JUDGMENT
S.L. Kochar, J.
1. This criminal appeal, has been preferred by the appellant under Section 374 of the Code of Criminal Procedure, against the judgment dated 31-12-2002, rendered by ASJ Sonkatch in ST. No. 196 of 2001, thereby finding the appellant guilty for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code, and sentencing him to undergo RI for 7 years with fine of Rs. 1,000/-, in default of payment of fine further RI for one year for offence under Section 376, IPC; to undergo RI for 5 years with fine of Rs. 1,000/-, in default of payment of fine further RI for 6 months for offence under Section 366, IPC and to suffer RI for 3 years with fine of Rs. 1,000/-, in default of payment of fine, to undergo further RI for a period of 6 months for the offence under Section 363, IPC. All sentences were ordered to run concurrently.
2. The prosecution case, stated in brief, is that one day prior to the incident, the appellant asked prosecutrix that he would come on the next day night to take her with him and if she would not go with him, the appellant would not allow her family members to live peacefully. Thereafter, on 5-6-2001, in the midnight at about 12.00, the appellant came to her house and took her to Dewas, Ashta, Indore and kept her as his wife. During this period, she was ravished against her consent and will. The report of “GUMSHUDGI” was lodged at Police Station vide Ex. P-1 by Chetan Puri (P.W. 3) cousin of the prosecutrix. On this report, police was searching the appellant and the prosecutrix. They were caught by the police and offence was registered vide Exh. P-4, FIR. After usual investigation, charge-sheet was filed.
3. Appellant abjured his guilty. According to him, prosecutrix Mamta was a major woman and accompanied him at her own accord. Learned Trial Court, after holding trial, pronounced judgment of conviction as above, which has given rise to this appeal.
4. Having heard learned Counsel for appellant and after perusing entire record of the case, this Court is of the opinion that crucial point for determination in this case is the age of the prosecutrix. According to ossification test report (Exh. D-4) proved by Mamta (P.W. 1), she was more than 18 years of age but according to the school certificate (Exh. P-5) proved by Nanooram Verma (P.W. 9) date of birth of the prosecutrix is 8-7-1985 and in view of this certificate she was below 16 years of age. Learned Trial Court, relying on this certificate has given finding in Paragraph 18 of its judgment that she was below 16 years of age. Therefore, though she was a consenting and went along with the appellant at her own, but the same will not help the appellant for getting rid of the offence.
5. In the view of this Court, School Certificate, has not been proved in accordance with law. Prosecutrix Mamta (P.W. 1) has not stated any thing about her age or even her education in school which could be the best witness for the aforesaid fact.
6. Jamnabai (P.W. 2) maternal grand-mother of the prosecutrix, Chetanpuri (P.W. 3) cousin brother of prosecutrix, Munnibai (P.W. 4), Ramesh Giri uncle and Jagdeesh Giri (P.W. 6)have also not stated about the age of prosecutrix and about admission and study in any school. Nanooram Verma (P.W. 9), Head Master of Primary School, Piplya Khurd, has proved Ex. P-5 but he has not brought original admission register in Court on the basis of which the certificate was given. He was also not able to furnish evidence before the Court as to who got admitted Mamta in the school and on what basis, the aforesaid date of birth was mentioned at the time of admission. On the contrary, he had made positive statement in Paragraph 2 that normally, in village on the basis of general appearance and physique of the student, the age is being written in the school-register. This statement of the witness is not sufficient to prove the age of the prosecutrix.
7. Division Bench of this Court in the case of Munnalal v. State of M.P., (1977 JLJ 731) has held that the best evidence for proving age of the prosecutrix is her mother, father and birth certificate. When these witnesses have not been examined and birth certificate has not been filed, entries in the school-register alone could not be relied upon especially when the prosecution has failed to lead evidence as to who has made entries in the school-register. The present case stands on worst footing that the case of Munnalal (supra). In the case on hand, the school register has not been produced in Court and as stated above, no evidence, has been led by the prosecution as to on what basis and at whose instance the date of birth was written in the school register and the original school register has also not been produced in Court. In cross-examination of Head Master (P.W. 9), has given a great jolt to the prosecution about the age of the prosecutrix that so many times, at the time of admission, they are recording the date of birth and age of the student on the basis of physique and general assessment of the student.
8. In the case of Umesh Chandra v. State of Rajasthan (AIR 1982 SC 1057), and in the case of Raunki Saroop v. State (AIR 1970 Punjab & Haryana 450) (Para 15), it has been held that entries in the school register are not of much value unless there is evidence to show that on what material and at whose instance, it is based. The prosecution has failed to adduce this evidence in the present case. As such finding of the Trial Court that the prosecutrix was below 16 years of age, is not based on sound and proper appreciation of evidence and law.
9. In the wake of the aforesaid analysis, since the prosecutrix was a consenting party and the prosecution has failed to prove that she was below 16 years of age, no case is made out against appellant. Therefore, he deserves to be acquitted.
10. Consequently, this appeal is hereby allowed, and the sentence of the appellant is set aside. The appellant is in jail, he be released forthwith, if not required in any other case.