The central legal point established in the judgment is the requirement to conclusively establish the age of the victim in cases involving offenses under S.363 and S.376 IPC, and the significance of consent in sexual offenses.

1. In Sessions Case No. 4 of 1987, the Assistant Sessions Judge, Tirur acquitted the respondent of offences punishable under S.363 and 376 of the Indian Penal Code with which he was charged by the Sub Inspector of Police, Kalpakancherry. Aggrieved by the acquittal, the State has come up in appeal.

2. PW 2, Sulekha, is the minor aged 15 alleged to be the victim. PW 1, Kathiakutty, is her mother. The allegation is that at about 12.50 PM on 17-10-1986, she was kidnapped by the respondent from the lawful guardianship of her parents. She was taken by the respondent to various places, including the residence of his brother at Perintalmanna, and had sexual intercourse also with her.

3. PWs 1 and 2 are in affluent circumstances. A new building was under construction at Ponmondu itself (where PWs 1 and 2 reside) for Koya-kutty, brother of PW 2. Respondent was one of the employees engaged for the construction of the building under the contractor examined as PW 10. While so, intimacy developed between PW 2 and the respondent. They eloped on the 17th of October 1986. On the 19th morning at 4.30 AM, PWs 7 and 9, who were deputed to trace them out, while going in a jeep found the respondent and PW2 going together. They were taken in that jeep itself and the matter was reported to the Pandikkad Police Station.

4. I do not think that it is necessary to consider the entire items of evidence in detail. The two questions that arise for consideration mainly are: (i) whether there was taking or enticing a minor girl under the age of 18 as alleged; and (ii) whether there was sexual intercourse with her which amounts to rape.

5. PW 1, who gave the first information statement on 18-10-1986, only said that her daughter is missing. But she now admits that even then she had the information from PWs 3 and 4 that PW 2 went with the respondent. That may not be very relevant for us. The fact that both went together to different places now stands amply proved. It is not disputed also. There is the evidence of not only PW 2, but PWs 3 and 4 also.

PW 17 is the wife of the brother of the respondent. It was at her residence that the respondent stayed with PW 2 during the night of 17-10-1986. She gave evidence to that fact. So also we are having the evidence of PWs 7 and 9 that they saw the respondent and PW 2 going together. They took them in the jeep and produced before the police. From these items of evidence, there is absolutely no difficulty in coming to the conclusion that PW 2 and the respondent went away together and stayed together for 2 days.

6. PW 2 gave evidence that they had free sex also more than once. Medical evidence of PW 15 and Ext.P9 certificate issued by her show that hymen was torn. There was bleeding from small abrasions on the posterior aspect of fourchette. On the basis of these and other symptoms, PW 15 expressed the opinion that there was recent sexual intercourse. PW 14 examined the respondent and issued Ext.P8 certificate stating that he is potent. The evidence clearly indicate that PW 2 accompanied the respondent on her own accord and submitted herself willingly for sexual connection.

7. The first question to be decided for attracting an offence defined in S.361 of the Indian Penal Code and made punishable under S.363 thereof is whether PW 2 was a minor under 18 years. Only if that is found, the further question arises whether she was under lawful guardianship from which she was 'taken' or 'enticed away'. Therefore the first thing to be established by the prosecution is the age.

8. The relevant items of evidence are Exts. P4 and P11 as well as the testimonies of PWs 1, 2,8 and 16. PW 8 is the Headmaster of the school where PW 2 was studying. Ext. P4 is the extract of the admission register. Date of birth is recorded in it as 25-5-1972. If that is accepted, PW 2 was only less than 15 on 17-10-1986, when she went with the respondent. Ext. P11 is the age certificate issued by PW. 16 (Assistant Professor, Forensic Medicine) after rad