JUDGMENT V.K. Agarwal, J. 1. The accused/appellant stands convicted for offences punishable under Sections 363, 366 and 376 of the Indian Penal Code, and has been sentenced to undergo Rigorous Imprisonment for one year, three years and seven years respectively, by judgment dated 19-6-1997, in Sessions Trial No. 130/95, by 6th Additional Sessions Judge, Durg. 2. Undisputably, prosecutrix Laxmi Bai (P.W.3) is the daughter of Chintaram (P.W.4). Laxmi Bai (P.W.3) used to reside with her parents at Model Town, Bhilai. The accused/appellant was well known to her and was her neighbour. The accused/appellant had taken prosecutrix Laxmi Bai (P.W.3) with him to Nehru Nagar and thereafter to his maternal uncle at Tata Nagar. 3. The prosecution case stated in brief is that prosecutrix Laxmi Bai (P.W.3) was a minor girl, aged about 13 years at the time of incident. The accused/appellant on the assurance of marrying Laxmi Bai (P.W.3) had enticed her to come along with him. He had taken prosecutrix Laxmi Bai (P.W.3) to Nehru Nagar Chowk and thereafter to Power house at Bhilai. The accused/appellant and prosecutrix Laxmi Bai (P.W.3) went to Raipur by bus and then to Tata Nagar by train, where the maternal uncle of the accused/appellant resides. The accused/appellant committed forcible sexual intercourse with prosecutrix Laxmi Bai (P.W.3). 4. Chintaram (P.W.4) - the father of prosecutrix Laxmi Bai, on finding that prosecutrix Laxmi Bai (P.W.3) is missing, reported the matter to police. The said report (Ex.P/14) was recorded as a report of missing person in the 'Sanha' of P. S. Supela, district Durg. On 9-1-1992 prosecutrix Laxmi Bai was recovered from the possession of the accused/appellant. Recovery Panchnama (Ex.P/19) was prepared. Prosecutrix Laxmi Bai (P.W.3) was sent for medical examination. Dr. Neelima Sharma (P.W.5) conducted examination of prosecutrix Laxmi Bai (P.W.3). She found that there was no external injury on the person of Laxmi Bai (P.W.3). Medical report of Dr. Neelima Sharma was recorded as per Ex.P/10. The entry from the birth register (Ex.P/2) was seized from Kotwar Ganga Das (P./W. 1). According to which birth date of prosecutrix Laxmi Bai was 25-8-1977, and thus at the time of incident i.e. on 21-11-1991 she was aged less than 14 years. After completing other usual formalities during investigation, charge sheet was filed against the accused appellant, by police Supela, distt. Durg. 5. According to which birth date of prosecutrix Laxmi Bai was 25-8-1977, and thus at the time of incident i.e. on 21-11-1991 she was aged less than 14 years. After completing other usual formalities during investigation, charge sheet was filed against the accused appellant, by police Supela, distt. Durg. 5. The learned trial Court framed charges for offences punishable under Sections 363, 366 and 376 of the Indian Penal Code against the accused/appellant. He abjured guilt. Though he had admitted that he had taken away prosecutrix Laxmi Bai (P.W.3) with him, and that he had sexual intercourse with her, but his defence appears to be that prosecutrix Laxmi Bai (P.W.3) had willingly gone with him, and that Laxmi Bai is his wife. A son was born to him from prosecutrix Laxmi Bai (P.W.3). He had married Laxmi Bai, and had sexual intercourse with her, with her consent. The accused/appellant has been falsely implicated by the father of prosecutrix Laxmi Bai (P.W.3). 6. The learned counsel for the accused/appellant has urged that the age of the prosecutrix is not proved to be below 18 years and the document (Ex.P/1- C) seized from Kotwar Ganga Das (P.W.1) contains interpolation regarding the entry of date of birth of prosecutrix Laxmi Bai (P.W.3), and therefore, cannot be relied upon. It has further been urged that the ossification test of Laxmi Bai (P.W.3) conducted by Dr. G. S, Thakur (P.W.2) would indicate that she was aged about 17 years. Since prosecutrix Laxmi Bai (P.W.3) had gone with the accused/appellant of her own free-will, the accused/appellant has not committed any offence. 7. The statement of prosecutrix Laxmi Bai (P.W.3) is that while she was returning after having 'Darshan' of 'Durga', the accused/appellant had gagged her and had taken her to his house, thereafter committed forcible sexual intercourse with her. He had promised that he would be marrying her and had also threatened her that she should not tell the incident to anybody. After a week of the above incident, the accused/appellant again caught hold of her and had taken her to Nehru Nagar Chowk and then had gone in a tempo to Power house Bhilai. From Power house Bhilai they went to Raipur by bus, and then they boarded a train for Tata Nagar. After a week of the above incident, the accused/appellant again caught hold