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2020 DIGILAW 488 (CAL)

Abdul Habib SK v. State Of West Bengal

2020-06-12

SAHIDULLAH MUNSHI, SUBHASIS DASGUPTA

body2020
JUDGMENT Sahidullah Munshi, J. - This appeal is against the judgment and order of conviction dated 24.08.2015 passed by the learned Assistant Sessions Judge, Second Court, Nadia, Krishnagar in Sessions Trial No. II of December, 2014 arising out of Sessions Case No. 1(II) 14 convicting the appellant under Sections 376, 366 & 363 of the Indian Penal Code and sentencing convict Abdul Habib Sk to suffer rigorous imprisonment for 10 years and with fine of Rs.1,000/-, in default to suffer simple imprisonment for 6 months for the offence punishable under Section 376 of Indian Penal Code; sentencing convict Abdul Habib Sk to suffer rigorous imprisonment for 10 years and with fine of Rs.1,000/-, in default to suffer simple imprisonment for 6 months for the offence punishable under Section 366 of Indian Penal Code; sentencing the convict Abdul Habib Sk to suffer rigorous imprisonment for 7 years and to pay a fine of Rs. 1,000/-, in default to suffer simple imprisonment for 6 months for the offence punishable under Section 363 of Indian Penal Code and sentencing the convict Rahim Sk to suffer rigorous imprisonment for 7 years and to pay a fine of Rs.1,000/-, in default to suffer simple imprisonment for 6 months for the offence punishable under Section 363 of Indian Penal Code. 2. Present appeal being C.R.A. no. 636 of 2015 has been filed by Abdul Habib Sk assailing the order of conviction and sentence passed against him. 3. In short the prosecution case is that one Jalemmuddin Sk lodged a complaint on 29.11.2013 that his daughter Suksari Khatun, aged about 17 years while pursuing her class IX studies from Kamari High School, on 26.11.2013 at about 9.30 in the morning, went to her school but did not come back even after the school gave over. While searching it was learnt through local people that the accused/appellant Abdul Habib Sk in association with another accused Rahim Sk took away his daughter prompting and alluring her to marry with malicious intention. 4. On receipt of the aforesaid complaint Kaliganj P.S. case No.861/13 dated 29.11.2013 was initiated under Sections 363/366/34 of Indian Penal Code against the FIR named accused persons. Police investigated and submitted charge-sheet. On receipt of charge-sheet learned Additional Chief Judicial Magistrate took cognizance of this case. 4. On receipt of the aforesaid complaint Kaliganj P.S. case No.861/13 dated 29.11.2013 was initiated under Sections 363/366/34 of Indian Penal Code against the FIR named accused persons. Police investigated and submitted charge-sheet. On receipt of charge-sheet learned Additional Chief Judicial Magistrate took cognizance of this case. After supplying necessary copies to the accused persons as required under the statutory provisions, committed the case to the learned Sessions Judge, Nadia, for trial as the same is exclusively triable by the Court of Sessions. On receipt of the case, learned Sessions Judge transferred it to the learned 2nd Court of Assistant Sessions Judge Nadia at Krishnagar. The learned trial Court after considering the materials submitted under Section 163 Cr.P.C. and on perusal of the case record, framed charges under Section 363/366/34 of Indian Penal Code against both the accused persons. Charge under Section 376 of the Indian Penal Code was framed against the accused Abdul Habib Sk. Charges were read over and explained to the accused persons to which they pleaded not guilty and claimed to be tried. 5. Prosecution adduced as many as 15 witnesses including the complainant/father, victim girl, her mother, three doctors and Investigating officer of the case and also produced certain documents which were admitted into evidence and marked exhibits. 6. After the evidence was closed statement of the accused persons was recorded under Section 313 Cr.P.C. but their plea is a plea of denial only and the accused declined to adduce any evidence in their defence. 7. According to the prosecution case both the accused persons kidnapped the minor girl aged about 17 years on the day of occurrence, that is, 26.11.2013. The learned Court below on the issue of age of the victim girl arrived at a finding that law requires under Section 361 of the IPC that a girl if not above 18 years of age and any person without consent of the guardian take her, same would amount to kidnapping within the meaning of Section 361 IPC. PW1 and PW3 being the parents of the victim girl did not accept that the victim attained majority on the day of incident. PW2 the victim herself stated her age before PW14, the Judicial Magistrate as 17 years. Medical reports (Exbt.2 and Exbt.10 series) reflect her age to be also 17 years. PW1 and PW3 being the parents of the victim girl did not accept that the victim attained majority on the day of incident. PW2 the victim herself stated her age before PW14, the Judicial Magistrate as 17 years. Medical reports (Exbt.2 and Exbt.10 series) reflect her age to be also 17 years. Learned trial Court held that in order to prove that the victim was a minor on the day of incident, prosecution adduced Headmaster (PW15) of Kamari High School where she was a student, produced one school certificate (Exbt.12) issued by him based on Exbt.12 and according to this certificate date of birth of victim girl was 08.04.1996. Therefore, her age on 26.11.2013 was exactly 17 years 3 months and 18 days which was below 18 years. Learned Court below