A. S. SARELA, J. ( 1 ) THE appellant Somagir @ Mangalpuri Haribharthi has been convicted by the learned Sessions Judge Kaira at Nadiad (Shri S. M. Nanavati) of an offence under sec. 363 I. P. C and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 100. 00 in default of payment of which to suffer further rigorous imprisonment for one month. The appellant is a young man of 25 years of age. At the relevant time he resided at Tharsa where he was working in a hotel. He is alleged to have kidnapped on 24-1-1965 at about 10 a. m. one Dahi a girl of 13 years daughter of Girdhar Limbabhai from her fathers guardianship. The said Girdhar resided with his wife Rukhi his son Shana his daughter- in-law Jashi and his daughter Dahi the girl abovementioned. Dahi as I have stated is alleged to be of 13 years of age on the relevant date. All the above members of the family except Dahi were employed as labourers in the Mahi Canal Department at Thasra. On 24-1-1965 all of them went to work early in the morning leaving Dahi at home. When they returned at about 10 a. m. Dahi was not at home and a neighbour Katubibi told Girdhar that she had gone to collect wood to village Bahadarpura. Girdhar waited for an hour and finding that she had not returned he went in search of her. During that search he was told by a hawker of the village that he (the hawker) had seen the appellant and Dahi at the Nal. Not finding Dahi there Girdhar filed a complaint before the police station officer at Thasra on the same day. In that complaint which is exhibit 5 he set out the above stated facts and alleged that the appellant had induced his daughter Dahi to leave him In that complaints gave her age as 15 years. ( 2 ) THE medical evidence consists of the testimony of Dr. Patel P. W. 2 and Dr. Acharya P. W. 3. Dr. Acharyas testimony does not throw any light on the prosecution case about age. He examined Dahi on 3-4-65 only for the purposes of ascertaining whether she has had sexual inter- course. His testimony is that he found her vagina dilatable and roomy. He also found that her hymen showed old tears. Acharya P. W. 3. Dr. Acharyas testimony does not throw any light on the prosecution case about age. He examined Dahi on 3-4-65 only for the purposes of ascertaining whether she has had sexual inter- course. His testimony is that he found her vagina dilatable and roomy. He also found that her hymen showed old tears. From this he concluded that she was used to sexual intercourse but he was not in a position to say when that habit had started. Dr. Patel examined Dahi on 2-4-65 with a view to ascertain her age by medical examination. He examined her teeth height weight and considered the development of her breasts and the fact that she had no hair in the public and axillary area and from that he concluded that she was 13 years of age. Dahi had accor- ding to the doctor got 28 teeth. The only material question put to him in the cross-examination was whether he had taken any ossification test and he stated that he had not. He admitted that the ossification test is a surer test than the clinical examination. ( 3 ) THEREFORE the medical evidence relating to the age of Dahi is of Dr. Patel who on a clinical examination only has expressed his opinion that Dahi was 13 years of age. It is urged by Mr. Sompura for the appellant that this evidence is not admissible and at any rate not much weight should be attached to this medical opinion regarding the age of the girl in the absence of any reasons given by the doctor in support of his conclusion. He submits that the doctor should have explained what factors or what symptoms or signs regarding the teeth height and the weight of the girl indicated that she was approximately 13 years of age or what should have been the breast development or why the absence of growth of hair in the public and axillary area indicated an age of 13 or when such growth is normally to be expected. He argued that the Court should be placed in possession of adequate data or analysis so as to enable the court to consider the data and the analysis and enable it to determine how far the doctors opinion as regards age deserves to be accepted. There is no doubt some force in this submission. He argued that the Court should be placed in possession of adequate data or analysis so as to enable the court to consider the data and the analysis and enable it to determine how far the doctors opinion as regards age deserves to be accepted. There is no doubt some force in this submission. The doctor should have given reasons in support of his conclusion and explained why he came to that conclusion by an examination of teeth height weight etc. He should have placed before the court an analysis of these factors showing what normally is to be expected at the age given by him what is the margin of error permissible and when approximately these factors or any of them would present a different picture so as to make out a reasonable probability that the girls age cannot be far removed from the approximate age given by him. Mr. Sompura is right in urging that it is the duty of the public prosecutor to elicit this information from the doctor if the doctors opinion is to carry weight. ( 4 ) MR. Sompura however goes further and argues that an opinion of the doctor as regards age when based on clinical examination is not at all admissible in evidence. In support of the submission he has relied on the decision of the Privy Council in Mahomed Syedol Ariffin v. Yeoh Qoi Gark (A. I. R. 1916 P. C. 242 ). The question that arose for considera- tion there was whether the appellant who had passed certain mortgage deeds of his share of immovable property in favour of the respondent was not a minor at the time these deeds were passed as contended by the respondent. The respondent in support of the contention that he was not a minor produced a doctors certificate which the appellant had given him at the time the mortgage deed was passed to him (respondent ). The certificate stated this is to certify that in my opinion M. S. Ariffin is of the age of 21 years. This certificate was all the evidence in support of the respondents contention