[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVN.APPLN.NO.303 OF 1998 Niranjan Sakharam Kedar ] Age 28 years, R/o village ] Kurund, Tal.Bhiwandi, Dist. ] Thane. ]..Applicant Vs. State of Maharashtra ] at the instance of Inspector] of Police, Padga Police St. ] Dist.Thane. ]..Respondents ... Mr.K.S.Patil advocate for applicant Ms.A.A.Mane A.P.P. for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : DECEMBER 2, 2008 DATE : DECEMBER 2, 2008 DATE : DECEMBER 2, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard the learned advocate for the applicant and the learned A.P.P. for the State. 2. By judgment and order dated 23.9.1997, the learned IVth Assistant Sessions Judge, Thane convicted the applicant-original accused under Section 376 of IPC in Sessions Case No. 158 of 1996. Appeal preferred by the applicant came to be dismissed, hence, this revision. [-2-] 3. As far as the incident of rape is concerned, the prosecutrix has not stated anywhere that the sexual intercourse took place on account of force or fraud. In fact, the prosecutrix has stated that there was love affair between her and the accused. Accused and his parents and other relatives came to the house of the prosecutrix with proposal for marriage of the accused with prosecutrix, however, mother of the prosecutrix did not consent to the marriage. Thereafter, mother of the prosecutrix started abusing her. Being fed up of the abuses, the prosecutrix decided to leave her house. When the accused came to know about the same, he took the prosecutrix to his house. Both of them resided in the house of accused as husband and wife. During that period, they had sexual intercourse with each other. Thereafter, mother of the prosecutrix took the prosecutrix to her house. Thereafter, FIR came to be lodged by the prosecutrix at Padgha Police Station. 4. As stated earlier, the sexual intercourse was by consent, however, the prosecution case is that prosecutrix was below 16 years of age at the time of incident and hence, case of rape was made out [-3-] under Section 376 of IPC. Reliance is placed on the date of birth of the prosecutrix noted in the School Register which shows that date of birth was 3.5.1983. The incident is said to have taken place in the month of October, 1995, in view of the date of birth reflected in the school register, the learned APP contended that the prosecutrix was below 16 years of age at the time of incident, hence, case of rape is made out. 5. On perusal of the evidence, it is seen that neither the prosecutrix nor her mother knew the date of birth of the prosecutrix. As far as date of birth in the school register is concerned, there is no material to show as to who disclosed the date of birth of the prosecutrix while admitting her in school, nor is there is any material to show that date of birth stated in the register is correct. 6. The learned APP has relied upon the evidence of three teachers, P.W.5 Sulbha, P.W.6 Girish and P.W.7 Keshav to show that the date of birth of the prosecutrix as per school record is 3.5.1983. Their evidence is material only on the point that the date of birth was entered in the school record [-4-] as per oral information given while admitting the prosecutrix to the school. There is no evidence to show who gave the information. Nor is there any material to show that the date of birth was verified from any reliable document such as an extract from birth register or certificate issued by a Medical Practitioner in whose hospital the prosecutrix was born. Thus, it is seen that there is no reliable material to show the exact date of birth of the prosecutrix. The mother of the prosecutrix is an illiterate woman. In her evidence, she has not disclosed date of birth of the prosecutrix. The prosecutrix has stated that she does not know her date of birth. A radiological examination of the prosecutrix shows the age of the prosecutrix to be about 14 years. In view of the margin of error on both sides, it cannot be categorically said that the prosecutrix was below 16 years of age at the time of the incident. Thus, it is seen that there is no reliable material to show that the prosecutrix was below 16 years of age at the time of incident. As stated earlier, there is no material to show that sexual intercourse has taken place by force or on account of fraud or any inducement. All these [-5-] facts have not been properly considered by both the Courts below. 7. In view of the above, the judgment and order of conviction and sentence dated 23.9.1997 under Section 376 of IPC in Sessions Case No.158 of 1996 passed by the learned IVth Assistant Sessions Judge, Thane which is set aside. So also the judgment and order passed by the learned IInd Additional Sessions Judge Thane in Appeal No.41 of 1997 is set aside. The accused is acquitted thereunder. His bail bonds shall stand cancelled. 8. Rule is made absolute accordingly. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]