arrived at a finding that the victim girl was below 18 years and therefore, ingredients of Section 361 of IPC has been satisfied and the accused is guilty of the offence alleged to have been committed by them. Learned Court below has given more emphasis on the said certificate to determine age of the victim to be below 18 years as a woman below 18 years cannot give consent which is required under Section 361 IPC to constitute an offence of kidnapping. Learned Court below has also given emphasis that the birth certificate was marked as an exhibit without objection by the defence. Since no objection was raised at the time of marking the certificate as an exhibit, defence is bound to accept it. We have carefully examined the certificate (Exbt.12) produced and we are of the opinion that the said certificate cannot be held to be a conclusive proof of age of the victim. Admittedly, Headmaster is not an authority to give a birth certificate. Her date of birth has been recorded in the school register when she got admission on the basis of birth certificate if produced by the guardian or parents. It is submitted by the prosecution that Headmaster of the school deposed before the Court and proved his own certificate issued by him showing proof of birth of the victim girl. Her date of birth has been recorded in the school register when she got admission on the basis of birth certificate if produced by the guardian or parents. It is submitted by the prosecution that Headmaster of the school deposed before the Court and proved his own certificate issued by him showing proof of birth of the victim girl. The learned Court below has failed to consider the provisions of Evidence Act with regard to proof of public document that unless the source of the documents is placed before the Court meaning thereby without production of the register where the victim's date of birth has been recorded and unless the Headmaster proves the content of the said School Register and unless the defence gets an opportunity to cross-examine the witness, Headmaster's (PW15) evidence so relied on by the Court below to come to a conclusion that the offence committed under Section 361 cannot be upheld. 8. It was also not correct to hold by the learned trial Court that whenever a document has been marked as an exhibit it is to be deemed that the contents of the document has been proved. 9. In this case father of the victim girl, the complainant who lodged the written complaint on 29.11.2013 stating that his daughter aged 17 years stayed at his father-in-law's house for study and she went for her school last on 26.11.2013 in the morning at about 09.30 am but she did not return home after school hours. Upon search being made the complainant came to learn through few people that the appellants took away his daughter prompting and alluring her marriage to some unknown place with malicious intention. The complainant being illiterate he put his thumb impression on the complaint written by Suchit Saha, the scribe (PW4). PW1 deposed in Court that his daughter was forcefully kidnapped by the accused persons against her will and accused Habib Sk/appellant raped her and both the accused persons tried to sale her in Mumbai. In his cross-examination this witness deposed that he did not produce any document showing her daughter's date of birth either in Court or before the police. This witness denied the suggestion of the defence that on 21.12.2013 his daughter was married to one Raj Sk at Howrah Maidan at a denmohor of Rs.30,000/- and that she was not of the age of 22 to 23 years. 10. This witness denied the suggestion of the defence that on 21.12.2013 his daughter was married to one Raj Sk at Howrah Maidan at a denmohor of Rs.30,000/- and that she was not of the age of 22 to 23 years. 10. Pw2 is the victim, who stated before the Court that on her way to school she met Abdul Habib Sk who requested her to sit for a while and accordingly, sat behind the school in the playground. According to PW2 after accused persons returned to the place they insisted the victim to take some food which they brought and after having the same she lost her sense. While she regained her sense she realized she was at a running train and ultimately, she was brought to Mumbai and she had been raped by Habib by force against her will. She deposed that two to three persons constantly and regularly raped her at Mumbai in a room forcibly against her will whereas Habib assaulted her badly there almost every day and forced her to consume liquor. She came in contact with a telephone booth owner through whom she would contact her maternal uncle Masitullah Sk (PW7). Thereafter, PW7 went to Mumbai and recovered her and both of them returned to Kaliganj, Basorkhola. Police arrested accused Habib from whose possession police also seized two railway tickets. Her statement under Section 164 Cr.P.C. was also recorded by the learned Magistrate at the instance of police and same was marked as Exbt.1 series. Police also brought her before the doctor for medical treatment. Her signature on the report has been marked as Exbt.2. In her crossexamination she deposed "I gave statement before the Magistrate in this case, I stated all the correct and true facts from the core of my heart. I did not suppress anything before her. Not a fact that I stated before the Magistrate that I had love affairs with the accused Abdul Habb Sk. I stated before the Magistrate that the accused Abdul Habib Sk phoned me up one day and asked me where shall I go today. I told him that I have to buy a Churidar piece. He