JUDGMENT : PRAVEER BHATNAGAR 1. These matters arises out of a common judgment and are being decided by this common order. 2. These matters pertain to an incident that occurred in the year 2004, and the present criminal appeal and revision petition are pending since the year 2005. 3. The instant appeal filed by the appellant- Kamal Tanwar, under Section 374 of the Code of Criminal Procedure, 1973, has been preferred against the judgment dated 09.11.2005 (in short, "impugned judgment") passed by the learned Special Judge, SC/ST (Prevention of Atrocities) Cases, Jaipur (hereinafter “Trial Court”) in Sessions Case No. 51/2005, whereby the learned Trial Court convicted and sentenced the accused–appellant under Section 363 Indian Penal Code, 1860 (in short, " IPC ") for three years’ simple imprisonment along with a fine of Rs.5,000/–, and in default of payment of fine, to further undergo six months’ simple imprisonment. 4. Whereas, the instant revision petition has been preferred by the petitioner- Ram Kishan under Section 397 read with Section 401 of Cr.P.C, against the impugned judgment, whereby the accused has been acquitted for the offence under Section 376 and 366 of IPC , praying for enhancement of sentence to the accused appellant- Kamal Tanwar. 5. Briefly stated, that on 19.03.2004, complainant Ramkishan submitted a written report at Police Station Jhotwara, Jaipur, stating that his daughter Manisha, aged about 16 years and studying in Class 12 th , had gone to appear for her examination at Government Higher Secondary School, Girls, Jhotwara, but did not return home. Upon inquiry, it was revealed that she had been abducted by the appellant-Kamal Tanwar along with his associates namely; Kulveer, Tony, Prakash, and Pappu. Based on the said report, FIR No. 51/2004 was came to be registered under Sections 363 , 366, and 376 IPC . The prosecutrix was recovered on 25.04.2004 from Naya Village, Madhya Pradesh and after investigation, a charge sheet was filed. The Trial Court framed charges under , 366, and 376 and after trial acquitted the appellant under Sections 366 and 376 of , while convicting him under Section 363 of . 6. Being aggrieved by the impugned judgment dated 09.11.2005, the accused appellant has filed the present appeal before this Court. 7. Learned Senior counsel for the appellant submitted that the sentence so awarded to the appellant was suspended by this Court vide order dated 21.11.2005. 8. 6. Being aggrieved by the impugned judgment dated 09.11.2005, the accused appellant has filed the present appeal before this Court. 7. Learned Senior counsel for the appellant submitted that the sentence so awarded to the appellant was suspended by this Court vide order dated 21.11.2005. 8. The learned counsel for the appellant contended that the conviction of the appellant under Section 363 of the IPC is unsustainable as the prosecutrix was a major at the time of the alleged incident. It was stated that her date of birth is 10.02.1995 and not 10.02.1998, as recorded in the prosecution documents. The counsel referred to the medical opinion of PW-1, Dr. Premlata Gupta, who assessed the age of the prosecutrix to be around 19– 20 years and the following document; Exhibit D–39, Application for Motorcycle Licence and Exhibit D–45, Application for Electoral Roll, indicates the date of birth as 10.02.1995. The counsel also relied/referred to the testimonies of DW–1 Bhagwan Shahay, Priest of Arya Samaj, DW–2 Shyam Sundar Verma, Transport Department Officer, and DW–3 Sitaram, Election Department Officer, to corroborate the same. It was urged that the learned Trial Court has failed to appreciate the testimony of these material defence witnesses and the documentary evidence produced at the stage of trial. Alternatively, the learned counsel for the accused- appellant has submitted that the appellant has already remained in custody for a period of 1 year, 6 months and 27 days and without making any interference on merits/conviction, the sentences awarded to the present appellant may be substituted with the period of sentence already undergone by him. 9. Per contra, learned counsel for the respondent and learned Public Prosecutor has supported the conviction and the impugned judgment passed by the learned Trial Court. It is submitted that the learned trial Court has rightly concluded the prosecutrix to be a minor as her date of birth is 10.02.1998, as reflected in Exhibit P–19, Admission Certificate and Exhibit P–21, School Transfer Certificate, which was duly corroborated by the statement of witness PW–11, Ms. Anjana Goyal, Principal of the School. It is submitted that the learned trial Court has rightly concluded the prosecutrix to be a minor as her date of birth is 10.02.1998, as reflected in Exhibit P–19, Admission Certificate and Exhibit P–21, School Transfer Certificate, which was duly corroborated by the statement of witness PW–11, Ms. Anjana Goyal, Principal of the School. It was further submitted that the documents adduced by the defence were fabricated in order to lend legitimacy to the alleged marriage solemnised on 16.01.2004, as the said documents were prepared only 10-15 days prior to the date of marriage and only secondary evidence was adduced by the defence, instead of primary documents, in order to prove the genuineness of the documents. Therefore, the learned Trial Court has rightly relied on the school records and other contemporaneous documents produced by the prosecution to come to the conclusion that the date of birth of the victim is 10.02.1998. 