learned Counsel for the appellant has taken this Court through the entire evidence and even the operative part of the conviction. 4.2 Learned Counsel for the appellant has taken this Court through the entire evidence and even the operative part of the conviction. He submitted that in light of the provisions of Sections 363, 366 and 376 of the Indian Penal Code, when there is a doubt about the age of the prosecutrix, the learned trial Judge ought not to have convicted the accused just on the say of the complainant and against the medical evidence. He also submitted that the trial Court has relied on the school leaving certificate and came to the conclusion that the victim was minor at the time of offence. He also submitted that father of the victim has not produced any document in support of date of birth of the victim and only school leaving certificate of earlier school is produced. He submitted that entry in the school register regarding date of birth will have no evidentiary value. He further submitted that merely because the school leaving certificate is exhibited, it does not mean that contents thereof are proved. He further submitted that it has not come on record that as to on what basis the date of birth is written in such school leaving certificate. He also submitted that no other tests are also conducted to prove the age of the prosecutrix, therefore, the case of the prosecution cannot be believed that the prosecutrix was a minor and learned trial Judge has committed an error in convicting the appellant. He also submitted that in order to accept the statement of the prosecutrix that she was compelled, threatened or otherwise induced to go with the appellant, there should be corroboration of material particular from some independent source and her bare statement cannot be considered as sufficient to sustain the conviction. He submitted that in view of above, this appeal may be allowed and the judgment and order of the lower Court may be reversed. He submitted that in view of above, this appeal may be allowed and the judgment and order of the lower Court may be reversed. He relied on the following judgments, in support of his submission: (A) Birad Mal Singhvi vs. Anand Purohit, 1988 (Supp) SCC 604 (B) Sunil vs. State of Haryana, 2009 CJ (SC) 1724 (C) Rajak Mohammad vs. State of Himachal Pradesh, (2018) 9 SCC 248 (D) Ram Murti vs. State of Haryana, 1970 CJ (SC) 374 (E) State of Karnataka vs. Sureshbabu Puk Raj Porrat, 1993 CJ (SC) 838 (F) Hiralal vs. State of Haryana, 1994 CJ (P&H) 250 (G) Bishnudas Behera vs. State of Orissa, 1996 CJ (Ori) 68 (H) Makhan vs. State of Madhya Pradesh, 2003 CJ (MP) 363 (I) Jayantibhai @ Nano Chhaganbhai Thakore vs. State of Gujarat, 2009 (3) GLH 527 (J) Thanduram Bonkiram Dhobi vs. State of M.P. 2010 CJ (Chh) 542 (K) Narendra Gulabpari Goswami vs. State of Gujarat, 2019 (0) AIJEL-HC 240301 (L) Hari Yadav vs. State of Bihar, (2007) 15 SCC 266 (M) Shantilal Jayantibhai Babariya vs. State of Gujarat, 2018 (2) GLR 1569 5. On the other hand, Ms. Shruti Pathak, learned APP appearing the State has taken this Court through the evidence and has submitted that the judgment of the learned Trial Judge is not such which calls for interference on the facts or law and the conviction of the accused should not be interfered with. She has submitted that the age of the prosecutrix was below 17 years and the fact that she was forced to leave the parental home without consent of her parents would be the material aspect and, therefore, Sections 363 and 366 of the IPC would be attracted. She submitted that since the prosecutrix was minor, her consent cannot be taken into consideration. She has submitted that the judgments cited by learned Counsel for the appellant would not apply to the facts of this case as the age of the prosecutrix was below 17 years; even if she was a consenting party, that fact is of no consequence. She submitted that since the prosecutrix was minor, her consent cannot be taken into consideration. She has submitted that the judgments cited by learned Counsel for the appellant would not apply to the facts of this case as the age of the prosecutrix was below 17 years; even if she was a consenting party, that fact is of no consequence. She also submitted that the School Leaving Certificate was produced on record to prove the age of the victim and the Principal of the school was also examined in this regard, therefore, it cannot be said that the prosecution has failed to prove the age of the victim at the time of commission of offence. She has relied upon following decisions in support of her submissions: (i) Jarnail Singh vs. State of Haryana, (2013) 7 SCC 263 (ii) State of Maharashtra vs. Gajanan @ Hemant Janardhan Wankhede, 2008 (8) SCC 38 (iii) State vs. Bittu Mandal, Criminal Appeal No. 366 of 2018 decided on 8.5.2018 (iv) Haji Mohammed vs. State, Crl. O.P. No. 26744 of 2018 decided on 27.11.2018 5.1 In the case of Jarnail Singh vs. State of Haryana, (2013) 7 SCC 263 , the Supreme Court observed as under:- “22. On the issue of determination of age of a minor, one only needs to make a reference to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, 2007 (hereinafter