told me to go with him to Plassey and then I went to plassey with him. We first came to Debogram by availing a bus and by availing another bus we came to Plassey. I told him that I have to buy a Churidar piece. He told me to go with him to Plassey and then I went to plassey with him. We first came to Debogram by availing a bus and by availing another bus we came to Plassey. I did not state before the Magistrate that while I was going to school at Kamari, Abdul Habib Sk met with me on the way and he asked me that 'EKTU BOSO TOMAR SATHE KOTHA AACHHE'. I did not state before the Magistrate that myself and Abdul Habib Sk sat behind the school in the playground and he told me to wait there and he will return after sometime and Rahim Sk and Abdul Habib Sk subsequently came together. I further did not state before the Magistrate that I asked Habib as to who is the other person to which he answered that the other person is his closed friend. I further did not state before the Magistrate that the accused persons gave foodstuff to me to which I refused to take and subsequently on being compelled I took food and lost my senses. I did not state before the Magistrate that I regained my senses in a running train. I did not state before the Magistrate that both the accused persons threatened me with dire consequences on the ground if I say something and shout. I did not state before the Magistrate that I shouted for help in the running train. I did not state before the magistrate that Abdul Habib Sk used to rape me regularly against my will. I regained my senses in a running train. I cannot say the name of the station whereat actually I regained my senses. It is a fact that the train compartment was manned by many co-passengers. I used to contact my family members over phone but the accused persons did not used to tell me whereat I was staying with them in Mumbai. I did not gave statement before the Magistrate that when I shouted for help in the train, then Abdul Habib Sk and Rahim Sk covered my mouth with some "NESHAR JINIS"" "...I did not state before the Magistrate that the accused persons sold me away in Mumbai. I stated all true and correct facts before the Magistrate. I did not gave statement before the Magistrate that when I shouted for help in the train, then Abdul Habib Sk and Rahim Sk covered my mouth with some "NESHAR JINIS"" "...I did not state before the Magistrate that the accused persons sold me away in Mumbai. I stated all true and correct facts before the Magistrate. I did not state before the Magistrate that I regained my senses at Mumbai where I was sold away by the accused persons. I had to stay for about 20 days in Mumbai. I used to follow my day to day pursuits including bathing etc. I came back to my paternal home with my maternal uncle Masitullah Sk and the accused person Abdul Habib Sk. I did not state before the police that myself and Abdul Habib Sk used to have food together in Mumbai. I cannot say the name of the owner of the house at Mumbai. It was a rented house. I stated before the police that on 06.12.13 we came to Mumbai Railway Station by a taxi and thereafter by availing a train we came to Howrah and from Howrah we returned to Debogram and the police recovered me at Debogram bus stand. The house owner at Mumbai was a lady. In that house, besides us, there was another family of husband-wife as a renter. I was brought before the Magistrate after three days from returning home to give statement before her. I cannot say the name of the train and the number by which we came to Howrah station. I did not take any food at all during journey from Mumbai to Howrah. Abdul Habib Sk used to prepare food for me..." "...It is a fact that I stated before the police that I used to love Abdul Habib Sk. It is a fact that myself and Salehar used to study together in the same school in the same class at Kamari. It is a fact that I have intimate friendship with her. Not a fact that on accound of such friendship with her I came in contact with her husband namely Abdul Habib Sk. I had prior acquaintance with Abdul Habib Sk, husband of Salehar. I did not hand over the school wearing apparels and bedding materials of the rented house in Mumbai to Darogababu. I have cell of Tata sim. Not a fact that on accound of such friendship with her I came in contact with her husband namely Abdul Habib Sk. I had prior acquaintance with Abdul Habib Sk, husband of Salehar. I did not hand over the school wearing apparels and bedding materials of the rented house in Mumbai to Darogababu. I have cell of Tata sim. I do not know the number of my cell phone. I was told by Abdul Habib Sk over phone to go to plassey to which I simply denied. Not a fact that when I attended the marriage ceremony at Abdul Habib Sk and Salehar, I met with Abdul Habib Sk and since then love affairs in between us started. Not a fact that because of my love affairs with Abdul Habib Sk, his wife Salehar left him. It is true fact that substance to this incident I was given marriage with one Raj Sk on 21.12.13. 