( 1 ) THE respondent was prosecuted for an offence punishable under Sections 363, 366 and 376 of the Indian Penal Code. The prosecution case was that the respondent kidnapped Sushilaben alias Bhanuben, daughter of Ganpatbhai Mathurbhai Tailor on 27-12-78 at about 2-15 p. m. with intention to have sexual intercourse with her and thereby committed an offence punishable under Sections 363 and 366 of the Indian Penal Code. The respondent was further charged that he without the consent of Sushilaben alias Bhanuben had sexual intercourse with her and thereby committed the offence of rape punishable under Section 376 of the Indian Penal Code.

( 2 ) THE complaint of Ganpatbhai Mathurbhai Tailor, the father of the girl was recorded and after investigation the respondent came to be charge-sheeted and at the trial the respondent came to be acquitted. The State has preferred the appeal.

( 3 ) IT is required to be stated that the learned Additional Sessions Judge, Baroda before whom the case was conducted came to the conclusion that the prosecution did not establish that Sushilaben was below 18 years of age. Further he came to the conclusion that the evidence of rape was not at all there and even if there was any sexual intercourse it was by consent.

( 4 ) WE have gone through the evidence of all the witnesses examined in the case. It is required to be stated that so far as the age of Sushila is concerned, she in her evidence stated that at the time of evidence she was 17 years old and that she was studying in vernacular VIII class. Her case was that they were three brothers and three sisters. Shashikant was the eldest and she was fifth and Gopal was younger to her. A contradiction was brought out whereby it was proved that in the police statement she stated that the eldest was Shashikant, thereafter there was Shakuntla, thereafter there was Ramesh and thereafter Meena was born. Forgetting for the time-being this discrepancy the other evidence on record in regard to age is the school leaving certificate produced by Bhagwanbhai Patel, teacher of the school where Sushila had studied. In General Register her birth-date stated to be 15-2-1963. This would mean that on the date of the offence she was 15 years and 10 months old. The medical Officer, Dr. Raman Patel was examined and he stated that on examination of Sushila clinically and radiologically he concluded that the age of Sushila was between 15 and 16 years. He produced the certificate Exhibit 32. In cross-examination the Doctor stated that his opinion as to age was subject to error of two years upward or downward. This would meant that the girl could be 14 years as well as 18 years. There is no other evidence on record in regard to the age of the girl.

( 5 ) IT appears that after many many years of experience the investigating agency even today either does not know how the age of a particular individual is required to be proved or the investigating agency has no heart to investigate and find out and bring on record the correct date of birth of the victim. The primary duty of the investigating agency is given a go-bye. The investigating agency must understand that every child is born in some village or Taluka town or District town or even in a city. Birth and Death Register is compulsorily required to be kept. Therefore, the mother of girl was required to be questioned and it could not be difficult for the investigating agency to find out as to where Sushila was born meaning thereby in which village she was born or whether she was born in any hospital. There may be cases in which out of ignorance or illiteracy birth date might not have been registered. But the question is not whether birth date is registered or not but the question is that the investigating agency has to find out on these lines and investigate the case in regard to the age properly.

( 6 ) THE school leaving certificate for the purpose of proving the age in a criminal trial is useless. This investigating a