N.C. Kochhar, J.
1. The appellants were prosecuted in case FIR No. 80 of Police Station, Alwar Gate, Ajmer and were convicted under Section 366, IPC, vide judgment dated 5-7-82 passed a the learned Additional Sessions Judge, Ajmer, who vide order dated 8th July, 1982, gave benefit of Probation to appellant Rajendra, but sentenced each of the three remaining appellants to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 250/- or in default of payment of fine to undergo rigorous imprisonment for a further period of three months. The prosecution story, in short, was as under :--
P. W. 6 Madhu was a minor, living with her father PW 1 Ramchandra and on the evening of 18-1-80. She came out of her house, when appellants Rajendra Girdhari and Gopal took her to a three wheeler Scooter standing nearby, in which appellant Mahendra was already sitting. Madhu was taken to the house of Gopal, from where she was taken in a car to Beawar and from Beawar, she was taken in a bus to Ahmedabad and from Ahmedabad, in a train to Sabarmati and Sureridranagar. During that period, she was compelled to marry appellant Mahendra before the Registrar of Marriages, Ahmedabad and that Mahendra committed rape on her person during that period.
2-3. PW 7 Ramchandra did not find his daughter at his house on the evening of 18-1-80 and after searching her for two days, he lodged report Ex. P/1 at the Police station on 20th January, 1980, stating that his daughter was acquainted with Mahendra and they had earlier also planned to run away from the house and stating that he doubted that Mahendra has taken away his daughter. The police registered the case, but information about the presence of Mahendra and Madhu was received by Ram Chandra, who went to Surendra Nagar and brought Madhu along with him. The prosecution alleged that Madhu was minor under the age of 18 years having been born on 26th January, 1963, which was also the date of birth recorded in the record of Saraswati Balika Vidyalaya, Ajmer. The I.O. also got the prosecutrix medically examined, Dr. Nirmala Gupta (P.W. 4) conducted the medical examination on the person of Madhu and opined that Madhu was used to sexual intercourse. Madhu was also referred to Radiologist for determination of her bonny age and vide report Ex. P/10, the Radiologist opined that Madhu was aged between 19 to 21 years. The prosecution also alleged that after taking Madhu from her house, appellant Mahendra and his co-accused Rajendra had taken her 'Tika' (an ornament) without her consent and had committed theft in respect thereof. After investigation, the police submitted the challan against the four appellants as also against one Lachho, in his house, the clothes of Madhu were changed before she was taken to Registrar's Office. After completion of investigation, the police filed the challan against the four appellants as well as Lachho. The learned trial Court did not find any case against Lachho and discharged her. Appellant Girdhari was charged with an offence punishable under Section 366 and Section 379, IPC, appellant Mahendra was charged with an offence punishable under Sections 366, 376 and 379, IPC and other two appellants were charged with an offence punishable under Section 366, IPC. After trial, the learned trial Court found that Madhu was minor under the age of 18 years, but had not been forcibly taken away by the appellants and also that no case under Section 379 or Section 376, IPC, had been made out. It was held that though Madhu was a consenting party, but she being a minor, the appellants had committed an offence punishable under Section 366, IPC. The appellants were, thus, convicted and sentenced, as noted above. Feeling aggrieved, the appellants have approached this Court by filing this appeal under Section 374 of the Code of Criminal Procedure.
4. I have heard the learned counsel for the accused appellants, the learned Public Prosecutor and have also perused the record of the case. The finding of the learned trial Court that Madhu had gone with the appellants with her free consent, has not been challenged by the learned Public Prosecutor and, in my view, rightly as the evidence fully supports the conclusion arrived at by the learned trial Court in regard to the consent of Madhu.
5. The only point raised by the learned counsel for the appellants and which requires decision of this Court is whether the prosecution has succeeded in proving that Madhu was a minor on the date of the occurrence.
6. The oral evidence in regard to the age of Madhu consists of the statements of Madhu, who has been examined as P.W. 6 and of her father Ramchandra, who has been examined as P.W. 7. The documentary evidence consists of School Certificate Ex. P/14 and report Ex.P/10 prepared by-the Radiologist before whom Madhu was produced by the prosecution and who opined that Madhhu was between 19 and 21 years on the relevant date. The other evidence in regard to the age of Madhu is Ex. D/15A, a copy of certificate issued by Saraswati Girls School (Middle, Ajmar, where Madhu studied from 1st Standard to 8th Standard and in which the date of birth of Madhu is recorded as 24-1-62.
7. The learned trial Court has rejected the medical evidence in the form of Ex. P/10 on the ground firstly, that it is an opinion evidence and also on the ground that Radiologist having not been produced. Ex. P/10 cannot be said to have been proved according to law. The learned trial Court has also observed that the date of birth recorded in Ex. D/15A cannot be taken to be a correct one as the admission form was not filled by the father of Madhu but by someone else and has observed that even according to the date of birth recorded in Ex. D/15A, Madhu was under the age of 18 years on the date of occurrence.
8. Madhu, of course, has stated that her date of birth is 26-1-63, but she stated that she had learnt this from her father. Her statement is thus, based on hearsay evidence. PW7 Ramchandra has supported the case of prosecution that Madhu was born on 26-1-63, which is the date of birth recorded in the school certificate Ex. P/14. He, however, admitted that he has other children, besides Madhu, but was unable to give the dates of birth of any of his other children. It is not disputed that before Madhu was admitted in the Saraswati Girls Higher Secondary School, Ajmer, she had been studying in the middle section of the same school from Ist standard to 8th standard. She was admitted in the middle section of the school in 1968 and her date of birth was recorded in the record of the said school as 24-1-62. There is no evidence to show as to how the date of birth of Madhu was recorded as 26-1-63 in the secondary section of the school on the basis of the admission form filled by Ramchandra and not on the basis of the school leaving certificate issued by the middle school or on the basis of the record of that section. It may also be noted that the appellants had got proved Ex. D/12 as the transfer certificate issued by M.P. Higher Secondary, Ajmer where Vasudevan, the elder brother of Madhu had been studying. According to this certificate, the date of birth of Vasudevan recorded in the abovesaid school is 2-6-62. It is not disputed that the date of birth as recorded in the middle school was not got changed. The fact is that the date of birth of the elder child of Ramchandra is recorded in the school record (Ex. D/12) as 2-6-62, whereas the date of birth of Madhu, the younger child as recorded in Ex. D/15A, is 24-1-62 and her date of birth as recorded in the Higher Secondary Section is 26-1-63. This evidence coupled with the statement of Ramchandra that he was unable to give the dates of birth of his children show that in the school record, the dates of birth of the other children of Ramchandra have been recorded at random and as such, it cannot be said that the school certificates Ex. D/14 and/or Ex. D/15A correctly show the date of birth of Madhu. The prosecution itself had produced Ex. P/10, an opinion certificate from the Radiologist and if the prosecution failed to produce the Radiologist, the benefit thereof cannot be denied to the appellants.
9. In view of my above discussion, I am of the opinion that the learned trial Court erred in coming to the conclusion that the prosecution had succeeded in proving that Madhu was a minor under the age of 18 years on the date of occurrence.
10. Consequently, I accept this appeal, set aside the conviction and sentence passed by the learned trial Court and acquit the four appellants. They are already on bail. They need not surrender to their bonds, which stand discharged.