The main legal point established in the judgment is the conclusive evidence of the girl's age from the birth certificate and the immateriality of consent if the girl is below 16 years of age in cases of kidnapping and rape.

( 1 ) APPELLANT-MOHANDAS Suryavanshi has been convicted under Sections 366 and 376 Indian Penal Code for kidnapping Chandeshwari (PW-4) from her lawful guardianship and committing rape on her and sentenced to rigorous imprisonment for five years and seven years respectively by the 1st Additional Sessions Judge, Ambikapur, in Sessions Trial No. 204 of 1985 by the judgment dated 11-1-1988.

( 2 ) THE prosecution case is that Chandeshwari (PW-4) aged about 14 years was a student of Class VIIIth in the Middle School, Chiranga and the accused was a teacher in that school. He developed infatuation towards her. On 10-4-1985 at 8. a. m. the accused came to her house with Hero Majestic Moped. He asked her to sit on the pillion seat of the moped and took her to Ambikapur. They stayed in a house where he had sexual intercourse with her three times. On 19-4-1985, he took her to his village Rampur and kept her in his house. There he had sexual intercourse with her several times. She was recovered by the police from the house of the accused on 24-4-1985. Harihar Prasad Singh (PW-5), father of the girl had reported the matter to the police on 20-4-1985 as per Ex. P. 3.

( 3 ) THE accused pleaded not guilty. His defence was that he has been falsely implicated. The trial Court held that the prosecutrix was less than 16 years of age and she was kidnapped and raped by the accused.

( 4 ) IN this appeal, Shri S. C. Datt, Senior Advocate has raised twofold arguments : (a) the prosecutrix was not less than 16 years, and (b) She was a consenting party. These are two points which arise for decision in this appeal.

( 5 ) AGE :- Chandeshwari (PW-4) was examined as a witness on 23-11-1987 and on that date her age was estimated by the trial Court as 16 years. Her father Harihar Prasad Singh (PW-5) has deposed that her age in the year 1985 when she was studying in the Middle School, Chiranga in Class VIII, was 14 years. According to her school certificate, Ex. P5, her date of birth is 8-9-1970. In para 13 in cross-examination, he has stated that actually the date of birth of his daughter is 2-10-1972 and in the school certificate it is wrongly mentioned. He got entry made at the time of her birth in the birth register, according to which she was born on 2-10-1972. At that time her name was Batni. At the time of admission in the school her name was written as Chandeshwari. His son had taken her for admission in the school. He has further stated that his eldest son was born in the year 1961. After him, he had two daughters and one son who was born on 17-3-1969. After him Chandeshwari was born on 2-10-1972. She was admitted in the school when she was 5-6 years of age. He has no daughter younger to Chandeshwari.

( 6 ) BHINSARI alias Kothhin (PW-8) is mother of the prosecutrix. She has deposed that her daughter's name was Batni in her childhood. She was aged 14-15 years when she was kidnapped. She was born in village Chiranga. Arun Kumar (PW- 3) is brother of Chandeshwari (PW-4 ). His age was 18 years on 23-11-1987 when he gave his evidence. According to him the age of his sister was 151/2 years on the date of his deposition. R. C. Sen (PW-7) is Record-keeper in the office of the Collector, Ambikapur. He produced the birth register of the year 1972 of village Chiranga. In this register at serial number 1636, there is an entry that a female child was born to Harihar and her name is Batni. Ex. P-9 is the extract form that birth-register. In cross-examination he has stated that he does not know the person who made this entry in this register. The entry Ex. P-9 records the name of Kothhin Bai as the mother of the child. Her date of birth is shown as 2-10-1972. This register is of the office of the Directorate of Economics and Statistics of the Government of M. P.

( 7 ) EX. P-9 is the certified copy of the birth register and it has been duly proved by the Record-keeper also. The identity of the girl is established by the evidence of the parents. She was