JUDGMENT : 1. This criminal appeal filed by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 30-08-2002, passed by the Additional Sessions Judge, Korba (C.G.), in Sessions Trial No.355/2001, whereby the appellant-accused has been convicted as under:- Conviction Sentence U/s 363 of the IPC R.I. for 2 years and fine of Rs.100/-, in default of payment of fine, further S.I. for 10 days. U/s 366 of the IPC R.I. for 3 years and fine of Rs.200/-, in default of payment of fine, further S.I. for 1 month. U/s 376 of the IPC R.I. for 7 years and fine of Rs.500/-, in default of payment of fine, further S.I. for 2 months. All the sentences are directed to run concurrently. 2. Briefly facts of the case is that in the night of 27-05-2001, the prosecutrix (PW-4) was at home with her mother. Her father-Mohit Ram Satnami (PW-1) had gone for his duty at N.T.P.C. The appellant herein came along with another person in the house of prosecutrix and took her with him on the point of knife. The appellant herein took the prosecutrix(PW-4) by train to the house of his friend at Village-Kapan, where he kept her for 2 days and then took her to Village-Manikpur, kept her in his sister's house and committed sexual intercourse with prosecutrix (PW-4). Later, on receiving information, Mohit Ram Satnami (PW- 1), father of prosecutrix and Babulal (PW-5), neighbor went to village Manikpur and brought the prosecutrix from possession of the appellant. Thereafter, on 01/06/2001, FIR (Ex.P-15) was lodged against the appellant at Police Station Darri, District Korba (C.G.). Medical examination of the appellant and prosecutrix have been conducted. Undergarments of appellant and prosecutrix were seized and sent for its chemical examination. Spot map was prepared. The school admission register of school of prosecutrix and report card were seized vide Ex.P-9. According to which, date of birth of the prosecutrix was recorded as 15/06/1985. On the basis of which, the prosecutrix had not attained 16 years of age on the date of incident i.e. 27/05/2001, but was 18-19 days are less than to be 16 years. According to FSL report vide Ex.P-24, semen and human sperm were found in the underwear of the appellant and no semen stains and human sperm were found in the undergarments of the prosecutrix. 3. According to FSL report vide Ex.P-24, semen and human sperm were found in the underwear of the appellant and no semen stains and human sperm were found in the undergarments of the prosecutrix. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 10 witnesses and exhibited 24 documents. In order to prove, the appellant has neither examined any witness nor exhibited any document. Statements of the appellant was recorded under Section 313 of Cr.P.C. in which he denied circumstances appearing against him in prosecution case, pleaded innocence and false implication. 4. After hearing both the parties, the trial court passed the impugned judgment of conviction and order of sentence. 5. Learned counsel for the appellant submits that the date of birth of the prosecutrix (PW-4) is not certified. To authenticate the admission register and report card of the prosecutrix, no witness has been examined from the school. The prosecutrix herself and her father have been unable to state the date of birth of prosecutrix. Ossification test to determine the age of prosecutrix has not been conducted despite it was medically advised. Prosecutrix was consenting party. For the offence under section 363, 366 of the Indian Penal Code, 1860, it was necessary to prove that age of the prosecutrix was less than 18 years at the time of the incident. For the offence under section 376 of the Indian Penal Code, it was necessary to prove that the age of the prosecutrix was less than 16 years at the time of the incident, which the prosecution has failed to do so. In support of his submission, he referred the judgment rendered by the Hon’ble Supreme Court in the matter of Manak Chand alias Mani v. State of Haryana, 2023 SCC Online SC 1397. He further submitted that though prosecution has failed to prove its case, the appellant may be acquitted of the charges leveled against him by setting aside the judgment of conviction and order of sentence. 6. On the other hand, the learned counsel for the State submits that the conclusion given by the trial court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed. 7. 6. On the other hand, the learned counsel for the State submits that the conclusion given by the trial court regarding conviction and sentence of the appellant is based on sufficient and reliable evidence, which does not require any interference. Therefore, the contention made by the counsel for the appellant is not acceptable, hence, the appeal may be dismissed. 7. Heard learned counsel for the parties and perused the record. 8. First of all, if I look to the statement of the prosecutrix (PW- 4), in which, she has clearly deposed that she had gone to village-Kapan by the train with the appellant, where she stayed in the house of friend of the appellant for 02 days. Thereafter, appellant took her by train to Village-Manikpur to his sister's house, where they stayed for 2 days and appellant committed sexual intercourse with her. Thereafter, Mohit (PW-1), father of prosecutrix and neighbor-Babulal(PW-5) came and took her to home. The prosecutrix has further deposed that the appellant used to threaten her with a knife and forcefully committed sexual intercourse with her, but her statement is not found credible and reliable. There is a contradiction in her police statement under Section 161 of Code of Criminal Procedure vide Ex.D-1 and her statement given in the Court. She deposed that she does not know the appellant, although she traveled with him in train to two villages and she never opposed the appellant anywhere. There were many passengers present in the train. She stayed in the house of appellant's friend and the appellant's