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 23-04-2001, passed by the Special Judge of Special Court Raipur (C.G.) under Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, in Sessions Trial No.297/2000, whereby the appellant-accused has been convicted and sentenced as under:- Conviction Sentence U/s 363 of the IPC R.I. for 3 years and fine of Rs.500/-, in default of payment of fine, further R.I. for 1 month. U/s 366 of the IPC R.I. for 4 years and fine of Rs.500/-, in default of payment of fine, further R.I. for 1 month. U/s 376 of the IPC R.I. for 7 years and fine of Rs.1000/-, in default of payment of fine, further R.I. for 2 months. All the sentences are directed to run concurrently. 2. The prosecution case in brief is that both the parties are residents of same village-Devgaon. In the intervening night of 23rd and 24th of June, 2000, the appellant went to the house of the prosecutrix (PW-5) who was below 16 years of age and took the prosecutrix to Bangolibhata and from there in a taxi to Raipur and then by bus to Patan. From there, he took her in his aunt-Fenkan Bai's house at village Karanja, Bhilai and committed sexual intercourse with the prosecutrix against her will. Due to non-presence of her minor daughter at home, her father (PW-3) lodged a report at police station and also for the reason that the appellant was also not in the village. Therefore, a named FIR (Ex.P-7) was registered against the appellant at police station Kharora bearing Crime No.110/2000 on 24/06/2000. On 26/06/2000, father (PW-3) and uncle brought the prosecutrix from village Karanja and produced before the police station, and medical examination of the prosecutrix was conducted. The underwear and slides were sent for FSL to chemical examination. FSL report received negative. In the medical examination of the prosecutrix, no definite opinion was given regarding sexual intercourse. The doctor advised to do X-ray to check the age of the prosecutrix but ossification test was not conducted. The school admission register of school of prosecutrix (Ex.P-2) and transfer certificate (Ex.P-3) were seized, according to which, date of birth of prosecutrix was recorded as 20/05/1983. After investigation, charge sheet was filed. 3. The doctor advised to do X-ray to check the age of the prosecutrix but ossification test was not conducted. The school admission register of school of prosecutrix (Ex.P-2) and transfer certificate (Ex.P-3) were seized, according to which, date of birth of prosecutrix was recorded as 20/05/1983. After investigation, charge sheet was filed. 3. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 09 witnesses and exhibited 19 documents. 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. The appellant has neither examined any witness nor exhibited any document. 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 prosecutrix (PW-5) has not been proved as conclusive evidence. The prosecution has failed to prove that the prosecutrix was under 16 or 18 years of age at the time of incident. The fact that the prosecutrix was forcibly raped has not been confirmed even by medical evidence. The case is also not supported by the FSL report. The prosecutrix was a consenting party. The case against the appellant has not been proved. There is lack of definitive evidence against the appellant. The impugned judgment of conviction and sentence passed by the trial court is not based on conclusive and reliable evidence. Therefore, 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, 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. The incident took place in the year 2000. On the basis of argument raised by counsel for the appellant, it would be appropriate to first look to the statement of the prosecutrix. 9. The prosecutrix (PW-5) herself has been unable to tell her date of birth. 7. Heard learned counsel for the parties and perused the record. 8. The incident took place in the year 2000. On the basis of argument raised by counsel for the appellant, it would be appropriate to first look to the statement of the prosecutrix. 9. The prosecutrix (PW-5) herself has been unable to tell her date of birth. While confirming the prosecution case, she deposed that when she had gone for toilet, outside from her house at night, the appellant along with his two brothers forcibly caught hold of her and took her to the ground of Bangoli village on a bicycle from where both the brothers of the appellant returned. Thereafter, the appellant had committed sexual intercourse with her and when she tried to shout, he threatened her by showing a knife. Thereafter, in the morning he took her in a jeep to another village and from there, he took her to village Ganiyari. Also, he sold her anklets and then took her to his aunt's house in village Karanja, Bhilai and kept her for a day and night where he committed sexual intercourse with her. Thereafter, his father (PW-3) and uncle came searching for her and took her back. 10. Dr. Thakar (PW-7) while giving his report vide Ex.P-12 after conducting medical examination of the prosecutrix on 30/06/2000, has stated that there were no marks of struggle or injury on her body and stated that the hymen was torn. 11. If the statement of the prosecutrix is examined on the basis of the above medical and FSL report, then she has admitted in her evidence that when the appellant took her in the jeep, there were other passengers also. Similarly, when the appellant had gone to buy ticket of bus, she had never complaint against the appellant to any passenger. In such a situation, even though the appellant himself had taken her to his aunt's house in Village Karanja, there is no evidence that the prosecutrix had made any complaint to the aunt of the appellant. At this stage, the argument raised by the counsel for the appellant that the prosecutrix was a consenting party cannot be denied. 12. In such a situation, even though the appellant himself had taken her to his aunt's house in Village Karanja, there is no evidence that the prosecutrix had made any complaint to the aunt of the appellant. At this stage, the argument raised by the counsel for the appellant that the prosecutrix was a consenting party cannot be denied. 