of her and had taken her to Nehru Nagar Chowk and then had gone in a tempo to Power house Bhilai. From Power house Bhilai they went to Raipur by bus, and then they boarded a train for Tata Nagar. Prosecutrix Laxmi Bai (P.W.3) further states that at Tata Nagar, the accused/appellant had taken her to his maternal uncle and they lived as husband and wife. After staying for 15 days at Tata Nagar they had come to Bhilai. At Camp No. 1 Bhilai they rented a house and stayed there, for about 10-12 days. The police came there and brought them to P.S. Supela, distt Durg. She states that at the time of the incident, she was aged about 13 years. She has produced her school progress card (Ex.P/6) regarding her age. 8. It may be noticed that in cross-examination prosecutrix Laxmi Bai (P.W.3) has admitted that she had met the accused/appellant in the garden of Nehru Nagar and then he had taken her to Tata Nagar. She had not informed anybody about the incident throughout journey to Tata Nagar, nor she did so at Nehru Nagar. She has also admitted that she got a child from the accused/appellant, who was aged about 2'/j years at the time of her statement in the trial Court. She has admitted in para 16 of her statement that the accused/appellant was a 'Gunda' and for most of the times remain in the jail and was unemployed, hence she did not want to continue living with him, and want to remarry. 9. The statement as above of prosecutrix Laxmi Bai (P.W.3) clearly indicates that Laxmi Bai (P.W.3) had gone with the accused/appellant of her own free-will. May be the accused/appellant had asked her to come along with him on the assurance of marrying her, but her statement that she was gagged and forcibly taken away by the accused/appellant does not appear to be proved. 10. In the above circumstances, the question of age of prosecutrix Laxmi Bai (P.W.3) becomes important. In the above context the oral statement of Laxmi Bai (P.W.3) and her father - Chintaram (P.W.4) is that at the time of incident she was aged about 13 years. 10. In the above circumstances, the question of age of prosecutrix Laxmi Bai (P.W.3) becomes important. In the above context the oral statement of Laxmi Bai (P.W.3) and her father - Chintaram (P.W.4) is that at the time of incident she was aged about 13 years. However, cross-examination of Chintaram (P.W.4) would indicate that he does not exactly remember the date of birth of prosecutrix Laxmi Bai (P.W.3). Therefore, assurance regarding the age of Laxmi Bai (P.W.3) will have to be sought from other evidence led in the case. 11. Kotwar Ganga Das (P.W.1) has stated that he recorded the date of birth in the birth register. That entry is Ex.P/1-C. Entry (Ex.P/1-C) indicates that date of birth of prosecutrix Laxmi Bai (P.W.3) is 25-8-1977. Though it is true that in the said entry there is some overwriting. However, Kotwar Ganga Das (P.W.I) has duly explained the said overwriting. He has stated that at the time of making initial entry mistake was committed by him in recording the year of birth, and that he immediately corrected the mistake. The statement as above of Kotwar Ganga Das (P.W.I) appears to be reasonable. The overwriting in entry (Ex.P/1-C) has been properly explained by him and appears to be on account of slip of pen. Much cannot be made out of it. 12. Chintaram (P.W.4) - the father of prosecutrix has stated that he has informed the birth of his daughter - prosecutrix Laxmi Bai (P.W.3) , to the Kotwar Ganga Das (P.W. 1) and got recorded her date of birth. 13. Thus, the above entry (Ex.P/1-C) in the register of birth, maintained by Kotwar Ganga Das (P.W. 1) has been made by him in the discharge of his official duty and has thus been purported to be done in his official capacity. The above entry (Ex.P/1-C) made by Kotwar Ganga Das (P.W.I) would thus be admissible under Section 35 of the Evidence Act. Reference in this connection may be made to Harpal Singh and Anr. v. State of Himachal Pradesh, AIR 1981 S.C. 361 . It is therefore established that the age (sic : date of birth) of prosecutrix Laxmi Bai (P.W.3) was 25-8-1977, and she was below the age of 16 years at the time of incident. 14. It is true that in the instant case ossification test of prosecutrix Laxmi Bai (P.W.3) was also conducted by Dr. It is therefore established that the age (sic : date of birth) of prosecutrix Laxmi Bai (P.W.3) was 25-8-1977, and she was below the age of 16 years at the time of incident. 