10. Insofar as the revision petition is concerned, it is vehemently argued that the learned Trial Court has acquitted the accused– appellant of the offences under Sections 376 and 366 of the IPC ; however, the material on record indicates that the prosecutrix was below 18 years of age at the time of her marriage with the accused-appellant. It is contended that the learned Trial Court erred in concluding that the incident between the respondent/appellant and the prosecutrix occurred with the consent of both parties. 11. Heard and Perused the material available on record. 12. The moot question which falls for consideration of this Court is whether the victim was a minor on the date of the alleged incident in order to make out the offence under Section 363 of the IPC . The prosecution has produced the contemporaneous school certificate and other official records to establish the age of the victim to be 10.02.1998 and not 10.02.1995. The law on admissibility of relevant entries made in the official record to establish the age of the victim was succinctly explained by the Apex Court, in the case of Birka Shiva Vs. State of Telangana , 2025 INSC 863 , wherein the Court observed as under:- “8.1. The law on admissibility of relevant entries made in the official record to establish the age of the victim was succinctly explained by the Apex Court, in the case of Birka Shiva Vs. State of Telangana , 2025 INSC 863 , wherein the Court observed as under:- “8.1. This Court, in Birad Mal Singhvi v. Anand Purohit, (2003) 8 SCC 745 , held that the entries contained in the school register are relevant and admissible but have no probative value unless the person who made the entry or provided the date of birth is examined. It was observed: “ 14. …If an entry regarding the date of birth in the scholar's register is made on the information given by parents or someone having special knowledge of the fact, the same would have probative value… The date of birth mentioned in the scholars' 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 the scholar's register must be shown to have been made based on 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 based on information given by parents, the entry would have evidentiary value. Still, if it is provided 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. Section 35 of the Indian Evidence Act lays down that an entry in any public, official book, register, or record stating a fact in issue or a relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. 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 the date of birth made in the school register is relevant and admissible under Section 35 of the Act. Still, the entry regarding the age of a person in a school register is not of much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded…" 8.2. A coordinate Bench of this Court in State of Chhattisgarh v. Lekhram, (2006) 5 SCC 736 , through S.B. Sinha, J., clarified that though entries in school registers are admissible under Section 35 of the Evidence Act, their evidentiary value improves only when corroborated by oral testimony of persons who are aware of its content, such as parents or the person who made the entry at the time of admission. It is held as under: “12. A register maintained in a school is admissible in evidence to prove the date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of birth are recorded in the school register by the authorities in discharge of their public duty. PW 5, who was an Assistant Teacher in the said school in the year 1977, categorically stated that the mother of the prosecutrix disclosed her date of birth. The father of the prosecutrix also deposed to the said effect. 13. …The materials on record as regards the age of the prosecutrix were, therefore, required to be considered in the backdrop above. It may be true that an entry in the school register is not conclusive, but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence as the same was recorded based on the statement of the mother of the prosecutrix ." (Emphasis Supplied) 13. The prosecution during the trial produced the relevant school documents to prove the age of the prosecutrix. The trial Court examined the statements of prosecution witnesses, including PW-3 Ramkishan, father of the prosecutrix, PW-7 Omkaur, mother of the prosecutrix, and PW-11, School Principal, who, in clear terms, confirmed the date of birth of the prosecutrix to be 10.02.1998. The Trial Court also noted that the documents presented by the defence were prepared around the time of the marriage and lacked probative value as no primary document was produced by the defence. The Trial Court also noted that the documents presented by the defence were prepared around the time of the marriage and lacked probative value as no primary document was produced by the defence. Therefore, the learned Trial Court rightly concluded that the prosecution was able to establish the date of birth of the victim to be 10.02.1998 and not 10.02.1995. 14. Therefore, considering the above facts, as well as the aforecited law and the material produced before the Court, this Court does not find any illegality or perversity in the impugned judgment passed by the learned Trial Court convicting the accused–appellant under Section 363 of the IPC . 