JUDGMENT 1. - This is an appeal under Section 374, Criminal Procedure Code from the judgment and order dated 1.12.1983 whereby the learned Addl. Sessions Judge, Dausa, in Sessions Case No. 16/ convicted Chuttan-appellant of the offence u /Section 366 Indian Penal Code and sentenced him to undergo R.I. for four years and pay a fine of Rs. 500/-. 2. The relevant facts are these : PW 1 Km. Venoo @ Shanti, allegedly a minor girl aged 14 or 15 years, was living with her father PW 2 Raghunath Singh and other members of the family at his house in Jaipur. The name of one of two brothers is Rajoo. Close to her house a young boy, also named Rajoo, used to five and visit her father's house off and on. Chuttan-appellant is stated to be the friend of the said Rajoo. It is in this background that it was alleged that on 30.8.1982 at about 2.00 or 3.00 p.m. the appellant met Km. Veenoo near the park in front of her house and told her that her brother Rajoo had called her to Ramganj Chopar to take money, that thereupon she went to Ramganj Chopar but did not find her brother there, that the appellant then forced her to sit in an auto-rickshaw and took her to the Bus stand. That they both travelled together upto Dausa and then to Lalsot that on her way to Lalsot, the appellant told her that they both would go to Bombay where Rajoo carried on a business and that she would either be employed there or married with Rajooo, that when the appellant asked her to stay for the night at Gangapur city she got panicky and started weeping, that at Lalsot bus stand PW 4 Chotu Driver, PW 5 Ganesh Conductor and other passengers got suspicious of appellants taking her with him, that PW 3 Ram Gopal Constable who was on duty there, took them both to the Police Station and produced them before PW 7 Mishri Lal, ASI and lodged a report also. 3. Mishri Lal ASI investigated the case. On chemical and x-ray examinations the bony age of Kumari Veenoo was opined at 14-15 years by PW 1.(Smt.)Nirmlaandat 16-17 by the Radiologist PW 9 Dr. Ram Chandra Joshi. 3. Mishri Lal ASI investigated the case. On chemical and x-ray examinations the bony age of Kumari Veenoo was opined at 14-15 years by PW 1.(Smt.)Nirmlaandat 16-17 by the Radiologist PW 9 Dr. Ram Chandra Joshi. The learned Sessions Judge tried the appellant on the charges u /Sections 363,366, Indian Penal Code but declared him guilty of offence u /Section 366 Indian Penal Code and sentenced him in the manner stated above.The learned Counsel for the appellant urged that in view of the fact that an absolutely incorrect version of the appellant forcibly taking away Km. Veenoo was put-forth by the prosecution, the pertinent question which arises for consideration in this case is that whether, at the time of occurrence, Km. Veenoo was below 18 years of age so that the offence of kidnapping may be said to have been committed in the case. It was submitted that in cases of kidnapping the age of understanding of the allegedly kidnapped person, particularly when such person is a member of fair sex, h.)., its own relevance in the context of the intention of the kidnapping in committing such a crime and, therefore, even if the kidnapped person is found to be below the age of majority as per provisions of the Indian Majority Act but to have obtained the age of maturity and understanding so as to know the difference between good and bad, the alleged kidnapped cannot be held guilty u/Sections 363 and 366, Indian Penal Code. The learned Public Prosecutor opposed such argument and submitted that once it is established in a case that person takes or entices a minor under eighteen years of age, if female, out of the keeping of the lawful guardianship the offence of kidnapping is complete and there should be no more discussion on the point. 4. The case on hand is a case, as held by the learned Sessions Judge, of "kidnapping". and not of "abduction". The difference between the two is well known and need not be elaborately discussed here. 4. The case on hand is a case, as held by the learned Sessions Judge, of "kidnapping". and not of "abduction". The difference between the two is well known and need not be elaborately discussed here. In "kidnapping from guardianship" a minor or person of unsound mind is removed from the lawful guardianship of his guardian not necessarily by use of force, compulsion or deceitful means and the consent of the kidnapped is immaterial; abduction may be committed in respect of any person, not necessarily a minor or a person of unsound mind and use of force, compulsion or deceitful means are essential ingredients of the offence. In abduction if the person moved has forcely and voluntarily given his/her consent, the offence is condoned. That would depend upon the facts and circumstances of a given case. Whereas in kidnapping the intention of the offender in taking or enticing the minor or person of unsound mind from the lawful guardianship of his guardian is immaterial and irrelevant, the same on the part of the offender is all important. Above all kidnapping is not a continuing offence and is completed as soon as minor or person of unsound mind is removed from the lawful guardianship of his guardian;abduction is a continuing offence and is committed not only at the place and time wherefrom and whereat the abducted person is first taken from a place to another but also when he is removed from one place to another. 5. Consent being irrelevant in the case of kidnapping from lawful guardianship the words "takes or entices" used in the phraseology of Section 361 Indian Penal Code assumes significant importance. The literal meaning of the word "take" is to cause to go, to escort or to get into possession. The meaning of this term may take within its fold the element of active step on the part of the kidnapper, by persuasion or otherwise, to cause the minor to leave the guardianship of his/her guardian but "taking" and "allowing a minor to accompany" do not convey the same meaning and sense. If the minor leaves the lawful guardianship of his guardian, knowing and having capacity to know the full import of what she or he is doing and voluntarily joins the company of the accused person, the accused cannot be said to have taken her or him away from the keeping of his/her lawful guardian. If the minor leaves the lawful guardianship of his guardian, knowing and having capacity to know the full import of what she or he is doing and voluntarily joins the company of the accused person, the accused cannot be said to have taken her or him away from the keeping of his/her lawful guardian. By the mere fact that a minor girl is seen in the company of the accused it cannot be necessarily inferred that the accused "took her away" from the lawful guardian ship of her father or guardian. 