Crl.A. 9/2009 BEFORE THE HON BLE MR. JUSTICE BD AGARWAL JUDGEMENT AND ORDER (ORAL) This appeal is directed against the judgment and order dated 6.11.2008 p assed by the learned Additional District Judge (FTC), Darrang in Sessions Case No. 23(DMFT)/2004. By the impugned judgment, the learned Sessions Judge has conv icted the appellant under Section 366(A) and 376 of the IPC. After such convicti on, the appellant has been sentenced to undergo RI for 5(five) years and to pay fine of Rs. 2,000/- for his conviction under Section 366 (A) and sentenced to u ndergo RI for 7(seven) years and to pay fine of Rs. 3,000/- under Section 376 I PC 2. Being aggrieved with the conviction and sentence, the accused person has preferred this criminal appeal. 3. Heard Mr. R. Goswami, learned counsel for the appellant and Mr. BB Gogoi , learned Addl. PP, Assam. I have also perused the impugned judgment, oral and d ocumentary evidence of the witnesses tendered by the prosecution as well as defe nce witness. 4. The prosecution case in a nutshell is that the accused had kidnapped the informant’s minor daughter and subjected to her illicit sexual intercourse. The incident took place on 6.1.2004 and the FIR was lodged on 8.1.2004. 5. On the very next day of lodging of the FIR, the victim girl was recovere d while she was found travelling with the accused in an Autorickshaw. Thereafter her statement was recorded by the I.O. and also the girl was sent for medical e xamination. Her statement under Section 164 Cr.P.C. was obtained and after compl etion of the investigation, charge-sheet was submitted. After submission of the charge-sheet, the appellant was tried for the offences under Sections 366 (A) an d 376 of the IPC and after trial, the accused has been convicted for both the of fences. 6. During the course of hearing, the prosecution examined altogether 10 wit nesses, including the Medical Officer, I.O. and independent witnesses. 7. The defence case was that the victim girl was an adult one and she had v oluntarily eloped with the appellant. In support of this alibi, the accused exam ined the Gaon Bura of the village as DW 1. 8. First of all, it has to be examined whether the victim was a minor or ad ult one. In the FIR it was stated that the victim girl was 14 years old and duri ng oral evidence the father of the victim girl stated that his daughter was just under 15 years. However, the mother of the girl (PW 4) remained silent about th e age of her daughter in chief examination but in the cross-examination, the mot her admitted that at the relevant time her daughter was 19/20 years old. The vic tim girl was examined as PW 8. In the chief examination she also re-iterated tha t she read up to Class VIII and she was 16 years old. However, the testimonies o f the victim girl and her father about the minor age of the victim was not suppo rted by the village Gaon Bura who was also examined by the prosecution as PW 7. In the cross-examination, the village headman has deposed that the present age o f the victim girl will be about 20/21 years and at the relevant time, she was 19 years old. It may be mentioned herein that the incident took place in the month of January,2004 and the deposition of PW 7 was recorded on 30.3.2005. 9. In this way not only the village headman but the mother of the girl has also disputed about the prosecution version that the victim girl was below 18 ye ars of age. 10. As could be gathered from the record and the impugned judgment, the pros ecution made an attempt to establish the age of the victim girl with the help of a school certificate, marked as Exbt.III. The certificate was issued on 10.1.20 04, i.e., after lodging of the FIR. In the said certificate it has been mentione d that the victim girl left the school in the year 1996 after passing Class IV a nd as per the school record she was 9 years 9 months as on 1.1.1997. As per this report also, the victim girl was 16 years 9 months at the time of incident and not below 16 years as stated by the victim girl and her father. 11. In the case of Jabar Singh -vs- Dinesh and Another; reported in (2010) 3 SCC 757, the Hon’be Supreme Court has held that entries made in the school rec ords are not public documents and as such the age of any such person cannot be d etermined on the basis of such documents. The relevant observations of the Supre me Court are reproduced below: We are of the considered opinion that the High Court was not all right i n reversing the findings of the trial court in exercise of its revisional jurisd iction. The entry of date of birth of Respondent 1 in the admission form, the sc hool records and transfer certificates did not satisfy the conditions laid down in Section 35 of the Evidence Act inasmuch as the entry was not in any public or official register and was not made either by a public servant in the discharge of his official duty or by any person in performance of a duty specially enjoine d by the law of the country and therefore, the entry was not relevant under Sect ion 35 of the Evidence Act for the purpose of determining the age of Respondent 1 at the time of commission of the alleged offence. 