JUDGMENT : Narasimham, C.J. - The Petitioner who is an adult aged 30 years was convicted u/s 366 Indian Penal Code and sentenced to 4 years R.I. and a fine of Rs. 500/- by the Assistant Sessions Judge of Cuttack. On appeal however the learned additional Sessions. Judge altered the conviction to one u/s 33 Indian Penal Code, and reduced the substantive sentence of imprisonment to 6 months rigorous imprisonment and set-aside the sentence of fine. 2. The charge against the Petitioner was that during the night of 28-2-1958 in village Goalia, P.S. Dharmasala, he kidnapped a minor girl named Jotsna Dei (P.W. 2) aged less than 18 years from the lawful guardianship of her father Raghunath Bal with the intention that she may be compelled to marry him against her will. The said Raghunath Bal (father of Jyotsna Dei) is a maintenance holder of Madhupur Raj. The Petitioner was said to have been given free access in his house and he became a co-son as it were of Raghunath Bal. But while thus freely moving about in the house he fell in love with Jyotsna Dei and wanted to marry her. Jyotsna Dei reported the matter to her aunt (P.W. 11) who communicated the information to Jyotsna?s mother from whom her father also learnt about it subsequently. As the parents were unwilling to allow the girl to be married to the Petitioner he was sternly warned not to enter the house again. This incident took place a bout two months before the alleged date of occurrence. It was suggested by the prosecution that this conduct of Jyotsna Dei?s father made the Petitioner desperate and that consequently during the night of occurrence he took her away from her father?s house to the house of his uncle, Purushottam Naik, in the same village where he had already made arrangements for the celebration of his marriage with the girl. A priest and a barber were in readiness and some form of ceremony in token of marriage appears to have been performed as deposed to by the defence witnesses. A priest and a barber were in readiness and some form of ceremony in token of marriage appears to have been performed as deposed to by the defence witnesses. The father of the girl however on noticing her sudden disappearance from his house went out in search of her and on the next day, on coming to know about the presence of the girl and the Petitioner in the house of Purushottam (who was acquitted by the trial court) he reported the matter to the Police on the basis of which a criminal case against the Petitioner was instituted. The defence of the Petitioner appears to be that the girl out of her own accord came out of her father, house for the purpose of marrying him and that consequently he was not guilty of any offence under the Penal Code. An attempt was also made to show that the marriage in the house of the Petitioner?s uncle Purushottam took place with the consent of the girl?s father. But this portion of the story was disbelieved, by the two lower courts. 3. The first question for consideration is whether the prosecution has affirmatively established that the girl Jyotsna Dei is below 18 years. On that point the evidence of the Radiologist (P.W. 15) and that of the Medical Officer (P.W. 6) is decisive. An X-Ray photograph was taken and the Radiologist stated that, in his opinion, the girl was about 14-15 years of age. The Medical Officer also has supported her. The two Courts were therefore justified in holding that the girl was below 13 years of age and Mr. J.K. Mohanty quite properly did not challenge this finding of the two courts. 4. The girl?s version as to what happened during the night of occurrence was not fully accepted by the two lower courts. According to her when she came out to pass urine she was suddenly pounced upon, her mouth was gagged, and she was taken by force to the house of Purushottam Naik and that some form of marriage ceremony took place. In her statement before the police she appears to have stated that she went to her father?s house of her own accord. The story that she was forcibly taken out could not therefore be believed. In her statement before the police she appears to have stated that she went to her father?s house of her own accord. The story that she was forcibly taken out could not therefore be believed. But as the offence of kidnapping is an offence against guardianship and the girl has been proved to be below 18 years of age, her consent is quite immaterial. The question for consideration therefore is whether the Petitioner committed any act from which it can be reasonably inferred that he "took" her from her father?s house during the night in question; or else whether the girl voluntarily went out of her father?s house and subsequently met the Petitioner fell in love with and married him. The word 'takes' occurring in Section 363 Indian Penal Code has been