6. The word "entice" connotes an idea of inducement by exciting hope or desire in the other. But in the operation of Section 361 the two words "takes" or "entices" are required to be read together as each takes, to some extent, the meaning and sense of the other. The decision whether the offence of kidnapping as defined in Section 361 is or is not committed in a given case, should depend upto in whether the minor had fallen prey to any inducement, allurement or threaten made by the accused or he/she had left his/her partental house completely uninfluenced by any promise or inducement coming from the accused. 7. In the light of above discussion the first question which falls for consideration in the present case is whether Km. Veenoo is a minor for the purposes of Section 366 Indian Penal Code. In the is behalf the prosecution has led oral as well as documentary evidence. She herself has stated her age at 14-15 years. In cross-examination she stated that her brother Rajoxo was aged 20-22 years and that five years younger to him washer sister Vimla and she herself was 211 years younger to Vimla. Her father PW 2 Raghunath Singh stated that Gopal Singh was his eldest son and that Gopal was aged 25 years. He further stated that he himself was married at the age of 16 years and that when Gopal was born he (witness) would have been 30 years of age. He further stated that Rajoo, his younger son, was 5 years younger to Gopal and his elder daughter Vimla was younger to Rajoxo. The elder brother, mother or any other close relation of Km. Veenoo has not been examined. Km. Veenu herself could have no direct knowledge of her date of birth. He further stated that Rajoo, his younger son, was 5 years younger to Gopal and his elder daughter Vimla was younger to Rajoxo. The elder brother, mother or any other close relation of Km. Veenoo has not been examined. Km. Veenu herself could have no direct knowledge of her date of birth. Raghunath's statement regarding her age of Veenu requires corroboration from other evidence before the same is accepted. 8. For corroboration of the statement of Raghunath Singh, reliance has been placed on progress Report of Km. Veenu from Govt. Hr. Primary Pathshala, Manoharji, Jaipur-3 Ex.P 2 and statements of PW 8 Dr. (Smt.) Nirmala and PW 9 Dr. Ram Chandra Joshi, Radiologist. Ex.P mentions the name of one Shanti as student of Class 5A without mentioning the year of teaching. The column meant for mentioning date of birth of the student as 1.7.67 has been filled in totally different ink and handwriting and possibly by a student or some semi-literate person. This document has not been proved by the author thereof. The basis of mentioning the date of birth therein has not been disclosed. The date of birth, as has been mentioned therein, has been, on the face of it, filled in subsequently and therefore, no reliance can be placed thereupon. 9. Insofar as the medical evidence on the point is concerned I find that PW 8 Dr. (Smt.) Nirmala has opined that Km. Veenu was virgin and aged 14-15 years. This opinion was based on the observation that wisdom tooth had not appeared and that the breast of Km. Veenu were not fully developed. Such opinion was made subject to x-ray examination of the position of fusion and ossification of the relevant bones. Dr. Ram Chandra Joshi, Radiologist on the basis of the position of the epiphysis of the bones of elbow joints, pelvis and hips opined that Km. Veenu was aged between 16 and 17 years. Thus the medical evidence on the point is some-what self- contradictory inasmuch as Dr. Nirmala told the age of the girl between 14-15 years and Dr. Joshi told the age between 16 and 17 years. Reading the oral, documentary and medical evidence on the point together it is difficult to say that at the time of commission of the offence in this case, PW 1 Km. Nirmala told the age of the girl between 14-15 years and Dr. Joshi told the age between 16 and 17 years. Reading the oral, documentary and medical evidence on the point together it is difficult to say that at the time of commission of the offence in this case, PW 1 Km. Veenu was definitely below 1 S years Boas to fall within the definition of "Minor" given in Section 361. That seems to be the reason that the learned Sessions Judge has not convicted the appellant for offence u /Section 363 Indian Penal Code, though he was charged with that offence, and thought it proper to convict and sentence him for offence u/Section 366 Indian Penal Code only. 10. Now so far as the merits of the case are concerned it is quite apparant that Km. Veenu had left her parents house of her own in order to join the company of her paramour Rajoo at Bombay. It is pertinent to note that the said Rajoo was a visiter to her house, though she denied that fact but her father Raghunath Singh admitted that in cross-examination. Curiously enough she denied to be knowing the appellant from before, even then she would rely upon him for the alleged version that she had been called by her brother Rajoo. Had that been a factual representation, made to herby the appellant, she would have disclosed that fact to other inmates in the house, and her father would not have taken the trouble of searching her here and there. Then again at Ramganj Bazar in a Rickshaw and at Bus-stand in a bus, she could not have been forcibly compelled by the appellant to accompany him to Gangapur city or via that town to Bombay. Her statement is a bundle of lies and cannot be believed. It is to be noted that she did not allege that the appellant-himself intended to subject her to sexual intercourse or compel her to marry any person against her W ill or force or seduce her to illicit intercourse. On her own showing, the appellant himself had no affairs with her. 11. In the totality of the circumstances of the case I held that the offence u/Section 366 Indian Penal Code was not proved against the appellant beyond reasonable doubt. The appellant is, therefore, entitled to an acquittal. 12. On her own showing, the appellant himself had no affairs with her. 11. In the totality of the circumstances of the case I held that the offence u/Section 366 Indian Penal Code was not proved against the appellant beyond reasonable doubt. The appellant is, therefore, entitled to an acquittal. 12. In the result, the impugned judgment and order are set, aside, conviction and sentence of the appellant for offence u /Section 366 Indian Penal Code are set aside and he is acquitted thereof. He is on hail, he need not surrender and his bail bonds are cancelled.Appeal allowed. *******