JUDGMENT : J.K. Mohanti, J. - The Petitioner was tried in the Court of the Assistant Sessions Judge. Keonjhar for having committed an offence u/s 366, Indian Penal Code. The allegation against him was that he kidnapped P.W. 2 Basanti, a minor daughter of Shyamsundar Naik (P.W. 1) at about 9 p.m. in the night of 16th June, 1978 with the intention that she may be compelled to marry against her will. Another accused Ananta Charan Jena who happens to be the sister's husband of accused Petitioner Prafulla Kumar Jena was also tried under Sections 366/109, Indian Penal Code for abetment of the said offence of kidnapping. Ananta Charan Jena was acquitted by the Assistant Sessions Judge, but the Petitioner was convicted u/s 363, Indian Penal Code and sentenced to undergo R.I. for three years. An appeal against the aforesaid order of conviction and sentence was preferred in the Court, of the Additional Sessions Judge, Keonjhar, who maintained the conviction but reduced the sentence to six months' R.I. This revision has been filed against the above order of conviction and sentence passed against the Petitioner. 2. The case of the prosecution is that Basanti P.W. 2 who was a minor on the date of occurrence was living with her father (P.W. 1), her, mother and three brothers and three sisters. The Petitioner was a primary school teacher in the village. On the first day of Raja festival i. e. on 14-6-1978 (one day prior to the occurrence) P.W. 1 with his wife and his eldest son went to the village where their eldest daughter had married leaving P.W. 2 in charge of the house and other younger sons and daughters. On the second day of Raja i.e. on 15-5-1978 the occurrence took place. On returning on the next day third day of Raja P.W. 1 learnt that Basanti was missing since the previous night. He thereafter searched for his daughter, but as he could not find her he lodged F.I.R. (Ext. 1) at Ghatgaon P.S. on 21-6-1978. On 23-6-1978 Basanti was found in the house of Ananta Charan Jena (since acquitted). P.W. 6 the constable brought her to the police station and on 27-6-1978 the accused Petitioner was arrested. The girl was examined by the Lady Assistant Surgeon, Keonjhar (P.W. 4) and also by the Radiologist (P.W. 5) to ascertain her age. On 23-6-1978 Basanti was found in the house of Ananta Charan Jena (since acquitted). P.W. 6 the constable brought her to the police station and on 27-6-1978 the accused Petitioner was arrested. The girl was examined by the Lady Assistant Surgeon, Keonjhar (P.W. 4) and also by the Radiologist (P.W. 5) to ascertain her age. According to the doctors the age of the girl was between 14 and 16 years. Thereafter the accused was charge-sheet and tried in the Court of the Assistant Sessions Judge. In the trial Court seven witnesses have been examined. P.W. 1 is the father, P.W. 2 is the victim girl, P.W. 3 is a witness who stated about P.W. 2's going with the accused and another in a bus, P.Ws. 4 and 5 are the doctors, P.W. 6 is the constable and P.W. 7 is the I.O. The learned Assistant Sessions Judge after considering the evidence found the girl to be minor and held the Petitioner guilty u/s 363, Indian Penal Code. 3. In this Court Mr. Jena, learned Counsel appearing for the Petitioner, raised the following contentions: (a) that there is no reliable evidence that the Petitioner took P.W. 2 out of the keeping of her lawful guardian; (b) that the evidence of P.W. 1 goes to show that P.W. 2 was about 21 years of age; (c) that the age of the girl as given by the doctors P.Ws. 4 and 5 is not conclusive and the test conduced by them is not the surest test and no definite opinion can be given from their evidence that the girl was below 18 years of age; (d) that there was no question of taking or enticing in this case and as the girl voluntarily left the house the Petitioner cannot be held guilty of taking or enticing her out of the keeping of the lawful guardianship of her father; (e) that the evidence of P.W. 2 cannot be believed and once P.W. 2's evidence is disbelieved the prosecution has no legs to stand; and (f) that the Courts below have committed several errors of record and in any view of the matter the Petitioner is entitled to acquittal. 4. P.W. 1, the father of the victim girl, has no personal knowledge as to how his daughter P.W. 2 left his house. 4. P.W. 1, the father of the victim girl, has no personal knowledge as to how his daughter P.W. 2 left his house. Admittedly he his wife (mother of the victim girl) and eldest son were absent and the victim girl was in charge of the house and the minor children. According to his evidence-in-chief the girl was 16 years of age when she was kidnapped. But in cross-examination he has stated that his youngest son Dutia was admitted in the primary school about 4 or 6 years back. He (Dutia) successively failed in Class I for three years and in Class II for three year. So it was pointed out that at the time of occurrence Dutia was 12 to 13 years old. P.W. 1 further stated that his another son Rusia is four years older than Dutia and another son who was four years older than Rusia is dead and Basanti was four years older than the said deceased son. So calculating from the above it could easily be seen that the age of Basanti at the time of occurrence would be much more than l8 years and would be about 21 years. This statement appears