JUDGMENT N.N. Sharma, J. 1. Sughar Singh son of Sri Badrivishal Singh resident of village Singhwal, Police Station Pachim Sarira, District Allahabad has filed this appeal against his conviction under sections 363/366 IPC by Sri Ikram-Ul-Bari additional Sessions Judge, Kanpur in ST No. 32/76. Appellant was sentenced two years' R.I. and a fine of Rs. 200/- and in default one month's further R.T. u/s. 363 IPC, he was further sentenced to 5 years' R.I. and a fine of Rs. 500/- u/S. 366 IPC. In default of payment of fine he was to further undergo R.I. for a period of 6 months. The substantive sentences of R.I. under both the counts were ordered to run concurrently. 2. Prosecution story briefly stated is that appellant happend to be related to informant Parmeshwar Singh (PW 2), resident of Kanpur. He used to reside at the house of Parmeshwar Singh where Km. Kusum Devi (PW 7) aged about 15 years used to call him uncle. Kusum Devi was a school going girl on 22-9-1976. Her father lived in Harbans Mohal street in Kanpur City. It was on 22-9-76 at about 10.30 A.M. that Kusum Devi along with her schoolmate Sunita alias Rita (PW 5) was proceeding to Balmandi School where she was a student of VIIth class. When both the girls reached Hoola Ganj culvert she was called by Sughar Singh who was standing there with a cycle. Kusum made over her books to Sunita (PW 5) telling her that she was returning soon. Sughar Singh informed her that her father was involved in an accident and her presence was needed by her mother immediately. She accompanied Sughar Singh on a cycle. It was after covering a distance of about 10 paces that Sughar Sjngh met co-accused Ram Khelawan who also sat on the carrier of the cycle of Sughar Singh and all the three proceeded towards Ganga Bridge. It was near the place locally known as Jhari Baba, that Sughar Singh stopped the cycle and purchased a small green pill which was given to Kusum Devi who ate it with water. Sughar Singh told her that the pill shall protect her from sun. Thereafter, Sughar Singh supplied ice-cream to her which she ate, thereafter both the accused :ook her to Sukhalal Ganj across the bridge at the house of Ram Khelawan. Sughar Singh told her that the pill shall protect her from sun. Thereafter, Sughar Singh supplied ice-cream to her which she ate, thereafter both the accused :ook her to Sukhalal Ganj across the bridge at the house of Ram Khelawan. She was made to stand outside while Sughar Singh went inside the house of Ram Khelawan and procured an attachee case and Rs. 20/-. Thereafter, Sughar Singh along with Kusum in a rickshaw reached parachute factory and boarded a bus there. Sughar Singh informed Kusum Devi who felt sleep that her father had shifted to Allahabad and her mother had already gone there, both of them in the bus reached Ajwa and from there Sughar Singh took her to his sister in some village where he kept her for three nights and revished her. He persuaded her to marry him at pain of dire consequences. Thereafter Sughar Singh brought Kusum to Allahabad again and an application was submitted on behalf of Kusum Devi on 27-9-76 along with affidavit Ext. Ka-12 through Sri Anil Kumar Srivastava (D W 1) in the court of A. D. M. City Allahabad by which it was mentioned that she wanted to marry Sughar Singh as she was unhappy at the house of her parents. When this application came up for orders in the court of Sri R.N. Rajauriya (PW 13) City Magistrate, Allahabad, he found that the girl was minor and seemed to have been kidnapped by Sughar Singh and so he ordered vide Ext. Ka-13 Station Officer, Colonel Ganj, Allahabad to take appellant into custody and to enquire into the matter. 3. The girl was lodged in a protection home for women, Allahabad. 4. Meanwhile (PW 2) lodged FIR Ext. Ka-2 at about 6.15 p. m. on 23-9-76 at P.S. Harbans Mohal about the kidnapping of his daughter by Sughar Singh and Ram Khelawan on the basis of information received by him from Chunni Lal (PW 6). This FIR was recorded by Head Constable Raj Kishore Pathak (PW 4) who registered the case in general diary. The investigation of the case was conducted by Sri Kali Charan (PW 8) who interrogated witnesses and learnt that Kusum was in a protective home and learnt that Sughar Singh was in custody of police, Allahabad. This FIR was recorded by Head Constable Raj Kishore Pathak (PW 4) who registered the case in general diary. The investigation of the case was conducted by Sri Kali Charan (PW 8) who interrogated witnesses and learnt that Kusum was in a protective home and learnt that Sughar Singh was in custody of police, Allahabad. Along with Parmeshwar Singh (PW 2) he reached Allahabad and brought Kusum to Kanpur and made her over to Parmeshwar Singh on 29-9-76 Kusum Devi was examined by the lady Doctor Dr. Madhu Nigam (PW 9) on 30-9-'76 at about 5 P. M. Result is below:- "General condition is good height-53", weight 37 Kg. Teeth-13x14, Breast-well developed axillary and pubic