JUDGMENT 1. - The occurrence which has given rise to this appeal took place on the night intervening 9th and 10th May, 1973 at village Sarani Khera, under Police Station, Dholpur. The prosecution case is that Kumari Laxmi, minor daughter of Rameshwar Dayal, was residing with her father and was sleeping in the chowk of his house on the aforesaid night. At about 9 or 10 p.m. on May 9, 1973 she came out for urination and at that time she found that the appellant Hari Singh was standing in front of her father's house near a handpump. Hari Singh asked her to accompany him to his house as his mother was seriously ill. Kumari Laxmi accompanied Hari Singh to his house and there Hari Singh caught hold of her hand and bade her not to make any noise, threatening to kill her in case she made some noise and directed her to accompany him. Hari Singh was known to Kumari Laxmi for almost a year prior to the date of the aforesaid incident, as he was living just near the house of Laxmi's father and Hari Singh's mother used to come often to meet Laxmi's mother at the latter's house. Hari Singh is also said to have taken a photograph of Kumari Laxmi prior to this incident. Laxmi then accompanied Hari Singh, who took her on a bicycle to village Mania and then to Dholpur and from there they boarded a bus for Agra, where Hari Singh kept Laxmi in the house of his brother, Ram Babu. While residing in the house of Ram Babu at Agra, Hari Singh is said to have forcibly committed illicit intercourse with Laxmi and then he also asked her to marry him and desired to get their marriage registered in the Court, but Laxmi declined to marry him. Thereafter Hari Singh took Laxmi in a bus to Murena and therefrom to Dongarpur, where Ram Gopal, husband of Hari Singh's mother's sister resided. He stayed there for two days and from there Hari Singh took Laxmi to village Hingona where they stayed at a Brahmin's house for a night and there Hari Singh came to know that the police was making a search for him and, therefore, he took Laxmi on foot from that village to a lonely temple situated at a place called `Pachkund'. The two remained there for a day and Hari Singh is alleged to have committed rape upon Laxmi in the temple at `Pachkund' and thereafter Hari Singh threatened Laxmi that he would kill her in case she did not go to the Police Station and give a statement in his favour, as the police was making a search for him. Hari Singh then brought Laxmi to a place near about Dholpur and left her about a mile on the way from Dholpur from where Laxmi went to the Sadar Kotwali Police Station, Dholpur and disclosed the entire story. The police got Laxmi medically examined and thereafter handed her over to her father. 2. Turning to the scene in the house of Rameshwar Dayal in the morning of the 10th May. 1973 when Rameshwar Dayal woke up, he found the bed of Laxmi empty. He made an inquiry from all the inmates of the house including his sons and his father but nobody knew about her. Rameshwar Dayal also made Tantric search in the village and also made an inquiry from Hari Singh's mother, who resided nearby. Smt. Chameli, mother of Hari Singh told Rameshwar Dayal that if her son had taken away Laxmi then she would make a search in the matter and would see that Rameshwar Dayal's daughter was restored to him. But as the search made by Rameshwar Dayal did not prove to be successful, he lodged a report at the Police Station Sadar Kotwali, Dholpur at 3.15 p.m. on May 10, 1973. According to Rameshwar Dayal the age of Laxmi at the time of the occurrence was 14 years and she had read at the Sarani Khera school upto 5th class and left the said school as she failed in the 5th class. Gordhan PW 3 is the grandfather of Laxmi. He also corroborated the statement of Rameshwar Dayal PW 2 and stated that he was sleeping on the Chabutari outside the house and in the early hours of the morning on May 10, 1973 Rameshwar Dayal woke him up and asked him as to where Laxmi was, but he did not know about her. He also stated that on the evening of May 9, 1973 appellant Hari Singh came to the Mohalla where the house of the witness was situated along with two other boys. He also stated that on the evening of May 9, 1973 appellant Hari Singh came to the Mohalla where the house of the witness was situated along with two other boys. He further stated that an inquiry was made from Smt. Charaeli, mother of the appellant Hari Singh, who told them that Hari had come to the house along with two other boys in the night but he had gone away at that very time. Ram Gopal, who is the husband of the appellant's mother's sister has been examined as PW 4 and he stated that the appellant along with a girl came to his house at village Dongarpur and he had asked the appellant as to who the girl was, on which the