Judgment MOHD. YAMIN, J. ( 1 ) THIS is a revision against the order of learned Sessions Judge, Jalore dated 2-7-1996 by which he dismissed the appeal of the accused-petitioner and maintained his conviction and sentence under S. 363, IPC. It is relevant to mention that this revision petition was filed by Gajia as well as by Khetia but during its pendency Gajia expired, so it is only Khetia whose case is to be considered. ( 2 ) I have heard the learned counsel for the petitioner as well as learned Public Prosecutor at length. ( 3 ) THE facts of the case, as alleged by the prosecution, are that on 1-5-83 Baldev Singh reported to SHO of Police Station, Ahore vide Ex. P/1 that his son Bhanwar Singh aged 15 years, student of class VIIIth was missing since 22-4-1983. He had gone to appear in his school examination but did not return. He had searched out in different villages in district Churu but the boy was not available. He had come to know in village Harji that Mohanlal, Khetaram, Gajia, Kantia and Kishore Kumar were also missing for two days from 28-4-1983 onwards. When Khetaram and Mohanlal were interrogated by villagers they admitted that Bhanwar Singh went with them to Takhatgarh via Umedpur and then to Jalore on 28-4-83. The boy was searched in the village also but he was not available. He was missing with a sum of Rs. 33,500/-, a golden ring and some other golden ornaments. He also stated in the FIR that on 28-4-83 he was in village Harji but his wife had gone to the field after locking the house but had handed over the key to her neighbour. Bhanwar Singh obtained the key of the house from the neighbour and took the cash as well as ornaments. Case under Ss. 380, 363 and 367 was registered. During the investigation it came to the knowledge of the police officers from a Mukhbir that the boy was taken to Gujarat. The police went there and on 5-5-83 Gajia was arrested at Palanpur and on his information Bhanwar Singh was also recovered from Palanpur. A sum of Rs. 26,560/- was recovered at the instance of Gajia. Khetia was also arrested and golden ornaments were recovered at his instance. The police went there and on 5-5-83 Gajia was arrested at Palanpur and on his information Bhanwar Singh was also recovered from Palanpur. A sum of Rs. 26,560/- was recovered at the instance of Gajia. Khetia was also arrested and golden ornaments were recovered at his instance. Police submitted the challan under various sections of Indian Penal Code before learned Judicial Magistrate, Jalore who framed charges under Ss. 380, 363 and 120-B against the accused-petitioner. He denied his indictment. Prosecution examined as many as 11 witnesses. Then the statements of the accused-petitioner and the co-accused Gajia were recorded under S. 313, Cr. P. C. A defence witness Ukekhan DW-1 was examined on behalf of defence. After hearing both the parties, learned Magistrate convicted the accused-petitioner for offence under Ss. 120-B, 363 and 380, IPC and sentenced to 9 months R. I. with a fine of Rs. 500/- and in default to undergo R. I. of one month under each count. He also passed the order that the sentences shall run concurrently. On appeal, accused-petitioner was acquitted from the charge of offence under S. 380 but his conviction and sentence under S. 363, IPC was maintained. ( 4 ) LEARNED counsel for the petitioner submitted that the offence under S. 363, IPC is not proved against the petitioner because there is no evidence that Bhanwar Singh was a minor. He has also submitted that Bhanwar Singh had reached at the age of discretion and had gone on his own sweet will. He also submitted that there is no such evidence that it was the petitioner who took away Bhanwar Singh, therefore, the petitioner should be acquitted. ( 5 ) ON the other hand, learned public prosecutor has opposed the petition. ( 6 ) IT is admitted that the scope of criminal revision is limited only to the legal issues. Counsel for the petitioner submitted that the Court below did not appreciate the evidence properly and it is an illegality. He is right to that extent. I have gone through the statements of witnesses. ( 6 ) IT is admitted that the scope of criminal revision is limited only to the legal issues. Counsel for the petitioner submitted that the Court below did not appreciate the evidence properly and it is an illegality. He is right to that extent. I have gone through the statements of witnesses. In order to prove the offence under S. 363, IPC the prosecution has to prove the following ingredients :- (1) taking or enticing away the minor; (2) such minor must be under sixteen years of age, if a male, or under eighteen years of age, if a female; (3) taking or enticing must be out of keeping of the lawful guardian of such minor; and (4) such taking or enticing must be without the consent of such guardian. ( 7 ) LEARNED counsel for the petitioner submitted that it was essential to prove that Bhanwar Singh was a minor on the date of occurrence. He has submitted that the prosecution did not get Bhanwar Singh medically examined and that there is no evidence to positively come to the conclusion that Bhanwar Singh was minor below the age of 16 years on the date of occurrence. ( 8 ) P. W. 1 Baldev Singh has stated that he lodged report Ex. P/1 at the police station and it mentions that the age of Bhanwar Singh was about 15 years. P. W. 11 Heera Ram, who investigated the case, has not given any explanation as to why the child was not got medically examined. He has stated in the cross-examination that Bhanwar Singh was minor. But he does not give reasons as to how he reached to this conclusion. The only