JUDGMENT 1. - This appeal has been filed against the order passed by the Sessions Judge, Banswara, convicting the accused Jugal alias Nathu under section 366 I.P.C. and sentencing him to undergo rigorous imprisonment for a period of four years for the aforesaid offence. 2. Briefly stated the prosecution case is that Kumari Arti, daughter of Ramchandra P.W. 4, aged 14 years, was reading in Government Girls School at Banswara in the session 1975-76. The house of Jugal alias Nathulal is situated near the school where the girl was studying. When Arti used to pass in front of Jugals house, he used to tease her. She made a complaint about Jugals behaviour to her father, who discontinued her studies and consequently Arti did not go to school thereafter. On November 7, 1975, Arti was induced by Narendra to go to the bus stand and from there Jugal accused took her to Ratlam. The police Inspector Harish Chandra Sharma of police station, Ratlam found these in the court compound and get suspicious and took them to the police station. A message was sent to the father of the girl who came from Banswara and lodged a complaint at police station Ratlam about the disappearance of his daughter. Jugal was taken into custody and after the usual investigation a challen in respect of offence under Sections 363 and 366 I.P.C., was filed against both Narendra and Jugal in the court of Judicial Magistrate, Banswara. Both the accused were committed by the learned Judicial Magistrate to face their trial under section 363 I P.C. in the court of Sessions Judge, Banswara. The learned Sessions Judge, after the trial, acquitted Narendra accused but convicted Jugal of the offence under section 366 I.P.C. and sentenced him to undergo four Years rigorous imprisonment as mentioned above. Learned Sessions Judge came to the conclusion that Kumari Arti was a minor and was not more than 16 years of age on the date of the occurrence, namely, on November 7, 1975 and that accused Jugal had taken her away from the lawful custody of her father with an inducement and that she was persuaded to accompany Jugal to Ratlam for the purpose of marriage. 3. 3. In this appeal, learned counsel for the appellant submitted in the first instance that Kumari Arti was major and was 19 years of age at the time of the occurrence and that the learned Sessions Judge was in error in holding that she was a minor at the relevant time. It was then urged that Kumari Arti had left her fathers house voluntarily and there was no question of enticing her of taking her away, as she went of her own free will and that the offence under section 366 I.P.C. was not made out against the accused-appellant Jugal. 4. So far as the question of age of the girl is concerned, learned Sessions Judge has relied upon two factors found on the basis of clinical examination. It was found that the third molar teeth was absent and that the fusion of epiphysis of lower ends of radius and ulna bones had not taken place. The learned Sessions Judge also relied upon the school record which showed that the date of birth of Kumari Arti was April 15, 1961. 5. Learned counsel for the appellant submitted that according to Modis Medical Jurisprudence (1972 Edition) the third molar teeth usually appears in between 17 to 25 years of age. Dr. Daferia P.W. 2, who had examined Kumari Arti, was of the opinion that she was below 17 Years of the age on the date of her medical examination and one of the factors which led her to come to that conclusion was the non-appearance of the third molar teeth. Modi in his book on Medical Jurisprudence (twentieth Edition) referred to the examination of 125 girls in Lucknow by Lall and town send and found one-third molar tooth appearing between the age of 15 and 16 Years, two-third molar teeth between the ages of 16 and 17 years and the third molar teeth between 17 and 18 years of age. The medical opinion, therefore, appears to be justified on the aforesaid basis that Kumari Arti was below 17 years of age. 6. The second important factor which was taken into consideration by the learned Sessions Judge related to the fusion of epiphysis of lower ends of radius and ulna bones, which normally takes place between the ages of 17 and 18 years. Learned counsel for the appellant relied upon the statement of Dr. 6. The second important factor which was taken into consideration by the learned Sessions Judge related to the fusion of epiphysis of lower ends of radius and ulna bones, which normally takes place between the ages of 17 and 18 years. Learned counsel for the appellant relied upon the statement of Dr. V.S. Jain, who stated in his cross-examination that Kumari Arti may be 18 years of age oil the date of her medical examination, although in his examination-in-chief, Dr. Jain definitely stated that she was not over 16 years of age. Dr. Jain also stated that in the statistical data's obtained from experiments conducted on a number of males and females, the error may be one year this way or that way and it is after allowing the maximum error which could creep in, he had stated the age of Kumari Arti may be 18 years. It may be observed in this respect that the appearance of teeth and ossification test of radio-ulna bones, referred to above, are helpful in determining the age of a person, but owing to variation in dietetic, heredity and other factors, a uniform standard for determination of age cannot be laid dawn and the test regarding ossification of the bones of the appearance of teeth are helpful only for determination of approximate age of the person concerned. 