referred to as the 2007 Rules). The aforestated 2007 Rules have been framed under Section 68(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000. Rule 12 referred to hereinabove reads as under: “12. Procedure to be followed in determination of age:- (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose. (2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima-facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail. (3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining:- (a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof. (ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof. (iii) the birth certificate given by a corporation or a municipal authority or a panchayat. (b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. While passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a) (i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law. (4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned. (5) Save and except where, further inquiry or otherwise is required, inter-alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule. (6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.” 23. Even though Rule 12 is strictly applicable only to determine the age of a child in conflict with law, we are of the view that the aforesaid statutory provision should be the basis for determining age, even for a child who is a victim of crime. For, in our view, there is hardly any difference in so far as the issue of minority is concerned, between a child in conflict with law, and a child who is a victim of crime. Therefore, in our considered opinion, it would be just and appropriate to apply Rule 12 of the 2007 Rules, to determine the age of the prosecutrix VW-PW6. The manner of determining age conclusively, has been expressed in sub-rule (3) of Rule 12 extracted above. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. Under the aforesaid provision, the age of a child is ascertained, by adopting the first available basis, out of a number of options postulated in Rule 12(3). If, in the scheme of options under Rule 12(3), an option is expressed in a preceding clause, it has overriding effect over an option expressed in a subsequent clause. The highest rated option available, would conclusively determine the age of a minor. In the scheme of Rule 12(3), matriculation (or equivalent) certificate of the concerned child, is the highest rated option. In case, the said certificate is available, no other evidence can be relied upon. Only in the absence of the said certificate, Rule 12(3), envisages consideration of the date of birth entered, in the school first attended by the child. In case such an entry of date of birth is available, the date of birth depicted therein is liable to be treated as final and conclusive, and no other material is to be relied upon. Only in the absence of such entry, Rule 12(3) postulates reliance on a birth certificate issued by a corporation or a municipal authority or a panchayat. Yet again, if such a certificate is available, then no other material whatsoever is to be taken into consideration, for determining the age of the child concerned, as the said certificate would conclusively determine the age of the child. It is only in the absence of any of the aforesaid, that Rule 12(3) postulates the determination of age of the concerned child, on the basis of medical opinion. 24. Following the scheme of Rule 12 of the 2007 Rules, it is apparent that the age of the prosecutrix VW-PW6 could not be determined on the basis of the matriculation (or equivalent) certificate as she had herself deposed, that she had studied up to class 3 only, and thereafter, had left her school and had started to do household work. The prosecution in the facts and circumstances of this case, had endeavoured to establish the age of the prosecutrix VW-PW6, on the next available basis, in the sequence of options expressed in Rule 12(3) of the 2007 Rules. The prosecution produced Satpal (PW4), to prove the age of the prosecutrix VW-PW6. Satpal (PW4) was the Head Master of the Government High School, Jathlana, where the prosecutrix VW-PW6 had studied upto class 3. The prosecution produced Satpal (PW4), to prove the age of the prosecutrix VW-PW6. Satpal (PW4) was the Head Master of the Government High School, Jathlana, where the prosecutrix VW-PW6 had studied upto class 3. Satpal (PW4) had proved the certificate Exhibit-PG, as having been made on the basis of the school records indicating, that the prosecutrix VW-PW6, was born on 15.5.1977. In the scheme contemplated under Rule 12(3) of the 2007 Rules, it is not permissible to determine age in any other manner, and certainly not on the basis of an option mentioned in a subsequent clause. We are therefore of the view, that the High Court was fully justified in relying on the aforesaid basis for establishing the age of the prosecutrix VW-PW6. It would also be relevant to mention, that under the scheme of Rule 12 of the 2007 Rules, it would have been improper for the High Court to rely on any other material including the ossification test, for determining the age of the prosecutrix VW-PW6. The deposition of Satpal-PW4 has not been contested. Therefore, the date of birth of the prosecutrix VW-PW6 (indicated in Exhibit P.G. as 15.7.1977) assumes finality. Accordingly it is clear, that the prosecutrix VW-PW6, was less than 15 years old on the date of occurrence, i.e. on 25.3.1993. In the said view of the matter, there is no room for any doubt that the prosecutrix VW-PW6 was a minor on the date of occurrence. Accordingly, we hereby endorse the conclusions recorded by the High Court, that even if the prosecutrix VW-PW6 had accompanied the accused-appellant Jarnail Singh of her own free will, and had had consensual sex with him, the same would have been clearly inconsequential, as she was a minor.” 