appellant told him that she was a Brahmin girl and that he had gone to that village only to meet his relations. According to this witness the appellant and the girl, whom he recognised to be Laxmi, remained in his house for two days but then he asked them to go away from his house and both of them left his house. In the cross-examination this witness stated that he entertained a' suspicion and that was why he asked the appellant Hari Singh about the identity of the girl, but he told him that she was a Brahmin girl, and was resident of Dholpur, who had lost her parents, PW 5 Sita Ram stated that he had seen Laxmi going on the bicycle of the appellant Hari Singh towards Dholpur, about a mile or one and a half miles away from that place and then he had asked the appellant as to why he was taking Laxmi with him. on which he replied that the sister of Laxmi's father, who resided at Dholpur was ill and, therefore, he was taking Laxmi to her place. He also stated that they were followed by two other boys on another bicycle. Sarwan Lal PW 6 is the Station House Officer of the Police Station, Kotwali, Dholpur and he stated that the report Ex. He also stated that they were followed by two other boys on another bicycle. Sarwan Lal PW 6 is the Station House Officer of the Police Station, Kotwali, Dholpur and he stated that the report Ex. P/2 was submitted by Rameshwar Dayal before him, after which he started investigation in the case and on May 19, 1973 Laxmi was produced before him by Assistant Sub-inspector Moti Singh, who told him that he found the girl coming towards Kotwali Police Station and that after recording the statement of Laxmi he sent her for medical examination. After investigation, a challan was submitted by the police in the Court of the Magistrate First Class, Dholpur, who committed the appellant to the Court of the Additional Sessions Judge, Dholpur for standing his trial for offence under Sections 363, 366 and 376 Indian Penal Code The learned Sessions Judge after completing the trial, acquitted the appellant of an offence punishable under Section 376 Indian Penal Code giving him the benefit of doubt, but he held that the appellant was guilty for committing offences punishable under Sections 363 and 366 Indian Penal Code and convicted him for the aforesaid offences and sentenced him to three years' rigorous imprisonment and a fine of Rs. 100/- and in default of payment office to undergo further rigorous imprisonment for two months under Section 363 Indian Penal Code and to four years' rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine to further undergo rigorous imprisonment for four month under Section 366 I P.C. 3. Against his .conviction and sentence as aforesaid, the appellant Hari Singh has filed the present appeal in this Court. 4. , The first question which requires consideration in this appeal is as to what was the age of Kumari Laxmi on the date of the alleged occurrence i.e. on May 9, 1973. From the statements of Laxmi PW 1, her father Rameshwar Dayal PW 2, her grandfather Gordhan PW 3 it appears that the age of Laxmi at the relevant time was between 14 and 15 years. In her statement at the trial on July 9. 1974 Laxmi gave out her age as 15 or 15A years. Besides the oral testimony of the aforesaid three witnesses, there is the entry in the school register of the Government Middle School, Sarani Khera, where Laxmi was admitted on August 1, 1966. In her statement at the trial on July 9. 1974 Laxmi gave out her age as 15 or 15A years. Besides the oral testimony of the aforesaid three witnesses, there is the entry in the school register of the Government Middle School, Sarani Khera, where Laxmi was admitted on August 1, 1966. PW 8 Ladli Mohan Sharma, Head Master of the School has proved the relevant entry marked as Ex. P/5, in which the date of birth of Laxmi is mentioned as October 15, 1958. The school leaving certificate Ex. P/6 has also been proved by PW 8 Ladli Mohan Sharma, which has prepared from the entries made in the admission register of the school. Thus from the aforesaid entry in the school register the age of Laxmi at the time of the alleged occurrence comes to about 14.1 years. Then this evidence is further supported by testimony. Dr. S. P. Saxena, who has been examined as PW 9 has stated that Laxmi had 28 teeth and from the skaigram he found that there was fusion of both condyles of humerus while distal ends of both radius and ulna were not fused. According to the opinion of the doctor, the age of Laxmi was between 14 to 17 years when he examined heron May 19, 1973. Thus there is over whelming evidence on the record to show that the age of Laxmi at the time when the occurrence took place was between 14 and 15 years. The learned Sessions Judge has also tried to calculate the age of Laxmi from