to be somewhat confusing and the Courts below have not accepted this evidence of P.W. 1. P.W. 4 the Lady Assistant Surgeon opined that Basanti was aged about 14 to 16 years approximately. She came to this conclusion on the basis of the developments of the secondary sexual characters and other features such as eruption of teeth, development of breasts, axillary and public hair and appearance. She has agreed in cross-examination that the age may vary depending upon nutrition diet and standard of living. Her report was marked as Ext. 3. P.W. 5 is the doctor who conducted ossification test by taking x-ray plates of different parts of the body of P.W. 2. According to him, the girl would be between 15 and 161/2 years of age. He also agreed that the finding as to age may vary depending upon climate, diet and heredity. From the evidence discussed above there may be some doubt about the age of the girl at the time when she was kidnapped. Since both the Courts have found that the girl was below 18 years of age. I do not consider it proper to differ from their finding. From the evidence discussed above there may be some doubt about the age of the girl at the time when she was kidnapped. Since both the Courts have found that the girl was below 18 years of age. I do not consider it proper to differ from their finding. It is in the evidence of P.W. 1 that all the elderly members of the family had gone out keeping P.W. 2 in charge of the house and the younger children of the family. From the evidence on record it is however clear that P.W. 2 was on the verge of attaining majority and had attained the age of discretion. 5. The next question for consideration is whether the accused-Petitioner has taken or enticed P.W. 2 out of the keeping of her lawful guardian. Regarding this aspect of the case the only evidence available is of P.W. 2, the victim girl herself. According to P.W. 2 in the evening of the day of occurrence she went to attend call of nature to their bari. While she was returning the accused, Petitioner Prafulla caught hold of her and put a handkerchief in her mouth and dragged her near the Masanabila crossing and thereafter with the help of the other accused (since acquitted) took her to Anandapur Bus Stand and thereafter they all boarded the bus and came to the house of Ananta Charan Jena. She was recovered by the police after 10 days. She has even gone to the extent of saying that she had not washed herself after easing for one and half days. She has further stated that during the stay of accused Prafulla in their village, he never came to their house and she had no talk with Prafulla and she had not known him prior to the occurrence. This statement P.W. 2 is absolutely false in view of the clear and categorical statement of P.W. 1 that Rukmini, daughter of P.W. 1, had kept a son of accused Prafulla as her God-son and as the Petitioner became a God-relation of Rukmini, P.W. 1 used to invite the Petitioner to his house on festive occasions. P.W. 2 has further admitted that she did not try anything to anybody in the bus though there were many passengers. P.W. 2 has further admitted that she did not try anything to anybody in the bus though there were many passengers. Though she remained for 10 days in the house of Ananta, she also did not try to escape from the house nor did she try to anybody that she had been kidnapped. From the above evidence of P.W. 2 it is apparent that she is biding the truth and has told absolute falsehood and even went to the extent of denying that she did not know the Petitioner prior to the occurrence. Her evidence in the circumstances cannot be believed. The other evidence available is that of P.W. 3 who has merely stated that he has seen P.W. 2 and the Petitioner and another travelling in a bus. This evidence does not help the prosecution in any manner. Thus it appears that P.W. 2 left her house out of her own accord without any enticement and it has not been established by any reliable evidence that the accused is guilty of taking the minor out of the keeping of her lawful guardian. 6. Mr. Jena In support of his case relied on a decision reported in S. Varadarajan Vs. State of Madras wherein it has been held: Taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. xx xx xx There is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purpose of Section 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. xx xx xx No doubt, the part played by the accused could be regarded as facilitating the fulfillments of the intention of the girl. xx xx xx No doubt, the part played by the accused could be regarded as facilitating the fulfillments of the intention of the girl. But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking". This decision appears to have full application to the facts and circumstances of the present case. After considering the argument of both sides and the facts and circumstances of the case I am of the opinion that the prosecution has not proved its case against the accused-Petitioner beyond reasonable doubt and the ingredients to constitute the offence of kidnapping from lawful guardianship as defined in Section 361, Indian Penal Code have not been established. 7. In the result, therefore, the revision is allowed, the order of conviction and sentence passed against the Petitioner is set aside and he is acquitted. Final Result : Allowed