JUDGMENT H.N. Kapoor, J. - Appellants Abdulla, Imaman alias Meerutwali Mullani have been convicted by the II Temporary Sessions Judge of Rampur by his judgment dated 22-9-1970 under sections 363 and 366 I.P.C. and sentenced to 18 month's and two years R. I. respectively under the two sections. Abdulla has further been convicted under section 376 I.P.C. and sentenced to four years' R. I. All the sentences have been directed to run concurrently. 2. The facts giving rise to this appeal are as follows : The prosecutrix Km. Ram Piari aged about 14 years was residing with her father Qasba Bilaspur Hari Ram (P.W. 6) is Z Police Station Bilaspur in the District of Rampur. The accused Smt. Imaman was their close neighbour. She used to visit the house of Km. Ram Piari Km. Piari also visited her house. Accused Abdulla is the son-in-law of Smt. Imaman. A day before the occurrence which took place on the 11th of April, 1968 the prosecutrix had visited the house of Smt. Imaman in the evening. Abdulla was there. At that time Smt. Imaman and Abdulla told Km. Ram Piari that she should go with Abdulla who would fix her well. She refused to go and went back to her house. Her father was a poor man. 3. On the day of occurrence at about 8 a.m. when her father was not in the house, she went to the house of Mullani. At that time Mullani and Abdulla both persuadad her to go with Abdulla. One Dr. Zaidi too was sitting there and he too persuadad her to go with Abdulla. She was told by these persons that she would be fixed up well. She then went with the two appellants upto the dam. Abdulla was carrying a cycle. In the way Ram Kumar Saxena (P.W. 5) and Bishan Mistri saw her in the company of the two appellants going towards the dam. According to Km. Ram Piari Mullani returned from the darn and then she was taken alone on the cycle by Abdulla. He took her to a lonely place called Bhiraya farm and committed rape on her. There she remained with Abdulla for about 3/4 hours Abdulla then took her by the main road on the cycle towards Rudrapur when he was caught by the police. 4. He took her to a lonely place called Bhiraya farm and committed rape on her. There she remained with Abdulla for about 3/4 hours Abdulla then took her by the main road on the cycle towards Rudrapur when he was caught by the police. 4. In the meantime Hari Ram returned to his house at about 10 or 11 a.m. He made a search for the girl. Raj Kumar Saxena (P.W. 5) and Bishan Mistri then informed him that they had seen his daughter Km. Ram Piari going with Mullani and Abdulla towards the dam. He then went to the police station and lodged the first information report (Fxt. Ka-1) at 3-45 a.m. A case was registered in the general diary a copy of which is Fxt. Ka-4. 5. S.I. Jagdeo Singh (P.W. 8) at once took up the investigation of the case. He interrogated Hari Ram. He took Hari Ram and went towards Mudrapur and met Abdulla going on a cycle a little ahead Bhiraya farm. The prosecutrix was being taken on that very cycle. He took Abdulla in custody. He also took the cycle (Fxt. 2) in custody and prepared the recovery memo (Fxt. Ka-6) about the recovery of the girl in the presence of Gulazar Singh (P.W. 4) who turned hostile. The appellant Abdulla and the girl were taken to the police Station. The investigating officer there took the salwar (Fxt. 1) and the underwear (Pxt. 3) of Abdulla in his custody. Both these clothes were duly sealed and sent to the chemical examiner and the serologist. Sperma tozoa detected on both these clothes. Blood-stains were also detected on the salwar of the girl. 6. Km. Ram Piari was then sent for medical examination. Dr. Bishan Kumar (P.W. 2) examined her on April 12, 1968, at 5 p.m. X-ray report is Fxt. Ka.2, her X-ray was taken by Khurshed Ali (P.W. 9) on 13-4-1968. Dr. Bishan Kumari gave the supplementary report (Fxt. Ka-3). In her opinion the age of the girl was between 15.17 years. 7. After completing the investigation, the investigating officer submitted a charge-sheet (Fxt. Ka-8) against both the appellants and the appellants were duly tried. They denied the prosecution allegations. Mullani stated that she had opened a parnala towards the house of Hari Ram which Jari Ram wanted to be closed. She falsely implicated in this case due to enmity. 7. After completing the investigation, the investigating officer submitted a charge-sheet (Fxt. Ka-8) against both the appellants and the appellants were duly tried. They denied the prosecution allegations. Mullani stated that she had opened a parnala towards the house of Hari Ram which Jari Ram wanted to be closed. She falsely implicated in this case due to enmity. Abdulla stated that he was also falsely implicated because Hari Ram had enmity with his mother-in- law. One Ghasita (D. W. 1) was examined to prove the dispute about the parnala. It may be stated here that Km. Ram Piari admitted that the parnala had been opened towards the house of her father. But she stated that her father never objected to it and instead said" let it be there" as no harm was done to him or to his house. 