N.L. TIBREWAL, J.—The appellant Shyam Sunder has filed this appeal, being aggrieved against the judgment dated November 24, 1979 of Sessions Judge, Udaipur in Sessions Case No. 31/79, convicting and sentencing him u/s 361 IPC to one year R.I. and a fine of Rs. 250/ — (in default of payment of fine to one months R.I.) and u/s 366 IPC to four years R.I. and a fine of Rs. 500/- (in default of payment of fine to two months R.I.). 2. The brief facts of the case may be narrated. Mathura Lal s/o Daulat Ram made a report, Ex.P/1, at Police Station Suraj Pole-Udaipur, at 8.00 a.m. on 28. 10. 78. The report was signed by Mathura Lal, who is the father of Mst. Snehlata, alias Tammu. In the report it was given out that Mst. Snehlata had disappeared since 10.30 a.m. of October 26, 1978 and was not traceable inspite of the search made. 3. On this report, police registered the case u/ss 363 and 366 I .P.C. On October 31, 1978, the father of the girl took her to the police station telling that she had returned to the house. Police then got medical examination of the girl done. The accused was arrested and after completion of the investigation, a charge sheet was filed u/ss 363, 366 and 376 IPC in the court of Munsiff and Judicial Magistrate, Udaipur (North). 4. The accused was committed to the court of Session Judge, Udaipur, where charges u/ss 363, 366 and 376 IPC were framed and read out to him. During the course of trial, 14 witnesse were examined by the prosecution. One witness, namely Smt. Lehari Bai, was examined as the defence witness. 5. After completion of the trial, the learned trial court held that Mst. Snehlata had gone voluntarily, on her own accord, with the accused appellant and thereafter, they visited several cities, The learned trial court acquitted the appellant from the charge u/s 376 IPC, and holding that the age of Mst. Snehlata was below 18 years of age, convicted and sentenced the appellant as aforesaid, 6. The learned counsel for the appellant urged before me that Mst. Snehlata was above 18 years of age, In the alternative it was further submitted that Mst. Snehlata was below 18 years of age, convicted and sentenced the appellant as aforesaid, 6. The learned counsel for the appellant urged before me that Mst. Snehlata was above 18 years of age, In the alternative it was further submitted that Mst. Snehlata as per the finding of the trial court, had gone with the appellant voluntarily and on her own accord and as such, no offence u/s 363 or 366 IPC is made out against the appellant, 7. In this connection the statement of Snehlata (PW/7) is relevant, This witness has stated that when she was going to the market, then the accused* appellant forcibly got her seated in a tempo and took her to Udai Pole, where she was kept in a room, She also stated that the room was locked from outside and, thereafter, the accused brought new clothes, which were worn by her, Then they went to the Railway Station, Udaipyr. They went to Nathdwara where they lived on the third floor of a house, She also stated that at Nath-dwara the accused appellant had sexual intercourse with her after threatening her. Thereafter, they went to Chittor, where they stayed in a Tourist Bungalow, There also the accused had sexual intercourse, From Chittor they went to Ujjain and at tJjjain they lived at the house of the sister of the appellant, She stated that the accused left her at his sisters house and returned after 2 1/2 hours. From his sisters house, the accused brought her at Udaipur and took her to a hotel, from, the hotel, she was taken to her fathers house, This witness has been cross-examined at length. She was also confronted with her previous statements Ex. D/l add Ex 0D/2. After scrutiny of the entire evidence of this witness, the learned trial court held that she had gone with the appellant voluntarily on her own accord, The learned trial court rejected the testimony of this witness that the accused-appellant had put fear on her and under the fear committed sexual intercourse. 8. PW/11 Dr, J. S. Matta has opined the age of Mst. Snehlata between 12 to 14 years. 9. PW/1 Mathuralal, the father of the girl has given the age of Mst, Snehlata as 14 years at the time of the incident, He further stated that on the day Mst. Snehlata had left the house, she was beaten by him. 10. PW/11 Dr, J. S. Matta has opined the age of Mst. Snehlata between 12 to 14 years. 