hair present, no mark of recent injury on her body." On local examination "Hymen torn, old tear present, irregular, vegina admits two fingers easily, vaginal smear negative for sperm, no mark of recent injury on her private part." On these findings lady Doctor opined that Kusum was used to sexual intercourse and so there could not be a definite findings about rape. She advised her X-ray examination for supplementary report regarding her age. 5. X-ray examination of Kusum Devi was conducted by radiologist Dr. Rajendra Prakash (PW 1) who prepared X-ray plate Ext. 1 and X-ray report (Exs. Ka-10) which was incorporated by lady doctor in her supplementary report Ex. Ka-2 which runs below:- Epiphysis around wrist have appeared but not fused. X-ray right elbow; Epiphysis around elbow have fused. Eniphysis around knee have partially fused. Result considering the above findings the age of the girl is about 17 years ". 6. In her statement lady Doctor opined that the age of the girl at the time of examination could be in between 16-1/2 and 17-1/2 years, but she made a categorical statement on the point that the girl could not be 18 years old as fusion of her ulna bone had not started in this case. She also denied that fusion has started in the distal end of radius. A similar opinion was given by Doctor Rajendra Pd. Radiologist (PW 11) in his cross-examination. On completion of investigation appellant was sent up to stand his trial. 7. In support of their case prosecution examined 13 witnesses. I have referred formal and medical evidence above. She also denied that fusion has started in the distal end of radius. A similar opinion was given by Doctor Rajendra Pd. Radiologist (PW 11) in his cross-examination. On completion of investigation appellant was sent up to stand his trial. 7. In support of their case prosecution examined 13 witnesses. I have referred formal and medical evidence above. Incriminating evidence consists of statement of (PW 2) Parmeshwar Singh, Sunita alias Rita (PW 5), (PW 6) Chunni Lal, (PW 7) Kusum Devi, Sri R.N. Jauriya (PW 13), City Magistrate. Kusum Devi (PW 7) testified that appellant was living with informant Parmeshwar Singh (PW 2) as his remote relative. She used to call appellant uncle. He met Kusum Devi on 22-9-75 at about 10.30 A.M. while she was proceeding to her school with her books along with Sunita (PW 5). The books were made over by Kusum Devi to Sunita when she was called by Sughar Singh who met them near Neela Ganj culvert. Sughar Singh was standing with a cycle and informed her about the accident in which her father was involved and her mother needed her presence immediately. She further narrated the prosecution story as alleged above which need not be detailed. Chunni Lal (PW 6) claimed to have seen appellant carrying Kusum Devi on his cycle on that day at about 11 A.M. at Karona exchanged crossing. Ram Khelawan was sitting on the carriers of cycle. He informed Parmeshwar Singh about the matter on the same day or so while he was searching for his daughter. Parmeshwar Singh (P W 2) supports this statement of Chunni Lal. Kamla Devi (PW 3) mother of Kusum Devi corroborated statement of Kumari Rita who gave her books of Kusum on that day. Statements of Kusum Devi Ext. Ka-11 and Ext. Kha. 1 as proved in defence by Sri Anil Kumar Srivastava, Advocate appear to have been procured when she was the victim of deception and imposition through out. The deception was practised on her by her distant relative Sughar Singh who betrayed the confidence reposed in him by Parmeshwar Singh and his family members. 8. Ka-11 and Ext. Kha. 1 as proved in defence by Sri Anil Kumar Srivastava, Advocate appear to have been procured when she was the victim of deception and imposition through out. The deception was practised on her by her distant relative Sughar Singh who betrayed the confidence reposed in him by Parmeshwar Singh and his family members. 8. In his own statement appellant conceded to have lived with Kusum Devi and her father in Kanpur upto 21-2-76; he farther conceded that he picked Kusum Devi from the way on 22-9-76; however, he denied that the age of Kusum Devi was 20 years when she was taken away by him. He denied that they went to the house of Ram Khelawan on 22-9-76; he farther conceded to have committed actual intercourse with her and went to the Court of Magistrate, where he was even into custody under orders of Magistrate by Ram Behari Lal Srivastava (PW 12) Inspector Incharge on duty in the court of A.D.M. (City) on that day. However, he refused to sign his statement when required to do so. Learned Trial Judge acquitted the appellant of the charge of rape but convicted and sentenced him under sections 363 and 366 IPC. 9. Aggrieved, by the decision appellant has filed this appeal. 