12. An important fact of the consent of the prosecutrix is also that at the time of the court statement, when her statement recorded under section 161 of the Code of Criminal Procedure was obtained from Exhibit D-1, then she refused to state many things in her police statement. There are many contradictions & omission between her court statement and police statement as Exhibit D-1. According to the police statement, the appellant used to come her house to watch T.V. but the prosecutrix says that there is no T.V. in her house. According to the police statement, the appellant committed sexual intercourse with her by coming to her house sometimes in the afternoon and sometimes at night and during the time when she alone, but this fact has been denied by the prosecutrix in the court statement. According to police statement Ex.D-1, the appellant had called her at night at the time of the incident and took her with him. There was no any forcible act was done with her and at the time of incident, the appellant was not accompanied by his brothers. The statement is different from the court statement of the prosecutrix. It is crystal clear from the police statement vide Ex.D-1 of the prosecutrix that the prosecutrix was a consenting party. In the court statement, the prosecutrix has denied her previous relationship with the appellant and has also stated that when the appellant took her in jeep and by bus, she did not make any complaint against the appellant to any other passengers even when the appellant tried to harass her. Even though, the prosecutrix was kept at his aunt's house in village Karanja, there, the aunt of the appellant did not make any complain to his family. In all these situations it is clearly reflected that the prosecutrix was a consenting party. 13. Even though, the prosecutrix was kept at his aunt's house in village Karanja, there, the aunt of the appellant did not make any complain to his family. In all these situations it is clearly reflected that the prosecutrix was a consenting party. 13. If the prosecutrix is a consenting party then the offence under Section 376 of the IPC will be made only if she is under 16 and under Sections 363 & 366 of the IPC will be made only if she is under 18 years of age. 14. The burden of proving age of the prosecutrix less than 16 or 18 years at the time of the incident, is upon the prosecution. After medical advised, the prosecution has not conducted ossification test of the prosecutrix to verify her age. In this case, the statement of Head Master-Damodar Prasad Sharma (PW-1) is important on the evidence presented regarding the age of prosecutrix. He was posted as the Head Master in primary school Amli Talab. He has stated in his evidence that the prosecutrix was admitted in the school in class IV. He has also stated that the prosecutrix was admitted in class-I in primary school Devgaon. On the basis of transfer certificate Ex.P-3, the prosecutrix was admitted in class IV in primary school Amli talab. The admission register of the school is Ex.P-2 and marksheet is Ex.P-5. According to these documents, the date of birth of the prosecutrix was 20/05/1983, if calculated from that date, then the age of the prosecutrix at the time of incident i.e. 24/06/2000 was 17 years 01 month 03 days. According to the documents presented by the prosecution itself, it is clear that at the time of the incident, the age of prosecutrix was more than 16 years and less than 18 years but close to 18 years. In such a situation, if the ossification test was not conducted, the case of the prosecution comes under doubt. 15. According to the documents presented by the prosecution itself, it is clear that at the time of the incident, the age of prosecutrix was more than 16 years and less than 18 years but close to 18 years. In such a situation, if the ossification test was not conducted, the case of the prosecution comes under doubt. 15. 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. 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. 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. 16. The Supreme Court in the matter of Alamelu and another Vs. State represented by Inspector of Police (2011) 2 SCC 385 has held that - “the date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined.” 17. Reverting to the facts of the present case in the light of the above referred judgment, It is noteworthy that the case in hand the prosecutrix herself (PW-5) and her father (PW-3) have been unable to tell the date or year of birth of the prosecutrix in their court statement. The prosecutrix is the youngest child amongst the total 4 children of her father (PW-3). He has also been unable to tell the exact age of his four children. It is also clear that the prosecutrix was admitted in class 4th in Amli Talab Para School, where Damodar Prasad Sharma (PW-1) was posted as a Head Master and the date of birth of the prosecutrix was recorded on the basis of transfer certificate vide Ex.P-3 of Devgaon School. No admission register of primary school Devgaon has been placed before the Court. There has been no evidence of clear and definite nature regarding when, by whom and on what basis the date of birth was recorded as 20/05/1983. 18. In the light of above judgment, it has no evidentiary value. No admission register of primary school Devgaon has been placed before the Court. There has been no evidence of clear and definite nature regarding when, by whom and on what basis the date of birth was recorded as 20/05/1983. 18. In the light of above judgment, it has no evidentiary value. Thus, the evidence presented by the prosecution in this case is not 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. Prosecutrix is a consenting party. Consequently, case of prosecution is not proved against the appellant beyond reasonable doubt. 19. Accordingly, the impugned judgment dated 23/04/2001 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 10/12/2022. He be released from jail forthwith, if his detention is not required in connection with any other offence. 20. This criminal appeal, accordingly, stands allowed. 21. 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.