1. The appellant has preferred the present appeal being aggrieved with the judgment dated 28.6.1996 passed by the learned First Additional Sessions Judge, Bhopal in S.T. No.445/1994, whereby the appellant was convicted for offence punishable under section 376 of IPC and sentenced with 7 years rigorous imprisonment.

2. The prosecution’s case, in short, is that, on 16.3.1994, Sadhna Bai (PW1) had lodged an FIR, Ex.P-4 in Rojnamacha at Police Station Jahangirabad, District Bhopal that her married daughter, the prosecutrix went to the school to drop her younger brother but, she did not come back. Thereafter, a search was initiated and the prosecutrix was recovered on 21.3.1994. She was produced before the Investigation Officer at Police Station Jahangirabad. The prosecutrix had informed that on 16.3.1994, when she was coming back after dropping his brother Kishan at Anand Vidya Mandir School, the appellant met her on the way and forced her into an auto-rickshaw and took her to a village of Vidisha District and kept her in the house of his relative. Also, he committed rape upon the prosecutrix. The prosecutrix was referred for her medico legal examination. Dr. Pratibha Dubey examined her at Katju Hospital, Bhopal and gave her report, in which no definite opinion could be given. The police had also collected mark-sheet of the prosecutrix to assess her date of birth. The appellant was also arrested and sent for his medico legal examination. After due investigation, the charge-sheet was filed before the Additional Chief Judicial Magistrate, Bhopal, who committed the case to the Sessions Court and ultimately, it was transferred to the learned First Additional Sessions Judge, Bhopal.

3. The appellant abjured his guilt. He took a plea that he was innocent and he was falsely implicated in the matter. No defence witness was examined. However, documents Ex.D-1 to Ex.D-5 were produced in defence.

4. The learned Additional Sessions Judge, Raisen after considering the prosecution’s evidence, acquitted the appellant from the charges of offence under sections 363 and 366 of IPC but, convicted and sentenced the appellant as mentioned above.

5. I have heard the learned counsel for the parties.

6. In the present case, there are only two questions which are to be decided. Firstly, that what was the age of the prosecutrix at the time of the incident and secondly, whether a rape was committed upon her. In the present case, Sadhna Bai (PW1) and Bihari (PW2) have stated that the prosecutrix was 17 years old at the time of their depositions and the incident took place 2 years prior to their depositions. Bihari has given the transfer certificate of the prosecutrix from school, Ex.P-1 to the police. Similarly, a photo copy of the mark-sheet is also given to the police, which is marked as Ex.P-9. In both the documents, the date of birth of the prosecutrix is mentioned to be 3.5.1978. In those documents, name of the father of the prosecutrix was mentioned to be Biharilal, whereas the prosecutrix (PW4) has accepted in her cross-examination that Biharilal was not his biological father. Her biological father Chetan had expired and thereafter, her mother was living with Biharilal and, therefore, Biharilal was the person, who maintained her mother and the prosecutrix. Under such circumstances, there was no basis shown by Biharilal or Sadhna Bai by which the date of birth of the prosecutrix was intimated to the school at the time of her admission. The mark-sheet, Ex.P-9 indicates that in the examination of primary school, the date of birth of the prosecutrix was shown to be 3.5.1978 and the transfer certificate, Ex.P-1 indicates that the prosecutrix was taken from the Government Girls Middle School, Jahangirabad and she was admitted in the school on 7.7.1992 but, it is no where established that the prosecutrix was admitted in the school for the first time in Government Girls Middle School, Jahangirabad or her date of birth was informed to the school with the he