12. In the case of Kamal Kishore -Vs- State of H.P. ; reported in (2000) 4 S CC 502, the Hon’ble Supreme Court has held that the evidence of mother with rega rd to the age of her daughter should be preferred to general opinion of the Doct or. In the aforesaid case, the Doctor had opined that the victim girl was 10 ye ars old whereas the mother of the victim girl had deposed that her daughter was 12/13 years old. Since the medical opinion was not based on ossification test, t he Apex Court held that the assessment of the age by the Doctor is based on frag ile premises. 13. In the case before me though the victim girl was produced before the Doc tor, her examination was confined to ascertain about the evidence of sexual inte rcourse. In another words, the medical report is totally silent about the age of the girl and the Doctor (PW 9) also did not give any opinion about the age of t he girl, since no ossification test was conducted. However, the learned trial ju dge, solely on the basis of the school certificate, although it was not proved b y examining any person from the school, has held that the victim girl was below 18 years. In my considered opinion, school certificate was not sufficient to gi ve final determination of the age. On the other hand, it can be held that the vi ctim girl was above 18 years of age on the basis of the deposition of her mother and on the basis of the village headman. 14. With regard to the offence of kidnapping, it is apparent that both the f amilies were living adjacently and not only they were known to each other both t he accused and the victim girl used to visit each others house frequently. This statement has been given by the village headman who was examined as PW 7 as well as DW 1. Not only that DW 1 has deposed that on the next morning of the inciden t, the father of the accused came to his house and reported that the victim girl had came to his house and not willing to return her father’s house. Thereafter, PW 7 and few more persons assembled and went to the house of the accused and t alked to the victim girl. Thereafter, they also went to the informant’s house bu t they were not available, except the grand mother of the girl and she was repor ted about staying of the victim girl in the house of the accused. Even then, no immediate step was taken to recover the victim girl or to lodge an FIR. I have a lready mentioned earlier that the alleged incident of kidnapping took place on 6 .1.2004 and the victim girl was in the house of the accused at least till evenin g of 7.1.2004 and the FIR was lodged on 8.1.2004 and before that the accused and the victim girl had left the village. 15. There is no evidence that any person had seen the appellant taking away the victim girl by force. The parents of the victim girl and the accused have al so deposed that at the relevant time they were not at home and when they returne d home they found their daughter missing. PW 4 has deposed that when she went to the house of the accused, she did not find her daughter. However, the village headman has deposed that at least for 24 hours the victim girl was in the house of the accused and the victim’s grand mother was also informed about this fact. The evidence of other witnesses are hearsay one inasmuch as they have deposed th at they had heard about the missing of the victim girl along with the accused. 16. It is true that the victim girl (PW 8) has made an allegation that she was forcibly taken away by the accused. However, her sole testimony in this rega rd cannot be believed in view of the fact that she stayed in the house of the fa ther of the accused and declined to return to her parents house, as per the evid ence of PW 7/DW 1. Besides this, from the evidence of PW 1 it appears to me tha t she travelled with the accused to another village and lived with the family of the accused for one or two days. Not only that the victim also travelled with t he accused in an autorickshaw to come to Guwahati and they were detained by the police, while returning from Guwahati in an autorickshaw. There is nothing on re cord that the victim made any attempt to escape from the custody of the accused or that she shouted for help during her travel. 17. The above apart, after examination of the victim girl in the year 2005, the prosecution filed a petition in the trial court for re-examination of the vi ctim girl to exhibit one document. However, despite issuance of repeated process es, including warrant of arrest, the victim girl did not turn up to give her add itional evidence. 18. During the course of argument, Mr. Goswami, learned counsel appearing f or the appellant read out the document from the record. I find that this is a le tter written by the victim girl to the village elders stating that she loved the accused and if she was separated from the accused, she will commit suicide. Bes ides this, a photocopy of the marriage agreement is also available in the record . All these documents show that the victim girl was a consenting party to live w ith the accused. Hence, allegation of the victim girl that she was forcibly kidn apped by the accused cannot sustain. On the same ground her allegation of repeat ed sexual intercourse against her will also cannot sustain. 19. In the result, the impugned judgment is hereby set aside and the appeal is allowed. 20. The appellant is hereby acquitted. Since the appellant is in prison, the Registry is directed to issue release order forthwith.