The prosecution must prove the age of the victim, and the admissibility and reliability of documents to establish the age of the victim are crucial in determining the guilt of the accused.

1. Exception is taken to judgment and order dated 17.01.2006 in Sessions Trial 126/2005 delivered by the 11th Adhoc Additional Sessions Judge, Nagpur, by and under which, the appellant (hereinafter referred to as “the accused”) is convicted for offence punishable under section 363 of Indian Penal Code (IPC) and is sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs.500/, and, is further convicted for offence punishable under section 366 of IPC and is sentenced to suffer rigorous imprisonment for five years and to payment of fine of Rs.1000/. The accused is however, acquitted of offence punishable under section 376 of IPC.

2. Heard Shri R.M. Daga, the learned counsel for the appellant-accused and Ms. R.V. Kaliya, the learned Additional Public Prosecutor for the respondent/State.

3. The learned counsel for the accused Shri R.M. Daga submits that the judgment and order impugned is manifestly erroneous since the prosecution has failed to prove that the victim was a minor. The learned counsel would submit that even if the entire evidence is taken at face value, the prosecution has failed to establish offence under section 363 or 366 of IPC. In view of the failure of the prosecution to prove that the victim was a minor, charge under section 363 of IPC must necessarily fail, is the submission. The further submission is that since the evidence overwhelmingly suggests that the victim voluntarily and of her own accord joined the company of the accused, it is axiomatic that the prosecution has not proved offence punishable under section 366 of IPC.

4. Per contra, Ms. Kaliya, the learned A.P.P. supports the judgment and order impugned and submits that the learned Sessions Judge has recorded findings which are unexceptionable on facts in law.

5. The First Information Report is lodged by P.W.1 Prabhakar Rao on 23.08.2004, on the basis of which offence came to be registered against the accused under section 363 and 366 of IPC.

6. The gist of the report is that P.W.1 Prabhakar Rao is the father of the victim then aged 14 to 15 years and studying in 9th standard in Kendriya Vidyalaya, Nagpur. P.W.1 is serving as Inspector (Ministerial) in C.R.P.F. and is attached to the office of the Deputy Inspector General of Police, C.R.P.F. since 16.08.2002. The accused Ashokkumar Tiwari is the son of a colleague one Ramlakshtra Tiwari. Ashokkumar was conducting tuition classes from a rented premise near C.R.P.F. GateII and the victim was one of the students. Ashokumar used to visit the house of the informant. The victim went missing from the house at 12'o clock on 15.08.2004. The informant searched for the victim in the campus and then having come to know that Ashokkumar Tiwari was also not traceable since the day victim went missing, the informant suspected that the victim was kidnapped by Ashokkumar.

7. During the course of investigation PSI Mahadeo Chavan visited the spot, prepared the spot panchnama in presence of the witnesses, recorded the statements of witnesses, arrested the accused and referred him for medical examination. The blood sample of the victim was collected and seized and she was also referred for medical examination and radiological test, the school leaving certificate of the victim was collected and seized and after completion of the investigation charge-sheet was submitted before the Judicial Magistrate First Class, Court 9, Nagpur who committed the proceedings to the Sessions Court.

8. The learned Sessions Judge framed charge vide Exh.5 under sections 363, 366 and 376 of the Indian Penal Code, the accused pleaded not guilty and claimed to be tried. The defence is of total denial, as is obvious from the statement recorded under section 313 of the Criminal Procedure Code and the trend of cross-examination.

9. The learned counsel for the accused Shri Daga is that if the evidence is tested on the anvil of the law declared by the Apex Court in three judgments (i) Alamelu and another Vs. State represen