the respective ages of her brothers and sisters, which have been elicited from her in her cross-examination and in the cross-examination of her father PW 2 Rameshwar Dayal and according to such calculation, he came to the conclusion that on the date of the alleged occurrence her age was about 16-16 years. Thus from the entire evidence it is proved beyond any manner of doubt that the age of Laxmi on the date of the alleged occurrence was less than 17 years and she was, therefore, definitely a minor on the aforesaid date. Thus from the entire evidence it is proved beyond any manner of doubt that the age of Laxmi on the date of the alleged occurrence was less than 17 years and she was, therefore, definitely a minor on the aforesaid date. In the face of this over whelming evidence, consisting of the testimony of near relations including the father and the grandfather of the girl and of the girl herself as also the entries in the school records and the medical evidence, learned counsel for the appellant rightly did not make any submission in this respect. 5. However, what learned counsel vehemently argued was that Laxmi had gone away with the appellant Hari Singh of her own free will and that there was no proof of the appellant's either taking or enticing her away from lawful guardianship. Learned counsel in this respect relied upon the- decision of their Lordships of the Supreme Court in S. Varadarajan v. State of Madras, AIR 1965 SC 942 and submitted that when the girl, who had attained the age of discretion and at the verge of attaining majority, accompanied the appellant of her free will, then it cannot be said that the appellant had taken her away out of the keeping of her lawful guardian, within the meaning of Section 361 Indian Penal Code There is no doubt that Laxmi was removed from the control of her lawful guardian without the consent of the guardian. There is, of course, no evidence to show that there was any enticement. The only question that remains to be determined is whether the part played by the appellant in the present case amounted to taking away Laxmi out of the keeping of her lawful guardian. In Varadarajan's case (1) their Lordships of the Supreme Court were pleased to observe that the girl Savitri was a college going girl on the verge of attaining majority, who herself telephoned to the accused to meet her at a certain place and went there to meet him and got into the car of the accused of her own accord and went with him to the office of the Sub-Registrar for getting the marriage registered. Their Lordships have observed in the aforesaid case that there was not a word in the deposition of Savitri from which an inference could be drawn that she left the house at the instance or even on a suggestion of the appellant in that case. In fact she had left the place of her lawful guardian of her own free will with an intention of marrying the appellant and from this conduct of the girl Savitri, their Lordships came to the conclusion that there was nothing from which an inference could be drawn that the appellant in that case was guilty of taking away Savitri out of the keeping of her lawful guardian. In my opinion, the facts of the aforesaid case were entirely different from those in the present case. In this case, Laxmi has clearly stated in her deposition in Court that when she came out of her house at about 9 or 10 p. m. on May 9, 1973 the appellant Hari Singh was standing in the courtyard of the house where a hand-pump was installed and that he asked her to accompany him to his house on the pretext that the mother of Hari Singh was ill and when she reached the house of Hari Singh, he caught hold of her hand and bade her not to make any noise and asked her to accompany him and threatened her to kill her if she made some noise and also brandished a knife to threaten her. There is no reason to disbelieve the testimony of Laxmi in this respect and from this evidence it does not appear that Laxmi had wilfully of her own accord gone out of the keeping of her lawful guardian. 6. In re v. Abdul Azeez and Another, AIR 1954 Mad 62 Ramaswami J. of the Madras High Court held that the consent of a minor girl was of no consequence and also made the following observations : "The word `take' a girl under 18 `out of the possession and against the will of her father or mother, etc.' does not imply force, actual or constructive ; it means, being a party to the father, etc., being deprived of the possession of the girl, her willingness being immaterial......the `taking' which constitutes an offence is completed as soon as the girl, is removed from the keeping of the lawful guardian. It does not mean continuing or continuous act ........the mere fact that a minor leaves the protection of her guardian does not put her out of the guardian's keeping. If, however, it is proved that a minor had abandoned her guardian with no intention of returning back, she cannot thereafter be deemed to continue in the keeping of the guardian." In that case a young girl was taken away by two neighbours from her house on the basis of a preconcerted arrangement between them and the girl accompanied the boys from place to place at their instance and co-operation. It was held that the offence under Section 363 I. P. C was proved. 