11. Then again she stated on recall on 29.04.15 "I gave evidence in this case before. It is a fact that I did not state before the Magistrate that accused Abdul Habib Sk used to rape me by force against my will as also two to three persons used to rape me at Mumbai constantly and regularly in a four corner room." 12. From the detailed cross-examination it appears that she has contradicted her own statement in the chief. In cross-examination she gave a completely reverse story. In cross-examination she stated that she had a love affair with the accused Abdul Habib Sk and she denied all the allegations in the examination-in-chief. She admitted that she came back to her paternal home with her maternal uncle (PW7) and the accused person Abdul Habib Sk. Her statement was recorded by the learned Magistrate (PW14) under Section 164 of the Code of Criminal Procedure. In her 164 statement (Exbt.1 series) she has stated that she had a love relationship with the accused Abdul Habib Sk. In the 164 statement she stated that over telephone accused Habib asked her as to whether she would go with him and in reply she stated that she would go for buying a cloth and, accordingly, she went to Plassey as agreed to over the telephone call made by accused Habib. Then she said that she was given some food taking which she lost her sense. Then she said that she was given some food taking which she lost her sense. She further said that she was taken to Mumbai and accused Habib told her that she had been sold. This statement under Section 164 of Cr.P.C. is clearly in contradiction with her statement in examination-in-chief that she was kidnapped from her school premises and this statement recorded under Section 164 Cr.P.C. also does not corroborate the evidence of PW1. The 164 statement, however, corroborates her statement in cross-examination. Learned Magistrate (PW14) has also been examined in this case and PW14 deposed that "She did not state before me that whenever she used to ask Abdul Habib Sk to return back home, she was badly assaulted by him at Mumbai. She did not state before me that Abdul Habib Sk completely disallowed her to talk with her family members over phone. She did not state before me that her Mama could not find her out because the accused persons brought her to some other unknown place in Mumbai. She stated before me that she had love affairs with the accused Abdul Habib Sk." 13. Mother of victim Volani Bibi (PW3) deposed in Court and stated "We filed on case over the incident. Police interrogated me over the incident. I stated entire incident to the I.O. After my daughter finally returned back from Mumbai, she told me that the accused persons kidnapped her for illegal purpose. Habib used to beat her up regularly for illicit purpose." In her cross-examination PW3 stated "Not a fact we gave marriage of my daughter Suksari Khatun with one Raj Sk of Howrah Maidan. I do not know anyone called Raj Sk. I have not handed over any document showing the date of birth of my daughter. Not a fact that my daughter was given marriage with one Raj Sk on 21.12.13 according to Muslim Law and a denmohor of Rs.30,000/- was given. Not a fact that in the said marriage we disclosed the age of my daughter as 18 years 5 months." 14. Maternal uncle (PW7) of the victim (PW2) who brought the victim from Mumbai stated that her niece was kidnapped by accused Rahim Sk and was handed over to Abdul Habib Sk, who subsequently brought her to Mumbai and was sold there. Thereafter, he recovered the victim from Mumbai and handed over to Kaligunj police station. Maternal uncle (PW7) of the victim (PW2) who brought the victim from Mumbai stated that her niece was kidnapped by accused Rahim Sk and was handed over to Abdul Habib Sk, who subsequently brought her to Mumbai and was sold there. Thereafter, he recovered the victim from Mumbai and handed over to Kaligunj police station. Doctor (PW10) examined the victim stated " On examination I found hymen was intact and there was pinhole matter. No intercourse was done on her. No injury mark in her private parts was found." 15. According to the victim (PW2) she was physically violated regularly in Mumbai and she was examined immediately after return from Mumbai. Therefore, if any such physical violation would have occurred with the victim by the accused/appellant it could not so happen leaving any injury mark in her private parts apart from the medical report that no intercourse was done on her. 16. Therefore, on a combined analysis of the victim's statement recorded under Section 164 Cr.P.C., her evidence, particularly, in cross-examination, inspires confidence of the Court to believe that the complaint which was lodged by PW1 has not reflected the correct and true state of affairs. It might be true that the victim girl was taken by the accused and both of them went to Mumbai, stayed there for sometime, but the allegation that she had been subjected to physical violation without her consent and against her will and by force, appears to be untrue. Having regard to the fact that her statement in cross-examination corroborates the 164 statement and further corroboration is available to such statement by the victim under Section 164 and her evidence in Court by the evidence of learned Magistrate who recorded the 164 statement. After she returned to her parental home she must have narrated the entire incident to her mother PW3 but from the statement of the mother in Court it does not appear that allegation of rape what she stated before the Court gets any amount of corroboration. Even the father PW1's statement before the Court is not corroborated by the statement of the victim. Therefore, the prosecution's story that the victim was taken to Mumbai by the accused/appellant Habib Sk and there she was subjected to sexual violation regularly, does not inspire confidence of the Court. 17. Even the father PW1's statement before the Court is not corroborated by the statement of the victim. Therefore, the prosecution's story that the victim was taken to Mumbai by the accused/appellant Habib Sk and there she was subjected to sexual violation regularly, does not inspire confidence of the Court. 