JUDGMENT

H.C. Goel, J. These are three appeals by three co-accused of the same case. I shall dispose them of by this single judgment. The prosecution case stated in brief is that Brij Mohan and Hari Ram, two of the three appellants, are the neighbors of Saroj Bala, prosecutrix. In the evening of October 3, 1984 the prosecutrix Saroj Bala had gone to the shop of one Prithvi near her home in Subzi Mandi for shopping. Brij Mohan appellant met her there at about 7.30 P.M. and told her that her brother Sunil had met with an accident and that she 'should accompany him to Hindu Rao Hospital where her brother Sunil was admitted for treatment. The Prosecutrix went with Brij Mohan on foot to Hindu Rao Hospital which is quite near to her house. One jeep was standing outside the Hindu Rao Hospital. Hari Ram appellant,was sitting in that jeep. The other appellant Rajesh was at the steering wheel of the jeep. Brij Mohan gagged the mouth of the prosecutrix and with the help of Hari Ram he put Saroj Bala in the jeep. She was driven to a factory premises at some distance She was taken to one room in the factory premises by Brij Mohan appellant. The other two appellants. Hari Ram and Rajesh, stayed in the other room. Brij Mohan appellant is then stated to have committed rape on Saroj Bala. Saroj Bala was then told by Brij Mohan and Hari Ram that they had taken her photographs and if she told about the incident to anyone, she would be defamed. All the three appellants then brought Saroj Bala back by the same jeep and left her near her house. Saroj Bala narrated the entire occurrence to her parents. Her father 0m Prakash took Saroj Bala to the police station on the next day where she lodged the F.I.R. Ex. Public Witness 1/A As per the prosecution Saroj Bala was born on October 18, 1968 i e. that she was 15 days less than 16 years on the date of occurrence. All the three appellants denied the entire prosecution version. The learned Additional Sessions Judge convicted all the three applicants for the offence punishable under Section 366 Indian Penal Code. Brij Mohan was also convicted for the offence of rape as punishable under Section 376 Indian Penal Code. All the three appellants were sentenced to three years' R.I. for the offence under section 366 I P.C. Brij Mohan was also sentenced to seven years' R.I. under section 376 Indian Penal Code. The two sentences awarded to him were made to run concurrently.

2. I have heard Bawa Gurcharan Singh, learned counsel for the appellant Brij Mohan and Mr. O.N. Vohra learned counsel for Rajesh appellant. None appeared for Hari Ram appellant at the hearing of his appeal. No appearance was also put in on behalf of the State in any of the three appeals.

3. The first question that arises for consideration in these appeals is the question as to what was the age of Saroj Bala prosecutrix. PW1, on October 3, 1984, the date of occurrence. The learned Additional Sessions Judge relied on two documents namely, Ex. Public Witness 3/B, a photo copy of the admission form submitted to the Municipal Corporation Primary School, Malka Ganj, Delhi, at the time of joining of the first standard class by Saroj Bala on July 26, 1974, and Ex. Public Witness 3/A a photo copy of an alleged affidavit of 0m Prakash, father of Saroj Bala, submitted to the school when she was got admitted to that school. In both these documents the date of birth of Saroj Bala is given as October 18, 1968. The learned Additional Sessions Judge has clearly erred in relying on this evidence of the prosecution and in holding that the prosecutrix was below 16 years of age on the date of occurrence. The first thing to note is that no birth certificate of Saroj Bala from the Ghaziabad Municipal Committee has been produced on the record where Saroj Bala was stated to have been born. The parents of Saroj Bala have admittedly been living at Delhi and the reason for not furnishing an entry from the birth register of the Delhi Municipal Corporation as given by 0