subjected to judicial scrutiny in several decisions-most of which have been discussed in a recent decision of the Kerala High Court, reported in 1960 K.L.T. 273. There, it was pointed out that the word "takes" means cause to go, to escort, to get in to possession and that in order to prove an offence u/s 363 Indian Penal Code the prosecution must show that the accused took some active part in the girl?s leaving her lawful guardian?s custody and taking shelter with him. The lower Appellate court rightly understood the principle of law and thought that from the previous and subsequent conduct of the Petitioner and the evidence of P.W. 3,7 and 10 it could be reasonably held that he took the girl from her father?s house, though with her consent. 5. I have already referred to the fact that he had offered to marry her two months before, in consequence of which he was prohibited from entering the house. P.Ws. 7 and 10 have stated that during that night, when they came out of her house they saw some persons secretly going away and one of them was none else but the Petitioner. They could recognise him by his voice, and they could hear him say that they should hurry along. Thus if their evidence is to be believed, the Petitioner was hovering near about the house of P.W. 1 during the night. It was urged by Mr. Mohanty that these witnesses should be believed because the evidence of identification based on recognition of his voice somewhat weak. Thus if their evidence is to be believed, the Petitioner was hovering near about the house of P.W. 1 during the night. It was urged by Mr. Mohanty that these witnesses should be believed because the evidence of identification based on recognition of his voice somewhat weak. Moreover P.W. 7 did not mention this fact to anyone prior to his examination in Court. These are however questions of fact which have been fully considered by the lower courts who have accepted their evidence. I see no reason to take a different view. 6. Then again the priest and the barber were found waiting in the house of the Petitioners uncle Purushottam in the same village at that hour of the night, and as soon as the girl went there some of marriage ceremony was gone through. It is thus obvious that there was planning and prearrangement with a view to take the girl from the house of her father to the house of the Petitioner?s uncle with a view to have the marriage performed with haste. It is difficult to believe, under these circumstances that the Petitioner took absolutely no part in the 'taking' of the girl from her parent?s house and that she went out of her own accord. 7. It was then urged that the conduct of the Petitioner even if the entire prosecution case is believed, would merely amount to an offence u/s 18(c) of the Hindu Marriage Act and that a conviction for an offence u/s 363 Indian Penal Code was not justified. The answer to this contention depends on whether the prosecution has established satisfactorily that the Petitioner "took" the girl from her father?s house within the meaning of Section 361 Indian Penal Code. Once all the 4 elements necessary for 'taking' the girl are established, and the age of the girl is also shown to be below 18 years (which is the? statutory limit) the offence of 'kidnapping' is complete and it is immaterial as to whether the same act would also amount to an offence u/s 18(c) of the Hindu Marriage Act. I am not expressing any opinion here as to whether there was a valid marriage between the girl and the Petitioner. This is not a matter to be discussed in the present case. I am not expressing any opinion here as to whether there was a valid marriage between the girl and the Petitioner. This is not a matter to be discussed in the present case. It is sufficient to say that the two lower courts view to the effect that though the girl was a consenting party the Petitioner took an active part in taking the girl from her father?s house, that he had made previous arrangements to have some sort of marriage ceremony performed in his uncle?s house, and that he also after taking the girl there got the ceremony completed, is justified. The offence u/s 363 Indian Penal Code is therefore complete. 8. So far as the sentence is concerned the lower Appellate court has already reduced it to 6 months rigorous imprisonment and there is no justification for reducing it any further. The Petitioner was not an impressionable adolescent youth who was carried away by a sudden impulse but a fairly grown up man aged 30 years, and he should not have thus taken advantage of his friendship with the girl?s family and attempted to marry her without her father?s consent. On the whole the sentence appears to be somewhat lenient. The conviction and sentence are maintained and the revision petition is dismissed. Final Result : Dismissed