17. The first part may have been true but the later could not be proved by the prosecution. At least statement of PW2 before the Court in her cross-examination corroborates her 164 statement which is further corroborated by the evidence of PW14. This being so the alleged offence under Section 376 IPC has not been proved. 18. Now, question arises how far the offence of kidnapping against the accused has been established by the prosecution. In her 164 statement she stated about the place where she went after getting a call from accused Habib. The place is at Plassey and she agreed to buy a cloth piece for Churidar and she, thereafter, stated that she was taken therefrom to Mumbai. In the written complaint her father (PW1) stated that she was taken from school compound which appears to be absolutely contradictory with the statement of the victim recorded under Section 164 Cr.P.C. and this part of the substantive evidence in Court by PW1 does not inspire confidence of this Court to hold that the victim was kidnapped by the accused or allured her to take her to Mumbai. 19. So far the charge framed against accused appellant Adbul Habib Sk under Section 366 of the Indian Penal Code that he compelled the victim girl to marry her with him against her will after committing the offence of kidnapping within the meaning of Section 366 of the Indian Penal Code and thereby committing rape upon the minor victim, does not satisfy the element of charge being not supposed by evidence on record that the victim girl was abducted and/or kidnapped from the school compound of Kamari Paschim, P.S. Kaligunj, District Nadia. The place of occurrence of kidnapping itself demonstrated by PW1 in the complaint does not get any support from that of the victim's statement recorded under Section 164 of the Code of Criminal Procedure. The place of occurrence of kidnapping itself demonstrated by PW1 in the complaint does not get any support from that of the victim's statement recorded under Section 164 of the Code of Criminal Procedure. In her statement recorded under Section 164 of Code of Criminal Procedure (Exbt.1 series) she has clearly stated that she met the accused at Plassey where she was asked to come by the accused/appellant for the purpose of buying Churidar piece. Although, statement under Section 164 is not substantive piece of evidence but the same can very much be used for the purpose of contradiction and/or corroboration. Such statement under Section 164 corroborates that she met the accused/appellant of her own will and the prosecution has failed to prove that she was forcefully taken against her will from the school compound as narrated in the complaint. 20. Now question comes whether the girl even if voluntarily went with the accused/appellant that will exonerate the accused/appellant from the charge under Section 376 IPC. In her statement under Section 164 the victim girl (PW2) has stated that she had a love affair with the accused/appellant and that the learned Magistrate who recorded her statement was examined as PW14 whose evidence also supports the statement of the victim girl. The statement under Section 164 and the evidence of the learned Magistrate before whom such statement was recorded does not contradict each other. Therefore, the statement under Section 164 cannot be disbelieved. And more so, when her evidence before the Court corroborates the statement under Section 164 and if her statement under Section 164 (Exbt.1 series), her deposition before the Court and the evidence of the learned Magistrate who recorded the statement under Section 164 are considered together it comes out that the victim had voluntarily accompanied the accused/appellant. 21. Next question that arises whether such voluntary companionship of the victim girl with that of the accused/appellant nullify the charge under Section 366 or not. This charge also contains the allegation of forceful marriage and subsequent rape. PW1 the father of the victim while deposing before the Court stated that his daughter was kidnapped by the accused persons on the way to her school at Kamari Paschim, Kaliganj police station. This charge also contains the allegation of forceful marriage and subsequent rape. PW1 the father of the victim while deposing before the Court stated that his daughter was kidnapped by the accused persons on the way to her school at Kamari Paschim, Kaliganj police station. Expecting the statement before the Court in his examination-in-chief that his daughter was kidnapped for illegal purpose, no other allegation was made to the effect that she was compelled to marry the accused/appellant and that subsequently she had been sexually violated. In cross-examination this witness PW1 stated that she was kidnapped by Rahim Sk and she came back, ultimately, to the police station along with accused person meaning thereby there is no allegation of kidnapping against the present accused person. The witness further stated in the FIR that Rahim Sk kidnapped his daughter on a motorbike. In his cross-examination he stated that "...I stated in the FIR that said Rahim Sk kidnapped my daughter on a motor bike and gave her 'GHOOMER OUSHOD'. I am an illiterate person. I do not know the contents of my FIR." FIR was lodged on 29.11.12 and PW1 was examined on 17.01.2015 and her statement under Section 164 was recorded on 09.12.2013 contents of the 164 statement had duly been proved by the evidence of PW14 and it reveals that the victim girl admitted before the