5.2 In view of above decision, she submitted that learned trial Judge has not committed any error while considering the school leaving certificate of the victim to determine her age. As all the decisions are on similar line, the same are not discussed in detail in this judgment. She has also submitted that in view of the fact the accused had promised her to get a good job, it is sufficient to prove that the accused took her away with a mala-fide intention and this is a ground to uphold the judgment of the learned trial Judge. She has also submitted that in view of the fact the accused had promised her to get a good job, it is sufficient to prove that the accused took her away with a mala-fide intention and this is a ground to uphold the judgment of the learned trial Judge. She, therefore, submitted that the impugned judgment may not be interfered with and it may be confirmed. 6. Heard learned counsel for the parties and perused the evidence placed on record as well as the impugned judgment. Considering the impugned judgment, it is clear that the accused has been convicted for the offences punishable under Section 363 and 366 of IPC, while he acquitted from the charge of offence punishable under Section 376 of IPC. 6.1 Before considering the case on merits, it would be profitable to refer to the Provisions of Section 363 and 366 of the Indian Penal Code, which are as under:- “363. Punishment for kidnapping - Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. xxx xxx xxx 366. Kidnapping, abducting or inducing woman to compel her marriage, etc. - Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely she will be, forced or seduced to illicit intercourse with another person shall be punished as aforesaid].” 6.2 Therefore, what is required to be considered is as to whether the victim was minor at the time of commission of offence and the appellant-accused has kidnapped her from lawful guardianship of her parents. 7. 7. PW-1, Bhagvanbhai Bhaichandbhai Patel, Exh.10 has stated in his evidence that he was serving as Principal in Patdi High School since 1.1.2001. He has stated that the victim was studying in his school and he has also produced true copy of the school leaving certificate of the victim. He has stated the birth date of the victim to be 17.2.1986. In his cross-examination, this witness has stated that the victim had come to his school from another school and the original record regarding birth date would be in that earlier school. He has also stated that there is no record regarding birth date of the victim in his school. 8. In the deposition of Dr. Dipakbhai Dahyabhai Dulera, PW-2, Exh.16, he has stated that in the history before him it is stated that the accused and the victim ran away from home before one and a half month and he had referred the victim to gynecologist. Dr. Mangalsinh Rajsingji Parmar, PW-3, Exh.21, has stated in his deposition that the victim was not having any injury marks over his body. Dr. Rituben Gupta, Gynecologist, after examination of the victim has stated that, there was no injury on any of her body part. He has stated in cross-examination that there were no injury marks on her private part. He has also stated that from medical examination of her private part, it can be said that the victim would have had sexual intercourse frequently. He has stated that no ossification test was conducted nor x-ray of her bones was taken. 9. In his evidence, PW-4, Parsottambhai Ramvallabh Sharma, father of the victim has stated that the incident had happened on 8.10.2002. He has stated that on the date of incident, when they inquired about the victim, some persons said that she went towards the house of the accused and when he went to the house of the accused, it was also locked. In his cross-examination, he has stated that the victim has studied upto 10th standard. He has also stated that the victim is his third child and there was difference of two years between each child. He has also stated that his eldest daughter had died at the age of 16 years. He has also stated that his only surviving child is Vishnudatt, who is 18 years old. He has also stated that the victim is his third child and there was difference of two years between each child. He has also stated that his eldest daughter had died at the age of 16 years. He has also stated that his only surviving child is Vishnudatt, who is 18 years old. He has also stated that he was sending his daughter along with the accused many times. He has also stated that nobody has seen the accused going along with his daughter nor he was having any personal knowledge about it. 10. Chandaben Purshottambhai Sharma, PW-5, Exh.27 has stated in her evidence that she was having three children Sonu, Vishnu and the prosecutrix. She has also stated the history of the incident. She has also stated that the prosecutrix had studied upto 10th standard. 