7. In the present case, besides the ossification test and the absence of third molar teeth, there is other evidence from the school record which unmistakably goes to establish that Kumari Arti was below 16 years of age on the date of occurrence. Ex.P. 5 is the copy of the certificate issued by the Headmistress of the Government Girls Basic Primary School, Nai Abadi, Banswara dated 3 July, 1972, in which it has been stated that Kumari Arti, whose date of birth was 15 April, 1961, was admitted in the Basic Primary School in the first class on 5 July, 1966 and she left the said school after passing class IVth on 3 July, 1972. In the application form for admission, submitted by the father of Kumari Arti on 3 July, 1972 in the Government Girls Mid lie School, Banswara, also the date of birth of the girl has been entered as 15 April, 1961. In the application form for admission, submitted by the father of Kumari Arti on 3 July, 1972 in the Government Girls Mid lie School, Banswara, also the date of birth of the girl has been entered as 15 April, 1961. The same date of birth is found entered in the transfer certificate issued by the Headmistress of the Government Girls Middle School, Nagarwara, Banswara on 24 April, 1975 which shows that Kumari Arti had joined the said school on 3 July, 1972 in the 5th class and left the same on 24 October, 1975 while she was reading in the 7th class of that school. The documents Exs.P. 12 to P. 16 which have been produced from the records of the two schools, where Kumari Arti had received her education from the very beginning, go to prove that her date of birth was recorded as 15 April,1961 ever since she joined the first class in July, 1966. It is defined to dispute the date of birth which was recorded in the school register, when kumari Arti joined the school in the year 1966, almost nine years before the incident and at that time she was about five years of age, according to the entry in the certificate Ex.P. 15. Some times there can be slight variation between the actual date of birth and that entered into the school register and the learned counsel may be right that the entry in the school register regarding the date of birth may not be conclusive evidence, yet in the absence of some better evidence or any other evidence which would have rendered the value of the entries in the school registers doubtful, there is no reason in discarding the date of birth of Kumari Arti as entered in the school registers. It can fairly be assumed that when Kumari Arti was got admitted in the first class of the school in the year 1966, her date of birth could not have been recorded as 15 April, 1961 if she would have been nine or ten years old. If the date of birth as entered in school register is accepted, then at the time of the incident Kumari Arti was only 141/2 years of age. Even if there control be some slight variation, it cannot be held that she was more than 16 years of age at the relevant time. If the date of birth as entered in school register is accepted, then at the time of the incident Kumari Arti was only 141/2 years of age. Even if there control be some slight variation, it cannot be held that she was more than 16 years of age at the relevant time. Thus, I find no reason to interfere with the finding of the learned Sessions Judge that Kumari Arti was not more then 16 years of age at the time of the incident. 8. The next question which arises for consideration is whether Jugal accused appellant can be said to have taken away or enticed Kumari Arti out of the keeping of her lawful guardian and an offence under section 366 I.P.C., can be said to have been made out against him. Learned counsel for the appellant urged that the girl had gone away voluntarily on her own free will and if there was any taking away, it could have been by Narendra, as Jugal appellant neither fetched Kumari Arti from her house nor there is any evidence of any pre-arranged plan by him and the girl. Learned counsel relied upon various letters written by Kumari Arti to Jugal appellant, which have been placed on the record and argued that the girl was keen upon marrying Jugal and remain in his company and that Jugal appellant could not be said to have done any thing which could amount to the removal of the minor girl from the keeping of her lawful guardian. 9. The evidence of Kumari Arti, PW 1, her father Ramchandra PW 4,convincingly establishes beyond any doubt that the house of Jugal alias Nathulal accused-appellant was situated near the school in which Kumari Arti was studying and that when Kumari Arti went that way accused Judgal used to tease her. The girl complained about the behaviour of appellant Jugal to her father, upon which the father withdrew her from the school. The girl complained about the behaviour of appellant Jugal to her father, upon which the father withdrew her from the school. It also appears from the evidence of Kumari Arti PW 1 and there is no reason to doubt that she accompanied Jugal in the bus and went with him to Ratlam, where Jugal alias Nathu Lal took her from the bus stand to the court and contacted Shri M.P. Nigam Advocate, who drafted an affidavit and got the same verified and as soon as they came out from the Ratlam court, the police caught hold of them and took them to the police station. It is also borne out by her statement that Jugal alias Nathulai had taken her earlier to one Krishna Kant, Advocate at Banswara, who had given a letter to Jugal for Shri Nigam, Advocate at Ratlam. 10. The version of Jugal appellant, as revealed in his statement, is that he did not forcibly take away Kumari Arti but she herself told him that she desired to marry Jugal and that he first went to Ratlam and Kumari Arti followed him. He admitted that both of them together went to the court at Ratlam and according to him Kumari Arti got her affidavit verified from the Notary in which she had stated that she had married Nathulal. He produced six letters written by Kumari Arti to him and stated that she was insisting that she would marry him or she would take poison and commit suicide. According to Jugal Kumari Arti met him at Ratlam bus-stand and repeated the same story and then took him to Ratlam court and got an affidavit prepared and also got the same verified. Thus the picture which Jugal alias Nathulal himself tried to paint is that it was not he who had taken away Kumari Arti but the girl took him away and forced him to marry her and got the affidavit verified from the Notary at Ratlam. 