JUDGMENT : SANJAY KUMAR JAISWAL, J. 1. This criminal appeal has been preferred by the appellant under Section 374(2) of Cr.P.C. against the impugned judgment dated 29.07.2000 passed by learned Additional Sessions Judge, Khairagarh, District Rajnandgaon in Sessions Trial No. 70/2000 whereby he has been convicted and sentenced as under: Conviction Sentence U/s 363 of IPC R.I. for 5 years with fine of Rs. 1000/- in default of payment of fine, further R.I. for 5 months U/s 366 of IPC R.I. for 7 years with fine of Rs. 1000/- in default of payment of fine, further R.I. for 6 months Both the sentences shall run concurrently. 2. The case of the prosecution, in brief, is that the prosecutrix (PW-1) who was aged about 16 years at the time of the incident i.e. 29.03.2000 and is the daughter of Ramsukh (PW-6) and niece of Ramsahay (PW-2), she went outside of the house without telling anyone in the house. Appellant Manohar Sahu, a resident of the same village Kodka, also was not present at his house on the same day, then the uncle of the prosecutrix, Ramsahay (PW-2) on 29.03.2000 gave information to the police. On 30.03.2000, her father produced the prosecutrix before the police and told that the appellant had seduced her daughter and taken her with him for wrong work, on which recovery panchnama vide Ex.P/6 was prepared and on the same day i.e. 30.03.2000, FIR vide Ex.P/4 was lodged against the appellant and after completing the due investigation, the final report was presented. 3. In order to bring home the offence, prosecution examined as many as 8 witnesses and brought on record 6 documents. Statement of the appellant under Section 313 of Cr.P.C. was recorded wherein he denied guilt, however, he examined none in his defence and did not bring any document in his support either. 4. Ms. Ishwari Ghritlahre, learned counsel for the appellant, would submit that the prosecution has failed to prove that the age of the prosecutrix was less than 18 years at the time of the incident. The documents produced by the prosecution and the basis for entry of the date of birth of the prosecutrix in the school's Dakhil-Kharij register are not clear. The father of the prosecutrix has failed to state exact date of birth of the prosecutrix. The documents produced by the prosecution and the basis for entry of the date of birth of the prosecutrix in the school's Dakhil-Kharij register are not clear. The father of the prosecutrix has failed to state exact date of birth of the prosecutrix. Thus, the prosecution has not been able to prove that the prosecutrix was below 18 years of age on the date of the alleged incident. The trial court has considered the prosecutrix as a consenting party. Thus, the case against the appellant has not been proved beyond reasonable doubt and, therefore, the appellant is entitled for acquittal on the basis of principles of benefit of doubt and the impugned judgment is liable to be set aside. 5. Per contra, Mr. Ravi Maheshwari, learned State counsel, would submit that prosecution has been able to bring home the offence beyond reasonable doubt, therefore, the trial Court has rightly convicted the appellant for the aforesaid offence and the instant appeal is liable to be dismissed. 6. I have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 7. On the basis of the statement of the prosecutrix (PW-1), friend of the prosecutrix, Sunita Sahu (PW-5), uncle of the prosecutrix, Ramsahay (PW-2) and father of the prosecutrix, Ramsukh (PW-6), the trial court has found that the prosecutrix had left the house on her own will and she was not seduced by the appellant in any way and the prosecutrix has been considered to be a consenting party and this finding has not been challenged by the prosecution. There is no fact on record to the contrary, hence the conclusion of the trial court is justified that the prosecutrix was not seduced by the appellant and she was a consenting party. 8. Now the main question to be considered is whether the age of the prosecutrix was less than 18 years on the date of incident i.e. 28.03.2000? 