ORDER :

1. This appeal arises out of the judgment of conviction and order of sentence dated 9.7.2002 passed by the learned 2nd Additional Sessions Judge, Ambikapur, District Surguja in S.T. No.252/99 thereby convicting accused/appellant under Section 363 of the Indian Penal Code (for short 'the IPC') and sentencing him to undergo RI for 01 year & fine of Rs.500/-, in default to undergo additional RI for 3 months (wrongly mentioned as 3 years' in memo of appeal).

2. Case of the prosecution, in brief, is that the prosecutrix lodged report on 30.7.1999 alleging therein that on 18.7.1999 at about 18:30 hrs when her parents were sleeping in house, appellant came there, asked her to go for wandering and saying so, he took her firstly to Banki dam and thereafter to jungle where they stayed in night and during that period, appellant committed sexual intercourse twice with her. Next day at about 11:00 a.m. appellant dropped the prosecutrix at her house. It is also alleged that on the pretext of marriage, appellant committed sexual intercourse with prosecutrix but after lapse of time he refused to marry her and therefore prosecutrix consumed some poisonous substance. She was admitted in the hospital. Based on aforementioned report, police registered crime bearing No.438/99 against the appellant for commission of offence punishable under Sections 363, 366, 376 of IPC.

3. After completion of investigation, police filed charge sheet before the Court of competent jurisdiction. The trial Court framed charges under Sections 363, 366, 376 (1) of IPC against the appellant. So as to hold the appellant guilty, prosecution examined 15 witness in all. Statement of accused/ appellant was recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence & false implication.

4. After conclusion of trial, the trial Court upon appreciation of oral and documentary evidence available on record, convicted and sentenced the accused/appellant vide impugned judgment in the manner as mentioned in para-1 of this judgment.

5. Learned counsel for appellant would submit that provisions of Section 363 of IPC would be attracted only when prosecution proves beyond reasonable doubt that on the date of incident, prosecutrix was below the age of 18 years. In case at hand, prosecution utterly failed to prove by adducing cogent and reliable piece of evidence that prosecutrix was below 18 years of age. To prove the age of prosecutrix, prosecution placed on record copy of admission register as Ex.P-29 in which date of birth of prosecution is mentioned as 7.11.1984' and to prove the said document examined Smt. K.L. Arthur (PW-13), who had not entered date of birth of prosecutrix in said document. The person who entered the date of birth of prosecutrix in school admission register (Ex.P-29) was not examined before the Court. Since the school admission register is not proved in accordance with law i.e. by examining the person who made entry of date of birth of prosecutrix, the same cannot be relied upon as proof of age of prosecutrix. In support of his contention learned counsel for appellant places reliance on the judgment of Hon'ble Supreme Court in case of S. Varadarajan v. State of Madras reported in AIR 1965 SC 942 and Munnlal vs. State of MP reported in ILR 1978 MP 973.

He also submits that on the advice of Smt. Pratibha Rajul (PW-6), who conducted MLC of prosecutrix, radiological test of prosecutrix was done for ascertaining her age. Dr. M.K. Jain (PW-5), Radiologist, opined that according to radiologist report (Ex.P-3), radiological age of prosecutrix is in between 17 and 19 years. Hence, from the aforementioned piece of evidence also, it cannot be said that on the date of alleged incident, the prosecutrix was below 18 years of age.

He also submits that for attracting provisions of Section 363 of IPC, prosecution is required to prove beyond reasonable doubt that accused had enticed the prosecutrix and taken her away from th