JUDGMENT : Mohapatra, J. - The Petitioner Ganesh Prasad Samal stands convicted u/s 366, Indian Penal Code, for having kidnapped a girl Kanduri (P.W. 2) from out of the lawful guardianship of Dr. Satpathy (P.W. 1) with the intention of marrying her without her consent. The Petitioner has been sentenced to undergo R.I. for 3 years and to pay a fine of Rs. 200/- in default to suffer another term of R.I. for 4 months. 2. The occurrence is alleged to have taken place on 29-11-1951 at 5 p.m. under the following circumstances as alleged by the prosecution: The girl Kanduri (P.W. 2) is an orphan and destitute belonging to the State of Baudh. P.W. 1 (Dr. Satpathy) was the Chief Medical Officer of Baudh in the year 1946. He picked up the girl and kept her as his ward and as a maid servant under him. Dr. Satpathy was transferred to Bhadrak in February 1950 since when he is staying at Bhadrak. The accused happens to be a tea stall keeper in the Bhadrak town at a little distance from the Bhadrak Dispensary where the residential compound of the doctor is situate. Prior to the date of occurrence there had been several proposals on the part of the accused to marry the girl (Kanduri) which were refused. On 28-11-51 the doctor having received an order of transfer was away from his head-quarters till late in the afternoon of 29-11-51 having gone to Balasore Civil Surgeon to consult with him in the matter of transfer. In the afternoon of 29th, a girl named Pagli, who is a maid servant of the Compounder living in the same compound of the dispensary, called Kanduri away from the house of Dr. Satpathy. She returned soon after and she was further requested by the son of Sadat Ali, a neighbouring tailor, to come along with him. She also refused; but nevertheless when Sadat Ali's son pulled her by her hands she went along with Sadat Ali's son to the house of Sadat Ali. It is in the house of Sadat Ali that the accused approached the girl with a proposal for marriage on the date of occurrence. The proposal was refused by the girl. In the meantime the accused brought a rickshaw and took her away from the house of Sadat Ali. Both of them went to the Police Station. It is in the house of Sadat Ali that the accused approached the girl with a proposal for marriage on the date of occurrence. The proposal was refused by the girl. In the meantime the accused brought a rickshaw and took her away from the house of Sadat Ali. Both of them went to the Police Station. Eventually a Station Diary was entered in the Police Station and the girl intimated her consent to marry the accused. The girl having been absent from some for sometime past, other inmates of the house of Dr. Satpathy in search of her. The Doctor and the Munsif of the place (P.W. 8), while they had been in search for her, rescued her from the Police Station from the custody of the accused. It is the case of the prosecution that on the date of occurrence she was 18 years of age. On these allegations of the prosecution which were accepted by both the Courts below (the lower appellate Court and the trial Court), the accused stands convicted u/s 366, I.P.C. 3. The first point of importance that requires determination is the age of the girl. If indeed she is found to be aged more than 18, the accused cannot be convicted u/s 366 nor even u/s 363. The Courts below in coming to the conclusion that she was aged near bout 18 and definitely below 17, have relied upon particularly the evidence of P.W. 1 (Dr. Satpathy) and P.W. 3 (another Asst. Civil Surgeon attached to the dispensary who had examined the girl for ascertaining her age after the case had started). Dr. Satpathy's evidence, in our opinion, is certainly entitled to much weight on account of the reason that not only he is a doctor but that the girl was under his care for nearly 5 years before the date of occurrence. He was certainly by far competent to speak about the age of the girl. The doctor who examined her is also of the opinion which corroborates the evidence of P.W. 1 (Dr. Satpathy) that she was aged near about 13 at the time of occurrence. We attach great importance to the opinion of the trial Court in this matter as in assessing the evidentiary value of the statements of both these witnesses (P.Ws. The doctor who examined her is also of the opinion which corroborates the evidence of P.W. 1 (Dr. Satpathy) that she was aged near about 13 at the time of occurrence. We attach great importance to the opinion of the trial Court in this matter as in assessing the evidentiary value of the statements of both these witnesses (P.Ws. 1 and 3) he had the special advantage of seeing and hearing the girl who was examined as a witness before him. In our view, even though it cannot be definitely ascertained that she was exactly 13 at the time of the occurrence, the Courts below were perfectly justified in coming to the conclusion that she was below 17 at any rate, and, as such, within the limit of age as provided for u/s 361 of the Indian Penal Code. The fact of kidnapping was not challenged before the lower appellate Court and the trial Court, after a thorough examination of the evidence on the point, has come to the right conclusion that the fact of kidnapping has been sufficiently established. 