10. I have heard learned counsel for parties and perused the record. On behalf of appellant It was argued before me that no birth certificate of Kusum had been filed in this case. Mere medical certificate cannot be sure guide for the age of the girl. He also referred to Emperor v. Qudrat reported in AIR 1939 708, in which it was observed that medical certificate of a Doctor based on physical peculiarities such as teeth, height etc. was no more than an opinion. It appears that in that case the Doctor did not bring to bear a scientific knowledge for his opinion. There was no cogent evidence in that case to prove the age of prosecutrix. 11. It is correct that ossification test through X-ray examination provides a surer basis for determining the age of an individual than the bare opinion of a 47-A.Cr.R. Medical Expert. In the instant case I have given above findings of ossification test. 12. There was no cogent evidence in that case to prove the age of prosecutrix. 11. It is correct that ossification test through X-ray examination provides a surer basis for determining the age of an individual than the bare opinion of a 47-A.Cr.R. Medical Expert. In the instant case I have given above findings of ossification test. 12. Learned counsel for appellant further referred to Kishori Lal Raghubir v. The State AIR 1957 Punjab 78, where it was pointed out that mere opinion of Medical Expert if based on X-ray examination cannot be considered so infallible and accurate a test as to indicate the correct number of years and days he has lived. Hence the opinion of a Medical Expert based on such test cannot be regarded to be conclusive. Particularly when the difference in the approximate age stated by him and the one fixed by Section 363 IPC is not wide. It appears that in that case Nabbu father of the girl could not give a definite statement about the age of the girl and so the opinion of the lady Doctor was not held as infallible. 13. In the instant case there is statement of Parmeshwar Singh father of the girl who gave his age 40 years on 16-7-77 when he was examined. He testified about the residence of Sughar Singh at his house. He further testified that at the time of occurrence Kusum was student of Vllth class only, she used to go to Dalmandi Junior High School for 10 months prior to occurrence. His first wife was dead and Kamla Devi (PW 2) was his second wife. His eldest son was Jagdish Singh who got plucked in Xth class. He denied that Jagdish Singh was aged 19/20 years but alleged that Jagdish Singh was 16 years old only even though he has begun to shave. Kusum Devi was younger to Jagdish Singh. 14. Kamla Devi (PW 3) gave her age as 30 or 35 years at the time of her deposition. She further alleged that she married Parmeshwar Singh 20 years ago. Jagdish her son was born after two years of her marriage with Parmeshwar Singh. Kusum was born three years after the birth of Jagdish and she was running in 15th year now. Her statement on this point remained unshaken and was believed by the learned trial Judge. She further alleged that she married Parmeshwar Singh 20 years ago. Jagdish her son was born after two years of her marriage with Parmeshwar Singh. Kusum was born three years after the birth of Jagdish and she was running in 15th year now. Her statement on this point remained unshaken and was believed by the learned trial Judge. In her own statement Kusum Devi (PW 7) gave her age as 15 years. She explained the circumstances under which her signatures were fraudulently procured on Ext. Ka 11 and Ext.Kha 1, she had been tutored by Sughar Singh to give her age as 20 years before the Magistrate. She made that statement under threats of Sughar Singh who was with her throughout. 15. PW 13 Sri R.N. Rajaouriya testified that when the application Ext.Ka-11 was presented before him he was struck by the fact that the girl was minor and not 20 years old and so he ordered the initiation of these proceedings. Sunita alias alias (PW 5) herself gave her age as 10 or 11 years on 18-7-77. In these circumstances, the mere fact that the girl was of easy virtue or her birth certificate has not been filed or in her application Ext.Ka-12 addressed before the Magistrate she gave her age as 18 years at the time of alleged kidnapping, the X-ray report and opinions of both the Doctors and the testimony of parents of Kusum Devi and her own statement and the circumstances of the case unmistakably go to show that the girl was about 17 years old at the time of occurrence and was not major. 