IMPORTANT POINT
An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Evidence Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.

ORDER

Radhe Shyam Sharma, J.— This revision is directed against judgment dated 24.11.2006 passed by Additional Session Judge, Korba in Session Trial No. 48/2005. By the impugned judgment, accused/respondent No. 1 Gajendra Singh has been acquitted of the charges under Sections 363, 366 and 376(1) of the Indian Penal Code.

2. Case of the prosecution, in brief, is as under:

On 21.4.2005, at about 1.00 pm, the prosecutrix (PW14) had gone to attend the call of nature in the field of Kharmora situated in Village Barkonha. Respondent No. 1 came there, forcibly caught her and asked her to come with him. On refusal, respondent No. 1 threatened to assault her with a knife. On shouting and crying by prosecutrix (PW14), respondent No.1 did not leave her and saying that he will marry her, took her to Village Kaparmar. On the way, Tijram (PW7), Dhan Singh (PW3) and Tijkunwar (PW1) witnessed respondent No.1 taking prosecutrix (PW14). Respondent No.1 threatened them that if they will inform anyone, he will kill them. Respondent No.1 took prosecutrix (PW14) in the forest situated between Kaparmar and Jobi and committed rape against her. Thereafter, he took her to the house of his relative at Village Jobi. At about 10.00 p.m, on being scolded by Chatur Singh (PW5) and Santram, respondent No.1 took prosecutrix (PW14) to his house at Village Barkonha. On the next day, at about 4 O’clock, mother, uncle and father of prosecutrix (PW14) came to the house of respondent No.1 and took the prosecutrix (PW14). Prosecutrix (PW14) narrated them the incident. She lodged First Information Report (Ex. P7) at Police Station Kartala on 4.5.2005 at about 11 O’clock. She was sent to Primary Health Centre, Tilkeja, Distt. Korba for medical examination vide Ex. P9. Dr. Anju Rautray (PW16) examined prosecutrix (PW14) and gave her report (Ex. P20) in which she found that the vagina of prosecutrix (PW14) admitted one finger with pain and difficulty and her hymen was intact. She further found that partial penetration could be possible in the vagina but final opinion could be given after laboratory examination. Two vaginal slides were prepared by her for examination. She referred the prosecutrix (PW14) to Department of Radiology for determination of her age.

In further investigation, Primary School Certificate of prosecutrix (PW14) was seized vide Ex.P2 and Dakhil Kharij Panji (Ex. P6) was seized vide Ex. P7. Respondent No.1 was also sent to Community Health Centre, Kartala for medical examination vide Ex. P13. Dr. D.R. Raj (PW9) examined him and gave his report (Ex. P4).

After completion of the investigation, charge sheet was filed against respondent No.1 in the Court of Judicial Magistrate First Class, Korba, who, in turn, committed the case to the Court of Session Judge, Korba, from where it was received on transfer by Additional Session Judge, Korba, who conducted the trial and acquitted respondent No.1 of the charges framed against him.

3. Shri Sanjeev Banjare, learned counsel for the applicant/prosecutrix (PW14) argued that on the date of incident, age of prosecutrix (PW14) was below 16 years. He further argued that the finding given by the trial Court is perverse. Respondent No.1 abducted prosecutrix (PW14 ) forcibly. The judgment of acquittal recorded by the trial Court is not sustainable. Therefore, the revision may be allowed and respondent No.1 may be convicted.

4. Shri A. N. Bhakta, learned counsel for respondent No.1, supporting the impugned judgment, submitted that the judgment of acquittal passed by the learned Additional Session Judge does not warrant any interference by this court.

5. Shri Rajendra Tripathi, learned Panel Lawyer for the State respondent No.2 supported the arguments advanced by learned counsel for the applicant.

6. We have heard learned counsel for the parties at length and have perused the record of Session Trial No. 48/2005.

7. Now, we shall examine whether on the date of incident, age of prosecutrix (PW14) was below 16 years or not?

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