1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Criminal Appeal No.590 of 2004 State of Maharashtra, through Police Station Officer, Police Station,Deoli, Tq. Deoli, Distt. Wardha. .... Appellant. Versus Sandesh Sewakdas Waghmare, aged about 20 years, resident of Borgaon (Aloda), Police Station Allipur, Distt. Wardha. .... Respondents. Original Accused. ***** Mr. M. J. Khan, Addl. Public Prosecutor for the appellant-State Mr. R. P. Khare, Mr. G.G. Modak and R.S. Subhedar, Advs., for the respondent [absent]. ***** CORAM : A.H. JOSHI AND U.V. BAKRE,JJ. Date : 13th July, 2011. ORAL JUDGMENT [Per A.H. Joshi, J.]: 1. The accused was tried for commission of offences punishable under Sections 363, 366 and 376 of Indian Penal Code. 2 2. Since trial has led to acquittal, State has come before this Court by filing this Appeal against Acquittal. 3. Heard learned APP Mr. M.J. Khan for the appellant- State. None for the respondent. Perused the record. 4. The crux of the matter turns out to be the age of the prosecutrix. 5. In so far as the date of birth of prosecutrix is concerned, prosecution has relied upon it to be 16th June, 1991 as date of birth. If this date is proved, the prosecutrix was of thirteen years of age on the date of incident. 6. In order to prove fact of age, prosecution has relied upon the School Leaving Certificate [Exh.29] of Yeshwant High School, Waigaon [Nipani], Tq. & Distt. Wardha, pertaining to prosecutrix. 7. We have perused the said Certificate. 8. It is seen that the prosecutrix was admitted in the said school on 25th June, 2001, and had left the school on 21st October, 2003. 9. It is seen from record that prosecution has not brought before the Court original Accession Register of 3 the school, where, for the first time in her life, the prosecutrix was admitted in the school. 10. In so far as other possible best evidence relating to prosecutrix's age is concerned, that could have been either Date and Birth Register and/or ossification test. Ossification test, if done, is not proved, and nothing in this regard has been brought on record. 11. In this situation, the primary burden of the prosecution to prove that prosecutrix was minor and below the age of consent is not discharged. 12. That the age being a crucial jurisdictional point, and as the prosecution has failed to prove that the prosecutrix was below the age of consent, we see no grounds for granting an indulgence. The accused cannot be convicted barely on suspicion. 13. In the circumstances, appeal has no merit, and is dismissed. JUDGE JUDGE -0-0-0-0- |hedau| 4