14. It is true that in the instant case ossification test of prosecutrix Laxmi Bai (P.W.3) was also conducted by Dr. G. S. Thakur (P.W.2), who opined as per his report Ex.P/3 that Laxmi Bai (P.W.3) was aged about 17 years with a variation of 3 years on either side. However, in view of entry (Ex. P/1-C) in the birth register, the report of ossification test would not adversely affect the prosecution case. In the circumstances of the case the ossification test and the opinion of Dr. Thakur regarding the age of prosecutrix Laxmi Bai (P.W.3) being 17 years, is liable to be varied and reduced by three years in the face of above referred entry of birth, as recorded by Kotwar Ganga Das. (P.W. 1) 15. It may be noticed that prosecutrix Laxmi Bai was taken away and enticed by the accused/appellant on an assurance of marrying her, and in fact, the accused/appellant and prosecutrix Laxmi Bai continued to live for a considerable period as husband and wife at Tata Nagar, and thereafter at Camp No. 1 Bhilai. The accused/appellant in his statement has admitted having sexual intercourse with the prosecutrix. However, he states that the prosecutrix Laxmi Bai (P.W.3) had gone with him with her own consent, and they had married, and that she was his wife. However, it may be noted that consent of a minor would be immaterial. Since prosecutrix Laxmi Bai was below the age of 16 years, even if she was a consenting party, and was willingly acceded and succumbed to the allurement of marriage given by the accused/appellant, that would not wipe out the culpability of the act of the accused/appellant in taking her away from out of her lawful guardianship and would not absolve him from the liability of the offence. 16. In State of Haryana v. Rajaram, AIR 1973 S.C. 819 , it has been observed that consent of the minor who is taken or enticed is wholly immaterial. It is only the consent of the guardian which takes the case out of the purview of Section 361 of Indian Penal Code. 16. In State of Haryana v. Rajaram, AIR 1973 S.C. 819 , it has been observed that consent of the minor who is taken or enticed is wholly immaterial. It is only the consent of the guardian which takes the case out of the purview of Section 361 of Indian Penal Code. Pursuation by the accused/appellant which creates willingness on the part of the minor to be taken out of the lawful guardian, would be sufficient to attract Section 361 of Indian Penal Code, and would constitute offence of kidnapping from lawful guardianship. 17. In the circumstances, since prosecutrix Laxmi Bai accompanied the accused/appellant on his inducement and the accused/appellant had taken her away from the keeping of his lawful guardians, he has committed kidnapping of prosecutrix Laxmi Bai. The kidnapping as above was with the intent of committing sexual intercourse with her as the accused/appellant admittedly had committed sexual intercourse with her. Therefore, it is abundantly clear from the evidence on record as also from the admission of the accused/appellant, that he committed offences punishable under Sections 366 and 376 of the Indian Penal Code. It may be mentioned here that since offence under Section 366 of the Indian Penal Code is an aggravated form of offence under Section 363 of the Indian Penal Code, no separate conviction under Section 363 is called for. 18. Accordingly, the finding of the learned trial Court that the accused/appellant committed offences punishable under Sections 366 and 376 of the Indian Penal Code are unexceptionable and calls for no interference. The conviction of the accused/appellant under Sections 366 and 376 of the Indian Penal Code deserve to be maintained, so also the sentence under Section 366 of Indian Penal Code. However, in view of the consent of prosecutrix Laxmi Bai (P.W.3) and her conduct in the whole episode, the accused/appellant deserves some consideration in the matter of sentence under Section 376 of the Indian Penal Code. 19. Accordingly, the appeal is partly allowed. The conviction of the accused/appellant under Sections 366 and 376 of the Indian Penal Code is maintained. Sentence of three years Rigorous Imprisonment imposed on him by the learned trial Court under Section 366 of the Indian Penal Code is also maintained. 19. Accordingly, the appeal is partly allowed. The conviction of the accused/appellant under Sections 366 and 376 of the Indian Penal Code is maintained. Sentence of three years Rigorous Imprisonment imposed on him by the learned trial Court under Section 366 of the Indian Penal Code is also maintained. However, instead of sentence under Section 376 of the Indian Penal Code imposed by the learned trial Court, he is sentenced thereunder to Rigorous Imprisonment for 5 (five) years. Both the sentences under Sections 366 and 376 of the Indian Penal Code would run concurrently. The accused/appellant is not being separately convicted and sentenced under Section 363 of the Indian Penal Code. The appellant shall be entitled to set off under Section 428 of Criminal Procedure Code.