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6. The prosecution to prove the age of the victim has exhibited birth register of Police Station, Bagbahra as Ex.P/8 and Kotwari Register, Ex.P/14 wherein the date of birth of the victim has been recorded as 13.09.1979. but the prosecution has not examined Kotwar to prove the date of birth of the victim and learned trial Court on the basis of evidence of PW/6 Partas Toppo who is police constable and these documents has held that date of birth of the victim is 13.09.1979 and accordingly on the date of incident she was a minor girl. The learned trial Court has also recorded that since the victim was minor therefore, her consent has no relevancy, as such, the charges levelled against the appellant are found proved.

7. Learned counsel for the appellant would submit that date of birth of the victim has not been proved as per Section 35 of the Evidence Act and the victim was a consenting party, therefore, finding recorded by the learned trial Court with regard to guilt of the appellant is based on perverse finding. He would submit that Kotwar register has been exhibited before the trial Court, but Kotwar who has made entry in the register has not been examined before the trial Court to prove the entry made in the register, therefore, Kotwar register has not been proved as per Section 35 of the Evidence Act. He would refer to the judgment passed by the Hon'ble Supreme Court in case of Rajak Mohammad vs. State of Himachal Pradesh 1 in which the Hon'ble Supreme Court has held as under :-

14. PW/8 Sundar Sai, brother of the victim in his examination-in-chief has stated that he is 35 year old on the date of recording of statement i.e. 20.04.1998, there was 3 years of age difference between him and his younger brothers and the victim was 1½ years younger than his brothers. Thus, it cannot be said that she was minor on the date of incident.

15. Now this court has to examine whether date of birth recorded in the Kotwar register can be considered for determining the age of the victim without examination the writer of the document i.e. Kotwar.

19. In the light of the above legal position it is quite vivid that the Kotwar register Ex.P/14 has been proved in accordance with law. In the case at hand Kotwar register has been exhibited, but Kotwar who has made entry has not been examined, therefore, it cannot be said that the prosecution has been able to prove the case of the age of the victim is below 18 years. Document Ex.P-12 is record of Police Station which is not a statutory record for proving the age of the victim, therefore, this Court finds that the finding of the trial Court that at the time of incident the victim was below 18 years of age deserves to be set aside.