11. Thus the picture which Jugal alias Nathulal himself tried to paint is that it was not he who had taken away Kumari Arti but the girl took him away and forced him to marry her and got the affidavit verified from the Notary at Ratlam. 11. The letters which have been produced on record and which are said to have been written by Kumari Arti to Jugal accused go to show that after the father of Kumari Arti had withdrawn her from the school, correspondence was going on between the girl and Jugal alias Nathulal and the accused appellant was quite conscious of the fact that the girl was a minor and probably considered the minority of the girl as an impediment to their marriage. But, as stated by Kumari Arti, he took her to Krishna Kant. Advocate at Banswara who gave them a letter for Shri Nigam, Advocate at Ratlam. D.W.l Samarathmal Jain, Notary Public at Ratlam, has stated that Shri M.P. Nigam, Advocate had identified Kumari Arti, when she swore the affidavit before him on November 7, 1975. Nathu Lal admitted having gone to Ratlam on that day but according to him, it was Kumari Arti who had taken him to the court and it was she who got the affidavit prepared and verified on her own accord. The learned Sessions Judge in this respect has believed the statement of Kumari Arti that Jugal alias Nathulal had taken her away from Banswara to Ratlam and got the affidavit prepared and verified at Ratlam and find no reason to take a different view in this respect. 12. Thus taking into consideration the entire circumstances of the case and the evidence on record, the conclusion is inescapable that Jugal alias Nathulal had taken Kumari Arti away from Banswara to Ratlam in the bus and also took her to the court at Ratlam and got her affidavit prepared and verified there. The letter Ex.P.6 was recovered at the Ratlam police station from the person of Jugal alias Nathulal, which fact has been admitted by the accused appellant in his statement. In the letter Ex.P.6 Nathulal had insisted upon the girl to give out that she was born in the year 1956 and was 19 years of age and he also warned Kumari Arti to tell the police that she had married him of her own free will. In the letter Ex.P.6 Nathulal had insisted upon the girl to give out that she was born in the year 1956 and was 19 years of age and he also warned Kumari Arti to tell the police that she had married him of her own free will. Probably Nathulal intended to smuggle that letter to Kumari Arti at the police station, but was not able to do so and the letter was recovered from his possession by Harish Kumar P.W.6, who was the Station House Officer, police station, Ratlam. It is thus established beyond doubt that accused-appellant Jugal had given an inducement to Kumari Arti that he would marry her and persuaded her to accompany him to Ratlam for the purpose of marriage. The story given out by accused appellant that in fact Kumari Arti was responsible for taking him to Ratlam, is fantastic and cannot be believed. It clearly emerges from the evidence in the case that on the inducement given by Jugal appellant, Kumari Arti, being a girl of tender age, fell an easy prey to the allurement given out to her by accused Jugal and felt persuaded to accompany him from Banswara to Ratlam and at Ratlam she got the affidavit verified at the bidding of Jugal appellant. The learned Sessions Judge has disbelieved the story about the part alleged to have been played by Narendra, in inducing her to accompany him and taking her to the bus-stand at Banswara. The circumstances lead to the irresistible conclusion that as a result of the inducement and allurement given by Jugal appellant, Kemari Arti, who was a girl of tender age, agreed to accompany him to Ratlam in the bus from Banswara and there got the affidavit Ex.D.19 verified by Notary at Ratlam, as desired by Jugal appellant. In State of Haryana v. Rajaram, AIR 1973 SC 819 . in similar circumstances, their Lordships of the Supreme Court observed as under; "The object of this section seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge of custody of their minor wards. The grave man of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The grave man of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor out of the keeping of the lawful guardian of such minor' in Section 361, are significant. The use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control: further the guardians charge and control appears to be compatible with the independence of action and movement in the minor, the guardians protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial; it is only the guardians consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section." 13. In Raja Rams case AIR 1973 SC 819 , the girl had left her parents house at 2 P.M. in the midnight and went to Raja Rams house who took her to Bhishamwala well. The same argument which was advanced before me by the learned counsel for the appellant was advanced in that case that the girl went away voluntarily of her own free will and there was no inducement or taking away. The argument found favour with the learned Single Judge of the Punjab and Haryana High Court, but their Lordships of the Supreme Court, setting aside the order of the High Court, observed that if the girl had left the house of her parents at midnight, as a result of prearrangement with the accused, which was caused by an earlier inducement on the part of the accused, then he could not be absolved of his complicity in taking the girl out of the keeping of her father, who was her lawful guardian, without his consent. Their Lordships also observed that it was not all necessary for the accused to have gone to the house of the girl to bring her from that in order to constitute the offence of kidnapping from lawful guardianship, as contemplated by section 361 I.P.C. It would be enough if an allurement or inducement flows from the accused to persuade the minor and the same has created willingness on her part to be taken out of the keeping of her lawful guardian. As Kumari Arti was a minor, her consent or willingness to accompany Jugal accused is entirely immaterial and even if she went with Jugal apparently of her free will, it was obviously the consequence of an act of inducement or allurement given by Jugal and such inducement had caused the expression of willingness or consent by the minor. 