4. Mr. Ray, appearing on behalf of the Petitioner, strongly urged that on finding of the lower appellate Court the case must be taken out of the mischief of the provisions of Section 366 I.P.C. He particularly relies upon the final finding of the lower appellate Court running to the effect.- "After scrutinising the evidence I am of clear mind that the girl being of tender age and probably passionate, yielded easily to the persuasion to marry the Appellant and willingly want in the rickshaw followed by the Appellant, to the P.S." In view of the position, therefore, that it is not a case of taking away the girl with the intention of marrying her without her consent, the accused cannot be convicted u/s 366, I.P.C. The contention of Mr. Ray has considerable force, and on examining the evidence on record we do not find any reason to differ from the finding of the lower appellate Court as indicated above. But that does not entitle the accused-Petitioner to an acquittal. He is liable to be convicted u/s 363, I.P.C. As we have mentioned above the girl is below 18 and that as she was kidnapped from out of the lawful guardianship of P.W. 1 Dr. But that does not entitle the accused-Petitioner to an acquittal. He is liable to be convicted u/s 363, I.P.C. As we have mentioned above the girl is below 18 and that as she was kidnapped from out of the lawful guardianship of P.W. 1 Dr. Satpathy by the accused without the consent of P.W. 1, the offence u/s 363 is complete. Mr. Ray contends that to alter the conviction from one u/s 366, I.P.C. to one u/s 363, I.P.C. will be seriously prejudicial to the Petitioner. To our mind, there is absolutely no question of any prejudice to the accused in the present case. The case is fully covered by the provisions of Section 238, Code of Criminal Procedure, where if the prosecution has not been able to prove all the ingredients necessary for brining home the charge in a major section but nevertheless proves the facts which come under the provisions of a minor section, the Court has got the power to convict him under the lesser section even though the accused was not a charged. Mr. Ray contends that in the present case Section 366 covers both the cases of kidnapping from out of the lawful guardianship and also from out of India, and therefore, his client has been prejudiced as he had no notice to meet the charge of kidnapping from out of the lawful guardianship. To me, it appears to be a suggestion having absolutely no force. It can never be suggested for a moment that the accused could have the apprehension that be was tried for having kidnapped the girl from out of India. The charge also was placed before us and it does make a (sic) mention of the fact that the accused had kidnapped the girl from out of the lawful guardianship of Dr. Satpathy. 5. The next point urged by Mr. Ray is that on the story of the prosecution itself the accused is not liable to be convicted for kidnapping as at the time when the accused took her away from the house of Sadat Ali, she had left the guardianship of Dr. Satpathy and, as such, in the house of Sadat Ali she was under the lawful guardianship of no one. Satpathy and, as such, in the house of Sadat Ali she was under the lawful guardianship of no one. On a careful perusal of the evidence of P.W. 2 (the girl) we are definitely of the view that till she was in the house of Sadat Ali she had not left the protection and guardianship of Dr. Satpathy, and in fact the guardianship of Dr. Satpathy was continuing till she was taken away by the accused in a rickshaw. The fact remains that she was taken a way in a rickshaw by the accused and on the finding, as we have quoted above, that she was taken away for the purpose of marriage by the accused even though she was a consenting party to the marriage, we are to infer that she was being taken away permanently from the lawful custody of Dr. Satpathy by the present accused. In this view of the matter, therefore, we are definitely of the view hat the offence u/s 363, I.P.C. has been sufficiently established. We would, therefore, alter the conviction from one u/s 366, I.P.C., to one u/s 363, I.P.C., and reduce the evidence to one year and a half and further that the accused is to pay a fine of Rs. 100/- (one hundred), in default to undergo another term, of R.I. for two (2) months. Subject to these modifications the revision is dismissed. Misra, J. 6. I agree. Final Result : Dismissed