sister, where other family members also lived. The prosecutrix did not make any complaint to them. She has further deposed in her statement at every stage that appellant used to threaten her by showing a knife, but her statement does not appear reliable. The prosecutrix deposed that the appellant used to press her mouth with one hand and kept a knife in other hand and committed sexual intercourse with her and this statement also does not appear natural. She herself admitted that when she lived in the house of appellant’s friend and also in the house of appellant’s sisters, she did not complain to them as well as their family members. She has also admitted that she did not state the incident to her family members. The appellant used to come and meet her every night. She herself admitted that when she lived in the house of appellant’s friend and also in the house of appellant’s sisters, she did not complain to them as well as their family members. She has also admitted that she did not state the incident to her family members. The appellant used to come and meet her every night. She used to hang out with everyone during the day, but did not make any complaint against the appellant to her family members. In the above situation, it is concluded that the prosecutrix was a consenting party and statement made by her that the appellant was threatening her with a knife is not believable. Hence, it is proved that the prosecutrix was consenting party. 9. If the prosecutrix is a consenting party then the offence will be made only if she is under 16 or 18 years of age? 10. The burden of proving age of the prosecutrix less than 16 or 18 years at the time of incident, is upon on the prosecution. In this regard, R.S. Tiwari (PW-10), Sub- Inspector has seized the school's admission register vide Ex.P-21 and report card of the prosecutrix vide Ex.P-9, according to which, date of birth of prosecutrix is 15/06/1985. After calculation, the age of prosecutrix on the date of incident i.e. 27/05/2001 appears to be around 15 years 11 months 12 days i.e. only 18 days were left to complete 16 years. 11. The appellant's argument is that the person, who attested the said report card and school admission register has not been examined to authenticate the same, and hence, the said document has not proved & no evidentiary value. 12. The Supreme Court in the matter of Manak Chand alias Mani vs. State of Haryana, 2023 SCC Online SC 1397 has reiterated the law laid down by it in the matter of Birad Mal Singhvi vs. Anand Purohit, 1988 (Supl.) SCC 604 and observed that the date of birth in the register of the school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence the same cannot be relied upon. It was further reiterated that if the date of birth is disclosed by the parents, it would have some evidentiary value but in absence the same cannot be relied upon. For sake of brevity para No. 14 & 15 of the judgment are reproduced hereunder :- “14. This Court in Birad Mal Singhvi v. Anand Purohit (1988) Supp SCC 604 had observed that the date of birth in the register of a school would not have any evidentiary value without the testimony of the person making the entry or the person who gave the date of birth. “14. …The date of birth mentioned in the scholar’s register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar’s register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar’s register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value.” 15. In our opinion, the proof submitted by the prosecution with regard to the age of the prosecutrix in the form of the school register was not sufficient to arrive at a finding that the prosecutrix was less than sixteen years of age, especially when there were contradictory evidences before the Trial Court as to the age of the prosecutrix. It was neither safe nor fair to convict the accused, particularly when the age of the prosecutrix was such a crucial factor in the case 13. Reverting to the facts of the present case in the light of the above referred judgment, it is noteworthy that in the instant case, no teacher or head master of the concerned school has been examined to authenticate the admission register who state that on what basis the date of birth mentioned in it. It is also noteworthy that the prosecutrix herself (PW-4) has been unable to state her date of birth. It is also noteworthy that the prosecutrix herself (PW-4) has been unable to state her date of birth. Mohit Ram Satnami (PW-1), father of prosecutrix has also been unable to tell the date or year of birth of her daughter/prosecutrix. The actual ossification test to determine the age of prosecutrix has not been conducted even after medical advise. In this situation, report card of the prosecutrix and attested copy of the admission register cannot be considered as legally certified evidence. 14. In the light of above judgment, it has no evidentiary value. Thus, the evidence presented by the prosecution in this case is not valid, reliable and clear evidence to establish the fact that on the date of incident, age of the prosecutrix was less than 16 or 18 years. Consequently, case of prosecution is not proved against the appellant beyond reasonable doubt. 15. Accordingly, the impugned judgment dated 30/08/2002 passed by the trial Court convicting and sentencing the appellant for the offence under Section 363, 366, 376 of IPC, is hereby set aside and the appellant is acquitted of the charges leveled against him. Appellant is stated to be in jail since 13/06/2022. He be released from jail forthwith, if his detention is not required in connection with any other offence. 16. This criminal appeal, accordingly, stands allowed. 17. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned and the copy of this judgment be supplied to the concerned Superintendent of Jail where he is lodged and suffering jail sentence, forthwith for information and necessary action, if any.