IMPORTANT POINT
Proof of age – Such person who is supporting date of birth recorded in school leaving certificate has to disclose source of date of birth.

JUDGMENT (CAV)

A.S. Supehia, J.—In the present appeal presented under Section 378 of the Code of Criminal Procedure Code, 1973 (for short, “the Cr.P.C.”), the State has assailed the judgment and order dated 12.07.1996 passed by the learned Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur in Sessions Case No.18 of 1995 (below Exh.10), wherein and whereby, at the end of the trial, the accused – opponents have been acquitted for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (for short, “the IPC”), since the prosecution has failed to prove its case beyond reasonable doubt.

Brief Facts:

2. The case of the prosecution stems out of the complaint dated 08.04.1994 given by the father of the victim alleging that the opponents accused had taken away his daughter.

3. It is the case of the complainant, as per his complaint, that he is residing in Khudad village and is serving in the State Transport Corporation as a driver and on the date of incident i.e. on 31.03.1994, he was on his duty and driving an S.T.Bus from Viramgam to Bhatariya. Since his duty was at the night hours, he halted one night at Asthana Village and on the next morning at about 1:30 hours, he reached at his home i.e. Khudad village, at that time, he came to know about such incident of the accused having taken away his daughter on 31.03.1994 and when he inquired from his wife – Valiben about the missing of his daughter, she told him that the accused have enticed her and since he was unable to find her daughter, he has registered a complaint on 08.04.1994.

4. It appears from the deposition of the Investigating Officer (PW-8), who is examined below Exh.39, wherein he has stated that on 27.04.1994, the accused No.1 was caught with the victim in the field of Neelgiri at Virochannagar, however he fled away from the field. On the very same day i.e. on 27.04.1994, the victim was taken for medical examination. It is the case of the prosecution that the victim was enticed away by the accused and was forcibly confined and the accused No.1 had repeatedly committed rape on the victim for the intervening days till they were caught from the Neelgiri field at Virochannagar.

5. The Trial Court, after examining the documentary as well as ocular evidences framed total six questions of law and answered them in negative on the basis of the evidences led before it acquitting the accused for the offences, for which, they were charged by recording benefit of doubt.

Submissions on behalf of the State:

6. Learned Additional Public Prosecutor Ms.Calla, has submitted that the Trial Court has acquitted the accused merely for the reason that the age of the prosecutrix was not established by the prosecution. She has submitted that in fact, the Trial Court has fell in error in not appreciating the deposition of the PW-5, who was the Headmaster (Principal) of the school, wherein the victim has studied. She has submitted that the PW-5 has produced the school register, in which, the date of the birth of the prosecutrix was mentioned as 01.01.1982 and her sister as 01.01.1983 and accordingly, the school leaving certificate was issued on 04.04.1994 clarifying that the date of birth of the victim was 01.01.1982 and she would be minor on the date of the offence, when the offence was committed.

7. Learned Additional Public Prosecutor has further referred to the evidence of the PW-1 (Babaram Ambaram) and has submitted that his evidence also reveals that the age of the prosecutrix was below 16 years. Learned APP has further placed reliance on the deposition of the mother of the victim –Valiben (PW-3), who is examined at Exh.24 and has submitted that the mother has specifically stated that on the date of the incident, the prosecutrix was 12 years of age.

8. While referring to the evidence of the victim (PW-4) at Exh.25, she has submitted that her deposition reveals that she was forcibly taken by the accused and she was subjected to sexual intercourse forci