oral testimony of PW-9 victim and PW-12 Pooran, father of the victim, no definite conclusion can be drawn that the victim was below 18 years at the time of occurrence. In other words, prosecution failed to prove by oral testimony the age of the victim to be below 18 years at the relevant time. The prosecution did not offer any explanation as to why the relevant record pertaining to her age was not produced in the court. As stated hereinabove the victim and her father both stated that she was a student in the school and according to the statement of the victim she qualified 6th class, Therefore, it was the duty of the prosecution to produce the admission form, the entries in the admission register maintained in the school and other relevant documentary evidence on this point. Since prosecution did not produce the best available evidence, presumption should have been drawn against the prosecution. It is true that medical evidence in respect of age cannot be exact and the determination of the age is by the reference of lower and higher margins as stated hereinabove. According to the medical report Ex.P. 14 given by PW-16 Dr. S.P. Sharma, the age of the victim may be 18 years and the benefit of outer margin regarding the age of the victim should be given to the accused. Thus, in view of such medical evidence, the age of the victim may be taken to be 18 years or more. However, the prosecution failed to prove that she was under 18 years of age at the relevant time. Therefore, the offence u/s 363 IPC is not even constituted.”