14. Learned counsel for the applicant relied upon a decision of this Court in Balmukand and others v. State, 1952 Cr.L.J. 1136 wherein it was held that if a minor girl went out willingly without any force or inducement there was no intention of taking away the girl from the guardianship of her father and there was no kidnapping. In that case, it was found by the Court that there was never any intention of taking the girl out of the guardianship of her father and what the girl and boy wanted was to go away for a short time in order "to have a good time". This case was distinguished and explained later by another Bench of this Court in State v. Babulal, 1964 RLW 606 and it was held that the willingness of the minor girl in leaving the house of her guardian and going with the accused does not affect the commission of an offence under section 361 I.P.C., if it was the influence of the accused that instigated the minor girl to go out of the keeping of her lawful guardian, then the accused cannot be absolved from criminal liability under the plea of willingness of the minor girl. In that case, it was observed that in Balmukands case (2) there was no intention of taking away the girl out of the custody of her lawful guardianship but the only intention was to go out for the short time in order "to have a good time". In that case, it was observed that in Balmukands case (2) there was no intention of taking away the girl out of the custody of her lawful guardianship but the only intention was to go out for the short time in order "to have a good time". But in the present case the intention was to persuade the minor girl to go out of the custody of her lawful guardian for the purpose of contacting a marriage with the accused at Ratlam and it cannot be held that the girl had not been taken out of the keeping of her lawful guardian. In Babu Lals case (3) also an affidavit was sworn before a Magistrate by the girl, in order to create evidence of marriage and there was no other evidence except that of the girl to show as to under what circumstances she accompanied the accused. 15. Another decision relied upon by the learned counsel for the appellant in support of his submission is in the case of Ram Das v. State of M.P., U.J. (S.C.) 1970 page 864 but that case is distinguishable as in that case it was held that there was no inducement or permutation on the part of the accused. 16. In Ram Dass case U.J. (S.C.) 1970 page 864 , the boy and the girl had executed an agreement of marriage and after the registration of the agreement, the girl went back to her fathers custody but the parents confined her into a locked room. The girl after a few days, broke open the lock and went to stay with the accused. " it was, on these 'facts held by their Lordships that the offence punishable under section 361 I.P.C. was not made out. 17. It must be observed that the expression "taking" occurring in section 360 and 361 I.P.C. is not confined to the more physical taking by the accused, but the offence would be completed if something done or allurement offered or inducement made by the accused is a cause for the expression of consent or willingness on the part of the girl. 18. 18. In the present case, as have already observed above, Kumari Arti had gone out of her fathers house and accompanied the accused Jugal to Ratlam by bus from Banswara on the basis of inducement and allurement flowing from accused Jugal and as a result thereof she felt persuaded to accompany him to Ratlam and got an affidavit verified by a Notary stating falsely that her age was 19 years and also stated falsely that she had married Jugal of her own free will although no marriage is said to have actually taken place. As the act of the earlier allurement and inducement given by accused-jugal was responsible for persuading Kumari Arti to go from her parents house, it must be held that the accused Jugal was liable for taking her away or enticing her from lawful guardianship and the offence, as defined under section 361 I.P.C. had been fully made out. As Kumari Arti was taken away for purpose of marrying her to Jugal accused, learned Sessions Judge was right in convicting the accused Jugal under section 361 I.P.C. 19. Learned counsel for the appellant lastly urged that the sentence awarded to the appellant Jugal was excessive and deserves to be reduced. He drew my attention to the fact that the age of Jugal accused was about 21 years and also to the fact that the accused felt encouraged in his action by the love-letters written to him by Kumari Arti and the response that he got from her to his manoeuvers. In my view, the sentence of one and half years rigorous imprisonment would serve the ends of justice in the present case. 20. In the result, the appeal is partly allowed and the order of the learned Sessions Judge, Banswara is modified and the conviction of the accused Jugal alias Nathulal under section 366 I.P.C.is maintained. The sentence awarded to him is reduced from four years to one and half years rigorous imprisonment.Appeal partly allowed. *******