7. In The State v. Babulal, AIR 1965 Raj 90 a minor girl aged about 15 years, left her father's house to bring milk and on the way the accused met her and took her on his bicycle to the house of his friend against her will and threatened her with a knife and kept her in the house with an intention to commit illicit intercourse. It was held that the girl had been .taken away by the accused from the lawful guardianship of her father and an offence under Section 361 Indian Penal Code was committed. It was held in the aforesaid case that willingness of the girl to leave the house of the guardian and going with the accused did not affect the commission of an offence under Section 361 Indian Penal Code, because it was the influence of the accused that instigated the minor girl to go out of the keeping of her lawful guardian and the accused could not absolve himself from the criminal liability by taking the plea of willingness of the minor girl. 8. In Thakorlal D. Vadgama v. The State of Gujarat, AIR 1973 SC 2313 it was observed that if the accused has Lald a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the accused, then it would be difficult to hold that the minor had voluntarily come to the accused. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the accused, then it would be difficult to hold that the minor had voluntarily come to the accused. If the accused had, at an earlier stage, solicited or induced the girl in any manner to leave her father's protection, by conveying or indicating an encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defence. 9. The expression "takes" which has been employed in Section 361 Indian Penal Code does not necessarily connote taking by force and it is not necessary in such cases that force, actual or constructive, should be used, as it only means causing to go. There may be physical taking, but without the use of any force. Applying these principles. to the facts of the present case, the evidence of Kumari Laxmi leaves no doubt that the appellant had taken her out of the keeping of her lawful guardian. It is clear that the influence of the appellant instigated the minor Laxmi to leave the protection of her lawful guardian. There can be no doubt that such influence was definitely there at the time when she left with him and went to his house and from place to place thereafter.Thus the offence under Section 361 Indian Penal Code is fully proved against the appellant. The learned Sessions Judge has acquitted the appellant of the offence under Section 376 I P.C. giving him the benefit of doubt. But in the circumstances, as the offence under Section 361 Indian Penal Code has been fully proved, the learned Additional Sessions Judge was perfectly justified in convicting the appellant under Sections 363 and 366 Indian Penal Code 10. Lastly, learned counsel submitted that the sentence awarded to the appellant was excessive. The conduct of the appellant in taking away a minor girl and inducing her to go from place to place cannot be lightly dealt with. Lastly, learned counsel submitted that the sentence awarded to the appellant was excessive. The conduct of the appellant in taking away a minor girl and inducing her to go from place to place cannot be lightly dealt with. However, looking to the age of the appellant, I consider it proper to modify the order passed by the learned Additional Sessions Judge and to reduce the sentence imposed upon him under Section 366 Indian Penal Code to three years' rigorous imprisonment and a fine of Rs. 200/-. In default of payment of fine, the appellant shall undergo further rigorous imprisonment for four months. 11. In the result, the appeal is partly allowed. The conviction of the appellant under Sections 363 and 366 Indian Penal Code is maintained and although the sentence awarded to him under Section 363 Indian Penal Code is also maintained, the sentence awarded to him under Section 366 Indian Penal Code is altered to three years' rigorous imprisonment and a fine of Rs. 200/-. In default of payment of fine he shall undergo further rigorous imprisonment for four months. Both the sentences shall run concurrently. The period of detention undergone by the appellant during the investigation, inquiry and trial shall be set off against the terms of aforesaid imprisonment. *******