Judgment Jitendra Nath Chaudhuri, J. This appeal arises out of the Sessions Trial No.1 of November, 1979, held by the learned Additional Sessions Judge, Barasat, in which the appellant was convicted under s. 363 I.P.C. and sentenced to rigorous imprisonment for 4 years. 2. The prosecution case, in short is as follows:- At Andhirmath within Haroa Police Station lived Kalyani Chakraborty (P.W. 2) with her children. One of the children was Chandra Chakraborty, a daughter (P.W. 5). She was a school student. On 8.12.77 Chandra was aged about 16 years. After her school examination for that year was over, she left her residence with permission of her mother to go to her maternal uncle's place at Baduria. She actually did not go there. She was enticed away and taken away by the accused-appellant Golam Rasul out of the lawful guardianship of Kalyani Chakraborty, to Bandel with intent that she might be compelled to marry against her will. Chandra was taken with intent to cause her to be secretly and wrongfully confined. She was found with the appellant Golam Rasul and rescued from a hot1se at Bandel. Defence plea is that Golam Rasul did not entice or take away Chandra. Chandra went away of her own to Bandel informed Golam Rasul to go to Bandel to live with her and in spite of insistance of Golam Rasul asking Chandra to go back to her mother's place she did not go. Prosecution case about age of Chandra was also challenged. 3. The prosecution examined 14 witnesses. The defence did not examine any witness. 4. The learned Advocate for the appellant has submitted as follows:- 1. No reasonable explanation of the delay in lodging the F.I.R. has been put forward by the prosecution. The incident happened on 8.12.77, but the information regarding the missing of the girl was lodged as late as on 8.1.78, while the written F.I.R, on the basis of which investigation in this case began, was lodged on 29th January, 1978 in short, the name of the appellant did not transpire till 29.1.78. 2. The evidence show that P.W. 5, the girl concerned, left her house of her own free will and there is no evidence of any taking or enticement on the part of the appellant. He has relied upon the case reported in AIR 1973 SC 2313 in this connection. 3. 2. The evidence show that P.W. 5, the girl concerned, left her house of her own free will and there is no evidence of any taking or enticement on the part of the appellant. He has relied upon the case reported in AIR 1973 SC 2313 in this connection. 3. P.W. 5 was not a minor under 18 years of age on 8.12.77. 5. The learned Advocate for the State has very frankly submitted that though the evidence shows that P.W. 5 was a minor on 8.12.77 yet there is no evidence of any taking or enticement on the part of the appellant. 6. On a careful examination of all the materials on record we find that there is no evidence at all of any taking or enticement on the part of the appellant, even if we proceed on the assumption that P.W. 5 was under the age of 18 years on the date of the incident, i.e. 8.12.77. There can be no kidnapping from the lawful guardianship as envisaged by s. 361 I.P.C. (punishable under s. 363 I.P.C.) unless taking or enticement of the minor is proved by the prosecution. We agree with the learned Advocates for the State and the appellant that the prosecution has failed to lead any evidence of taking or enticement on the part of appellant P.W. 5, the girl concerned who was declared hostile by the prosecution, has clearly stated in evidence that she left of her own accord. She has further deposed that after leaving her house she took a room on rent of Rs.25/- per month which was paid by a lady friend of her and that thereafter, she and the appellant have married and a child has been born to them. The child was 7 months old at the time of her deposing in Court and in fact, she had the child in her lap while deposing. 7. P.W. 14 has corroborated P.W. 5 that P.W. 5 hired a room in his house, the rent of which being Rs.25/- per month was paid in advance by P.W.8, P.W.14 was not declared hostile. 8. The fact that P.W. 5 was found with the appellant in the said room and was recovered therefrom by the police has not been disputed by the defence. 8. The fact that P.W. 5 was found with the appellant in the said room and was recovered therefrom by the police has not been disputed by the defence. Recovery in an appropriate case may, of course, be a circumstance, but by itself without anything more cannot prove beyond all reasonable doubt, taking or enticement. In his answers in examination under s. 313 Cr. P.C. the appellant has frankly admitted that he was found with P.W. 5 in the house of P.W. 14 at the time of his arrest, but has stated that P.W. 5 on her own left her parents house and sent a message to him through a girl asking him to come to her. In spite of his persuasion he could not make her return to her house since she was adamant that she would not return to her house. 9. This aspect of the matter, namely, the total lack of evidence relating to any taking or enticement on the part of the appellant does not seem to have been considered at all by the learned trial Judge. We accordingly set aside the judgment of the learned trial Judge and conviction and the sentence imposed upon the appellant and acquit him of the same. 10. This appeal is allowed. The appellant is acquitted and discharged from his bail bond. Let the records be sent down. Manabendra Nath Roy, J.- I agree. Appeal allowed.