that the appellant was a major. It appears that the doctor who had issued this certificate one Dr. The certificate stated this is to certify that in my opinion M. S. Ariffin is of the age of 21 years. This certificate was all the evidence in support of the respondents contention that the appellant was a major. It appears that the doctor who had issued this certificate one Dr. Bright was examined in the court and he stated that he formed the opinion that the appellant was of 21 years of age judging his teeth his appearance and his voice. It will be noticed that the certificate was a bald certificate and the doctors evidence hardly gave any definite data on which his opinion of age was based. Their Lordships stated In their Lordships view such a certificate is worthless. It is in truth not a certificate but only an assertion of opinion. Reliance was placed on these observations by Mr. Sompura in support of his contention that the doctors evidence was inadmissible. The observations in Privy Council case do not help Mr. Sompura. In those observations Their Lordships were merely commenting on the value of the certificate and having regarding to the facts just set out they stated that the certificate was worthless. They do not appear to have commented on the opinion given by the doctor in the court presumably because that oral opinion which was given long after the certificate was issued was founded on facts which were not mentioned in the certificate. Their Lordships may not have considered it necessary to express themselves on the weight of the doctors oral opinion in court. The observations of Their Lordships in the aforesaid case have been considered by the Allahabad High Court in Emperor v. Qudrat (A. I. R. 1939 All. 708) which is the next case to which my attention has been invited by Mr. Sompura. That was a case where the accused was charged with offences under secs. 366 and 376 Indian Penal Code. For an offence under sec. 366 Indian Penal Code as it then stood it was necessary for the prosecution to prove that the girl who was kidnapped was under 16 years of age and for an offence under sec. 376 I. P. C. as it then stood it was necessary for the prose- cution to prove that she was on the relevant date under 14 years of age. 376 I. P. C. as it then stood it was necessary for the prose- cution to prove that she was on the relevant date under 14 years of age. No direct evidence of the age was led beyond the statement of the girl herself who gave her age as about 13 years. The learned Judges could not naturally regard that evidence as a proof of her age in the absence of anything to show wherefrom she derived her knowledge of age. The only other evidence adduced in that case was the opinion of the Civil Surgeon who stated that the girl was about 13 years of age when he examined her. It appears that the doctor based his opinion on the parti- culars given in his report with regard to height weight teeth etc. Their Lordships observed:- from the statement of the Civil Surgeon it does not appear that he brought any scientific knowledge to bear upon his opinion. The indications given by the doctor could be observed by a layman. It is true that a doctor is in a better position to form an opinion about the age of a person than a layman but the statement of a doctor is no more than an opinion. Thereafter they referred to the Privy Council case above referred to and then reached the conclusion that the Assistant Judge was right in holding that there was no legal proof of age of the girl. It will be noticed that emphasis is placed on the fact that if the opinion of the medical officer is to carry weight it should appear that he had brought his scientific knowledge to bear on his opinion. If the doctor had with reference to the various factors mentioned by him such as height weight teeth etc. given reasons which on a medical plane justified the opinion he had formed as to age such opinion would be entitled to weight. The next case to which my attention has been invited is the decision of the Judicial Commissioner of Manipur in Laimayum Tonjou Singh v. Manipur Admini- stration (A. I. R. 1962 Manipur 5 ). In that case the accused was being prosecuted of an offence under sec. 361 I. P. C. as applied to Manipur. The next case to which my attention has been invited is the decision of the Judicial Commissioner of Manipur in Laimayum Tonjou Singh v. Manipur Admini- stration (A. I. R. 1962 Manipur 5 ). In that case the accused was being prosecuted of an offence under sec. 361 I. P. C. as applied to Manipur. Under that section as so applied the prosecution had to prove that the girl was below the age of 15 years on the date of the offence. The main evidence to prove the age of the girl was the evidence of a Lady Doctor who gave her age as between 14 and 15. In the certificate which she had issued she did not give the reasons on which she had come to the conclusion regarding age and when she gave her deposition all that she mentioned was that she had observed the height height teeth breast axillary and public hair hymen and menstruation and from these she concluded that the girl was between 14 and 15 years at the time of her examination. She gave no further reasons. The learned Judicial Commis- sioner after referring to the Privy Council and Allahabad cases above referred to observed that it was not enough for the doctor merely to repeat what she had stated in the certificate but it was necessary for the doctor to give reasons which made her come to her conclusion about age and these reasons should have been elicited by the prosecution in her exami- nation. No reasons having been given and the age given namely 14-15 years being very near the age which would take the case out of sec. 361 as it applied to Manipur namely 15 years the court came to the conclu- sion that the evidence did not satisfactorily establish that the girl was under 15years of age. Therefore these cases do not go so far as to lay down that the opinion of a medical expert as to age on the basis of medical science is not admissible but they do support the argument that in the absence of any explanatory statement