The determination of the prosecutrix's age and the credibility of the prosecution's evidence are crucial in establishing the guilt of the accused.

JUDGMENT

1. Present Criminal Appeal under section 374 of Code of Criminal Procedure,1973 (in short 'Cr.P.C' ) has been preferred against the judgment dated 16/10/1999 passed by the 3rd Additional Sessions Judge, Khargone (West Nimad) in Sessions trial no. 205/1997, whereby, the appellants have been convicted for the offence under sections 363 and 366 of Indian Penal Code, 1860 ( for shot' IPC') and sentenced to undergo five years RI with fine of Rs. 100/- on each count with usual default stipulation under each section.

2. Prosecution case in short is that on 01/12/1996, complainant Kalabai lodged FIR at police station- Mengaon stating that his minor daughter/prosecutrix was missing from home. She searched her everywhere, but in vain. On the basis of which, the police registered missing person report no. 11/1996. During investigation, the police recovered the prosecutrix from the possession of Kishanlal. She disclosed that the accused person abducted and took her to Jodhapur and kept in the house of Kishanlal. Accordingly, offence under sections 363 and 366 of IPC was registered against the accused persons. The prosecutrix was sent for medical examination. After completion of investigation, the police filed charge-sheet against all the appellants before Chief Judicial Magistrate, Khargone, who committed the case to the Court of Session, which was later on transferred to 3rd Additional Sessions Judge, Khargone for trial. The trial Court, on the basis of the allegation made in the charge-sheet, framed the the charges under sections 363 and 366 of IPC.

3. All the appellants abjured their guilt and pleaded innocence in the trial Court. In order to bring home guilt, the prosecution examined as many as seven witnesses and placed EX P/1 to Ex-P/9 on record. Defence of the appellant/s was of false implication, but the accused person/ appellant did not examine any witness as defence witness. The trial Court, after considering the submissions advanced by learned counsel for the parties and scrutinizing the entire evidence available on record, convicted and sentenced the appellants as referred herein above.

4. Learned counsel for the appellant/s has submitted that the impugned judgment of the lower Court is contrary to law and facts on record. Learned trial Judge has not considered defence version and wrongly believed with the prosecution witnesses. There are material omissions and contradictions in the statements of the witnesses. Learned Court below has wrongly considered the prosecutrix as minor, even she was declared hostile and not considered the medical evidence about her age, therefore, it is prayed that present appeal be allowed and the appellants be acquitted from all the charges.

5. Per-contra, learned PL for the respondent/State has supported the impugned judgment of conviction by submitting that learned trial Court, on proper appreciation of evidence has recorded the evidence and the same does not call for any interference.

6. Heard learned counsel for the parties and perused the record of the trial Court due care.

7. The first question for determination is as to what was the age of the prosecutrix at the time of the incident, when she was alleged to have been kidnapped.

8. Kalabai (PW-3) , who is mother of the prosecutrix has deposited in her statement that the age of the prosecutrix may be 18 years and the incident was about 2 years old. Prosecutrix (PW-2) stated in her statement that her age was 16 years, when she was married at Deoli, thereafter, Jagdish took her with him. The statement of the prosecutrix was recorded before the trial Court on 05/02/1999 and she deposed her age to be 22 years and categorically stated that the alleged incident had occurred about 2-3 years back.

9. Both these witnesses were not in a position to mention exact date of birth of the prosecutrix. Age of any child is to assesses either by birth certificate, or entry in kotawari pustika, if the same is available. If such type of entries are not available, t