leaned Magistrate that she had love affair with accused/appellant. Neither the victim girl (PW2) nor her father (PW1) ever stated in Court or before the Magistrate while recording her statement under Section 164 that she had been forced by the accused/appellant to marry him. This part of the allegation in the charge that she was forced to marry so as to constitute the offence under Section 366 does not get any corroboration either from the evidence of PW3 mother of the victim girl. The mother must have been told by her daughter PW1 whatsoever had happened with her by the accused/appellant but such witness PW3 did not mention anything in Court about such forceful marriage by her daughter or that she heard it from her daughter any time before her deposition in Court on 17th January, 2015. In her examination-in-chief PW3 stated "...I stated entire incident to the I.O. After my daughter finally returned back from Mumbai, she told me that the accused persons kidnapped her for illegal purpose. In her examination-in-chief PW3 stated "...I stated entire incident to the I.O. After my daughter finally returned back from Mumbai, she told me that the accused persons kidnapped her for illegal purpose. Habib used to beat her up regularly for illicit purpose. She was being forced by them to consume liquor." No allegation whatsoever has been made that she had been married to the accused/appellant. There is no allegation based on the ingredients of Section 366 against the accused/appellant. While the said witness deposed in Court it cannot be presumed that the prosecution has successfully been able to prove the charge under Section 366 IPC or that the accused/appellant should be convicted under the said section. The only incriminating evidence against the accused/appellant is of PW6 Salehar Bibi, wife of Habib with whom Habib got married earlier. But trustworthiness of this witness is seriously doubted when she admitted that she was the one with whom the appellant got married earlier and at her instance there is a pending criminal case under Section 498A of the Indian Penal Code against accused/appellant, though, she was considered to be an independent witness. 22. All these evidence if again considered on the touchstone of PW10 doctor examining the victim, the conclusion would show an obvious fate of failure of prosecution case. 23. Pw10 is a Gynecologist and on examination of the victim he found that no intercourse was done on her. PW10 also could not find any mark of injury on the private parts of the victim. His medical report has been admitted into evidence and marked as Exbt.2/1. Considering the medical evidence although, the same is advisory in nature but when this evidence is compared to the victim's statement recorded under Section 164 of the Code and her deposition in Court, it appears that the charge which was framed alleging commission of offence under Section 376 read with Section 366 cannot survive. 24. Considering the medical evidence although, the same is advisory in nature but when this evidence is compared to the victim's statement recorded under Section 164 of the Code and her deposition in Court, it appears that the charge which was framed alleging commission of offence under Section 376 read with Section 366 cannot survive. 24. It was argued by the learned counsel appearing for the accused/appellant that the victim attained the age of majority; she was married to some other person earlier; her age was never proved; in support of her earlier marriage Kabilnama was produced before the Court; Investigating Officer never seized any document in support of her date of birth either from the parents or from the authority maintaining such record; nor was it the case of the prosecution that any ossification test of the victim was done to ascertain her age. In such circumstances question arose whether the learned trial Court rightly arrived at a conclusion that the victim girl was a minor and was subjected to sexual violation, and, if at all, without her consent. One witness has been examined namely, the Headmaster (PW15) of the school where the victim was pursuing her study. This Headmaster has been examined as PW15. PW15 issued a certificate reflecting the date of birth of the victim to be 08.04.1996 according to the Admission Registrar maintained in the school. According to this witness on the day of commission of offence, that is, 26.11.2013 the age of the victim girl would be 17 years 7 months and 18 days. Such age is on the border line. However, Exbt.12 the birth certificate issued by the Headmaster has been proved by him and he submitted that such birth certificate has been issued as per the school register. Had it been so the register should have been brought before the Court and PW15 who deposed that the certificate was issued as per the date of birth recorded in the register, having not, disclosed the source of the document simple examination of the Headmaster and marking the certificate issued by him as an exhibit does not prove the date of birth. It is not correct to hold that her date of birth is 08.04.1996 or that she was a minor on the day of occurrence of the offence. It is not correct to hold that her date of birth is 08.04.1996 or that she was a minor on the day of occurrence of the offence. On the issue of proof of age, in absence of other cogent evidence Court has no other alternative but to believe the mother of the victim. Mother (PW3) did not say anything about the age of the victim. In cross-examination PW3 stated "Not a fact that my daughter voluntarily fled away with