9. To determine the age of the prosecutrix, ossification test has not been conducted. The prosecutrix herself has not given any date of birth in her court statement but has only stated that in the year 1999, she was studying in class 8th in Government Middle School, Padmavatipur and the uncle of the prosecutrix, Ramsahay (PW-2) has also not made any clear statement regarding the date of birth of the prosecutrix. The prosecutrix herself has not given any date of birth in her court statement but has only stated that in the year 1999, she was studying in class 8th in Government Middle School, Padmavatipur and the uncle of the prosecutrix, Ramsahay (PW-2) has also not made any clear statement regarding the date of birth of the prosecutrix. Even the father of the prosecutrix, Ramsukh (PW-6) has not disclosed the date of birth of the prosecutrix but has indirectly said that his daughter was 16-17 years old at the time of the incident. 10. Ramji Singh Chauhan (PW-3), headmaster of Govt. Middle School, Padmavatipur, has produced the Dakhil-kharij register of the school vide Ex.P/2 in which the date of birth of the prosecutrix was written as 02.05.1983, based on which, the age of the prosecutrix on the date of incident i.e. 28.03.2000 becomes approximately 16 years, 10 months and 26 days, i.e. she was aged about 17 years at the time of the incident. 11. So far as the credibility and evidentiary value of entries made in Dakhil-Kharij register are concerned, it have to be considered. 12. Hon’ble the Apex Court in the matter of Alamelu and Another vs. State Rep. by Inspector of Police, (2021) 2 SCC 385 has held that “the transfer certificate which is issued by a government school and is duly signed by Headmaster would be admissible in evidence u/s 35 of the Evidence Act, 1872. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the prosecutrix in the absence of the material on the basis of which the age was recorded. The Supreme Court 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.” 13. The Supreme Court 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.” 13. Further, Hon’ble the Apex Court in the matter of Birad Mal Singhvi vs. Anand Purohit, AIR 1988 SC 1796 has held that “to render a document admissible under Section 35, three conditions must be satisfied, firstly, 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 date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to 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 the material on which the age was recorded.” 14. Considering the facts of the present case in light of the aforesaid principles of law laid down by the Hon’ble Supreme Court, then the Dakhil-Kharij register Ex.P/2 produced by headmaster Ramji Singh Chauhan (PW-3) is not of a primary school but of a middle school. The entry made therein is not the entry made by Ramji Singh Chauhan (PW-3) himself. Ramji Singh Chauhan has also admitted that when a person comes from outside and is admitted to their school, then admission is given on the basis of T.C. (transfer certificate) and her birth certificate is not taken separately but the date of birth mentioned in the T.C. is taken only. Thus, it has not been proved that the date of birth of the prosecutrix recorded in the Dakhil-Kharij register Ex.P/2 is based on any primary document related to birth. It is also not clear who got the admission to the school. The alleged T.C. is also not produced. The Father of the prosecutrix Ramsukh (PW-6) has also failed to tell the date of birth of the prosecutrix. It is also not clear who got the admission to the school. The alleged T.C. is also not produced. The Father of the prosecutrix Ramsukh (PW-6) has also failed to tell the date of birth of the prosecutrix. On the basis of aforesaid grounds, in light of the aforesaid principles of law laid down by the Hon’ble Supreme Court, the entry in the Dakhil-Kharij register Ex.P/2 cannot be considered reliable beyond doubt. Thus, the prosecution has failed to prove its case beyond reasonable doubt that the prosecutrix was below 18 years of age on the date of the incident. Since she is a consenting party, in this situation the offence under sections 363 and 366 of the Indian Penal Code is not made out, hence the decision in question of the trial court is not found sustainable. 15. Accordingly, the instant appeal is allowed and judgment dated 29.07.2000 passed by the trial Court is set aside. The appellant is acquitted of the charges punishable under Sections 363 and 366 of the Indian Penal Code. 16. It is reported that the appellant is on bail, the bail bonds of the appellant shall remain in force for six months as per the provisions of Section 437-A of Cr.P.C. 17. Let a certified copy of this judgment along with the original record be transmitted to the trial Court concerned forthwith for necessary information and action, if any.