from the doctor as to what factors individually or cumulatively were significant and why the opinion cannot carry much weight. Applying these tests to the present case it must be conceded that the opinion of Dr. Applying these tests to the present case it must be conceded that the opinion of Dr. Patel if it stood by itself would not carry much weight particularly when he admits that the prosecution test was the surer test. In this case however the prosecution case about age is not based on the opinion of the doctor. The main evidence is the testimoney of the parents which has been found acceptable. That evidence is corroborated by the school leaving certificate. The opinion of the doctor here is useful only in so far as it lends some assurance to that evidence and there is no be sufficient reason why even for that purpose his evidence should not be taken into consideration. ( 5 ) FOR these reasons it must be held that the prosecution had satisfactorily made out that the girl was about 13 years of age on the date of the alleged offence. ( 6 ) THE next and the principal question is whether the prosecution has proved that the appellant took Dahi out of the keeping of lawful guardianship. There is no dispute about the fact that her father Girdhar was her lawful guardian Dahi no doubt is married but she has been staying with her father. She had been to her parents-in-law once or twice during the last 7 years that she has been married. It is nobodys case that the marriage had been consummated or that she had ceased to be her fathers ward. The lawful guardianship of her father being not disputed the only question for consideration is whether the appellant took her out of the keeping of that lawful guardianship. Now the evidence as to taking is the testimony of Dahi alone. In her deposition she states that while the other members of the family had gone to work that morning she went to village Bahadarpura to bring wood. There the appellant met her caught hold of her hand and began to drag her. She raised cries but the appellant gagged her mouth and asked her to go with him thre- atening that if she did not do so she would be murdered. He then took her to Kapadwanj. There they stayed for the night. There the appellant met her caught hold of her hand and began to drag her. She raised cries but the appellant gagged her mouth and asked her to go with him thre- atening that if she did not do so she would be murdered. He then took her to Kapadwanj. There they stayed for the night. It is not clear where they stayed but she mentions that he took her to the place of his sister and sisters husband and told them that she (Dahi) was Garrasia by caste but his sister and sisters husband drove them out of the house. From Kapadwanj according to her the appellant took her to village Sundhia where they appear to have stayed for about 5 days. Then he took her to village Detroj where they stayed for 5 days and thereafter he took her to Bavla where they stayed till he was arrested. At Bavla they stayed in the field of one Barwad Rama from whom the appellant accord- ing to her took on lease a house site on which they built a kacha house for the purpose of staying. This in brief is the story and if that story or the material part of it is accepted the prosecution can be said to have established taking of Dahi and the question is whether this evidence deserves acceptance. ( 7 ) IT has been urged by Mr. Sompura for the appellant that Dahi is not a truthful witness and in support of that submission he relies on two circumstances. Firstly that Dahi has at first suppressed the fact that she was in illicit intimacy with the appellant and secondly that the conduct of Dahi subsequent to the elopement shows that she could not have been taken by force. There is some force in that submission. In cross-exami nation when she was questioned about her friendship with the appellant she denied that before the incident they used to meet each other or were in illicit intimacy. Then her police statement on that point was read to her. In that police statement it was stated that she had been in 4 connection with the appellant. She admitted to have made that statement and also then admitted that she and the appellant used to meet each other and were in illicit connection. Then her police statement on that point was read to her. In that police statement it was stated that she had been in 4 connection with the appellant. She admitted to have made that statement and also then admitted that she and the appellant used to meet each other and were in illicit connection. It will be noticed therefore that her earlier denial of friendship with the appellant was not correct. One must however take into account the age of the girl and the manner in which she gave the evidence when considering whether she intended to conceal her proposed intimacy with the appellant. She having disclosed her illicit intimacy in her police statement and having readily accepted that fact when this statement was brought to her notice her earlier hesi- tation is not sufficient to mark her as an untruthful witness. However the other circumstance on which reliance is placed by Mr. Sompura remains. Although according to Dahi she was taken by the appellant by force her subsequent conduct is not consistent with that position. She admits that during the period that she was with the appellant the appellant often used to go out and leave her alone but she did not attempt to go away. She admits that she did not tell anybody that the appellant hid brought her against her will. It is not her case that any physical force was used against her for the purpose of illicit intercourse. The witness Rambhai Ranchhodbhai P. W. 7 (Exh. 16) in whose field these two stayed by building a kacha hut has stated that they were living as husband and wife and Dahi had never complained to him that the appellant had forcibly brought her there. These facts are inconsistent with her story that she was taken by force. The reasonable conclusion is that she went with him voluntarily. That being so her testimony is required to be scrutinized and carefully considered before it is held on