15. In so far as argument advanced in revision petition is concerned, the learned Trial Court has elaborately dealt with the entire evidence on record and at page 13 of the impugned judgment, the Trial Court disbelieved the testimony of PW-4 victim on the count that the version of the prosecutrix that she was forcibly taken from Chandani Chowk to Jaipur is not believable. Furthermore, the Court held that the prosecutrix went with the accused- Kamal Tanwar on a motor cycle, however, her deposition that she consumed intoxication substance mixed with the cold drink is also not reliable. The Court also observed that in her cross-examination, the victim had admitted that the place from which she was kidnapped was a public way and many persons were present; therefore, the victim’s version that she was in fear and could not raise an alarm is also not believable. The trial court also took note of the cross-examination, wherein the victim stated that she was sitting on the backseat of the motorcycle, and between them there were many houses and shops; however, she did not scream or raise any alarm, as something was mixed into her cold drink. The trial court also observed that the victim stayed with the accused for almost one month and four days and had admitted to being conscious. She has also admitted that she visited other places and rode the bus with the accused several times. However, she did not raise any alarm in her cross- examination. She has also shown her unawareness of the house in the vicinity where she was residing with the accused. This also raises doubt on the testimony of the witness. She has also admitted that she visited other places and rode the bus with the accused several times. However, she did not raise any alarm in her cross- examination. She has also shown her unawareness of the house in the vicinity where she was residing with the accused. This also raises doubt on the testimony of the witness. The witness also admitted during her cross-examination that the accused regularly brought her food, tea, and other items. The version of the prosecutrix that she was locked out by the accused from outside is not believable, as the Police did not record any statement from witnesses who resided near the place where the prosecutrix stayed with the accused. The trial court has elaborately dealth with the cross-examination and while appreciating the statement of the victim/prosecutrix has rightly concluded that whatever happened between the victim and the accused was with their consent. In the cross-examination, she admitted that Exhibits D-4 to D-35 were her photographs and she was wearing a mangalsutra; however, she stated that she was in fear. She has also stated that she did not disclose the fact that she had been forced to marry to Panditji/priest, who solemnised the marriage on account of fear. She has also admitted that Exhibit D-36 was in her writing, and the greeting card Exhibit D-37 was also in her writing. However, she has stated that she wrote Exhibits D-36 & D-37 under duress. She has also admitted that she did not sustain any injury. She has admitted that in the statement recorded under Section 164 Cr.P.C., Exhibit P-5, before the Magistrate, she stated that she was in affinity with the accused. Thus, the cross-examination above explicitly shows that the witness is not reliable and she has levelled charges of rape against the accused only to save herself and tried to deny the fact that she had a love affair with the accused. The trial court has also referred to the judgments of the various High Courts, laying down the principles that if the age of the prosecutrix is above 16 years and there are circumstances indicating that the prosecutrix entered into a sexual relationship, then it shall be deemed that the establishment of the sexual relationship was with consent. The trial court has also referred to the judgments of the various High Courts, laying down the principles that if the age of the prosecutrix is above 16 years and there are circumstances indicating that the prosecutrix entered into a sexual relationship, then it shall be deemed that the establishment of the sexual relationship was with consent. It is apparent from the record that at the time of the commission of the offence, the age of the victim was above 16 years and the prosecutrix did not denied the statement recorded by the Magistrate under Cr.P.C., therefore, from the above analysis, I do not find any perversity in the impugned judgment passed by the learned trial court, concluding that no offence is made out against the accused under Sections 376 & 366 of IPC . 16. Upshot to the above discussion, the present appeal is partly allowed and while maintaining the conviction of the appellant for the offence under Section 363 of IPC , the sentence awarded to him is reduced to the period already served by him, and the imposition of fine by the trial court is maintained. 17. The appellant shall deposit the amount of fine imposed upon him within a period of one month in the trial Court from today. The appellant is on bail. He need not surrender. His bail bonds stand discharged accordingly. 18. The revision petition preferred by the petitioner- Ram Kishan, is devoid of any merit and is also hereby dismissed. 19. A copy of this judgment should be sent to the trial Court for its due compliance. 20. All pending applications, if any, also stand disposed of. The record of the learned court below is to be sent back forthwith.