8. In support of its case the prosecution has examined Km. Ram Piari (P.W. 1) the prosecutrix, Gulzar Singh (P.W. 4), recovery witness, who, however, turned hostile, Ram Kumar Saxena (P.W. 5) who had seen the prosecutrix going in the company of the two appellants and had then informed Hari Ram lodged the first information report on the basis of that information, Hari Ram (P.W. 6) who is the father of the prosecutrix who lodged the first information report. The girl was also recovered in his presence as he had gone with the investigating officer in search of the girl. She was found in the company of Abdulla. 9. The first question that arises for determination is about the age of the girl at the time of occurrence. She and Hari Ram stated that her age was 13-14 years at the time of the occurrence. Dr. Bishan Kumari (P.W. 2) gave her opinion that her age was between 16.17 years on the basis of her medical examination and the X-ray report. She did not find any marks of recent rape having been committed on her. Her report shows that she was used to sexual intercourse from before. The X-ray report shows that epihyses of bones forming the elbow joint had united. Epihyses of lower ends of radius and ulna bones had not united. There was no space formation for epihyses. Her public hairs were present but there were no hairs on the axilla. Her report shows that she was used to sexual intercourse from before. The X-ray report shows that epihyses of bones forming the elbow joint had united. Epihyses of lower ends of radius and ulna bones had not united. There was no space formation for epihyses. Her public hairs were present but there were no hairs on the axilla. After taking into consideration the X-ray report and the general development of her body, she gave her opinion that her age was between 16-17 years at the time of the occurrence, and that not above 17 years. She was thus given a categorical opinion with regard to the age of the girl. Learned counsel for the appellants has argued that the medical option can never be accepted as final and that on her own showing development of body varies from per- son to person. He has further argued V that so far as the fusion of lower ends of ulna and radius are concerned, it takes place between 18-19 years according to Modi and as such the age of the girl could be above 18 years and less than 19 years. In case the finding was based on this aspect there was sufficient force in this argument of the learned counsel. But so many other factors have been taken into consideration by the lady doctor. She is an experienced doctor. As already stated above, there were no' hairs on the axilla. There were only 28th in all and no space had been formed for the third milar. It is true that Hari Ram and Km. Ram Piari had not given the correct age but when their oral evidence is read along with the opinion of Dr. Bishan Kumari it is clear that she was not above 17 years at the time of the occurrence though above 16 years. 10. The next question to be considered is whether the offence under section 376 I.P.C. has been proved. On this point there is the solitary evidence of the prosecutrix which has been corroborated by the report of the chemical examiner and the serologist that spermatozoa was present on the salwar of the girl and the underwear of Abdulla appellant. It can, therefore, be held that she had sexual intercourse with Abdulla that day. On this point there is the solitary evidence of the prosecutrix which has been corroborated by the report of the chemical examiner and the serologist that spermatozoa was present on the salwar of the girl and the underwear of Abdulla appellant. It can, therefore, be held that she had sexual intercourse with Abdulla that day. But the question is whether she was a consenting party or she was forced to have sexual intercourse with Abdulla against her will. Learned Assistant Government Advocate has placed reliance on the case of Madho Ram v. State of U.P., AIR 1973 SC 469 in which it was held that the solitary testimony of the prosecutrix cannot believed for conviction of the accused. In that case the High Court arrived at the conclusion that rape had been committed after considering the evidence of the prosecutrix and other circumstances of the case. Their Lordships of the Supreme Court had not departed from their earlier view that corrobo V ration of the statement of the prosecutrix is needed by way of prudence though there is no rule of practice that there must in every case be corroboration for the evidence of a prosecutrix before her evidence can be accepted. Km. Ram Piari has started that she had protested while Abdulla tried to take off her salwar but Abdulla had threatened her with a knife. She had not mentioned about any such threat by the knife before the court of the committing Magistrate. In case she was being