Judgment The appellant was the accused in Sessions Case No. 16 of 1966, in the Court of the Sessions Judge, Mysore. He has been convicted for an offence punishable under section 363 of the Indian Penal Code, and has been sentenced to suffer rigorous imprisonment for a period of three years; he has also been convicted for an offence punishable under section 376 of the Indian Penal Code, and has been sentenced to suffer a similar term of imprisonment there for, the sentences being ordered to run concurrently. The charge against him was to the effect that on 15th April, 1966, he kidnapped a minor girl named Shanthakumari aged 17 years, from her father's house in order that she may be seduced to illicit intercourse that he actually had intercourse with her after going through a sham marriage deceitfully making her believe that she had been lawfully married to him and that thereby he had committed offences punishable under section 376 read with clause “Fourthly” of section 375 of the Indian Penal Code. Briefly stated, the facts were that P.W. 9 Shanthakumari, a Christian girl who was aged about 17 years at that time, used to be visiting the house of another girl P.W. 10 Kanikamari by name; they both were friends and Shanthakumari used to be giving some lessons to P.W. 10. P.W. 10 had been studying privately in the Middle third year, while P.W. 9 had studied in a higher class. One Velayudhan who has been examined as D.W. 1 was a friend of the accused and he used to be visiting the house of P.W. 10. The accused also used to be visiting the house of P.W. 10 and there he met Shanthakumari. The accused had a wife and children. According to the prosecution, the accused asked Shanthakumari to marry him. P.W. 9 agreed to do so. Some 15 days thereafter, the accused tied a ‘Tali’ to the neck of P.W. 9 in front of a photo of Christ, in the presence of P.W. 10. The accused asked her to go with him that night to a house which he had taken in Mandi Mohalla. P.W. 9 consented, but after returning to her house she slept away. On the next day, when she went to the house of P.W. 10 the accused came there and rebuked her and asked her to accompany him on the following night. P.W. 9 consented, but after returning to her house she slept away. On the next day, when she went to the house of P.W. 10 the accused came there and rebuked her and asked her to accompany him on the following night. Accordingly, on that night Shanthakumari went out of her house from the rear door and found the accused standing there with a bicycle. The accused took her to a room in Kyathamanahalli. That house belonged to P.W. 7 Chowriamma. P.W. 7 and her daughter P.W. 8 Annamma wore in the house. The accused told them that Shanthakumari was his wife. That night, the accused had sexual intercourse with Shanthakumari. By then, P.W. 16 the father of Shanthakumari had given information to the police. The next day about 12 O’clock, the police came. Shanthakumari was got examined by a lady doctor and an X-ray photo was also taken. After the necessary investigation and the proceedings before the Magistrate, the accused was made to take his trial before the Court of Session. The medical evidence was to the effect that Shanthakumari was between 17 and 18 years of age. P.W. 14 is the Parish Priest who had solemnised the marriage of Shanthakumari's parents and the entry in the Birth register produced by him showed that Shanthakumari (who also was called Philomena), was born on 24th August, 1949. P.W. 15, who was the Nursing Superintendent of St. Philomena's Hospital, also gave evidence about the birth of a female child to the wife of P.W. 16 on 24th August, 1949. Exhibit P-12 was the entry to that effect, in the registers of that hospital. This evidence in regard to the age of Shanthakumari, was not seriously questioned during the cross-examination on behalf of the accused. Thus, it had been established by the prosecution evidence that on the relevant date, namely, 15th April, 1966, Shanthakumari was a minor girl of the age of only about 17 years. In the course of his statement under section 342 of the Criminal Procedure Code, the accused did not dispute any of the relevant facts established by the prosecution evidence, except stating that he had told Shantha that he had already married and had children and that she expressed a desire to marry him. In the course of his statement under section 342 of the Criminal Procedure Code, the accused did not dispute any of the relevant facts established by the prosecution evidence, except stating that he had told Shantha that he had already married and had children and that she expressed a desire to marry him. He stated that in spite of his telling her that it would not be appropriate to go away from the house of her father, she insisted on being taken away and threatened that otherwise she would take poison and involve him in trouble. The evidence of D.W. 1 was to the effect that Shanthakumari told him that unless the accused took her away, she would take poison and die. The defence evidence to the effect that Shanthakumari had threatened to commit suicide by taking poison if the accused did not take her away with him, has not been accepted by the learned Sessions Judge. Having regard to the fact that no suggestion had been made to Shanthakumari while she was in witness box, that she had made such a threat and that thereby the accused had been put to the necessity of taking her away with him, the only reasonable conclusion is that this defence version is clearly the result of an after-thought. Therefore, the learned Sessions Judge was justified in not attaching any value to this belated attempt made in the defence evidence. Before proceeding to consider the conviction under section 363 of the Indian Penal Code, the correctness of the conviction under section 376 may be examined. The conviction under section 376 is on the ground that the accused had committed rape falling under “Fourthly” of section 375 of the Indian Penal Code. This latter provision reads as follows: “375. Before proceeding to consider the conviction under section 363 of the Indian Penal Code, the correctness of the conviction under section 376 may be examined. The conviction under section 376 is on the ground that the accused had committed rape falling under “Fourthly” of section 375 of the Indian Penal Code. This latter provision reads as follows: “375. A man is said to commit”rape“who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions: First.