Abdul Habib Sk on her own will and subsequently we gave her marriage immediately. Not a fact that at the material time of incident my daughter was below 21 years." Therefore, the suggestion as regards age of majority has been accepted by PW3. To demolish the story of the offence under Section 366 read with 376 of IPC this evidence of the mother is sufficient and therefore, it does not inspire confidence of this Court to hold that the accused/appellant committed the offence upon the victim. On the issue of age the trial Court, however, did not deal with the Kabilnama of the victim girl which was shown to the witness PW2 on dock and where PW2 admitted her signature over the said document and the document was marked for identification. The defence case gets more strength when we take into consideration the statement of the victim PW2 where she stated in Court "I did not state before the Magistrate that Abdul Habib Sk used to rape me regularly against my will." The learned trial Court ought to have dealt with the effect of the production of Kabilnama a document which purportedly showed that the victim was married earlier. The learned trial Court ought to have also considered the provisions under paragraph 251 of the Mulla's Mahomedan Law which describes about the capacity of marriage and the same is set out below: "S.251. Capacity for marriage.- (1) Every Mahomedan of sound mind, who has attained puberty, may enter into a contract of marriage. A mahomedan girl of 15 years who has attained the age of puberty is competent to marry without the consent of her parents. [Nagendra Prasad Singh and Muneshwari Sahay, JJ.] Md. Idris v. State of Bihar, (1980) CriLJ 764 . Marriage under the Mahomedan Law is a civil contract. Hence it should attract all the incidents of contract as any other stipulated in the Contract Act. [Nagendra Prasad Singh and Muneshwari Sahay, JJ.] Md. Idris v. State of Bihar, (1980) CriLJ 764 . Marriage under the Mahomedan Law is a civil contract. Hence it should attract all the incidents of contract as any other stipulated in the Contract Act. The provisions of section 64 of the Contract Act, will be squarely applicable to a case such as the present one where the marriage has been rescinded unilaterally. The provisions of Section 64 of the Contract Act are clear in this behalf and require only that person to return the benefits under the Contract, at whose opinion the contract is rescinded Mahmad Usaf Abasbhai Bidiwale v. Hurbanu Mansur Atar, (1978) MhLJ 26 . (2) Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians. [ss.270-275] (3) A marriage of a Mahomedan who is of sound mind and has attained puberty, is void, if it is brought about without his consent. The same rule applies in the case of a Shafei girl who has attained puberty.(b) Explanation.- Puberty is presumed, in the absence of evidence, on completion off the age of fifteen years. Hedaya, 529; Baillie, 4 Note that the provisions of the Indian Majority Act, 1875, do not apply to matters relating to marriage, dower, and divorce. A Mahomedan wife who has attained puberty and is under eighteen years of age may file a suit for divorce without the appointment of a next friend (c). With reference to a girl the Judicial Committee observed that the age of puberty in Mahomedan law is nine years (d). Their Lordships were no doubt referring to the passage in the Hedaya that "the earliest period of puberty with respect to a boy is twelve years and with respect to a girl is nine years." Consent to marriage obtained by force or fraud.-When consent to a marriage has been obtained by force or fraud, the marriage is invalid unless it is ratified (e). Where consent to the marriage has not been obtained, consummation against the will of the woman will not validate the marriage (f)." 25. There are authorities that a Mahomedan girl of 15 years who has attained the age of puberty is competent to marry without the consent of her parents. Where consent to the marriage has not been obtained, consummation against the will of the woman will not validate the marriage (f)." 25. There are authorities that a Mahomedan girl of 15 years who has attained the age of puberty is competent to marry without the consent of her parents. Marriage under Mohammedan Law is a civil contract and there is no dispute with this proposition if this marriage is proved and proved by producing the kabilnama. More so, when exception added to this paragraph gives a presumption of attaining puberty shall be presumed of completion of the age of 15 years and where the age of the girl has not only been admitted to be 17 years 7 months through school record and not below 21 years through the evidence of the mother, it is difficult for this Court to accept that the girl was forcefully taken away from the lawful guardianship of PW1 and the appellant can be held to be a convict under the provision of which charges have been framed. 26. It is too difficult to arrive at a finding that the girl was a minor while the complainant (PW1) deposed that the victim is 17 years old and mother of the victim in her cross-examination says the victim is below 21 years of age and the certificate issued by the Headmaster of the school where she was a student of Class-IX shows she was 17 years 7 months 18 days on the date of occurrence of the alleged offence and particularly that there was no ossification test report. 