11. Mr. Mahendrasinh Bahadursinh Raol, PW-16, Exh.45 has stated in his evidence that he on 9.10.2002 when he was on duty at Patdi Police Station the complainant has lodged his complaint. He has stated that the complainant has alleged that the accused had kidnapped his daughter. He also stated that on 14.12.2002, the accused and the victim have presented themselves before Patdi Police Station and he recorded statements of both of them and the accused was arrested and both of them were send for medical examination. In his cross-examination, he has admitted that he has not recorded statements of any of the persons, who have played garba on that day. He has also stated that he has not recorded the statement as to where the accused took the victim. He has also stated that there was no eye witness, who has seen the accused taking away the victim. He has also stated that from the statement of the victim, it cannot be said that the accused had sexual intercourse with her. He has also stated that he has not collected any evidence from any school with regard to education of the victim. 12. Having heard the learned counsel for the respective parties and considering the evidence on record, it appears that the trial court has relied on the school leaving certificate and on that basis came to the conclusion that the victim was minor at the time of commission of the alleged offence. 12. Having heard the learned counsel for the respective parties and considering the evidence on record, it appears that the trial court has relied on the school leaving certificate and on that basis came to the conclusion that the victim was minor at the time of commission of the alleged offence. It is pertinent to note that except the school leaving certificate of the victim, no other documentary evidence worth the name was produced on record and nobody was examined to prove even the school leaving certificate. Mere production of the school leaving certificate would not tantamount to proof of all the contents or the correctness of date of birth stated in the school leaving certificate. It has not come on record as to on what basis the date of birth was recorded in the school leaving certificate. Though the Principal of the school is examined, he has stated in his evidence that the victim had come to his school from another school and the original record regarding birth date would be in that earlier school. The school leaving certificate produced by him is of Nanu Bapa Kanya Shala No. 1, where the victim had studied earlier, whereas the witness is the Principal of Shree Surajmal High School, Patdi. Therefore, it cannot be said that he has any personal knowledge regarding the contents of the certificate. He has also stated that there is no record regarding birth date of the victim in his school. Mere production of the school leaving certificate without examining the concerned witnesses and mere exhibiting the school leaving certificate without proving the contents of the school leaving certificate, it cannot be said that the age mentioned in the school leaving certificate has been established in accordance with law. The prosecution has failed to place on record the Birth Certificate of the victim on record. As per settled legal position, the date of birth mentioned in the school register of secondary school certificate has no probative value within Section 35 of the Indian Evidence Act, unless either the parents are examined or the person on whose information the entry may have been made, is examined. As per settled legal position, the date of birth mentioned in the school register of secondary school certificate has no probative value within Section 35 of the Indian Evidence Act, unless either the parents are examined or the person on whose information the entry may have been made, is examined. In this regard, it is observed by this Court in Narendra Gulabpari Goswami vs. State of Gujarat, 2019 (0) AIJEL-HC 240301 as under:- “7.05 It is settled legal position that if the entry in the school register regarding the date of birth is made on the basis of information given by the 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 school leaving certificate was exhibited, it does not mean that the contents of the school leaving certificate were also proved. Mere proof of the school leaving certificate would not tantamount to proof of all the contents or the correctness of date of birth stated in the school leaving certificate. The person who issued the School Leaving Certificate has not been examined. It has not come on record as to on what basis the date of birth was recorded in the school leaving certificate. It has also not come on record that at whose instance the date of birth was recorded in the school registers. Mere production of the school leaving certificate without examining the concerned