- ***** Secondly.- ***** Thirdly.- ***** Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.” It will be seen that in order that “Fourthly” may be attracted, the consent by the woman must have been given because she believes that the offender is another man to whom she is or believes herself to be lawfully married. “Fourthly” will not be applicable in the present case, because consent by Shanthakumari to the accused having sexual intercourse with her was not given under the belief that the accused was another person to whom she believed herself to be married. Shanthakumari believed that she had been married to the accused. This is not a case in which her consent was given in the belief that the accused was some other person to whom she believed herself to be lawfully married. The deception, if any, practised by the accused is not that type of deception contemplated by “Fourthly.” Therefore, the conviction under section 376, on the basis that “Fourthly” of section 375 of the Indian Penal Code, was applicable, will have to be set aside. The accused will have to be acquitted of the offence punishable under section 376 of the Indian Penal Code. Accordingly, this appeal is allowed in so far as it relates to the conviction and sentence for the offence under section 376 of the Indian Penal Code, and the said conviction and sentence are set aside and the accused is acquitted of the said offence. Accordingly, this appeal is allowed in so far as it relates to the conviction and sentence for the offence under section 376 of the Indian Penal Code, and the said conviction and sentence are set aside and the accused is acquitted of the said offence. So far as the conviction under section 363 is concerned, the argument sought to be advanced by the learned Advocate for the appellant is that in this case, there was no taking away of Shanthakumari from out of the keeping of the lawful guardian, namely, her father. The argument is that Shanthakumari had attained a certain age of understanding and that of her own accord she had left the guardianship of her father and that the accused cannot be said to have taken her out of the keeping of her lawful guardian. In support of this contention, reliance has been placed on a decision of the Supreme Court in S. Varadarajan v. State of Madras1 and a recent unreported decision of this Court in Rudolph Gregory v. The State of Mysore2. It was held, on the facts of each of these two cases, that the accused concerned had not taken or enticed the minor out of the keeping of her lawful guardian. Further, the girl concerned in the Supreme Court case, was actually on the verge of attaining, shortly, the age of 18 years and she was studying in a College at Madras. In each of these two cases, there was clear evidence to show that the girl had, of her own accord, left the protection of the lawful guardian, before the concerned accused accompanied the girl. Having regard to the facts and circumstances in the present case, I have no doubt, that the said two decisions will not in any way be helpful to the appellant. The evidence of Shanthakumari shows that it was the accused who repeatedly suggested to her that she should go away with him. He waited for her near the back door of her house on the night of the incident and then took her away on his bicycle. There cannot be any doubt, that it is because of the inducement by the accused that Shanthakumari came out of her parental home and was taken away by the accused. He waited for her near the back door of her house on the night of the incident and then took her away on his bicycle. There cannot be any doubt, that it is because of the inducement by the accused that Shanthakumari came out of her parental home and was taken away by the accused. Though Shanthakumari is not uneducated, she cannot be said to be of the same understanding or so sophisticated either as the College girl concerned in the. Supreme Court case or the Anglo-Indian girl concerned in the case in Criminal Appeal No. 20 of 1966, above referred to. Further, having regard to the date of birth of Shanthakumari, it cannot by any means be said that on the relevant date she was on the verge of attaining the age of 18 years. The accused had clearly enticed Shanthakumari who was a female minor under 18 years of age, out of the keeping of her lawful guardian, namely, her father, without his consent and has, therefore, clearly committed the offence of kidnapping from the lawful guardianship. He is punishable under section 363 of the Indian Penal Code. There being no infirmity in the conviction of the accused under section 363 of the Indian Penal Code, that conviction should be maintained. It was pleaded on behalf of the appellant that having regard to the circumstances in the case, the sentence of three years rigorous imprisonment awarded by the learned Sessions Judge for the offence under section 363, Indian Penal Code, is very severe. On a consideration of all the circumstances in the case, it seems to me, that the interests of justice will be sufficiently served by reducing the sentence for the offence under section 363 of the Indian Penal Code, to the period already undergone by the appellant. It is ordered accordingly. With this modification, the appeal in so far as it relates to the conviction and sentence under section 363 Indian Penal Code, shall stand dismissed. The appellant who is in Jail undergoing the sentence awarded by the learned Sessions Judge, shall be set at liberty forthwith. S.V.S.-----Ordered accordingly.