1-2. MEHTA, J. :- x x x x

3. Mr. Gandhi for the accused raised the most important question in this appeal as to the age of Sheela and argued that this important ingredient in the offence of kidnapping under Section 361 that Sheela was under 18 years age was not brought home to the accused. The learned Sessions Judge has in this connection relied upon the statement of Sheela at Ex. 9 in her evidence that her father when he visited at Wadhwan before this incident told her that this was her birth date. This reported statement of the father would be no evidence, when the father has not been examined. The learned Sessions Judge further relied upon the birth date certificate issued by the Head Master of the Vikas Vidyalaya, Vadhwan, at Ex. 6, which certifies that the birth-date of Sheela as entered in the General Register of the School was 8th August 1951. The witness Jayantilal Nagardas, the Teacher in the Vidyalaya (Ex. 12) was examined and according to him the certificate was as per general register. Entry Ex. 13. This entry in its turn was made from the School Leaving Certificate Ex. 18 issued by Shishu Mangal, Junagadh by the Head Master of the Primary School Sheela had proved the said School Leaving Certificate Ex. 18 which also mentions the said birth date. On this evidence, the learned Sessions Judge held that there was satisfactory proof as regards the age of Sheela as the birth date was proved to be 8th August 1951. Mr. Gandhi vehemently argued that this School Leaving Certificate was not from any official register and even under Section 35 of the Evidence Act it would not be relevant evidence. As regards the birth date of Bai Sheela it is true that this being not a Government school, the document can go in under Section 35 of the Evidence Act, if it is shown that the headmaster who had issued this certificate was in the discharge of his duties specially enjoined by law to make these entries in the school register. The learned Assistant Government Pleader, Mr. Mehta, in this connection pointed out the relevant rules from the Bombay Primary Education Rules, 1949. Under Rule 129 the school leaving certificate has to be issued. Under Rule 130, the provision is made for the age certificate to the effect that every child seeking admission for the first time into an approved school shall produce a certificate of age signed by its parent. In the case of illiterate parents, the certificates shall bear their thumb impression, attested by a literate person other than a teacher of the school to which the child seeks admission. The date of birth given in this certificate shall be entered in the School General Register. No subsequent change or alteration therein shall be made except with the sanction of the School Board Chairman. In the case of transfer of pupils from one place to another, the age given in the leaving certificate shall be entered in the register of the new school. From these two rules, and the other relevant rules, laying down duties of the teachers and headmasters to maintain the relevant registers and making proper entries therein. Mr. Mehta argued that by a statutory provision the school authorities were enjoined to maintain the General Register and to issue the school leaving certificate. Mr. Mehta is right in this connection that such duty being imposed by law, the entry of the birth date in the School Leaving Certificate from the General Register would be relevant evidence even under Section 35 of the Evidence Act. The difficulty, however, which still arises, is as to the evidentiary value that can be given to the statement of age in this entry made in the School Register. Mr. Mehta pointed out that because of Rule 130, a presumption would arise under Section 114 of the Evidence Act that the parent had given this age. In the present case even though both the parents are alive and are staying at Ahmedabad and at Surat, none of them was examined to prove the truth of thi