taken by Abdulla forcibly, she could have informed her neighbours Raj Kumar Saxena (P.W. 5) and Bishan Mistri when they met her in the way. There were no marks of violence on her private parts. She was a ready used to sexual intercourse before. It is, therefore, possible that s e might be a consenting party. It is, therefore, not safe to convict Abdulla under section 376 I.P.C. after it has been held that she was above 16 years of age. 11. It has now to be considered whether the offence under sections 363 and 366 I.P.C. have been proved against the appellants or not. Learned counsel for the appellants has argued that the entire prosecutrix story appears to be improbable. No mother-in-law would accompany her son-in-law with the knowledge that the girl would be forced or seduced to have sexual intercourse with her own son- in-law. Learned counsel for the appellants has argued that the entire prosecutrix story appears to be improbable. No mother-in-law would accompany her son-in-law with the knowledge that the girl would be forced or seduced to have sexual intercourse with her own son- in-law. It has been proved that she had sexual intercourse with Abdulla before his arrest as spermatozoa was present on their clothes. It has also been proved that Km. Ram Piari and Abdulla were found going together on the cycle when the Sub-Inspector arrested them. Gulzar Singh (P.W. 4), who is a witness of recovery of the girl, has no doubt turned hostile but he had to admit his signature on the recovery memo and has given satis- factory explanation for the same except that it had not been read over to him. Moreover, there was no enmity between the Sub-Inspector (P.W. 8) and the appellant Abdulla. He would not have shown the recovery of the girl falsely. 12. So far as Mullani is concerned, there is the evidence of Raj Kumar (P.W. 5) an entirely independent witness. He had seen Mullani and Abdulla going together with the girl towards the dam at about 10.30 or 11 a.m. His statement is further corroborated by the first information report which was lodged by Hari Ram at 3.45 p.m. on the basis of the information given to him by Raj Kumar and Bishan Mistri. The only suggestion made to this witness is that he had made a false statement simply because he knew the father of the girl. This alone would be no reason for falsely implicating the appellants even against Hari Ram only a vague enmity has been suggested with regard to parnala. Ram Piari has clearly stated that Hari Ram never objected to it. It does not appear that any report was made about such quarrel on parnala. Ghasita (D. W. 1) is obviously a partisan witness. He has stated that he was told that he was to given evidence in the case about the parnala but he appeared as a witness in that case. It does not appear that any case is pending with a regard to parnala. Km. Piari has stated that Mullani had told her that she should 20 with Abdulla and that she would be fixed up at a decent place. It does not appear that any case is pending with a regard to parnala. Km. Piari has stated that Mullani had told her that she should 20 with Abdulla and that she would be fixed up at a decent place. Abdulla's intention might have been to give her away to third person knowing that she was forced to marry with the third person or forced or seduced to illicit intercourse with that third person. It might be that Mullani herself might not even be with the girl. There is thus nothing improbable in her being a party to this kidnapping. 13. Lastly it was argued that the circumstances are such that it is possible that the girl had gone to the place of Mullani herself and had then eloped with Abdulla of her own accord and as such no offence under section 366 I.P.C. has been made out. It was argued that she has made an improvement in the prosecution story in the sessions court by stating that Mullani had called her. She has not made this statement before the court of the committing Magistrate of under section 161 Cr.P.C. It may be that she had made usual visit to the house of Mullani. Can it then be said that she was not under the lawful guardian. ship of her father at that time. Learned counsel for the appellants has placed reliance on the case of Ram Das v. State of M.P., (1971) (2) S. C. Cr. Rulings page 16. In that case it was no doubt held that where a minor girl leaves voluntarily her paternal roof and goes to the para-mour, there is neither entice went nor taking away within the meaning of section 363 I.P.C. The facts of that case were different. There was evidence that the girl was taken to her paramour to marry him and that she even threatened to commit suicide and to join her paramour voluntarily after leaving paternal roof. In that case reliance was placed on the earlier decision of the Supreme Court in the case of S. Varadarajan v. State of Madras, AIR 1965 SCR 942 (1965 243). In that case reliance was placed on the earlier decision of the Supreme Court in the case