witnesses and mere exhibiting the school leaving certificate without proving the contents of the school leaving certificate, it cannot be said that the age mentioned in the school leaving certificate has been established in accordance with law. Even otherwise, the school leaving certificate to prove the age of the victim is not of much evidentiary value. The prosecution has failed to place on record the Birth Certificate of the victim on record. As per settled legal position, the date of birth mentioned in the school register of secondary school certificate has no probative value within Section 35 of the Indian Evidence Act, unless either the parents are examined or the person on whose information the entry may have been made, is examined. As per settled legal position, the date of birth mentioned in the school register of secondary school certificate has no probative value within Section 35 of the Indian Evidence Act, unless either the parents are examined or the person on whose information the entry may have been made, is examined. In the present case, neither the parents of the victim nor the person on whose information the entry may have been made, is examined. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue. In our opinion, the aforesaid burden of proof has not been discharged by the prosecution. Therefore, the entry in the school leaving certificate cannot be relied upon to definitely fix the age of the victim. 7.06. To render a document admissible under Section 35, three conditions must be satisfied firstly, the 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 the date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded. In Raja Janaki Nath Roy vs. Jyotish Chandra Acharya Chowdhury, AIR 1941 Cal 41, a Division Bench of the Calcutta High Court discarded the entry in the 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 in the case of Jagan Nath vs. Moti Ram, AIR 1951 Punjab 377, Sakhi Ram vs. Presiding Officer, Labour Court, Muzzafarpur, AIR 1966 Patna 459, Ghanchi Vora Samsuddin Isabhai vs. State of Gujarat, AIR 1970 Gujarat 178 and Radha Kishan Tickoo vs. Bhushanlal Tickoo, AIR 1971 J&K 62 . In addition to these decisions the High Courts of Allahabad, Bombay, Madras have considered the question of probative value of an entry regarding the date of birth made in the scholar's register on in school certificate in election cases. The Courts have consistently held that the date of birth mentioned in the scholar's register of 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, Reference can be made in the case of Jagdamba Prasad vs. Sri Jagannath Prasad, (1969) 42 ELR 465 (All), K. Paramalali vs. L.M. Alangaram, (1967) 31 ELR 401 (Mad) and Krishna Rao Maharu Patil vs. Onkar Narayan Wagh, (1958) 14 ELR 386 (Bom).” 12.1 In view of above, decision relied upon by learned APP is of no help and the prosecution has failed to prove the birth date of the victim. As all the decisions are on similar line, the same are not discussed in detail in this judgment. Not only that neither ossification test was conducted nor x-ray of bones was taken to ascertain the age of the prosecutrix. Therefore, it can be said that the prosecution has failed to prove that the victim was minor at the time of commission of offence. 13. It has also come on record that the accused was having good relations with the family of the victim and he used to come to the house of the victim. It is also recorded that the victim was sent with the accused many a times. Not only that, in the medical evidence, no injury marks were found on the body of the victim nor on her private part. Considering the medical evidence also, it cannot be said that any force was used upon the victim. Not only that there is no eye witness, who has seen the accused taking away the victim. Not only that, in the medical evidence, no injury marks were found on the body of the victim nor on her private part. Considering the medical evidence also, it cannot be said that any force was used upon the victim. Not only that there is no eye witness, who has seen the accused taking away the victim. Therefore, it appears that evidence of the witnesses is not cogent or convincing to prove the guilt of the accused. 14. As such, if we consider the factum of age of the victim as discussed herein above, there is no case against present accused and, therefore, the reasoning of learned trial Court in convicting the accused is not sustainable in the eyes of law. In view of above, this Court finds that learned trial Court has committed serious error of law in convicting present appellant. 15. For the foregoing reasons, present appeal is allowed. The impugned judgment and order dated 1.7.2004 passed by learned Additional Sessions Judge, Dhrangadhra in Sessions Case No. 13 of 2003, whereby the appellant-accused was convicted for the offence under Sections 363 and 366 of the Indian Penal Code, is quashed and set aside so far as present appellant is concerned. The appellant-accused is acquitted of all the charges levelled against him. Fine, if paid, be refunded to him. Bail bond, if any, stands cancelled. Record and Proceedings be sent back to the concerned trial Court forthwith.