the basis of that testimony that the appellant had taken her within the meaning of sec. 361 I. P. C. ( 8 ) MR. Sompura has invited my attention to a decision of the Supreme Court Varadarajan v. State of Madras. (A. I. R. 1965 S. C. 942) for showing what the prosecution is in law required to prove in order to establish taking within the meaning of sec. 361 I. P. C. ( 8 ) MR. Sompura has invited my attention to a decision of the Supreme Court Varadarajan v. State of Madras. (A. I. R. 1965 S. C. 942) for showing what the prosecution is in law required to prove in order to establish taking within the meaning of sec. 361 I. P. C. In that case the girl Savitri who was more than 17 years and 10 months of age on the date of the offence was friendly with a neighbourer. She was a college girl studying in Senior B. Sc. . On her father coming to know of this friendship he left her at a relatives place. From that place the girl rang up the boy (the accused) and asked him to meet her at a particular place on a public road. The boy went there with his car. Savitri got into the car. They drove to the bazaar and purchased some ornaments for the purpose of marriage. Then they went to the Registrar of Marriages office where they filed an agreement of marriage and thereafter both of them went away on the footing that they were married and stayed together at various places. On these facts it was argued before the court that Savitri had abandoned the guardianship of her father. Their Lordships stated that it was not necessary to answer the question whether she had abandoned that guardianship or whether in law such a guardianship could be abandoned. In Their Lordships view the facts of the case were suffic- ient to negative the prosecution theory of taking as contemplated by sec. 361 I. P. C. After referring to the case law on the point Their ships pointed out that in order to constitute taking an actual physical taking of the girl is not necessary. But what is necessary to make out is that the active part in going away together was the act of the accused and not of the girl. This would be so if some persuation inducement or blandishment has proceeded from the accused and has led the girl to accompany him. But what is necessary to make out is that the active part in going away together was the act of the accused and not of the girl. This would be so if some persuation inducement or blandishment has proceeded from the accused and has led the girl to accompany him. Such persuasion inducement or blandishment need not be proximate to the date of their going away together and it may be that at the time or immediately before the minor left the guardians protection no active part was played by the accused but even if at some earlier stage the accused had conducted himself so as to show such solicitation or persuation on his part and that was what ultimately led the girl to leave the guardianship of her father it would amount to taking within the law. Although merely allowing a minor to accompany a person may not ordinarily amount to taking by that person in conceiv- able circumstances it may so amount. The factors which would be and should be taken into consideration in deciding whether there has been taking in a particular case are the conduct of the parties particularly of the accused at the time and before their going away together the maturity of the girl and her intellectual capacity to think for herself and to make up her own mind and the circumstances under which and the object for which she felt it necessary or worthwhile to leave her guardians protection. In the case before Their Lordships there was no evidence that Savitri left the house of the relative where she was kept at the instance of the suggestion of the appellant there was no suggestion that the appellant took her to the Sub Registrars office and got the agreement executed by force or blandishment or anything like that and in fact the insistence of marriage came from Savitris side and there was no suggestion that the appellant made Savitri accompany him by administering any threat or any blandishment. Their Lordships pointed out that Savitri was no unlettered or unsophisticated village girl but a senior college student who was capable of thinking for herself and making up her mind. Considering all the facts together they came to the conclusion that taking was not established in that case. Their Lordships pointed out that Savitri was no unlettered or unsophisticated village girl but a senior college student who was capable of thinking for herself and making up her mind. Considering all the facts together they came to the conclusion that taking was not established in that case. ( 9 ) THE facts of the Supreme Court case are different from the facts of the present case The question whether in the present case there has been taking by the appellant must be decided in the light of the facts of the case no doubt keeping in mind the principles of law enunciated by the Supreme Court in that decision. The inferences to be drawn in each case must depend on its own facts. Now in this case the direct oral evidence is no doubt of Dahi alone and she has not been wholly truthful. Her untruthfulness relates to a matter which concerns her married future and is to that extent explainable. However it is but proper to expect some corroboration to her testimony. The nature and extent of corroboration needed must depend upon the facts of each case. The corroboration could be from circumstances and probabilities. In the Supreme Court decision earlier referred to Their Lordships took into con- sideration the conduct of the parties the maturity of the girl and her capacity to think for herself and make up her own mind and the circumstances under which and the object for which she left her fathers protection. 16. . . . . . . . . . . . . . . . . . . . . 17. . . . . . When therefore the evidence of Dahi is considered in the light of the proved facts which bear on the probabilities of the case the reasonable conclusion is that the appellant had taken her and not that she had run away from home with the intention of not returning. Appeal dismissed. .