of S. Varadarajan v. State of Madras, AIR 1965 SCR 942 (1965 243). The circumstances of that case were also similar that a girl of mature mind had decided to marry the accused and herself had left the place where she was kept by her father and had joined her paramour who was waiting for her into car and then both of them had gone. That girl was on the verge of majority being only two months less than 18 years. In that case their lordships of the Supreme Court approved the following observation made in the case of In re-Khalandar Sahib, ILR 1965 Andhra 290 while distinguishing the Allahabad case of Noora v. Rex, AIR 1949 All. 710 . "In the present case it is not possible to hold that she is not under the guardianship of her father. In either contingency, namely, whether she went out to answer calls of nature or whether she went to the house of the accused pursuant to a previous arrangement, she continued to be under the guardianship of her father. On the evidence, it is not possible to hold that she abandoned the guardian- ship of her father and, there- fore, the accused took her with him." Their Lordships made the following comments on these observation "Thus, here there was an element of persuation by the accused person which brought about the willingness of the girl and this makes all the difference. In our opinion, therefore, neither of these decisions is of assistance to the State. Their Lordships also did not agree with everything that had been said in the case of Noora v. Rex, AIR 1949 All. 710 and made the following observation : "We do not agree with every- thing that has been said in these decisions and would make it clear that the mere circumstance that the act of the accused was not the immediate cause of the girl leaving her father's protection would not absolve him if he had at an earlier stage aplicited her or induced her in any manner to take this step." 14. It cannot, therefore, be said that in every case whenever the girl is not taken from the house of her father she has left the paternal roof of her own accord. It cannot, therefore, be said that in every case whenever the girl is not taken from the house of her father she has left the paternal roof of her own accord. Reliance was also placed on the case of State of Haryana v. Rajaram, AIR 1973 SCR 819. Their Lordships of the Supreme Court made the following observation : There is no doubt a distinction between taking and allowing a minor to accompany a per- son. But the present is not a case of the prosecutrix herself leaving her father's house without any inducement by Rajaram who merely allowed her to accompany him." But in the circumstances of that case the Supreme Court went to the extent of allowing the special Appeal and reversing the finding of acquittal recorded by the High Court. 15. In the present case Mullani was a neighbour and she frequently used to come to her house. Mullani too used to visit the house of the prosecutrix. She has stated that it was on that occasion that she was persuaded to go with Abdulla by Mullani, Abdulla and Dr. Zaidi. There is thus element of persuation and seduction in the present case which was not present in that case cited above. On the other hand, it was proved in those cases by the evidence of the prosecutrix and by the love letters sent by her that the prosecutrix had left the paternal roof out of her own accord. Those cases are clearly distinguishable. In the present case the prosecutrix had been eloped and Abdulla was already married. Abdulla even though it is open to Muslims to have four wives. It is clearly a case of kidnapping with the knowledge that she would be forced or seduced to illicit intercourse. 16. In my opinion, the prosecution has succeeded in proving its case against the appellants beyond all reasonable doubts. Appellants Abdulla is guilty for an offence under sections 366 and 363 Indian Penal Code while appellant Mullani is guilty for an offence under sections 363 and 366 A.Indian Penal Code 17. In the result the appeal is allowed in part to this extent that the conviction and sentence of appellant Abdulla under section 376 Indian Penal Code is set aside but his conviction and sentence under sections 366 and 363 Indian Penal Code are maintained. In the result the appeal is allowed in part to this extent that the conviction and sentence of appellant Abdulla under section 376 Indian Penal Code is set aside but his conviction and sentence under sections 366 and 363 Indian Penal Code are maintained. The conviction and sentence of Mullani under section 363 Indian Penal Code are maintained. Her conviction under section 366 Indian Penal Code is already to one under section 366-A.Indian Penal Code but the sentence under that section is reduced to eighteens month's R. I. All the sentences shall run concurrently. The appellants are on bail. They shall surrender to their bail bonds and be taken into custody forthwith to serve out the sentences awarded to them.