( 1 ) IN Sessions Trial No. 30 of 1980, Second Additional Sessions Judge, Bhopal, by his Judgment dated 31-1-1981, convicted the appellant for an offence under section 366 I. P. C. and sentenced him to R. I. for one year. The other two accused were acquitted by him.

( 2 ) THE prosecution case briefly stated is that on 18-6-1979 at about 1. 30 P. M. the appellant along with the other acquitted accused, armed with a knife entered the house of Vilayat Khan (P. W. _5) and forcibly took away Saidunnisa (P. W. 10) in an auto-rickshaw. Her mother Khairunnisa (P. W. 11) obstructed the accused from taking her daughter away, but she was assaulted. At that time Liyakat (P. W. 4) a relative of Vilayat Khan was also present.

( 3 ) LIYAKAT (P. W. 4) informed about it to Vilayat Khan (P. W. 5) on the tailoring shop. At this Vilayat Khan (P. W. 5) went to police station and lodged the first information report Ex. P. 5. Since the incident related to P. S. Mangalwara, the papers were sent to that police station.

( 4 ) THE appellant and the other acquitted accused are said to have taken Saidunnisa at their relations house and kept her under confinement. Sexual intercourse is also alleged to have been done with her without her consent. The next day, the appellant sent Saidunnisa in an autorickshaw to the Police Station. Her father was, therefore, called and she was sent for medical examination. At the trial, besides Saidunnisa, the prosecution examined Khairunnisa (P. W. 11) and Liyakat (P. W. 4) as eye witnesses about Saidunnisa having been forcibly taken by the appellant and others. During Saidunnisas evidence lot of. letters written by her to the appellant were put to her. She was also contradicted with her statement to the police wherein she had stated about her friendship and relations with the appellant. The explanation of Saidunnisa with regard to these letters was that it was the appe)]ant who got those letters written from her at the point of knife showing different dates. That explanation has not been accepted by the Court below and in my opinion rightly. She had also sworn an affidavit Ex. P. 11 before the Notary Shri Gupta (P. W. 9) wherein-she had stated that she would marry with the appellant. Even Abdul Rashid (P. W. 15) at whose house Saidunnisa had stayed over night along with the appellant, stated that Saidunnisa had come along with the appellant even earlier on four-five occasions. He also states that he had told her not to do such things behind the back of the parents. At this Saidunnisa had told him that she would tell her father that she would marry the appellant. The circumstances clearly indicate that Saidunnisa was clearly a consenting party and the story as has been put-forth by the prosecution about she having been forcibly taken away in an autorickshaw from her house is a total false-hood.

( 5 ) HOWEVER, the main question that arises for consideration is about the age of Saidunnisa at the time of the incident. The prosecution has led all possible evidence on the question of age, but has unfortunately not proved what should have been proved from that evidence. Ramkali Shrivastava (P. W. 1) who is the Headmistress of the school, has stated that an admission form Ex. P. 3 had been filed in the school for admission of Saidunnisa. The date of birth in that form is 24-4-1963. This form is purported to have been signed by the father Vilayat Khan (P. W. 5) Vilayat Khan was, however, not questioned about this Ex. P. 3 as to whether he had submitted that form in the school for the admission of Saidunnisa. The other witness examined in this behalf is Dr. Smt. Usha Majumdar (P. W. 6 ). Her version is that Khairunnisa had delivered a female child in the maternity home on 24-4-1963. she had given her statement on the basis of the record. A copy of that record (Ex. P. 7) does not give out the name of that female child who was born to Khairunnisa nor any other witness states that Khairunnisa had delivered a female chi