basis appears to be a certificate of school. Bhanwar Singh PW-2 has not stated anything about the date of his birth. Mana Devi PW- 3 who is the mother of Bhanwar Singh has been produced by the prosecution. She has stated that Bhanwar Singh was 15 years of age but she does not tell as to what is the exact date of birth of Bhanwar Singh. ( 9 ) P. W. 6 Khetaram was the Head Master of school on 14-5-83, who issued certificate Ex. P/8 according to which the date of birth of Bhanwar Singh was 15-6-68. He stated that he mentioned this date in Ex. ( 9 ) P. W. 6 Khetaram was the Head Master of school on 14-5-83, who issued certificate Ex. P/8 according to which the date of birth of Bhanwar Singh was 15-6-68. He stated that he mentioned this date in Ex. P/8 as per the school record where the boy had come after passing class Vth from some other school. He admitted that when the boy was initially admitted in school, his father must have filled up the date of birth in admission form but that form has not been produced in the Court. The form was the primary evidence which has been withheld by the prosecution. The witness has issued Ex. P/8 even without seeing the Transfer Certificate. The date of birth has been mentioned in it on the basis of attendance register of the class of Bhanwar Singh. This certificate amounts to secondary evidence and will not be admissible in evidence. The prosecution has withheld the primary evidence regarding the date of birth of Bhanwar Singh. Therefore, it is not proved that at the relevant time Bhanwar Singh was minor. That means that he was mjor or at least had reached the age of discretion. He was having relations with the accused-petitioner and there was no threat or inducement on the part of the accused petitioner, it cannot be said that the petitioner was taken out of lawful guardianship. It is proved from the evidence of PW-3 Smt. Mana Devi, the mother of Bhanwar Singh, that the accused was having relations with Bhanwar Singh and that his father used to object but Bhanwar Singh maintained relations with the accused-petitioner. ( 10 ) LEARNED counsel for the petitioner submitted that Bhanwar Singh was in love of film world and wanted to work as a film actor and that he himself collected the money in absence of his parents from the room and ran away. He submitted that the petitioner has been falsely implicated because Baldev Singh is alleged to have committed rape with Smt. Seeta Meghwal and a news item was published in a newspaper at the instance of Gajia. Therefore, Bhanwar Singh had enmity with Gajia. Khetaram was his friend, therefore, he has also been roped in. This defence was never put in cross-examination to Bhanwar Singh or to any other witness. Therefore, this defence is an afterthought. Therefore, Bhanwar Singh had enmity with Gajia. Khetaram was his friend, therefore, he has also been roped in. This defence was never put in cross-examination to Bhanwar Singh or to any other witness. Therefore, this defence is an afterthought. However, it has been the case of the defence right from the very beginning that the petitioner was falsely implicated in the matter while Bhanwar Singh had gone of his own sweet will. ( 11 ) FROM the evidence I find that the prosecution has not been able to positively prove that Bhanwar Singh was below 16 years of age at the time of occurrence and that being major, he himself ran away with a large cash and ornaments which he had collected from house in absence of his parents. ( 12 ) SO far as the role of the petitioner is concerned, Smt. Mana Devi has stated that her son Bhanwar Singh used to meet him and that the father of the boy disliked but the boy would not stop. PW-2 Bhanwar Singh, thus knew this accused-petitioner from before. This witness has stated that he went to Takhatgarh on 28th of April where Khetia came. He has further stated that he along with Gajia came to his house at about 4 p. m. and both of them collected cash and ornaments. When they came out the accused-petitioner was standing outside the house and then they all went to Ahmedabad. He was taken to the house of the sister of Gajia. The witness wrote a letter from Jalore to his father which is Ex. P/2. It mentions that the money which he had brought from the house has been stolen away and that he was living in a hotel. It also mentions that he met Mohanlal son of Manaji in Jalore and that Kanhaiyalal was also with him. The witness has stated about this letter that he was compelled to write this letter by Gajia. He has stated that he was recovered from Palanpur vide Ex. P/3. Ex. P/3 mentions that he was recovered from the possession of Gajia. From his evidence, I am not convinced that it was the accused-petitioner who might have taken him away from the lawful guardianship. He has stated that he was recovered from Palanpur vide Ex. P/3. Ex. P/3 mentions that he was recovered from the possession of Gajia. From his evidence, I am not convinced that it was the accused-petitioner who might have taken him away from the lawful guardianship. The learned Sessions Judge, Jalore was of the view that Bhanwar Singh was minor on the date of occurrence and that the petitioner had enticed him away from the lawful guardianship. From the evidence, I find that the prosecution has failed to prove that Bhanwar Singh was a minor and that he was taken away by the accused-petitioner Khetia. The offence under S. 363, IPC is not proved and, therefore, the petitioner should be acquitted. ( 13 ) CONSEQUENTLY, the revision petition is allowed and the accused-petitioner Khetia is acquitted from the charge of offence under S. 363, IPC. Revision allowed.