27. In this regard decisions cited by the learned advocate are as follows: J. Yashoda -Vs. - K. Shobha Rani, (2007) 5 SCC 730 ; M. Chandra -Vs. - M. Thangamuthu and Anr., (2010) 9 SCC 712 & H. Siddiqui (dead) by LRS. -Vs. - A. Ramalingam, (2011) 4 SCC 240 28. J. Yoshoda (supra) has been cited on the issue of consideration of a secondary evidence and its necessity. In the present case the Investigating Officer, admittedly, did not seize the birth certificate although she was a student of the school and admittedly, prosecution claimed that Headmaster issued a certificate. -Vs. - A. Ramalingam, (2011) 4 SCC 240 28. J. Yoshoda (supra) has been cited on the issue of consideration of a secondary evidence and its necessity. In the present case the Investigating Officer, admittedly, did not seize the birth certificate although she was a student of the school and admittedly, prosecution claimed that Headmaster issued a certificate. How far this certificate issued by the Headmaster of the Institution can go into evidence and prove the fact that the girl was born on a day mentioned in the certificate issued by the Headmaster claiming to have issued the same as per the record maintained by the school based on the date of birth supplied by the guardian on the day when the student got admission in the school. Admittedly, in this case no steps have been taken to produce the school register where her date of birth was recorded at the time of admission. Therefore, source of the document although, disclosed to be a register maintained by the school authority but the same has not been produced before the Court for its verification. A certificate, therefore, simply issued by the Headmaster who is not the authority to record the date of birth of a student cannot be admitted into evidence unless the school register is placed at least to verify the authenticity of entry of date of birth and what has been reflected in the certificate issued by the Headmaster. 29. On the issue of age another important aspect has been overlooked by the trial Court that the Investigating Officer (PW12) stated "She did not state before me that they sat together behind the school in a playground. She did not state before me that Abdul Habid Sk told her to sit and wait there till he returned back after sometime and thereafter Rahim Sk and Abdul Habib Sk came together and brought some food for her. She did not state before me that she asked Habib about the other person when the latter told her that the other person is his close friend. She did not state before me that she asked Habib about the other person when the latter told her that the other person is his close friend. She did not state before me that she refused them to take the food but they insisted upon her and compelled her to take the food." The Investigating Officer further stated "I did not investigate in the matter as to how the girl was brought to Mumbai from Khamari to Debogram and Debogram to Plassey and from there to Mumbai." If this evidence is taken into consideration it raises a doubt whether the conviction has been rightly given by the Court below or not. If this part of the evidence of the I.O. is compared to the evidence of the victim in her cross-examination and her statement recorded under Section 164 Cr.P.C. before the learned Magistrate together with the evidence of the learned Magistrate (PW14) in Court and further if those are compared with that of the mother and father of the victim only one conclusion will evolve that the victim is not truthful nor are her parents if the evidence becomes untrustworthiness Court is bound to give benefit to the accused of such doubt and the accused deserves acquittal. 30. M. Chandra (supra) has been cited to argue that only in exceptional cases secondary evidence would be admissible. But it is the settled law that when the original is not produced and party seeking to prove or a fact exists and an attempt has been made to produce secondary evidence in support thereof it must be authenticated by foundational evidence that the certificate issued by the Headmaster is, in fact, the correct reflection of the entry in the registrar regarding date of birth of the students maintained by the school. 31. H. Siddiqui (supra) has been cited to argue that it is impermissible to allow a party to adduce secondary evidence, this decision, however, has been followed in the decision in M. Chandra (supra). 32. On the contrary the learned Court below passed the order of conviction based on a decision in the case of Wahid Khan -Vs. - State of M.P. which has no manner of application in the present scenario. 33. 32. On the contrary the learned Court below passed the order of conviction based on a decision in the case of Wahid Khan -Vs. - State of M.P. which has no manner of application in the present scenario. 33. Reliance so placed by the learned Trial Court on the observation of the Hon'ble Apex Court that slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial, has been considered to support the conviction, although, the allegation for the commission of offence under Section 376 IPC has not been proved by the prosecution, more so, when the medical evidence completely belied the prosecution case so far the allegation of rape is concerned, the conviction so made is, therefore, liable to be set aside and the judgment and sentence are set aside. Appeal stands allowed. 34. All concerned are directed to act on a server copy of this judgment and order. 35. Criminal Section is directed to send down the records to the learned Court below together with a copy of the judgment forthwith to the concerned learned trial Court. 36. Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance with all usual formalities. 37. I agree.