16. The next contention was that the appellant did not entice her. The girl herself went to the appellant as she was unhappy with her stay at her house as conceded by Smt. Kamla Devi (PW 8) her mother. Parmeshwar Singh in his report dated 29-9-76 Ext.Ka-4 mentioned that the girl also carried cash and ornaments with her. In his own statement Parmeshwar Singh at a subsequent thought alleged that Kusum Devi did not carry away the cash and ornaments. THE cash and ornaments were found in another box which was searched by them on the next day. Such variation was indicative of the girl going with Sughar Singh of her own accord. In his own statement Parmeshwar Singh at a subsequent thought alleged that Kusum Devi did not carry away the cash and ornaments. THE cash and ornaments were found in another box which was searched by them on the next day. Such variation was indicative of the girl going with Sughar Singh of her own accord. It was further pointed out that Kusum Devi was girl of easy virtue and could not have been carried away without protest. Sunita alias Rita (PW 5) did not corroborate the statement of Kusum Devi on the point that she was called by the appellant who was standing with a cycle near Hoola Ganj culvert. Smt. Kamla Devi (PW 3) also stated that when Kusum Devi did not return from school she learnt about her being taken away by Sughar Singh on a cycle. She learnt this from Chunni Lal at about 8 P.M. On that night Rita did not infrom her about Kusum being carried away by appellant when she came to deliver her books. It was further argued that in Nathu v. Emperor, AIR 1931 Lahore 401, it was observed that it was inconceivable that a grown up girl of about 18 would submit to being carried about and raped without protesting and the presumption in such circumstances is that she is a consenting party to elopement. 17. I have carefully considered all these arguments and find them devoid of force. In Thakoral D. Vadgama v. The State of Gujrat, AIR 1973 SC 2313 it was laid: "(A) Section 361 uses the expression whoever takes or entices any minor'. The word 'takes' no doubt, means physical taking but not necessarily by use of force or fraud. The word 'entices' seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time in achieving its ultimate purpose of successful inducement." 18. In the instant case statement of Km. Kusum that she was enticed while going to her school finds material support from testimony of Sunita alias Rita. Had the girl herself gone with appellant she could mot have left her books abruptly with Sunita near Hool Ganj culvert while proceeding to school. In the instant case statement of Km. Kusum that she was enticed while going to her school finds material support from testimony of Sunita alias Rita. Had the girl herself gone with appellant she could mot have left her books abruptly with Sunita near Hool Ganj culvert while proceeding to school. Appellant himself conceded his stay with this family; he himself conceded that he took Kusum Devi on his cycle from the way on 22-9-76. Having regard to Us intimacy with her family and the disparity in their ages, it was quite easy on the part of appellant to have taken the girl after practising deception; the manner in which he misinformed the girl about the accident of her father and entertaining her with ice-cream etc. simply shows that he blandished this girl merely to leave protection of her father. The mere fact that the girl was going to school at the time of occurrence cannot show that she had passed out of the guardianship of her father. So all the ingredients of the offence under Section 363 IPC were fully made out on the evidence on record against the appellant. His sentence under this count be regarded excessive having regard to the fact that he abused the confidence maintained in him by Kusum Devi and her parents. As regards the offence under Section 366 IPC there is cogent evidence of Kusum Devi supported by applications Ext. Ka-11 and affidavit Ext.Ka-12 and statement of Sri R. N. Rajauriya (PW 13) that the inducement was with intention to force or seduce the girl to illicit intercourse. In his own statement appellant admitted to have committed illicit intercourse with her. So all the ingredients of this offence under section 366 IPC have also been made out against the appellant on the evidence on record. 19. There was a prayer for reduction of sentence on the ground that appellant remained in jail for about a month pending trial. I have considered over the matter; the sentence of 5 years' R. I. is reduced to a period of 4 years' R.I. and the sentence of fine of Rs. 500/- shall fall off. 20. In the result, the appeal is allowed. Conviction and sentence of appellant under section 363 IPC are affirmed. Conviction of appellant under section 366 IPC is also affirmed but his sentence is reduced to 4 years' R.I. Fine of Rs. 500/- shall fall off. 20. In the result, the appeal is allowed. Conviction and sentence of appellant under section 363 IPC are affirmed. Conviction of appellant under section 366 IPC is also affirmed but his sentence is reduced to 4 years' R.I. Fine of Rs. 500/- under this count shall fall off but the fine of Rs. 200/- under Section 363 IPC must be paid within two months' from today in the court below, failing which appellant shall further undergo R.I. for one month. The stay order is dissolved. Appellant is on bail. Let him surrender to his bail bonds and taken into custody forthwith to serve out the sentences awarded to him. The impugned order is modified accordingly. Appeal allowed.