9. PW/1 Mathuralal, the father of the girl has given the age of Mst, Snehlata as 14 years at the time of the incident, He further stated that on the day Mst. Snehlata had left the house, she was beaten by him. 10. The short question arises for consideration in this appeal is whether on the basis of the prosecution evidence, it can be held beyond reasonable doubt that Mst. Snehlata was taken or enticed by the appellant of the custody of her guardian, S. 361 IPC defines kidnapping as follows:— "361 Kidnapping from lawful guardianship—Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from law ful guardianship". In S. Varadarajan v. State of Madras (1), it has been held that taking or enticiting away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. It has been further observed:— "(9) It must however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though would like to guard ourselves from paying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361 of the Indian Penal Code, We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her fathers protection knowing and having capacity to know the full import of what she was doing Voluntarily joins the accused person. In such a case we do not think that the accused can 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." 11. 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." 11. In Satisli Kumar Vs. State (2) it has been held that where the prosecu-tfiX. was herself responsible for taking the accused to other city, on the pretext of getting married there, it is not a ease of taking away or enticing away the minor out of the keeping of the lawful guardian. 12. In Lawerence Kannandas Vs. The Sate Of Maharashtra (3) it has been held that in order to hold that the accused "enticed" away the girl, it is necessary to have some evidence to the effect that accused had given her some temptation or promise or assurance or allurement which had the effect of an irresistible force upon the girl. 13. In the light of the above provision 6f law, 1 have to consider whether the accused-appellant is guilty of committing the offence u/ss 363 and 366 IPC for kidnapping Mst. Snehlata. 14. the learned trial court, after scrutiny of the prosecution evidence has field that no inducement, promise or allurement was made by the appellant at the time when Mst. Snehlata went with him. The trial court has further held that Mst; Snehlata was herself a willing party to go With the appellant, The trial court acquitted the appellant of the Charge u/s 376 IPC presumably on the ground that Mst. Snehlata was a consenting party. From the evidence on the record, it is clear that the appellant did not go to the house of the girl, but she herself had left the house of her father, it appears that the appellant also met her and, thereafter they went to the railway Station, Udaipur, and from there they went to various places and stayed in the hotel ete. It also appear that Mst> Snehlata was also taken by the appellant to the house of his sister. It again appears that When Mst. Snehlata expressed her desire to go back to her fathers house, she was brought at Udaip and taken to her fathers houses. The he learned trial court has held that Mst. Snehlata was of 14 years age at the time of the inci-dent. It again appears that When Mst. Snehlata expressed her desire to go back to her fathers house, she was brought at Udaip and taken to her fathers houses. The he learned trial court has held that Mst. Snehlata was of 14 years age at the time of the inci-dent. About the exact age of Mst. Snehlata, it is difficult to arrive to the conclu-sion that she was 14 years old at the time of the incident. As per the medical opinion, her age was about 14 years but there is always a margin of 2 years on either side, so far the medical evidence is concerned about the age, The Ocular evidence is not clinching. Mst. Snehlata was studying in the school but her Scholers Ragister has not been produced which could have been a good evidence for the determination of her age, No birth Certificate has been produced by the prosecution. Therefore, it Can be safely said that the age of Mst. Snehlata may be even more than 14 years but less than 18 years. Anyhow, she had attained the age of discretion and was in a position to Understand her Welfare. In such a Situation, if the girl goes With her paramour, knowing well about the conse-quences, and no inducement, promise or allurement is made to her, cannot be said that she has been taken away or enticed out of the company of her guardian.In any case, it is a fit case in which the appellant deserve to be given the benefit of boubt. 15. Consequently, this appeal succeeds. The conviction and sentence passed upon the accused-appellant are set aside. He is on bail and need not surrender; His bail bonds are discharged.