The importance of proving the victim's age and the necessity of evidence of date of birth as recorded initially in cases involving criminal offences under the Indian Penal Code.

B.P. Dharmadhikari, J.

By this appeal under section 378 of Criminal Procedure Code, 1973 the respondent State questions judgment dated 23.12.2012 delivered in Sessions Case No. 408/2001 by the 7th Adhoc Sessions Judge, Nagpur acquitting respondent for offence punishable under Sections 363, 366 and 376 of Indian Penal Code.

2. We have heard Shri M.J. Khan, learned A.P.P. for the appellant - State. Shri A.M. Gedam, learned Counsel appointed for the respondent is not available.

3. Learned A.P.P. submits that because of alleged failure of prosecution to prove age of victim, the trial Court has dismissed the Sessions Case and acquitted the respondent/accused. He contends that accused, a major person has lured the victim, a minor, and committed these offences. As school certificate has been produced on record and 10.05.1986 is proved as date of birth, on the date of commission of offence i.e. 31.03.2001, the victim was minor and hence, there was no question of her consent. She was hardly 15 years old at that time, therefore, offence under Section 376 of Indian Penal Code has been established. Consequently, conviction for offence under Sections 366 and 363 is also warranted. He has taken us through relevant records for this purpose.

4. We have perused papers with the assistance of learned A.P.P. Charge has been framed vide Exh.2. Date of incident is 30.03.2001 from 12 O'clock to 31.03.2001 till 11 O'clock. In charge, age of victim is shown to be 15 years.

5. In the course of judgment the Trial Court has in paragraph no.4 framed points for determination. First point is Whether victim was under 16 years of age or under 18 years of age ? This has been answered in negative. Point No.2 is about lawful custody of victim with her mother and that also has been answered in negative. Vide point no.3, taking away or enticing the victim out of that custody by accused, is also answered in negative. Vide point nos. 4 and 5 taking away or enticing without consent of mother or intention or knowledge of illicit intercourse are also answered in negative. While answering point no.6, the trial Court has found that the prosecution could not establish sexual intercourse with Anita. It appears that while answering all these questions, the trial Court has also looked into the evidence regarding date of birth of victim. In paragraph no.18, the Trial Court has found that seizure of clothes on person of victim has not been established. Neither the Panch, nor the investigating officer deposed anything about it and hence, seizure of those clothes was itself found to be doubtful. In this situation, though report of Chemical Analyzer shows stains of blood and semen on clothes, the Trial Court has not relied upon it. It appears from the statement of victim and Dr. Minal Holkar, that in night time the respondent had sexual intercourse with victim and her hymen got ruptured and had fresh lacerations. All these findings by the trial Court are eclipsed by its finding that the prosecution could not establish her age to be 16 years. Discussion in paragraph no.15 of the judgment reveals that the trial Court found that the victim with consent went with the accused out of her free will.

6. The prosecution has relied upon the evidence of P.W.3 Keshaorao Chaple, who happens to be headmaster of a Secondary School where the victim was studying. Her name was removed from school records on 31.03.2000. This person issued school leaving certificate. He proved that school leaving certificate at Exh.31 and deposed that as per school records, date of birth of victim was 10.05.1986. Before Court, he also produced original admission register i.e. Dakhal Kharij Register of the school and proved entries regarding admission of victim at Exh.32. His cross examination shows that his school was not taking entry of date of birth on the say of guardian. He was not in the school in 1996 when victim took admission. He denied that entry of date of birth in school records was not on the strengt