JUDGMENT 1. - Accused appellant Ganga Bishan has preferred this criminal appeal under Section 374 Criminal Procedure Code against the judgment and order dated 16.10.1999 passed by the learned Additional Sessions Judge No.1, Bundi, by which the learned Additional Sessions Judge has found the appellant guilty for offence under Sections 363, 366 and 376 Indian Penal Code and accordingly convicted and sentenced him as under : under Section 363 Indian Penal Code Rigorous imprisonment for two years with a fine of Rs. 100/- in default thereof, to undergo 15 days imprisonment under Section 366 Indian Penal Code Rigorous imprisonment for three years with a fine of Rs. 200/-, in default thereof to further undergo one month's imprisonment under Section 376 Indian Penal Code Rigorous imprisonment for seven years, in default thereof, to further undergo one month's imprisonment. 2. One Ram Kishan submitted a written report, Ex.P.1 to the Superintendent of Police, Bundi, from where it was sent to Police Station Shahbad. In the report, it was alleged by the complainant that he was engaged in Stone Mines at Kota. One person named Ganga Bishan was working at the mines of Kanhaiyalal. Ganga Bishan fell in love with her daughter Sukhmani and kidnapped her with the hope (sic help ?) of a Contractor. A report was also against judgment & order dated 16.10.99 passed by Shri N.K. Jain, Addl. Sessions Judge No.1, Bundi in Sessions Case No. 169/97 lodged at Police Station Dabi, but of no avail. After about 10-15 days, the complainant managed to get his daughter back, but they again took her away. On the basis of this report, a case under Sections 363 and 366 Indian Penal Code was registered against the appellant vide FIR, Ex.P 11 on 5.1.97 at Police Station Shahbad and investigation commenced. 3. During investigation, police recovered the girl and got her medically examined and also got her statement under Section 164 Criminal Procedure Code recorded. The police arrested the accused appellant and got him medically examined to find out whether he was capable of performing sexual intercourse. The police also recorded the statements of witnesses under Section 161 Criminal Procedure Code and after completion of investigation, submitted a charge sheet against the accused in the court of Additional Chief Judicial Magistrate, Bundi, who in turn committed the case to the court of Sessions. 4. The police also recorded the statements of witnesses under Section 161 Criminal Procedure Code and after completion of investigation, submitted a charge sheet against the accused in the court of Additional Chief Judicial Magistrate, Bundi, who in turn committed the case to the court of Sessions. 4. The case came to be tried by the learned Additional Sessions Judge No.1, Bundi. The learned trial Judge after hearing arguments of both the sides, framed charges against the accused appellant under Sections 363, 366 and 376 Indian Penal Code. The accused denied the charges and claimed trial. 5. During trial, the prosecution, in support of its case, examined as many as 10 witnesses and exhibited some documents. Thereafter the accused was examined under Section 313 Criminal Procedure Code The accused did not produce any evidence in defence. 6. On conclusion of trial, the learned trial court found the prosecution case as alleged, proved and accordingly convicted and sentenced the appellant as aforesaid. Hence the present appeal by the appellant through jail. 7. I have heard learned counsel for the appellant and learned public prosecutor and also gone through the judgment under appeal and the evidence on record. 8. In the case of sexual assault, the age of the prosecutrix plays vital role. The learned trial Court on the basis of prosecution evidence has recorded a finding that the age of the prosecutrix, at the time of commission of offence was less than 16 years. 9. To appreciate the findings on the question of age of the prosecutrix, it would be profitable to reappreciate the prosecution evidence. 10. PW.1 Ram Kishan, father of the prosecutrix has stated the age of the prosecutrix as 16 years. Similarly, PW.2 Smt. Chirani @ Chiru, mother of the prosecutrix has stated the age of her daughter as 17 years. PW.3 Dr. Arvind Sharma, on the basis of X-ray of both the wrists, elbow, shoulder and pelvis of the prosecutrix has stated her age between 1415 years. In cross examination, the witness has stated that there can be difference of only one year. There is no other evidence except the evidence of these three witnesses to ascertain the age of the prosecutrix. 11. In cross examination, the witness has stated that there can be difference of only one year. There is no other evidence except the evidence of these three witnesses to ascertain the age of the prosecutrix. 11. From the statements of the parents of the prosecutrix and the opinion of the doctor, in the absence of documentary or other reliable evidence, it cannot be accepted for certain and beyond reasonable doubt that the prosecutrix was below 16 years of age. In my considered view, the prosecution has not been able to establish beyond reasonable doubt this crucial and significant aspect of the prosecution that the prosecutrix was below 16 years of age. 12. In similar circumstances, their lordships of the Supreme Court in the case of State of Rajasthan v. N.K. ( 2000 (5) SCC 30 ) have observed as under: "However, we are not satisfied that only on the basis of doctor Jetha's testimony, a positive finding can be recorded that the prosecutrix was less than 16 years of age on the date of incident. In the estimate made by the doctor he himself admits a variation of 3 years on either side being permissible. The prosecutrix herself and her father are illiterate persons. The prosecutrix has not taken any schooling. There is no other satisfactory evidence as to her age available on record. It cannot be positively held on the basis of the material available that she was less than 16 years of age on the date of the incident." 13. In Jaya Mala v. Home Secretary, Govt. of J. & K. ( AIR 1982 SC 1297 ) , their lordships of the Supreme Court had an occasion to deal with the case of age of a school going boy who was under detention, held as under: "However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side. Undoubtedly, therefore, the detenu was a young school going boy. It equally appears that there was some upheaval in the education institutions. This young school going boy may be enthusiastic about the students' rights and on two different dates he marginally crossed the bonds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. It equally appears that there was some upheaval in the education institutions. This young school going boy may be enthusiastic about the students' rights and on two different dates he marginally crossed the bonds of law. It passes comprehension to believe that he can be visited with drastic measure of preventive detention. One cannot treat young people, may be immature, may be even slightly mis-directed, may be a little more enthusiastic, with a sledge hammer. In our opinion, in the facts and circumstances of this case the detention order was wholly unwarranted and deserved to be quashed". 14. This court also in Kishania v. State of Rajasthan (1987 (2) RLR 858=1987 RLW 750) dealing with a case involving similar facts as that of the facts of the case in hand, held as under: "There is no direct documentary or oral reliable evidence about the age of Kumari Sayara and when the Medical evidence is, thus, flexible, it cannot be accepted for certain and beyond reasonable doubt that Kumari Sayara was below 16 years of age and in my opinion, the prosecution has failed to establish the important aspect of the matter". 15. Having held that the age of the prosecutrix was not below 16 years, the question now emerges for consideration is, as to what offence the appellant has committed. The learned trial Judge has found the appellant guilty of having committed offence under Sections 376, 366 and 363 Indian Penal Code. 16. To appreciate the findings arrived at by the learned trial Judge, it would be appropriate to notice the relevant evidence adduced on behalf of the prosecution during trial of the case. 17. PW 1 Ram Kishan, father of the prosecutrix has deposed that he was engaged in the stone mines at Kota. Ganga Bishan, appellant was also working at the nearby mines of one Kanhaiyalal Jain. Appellant Ganga Bishan fell in love with his daughter Sukhmani aged about 15-16 years and thereafter the accused took away his daughter. In cross-examination, the witness has admitted that how he could have objected to their love affairs. In cross-examination, when confronted with the photographs Ex.D1, D2 and D3, the witness identified his daughter and accused appellant. 18. PW 2 Chiranjee @ Chiru, mother of the prosecutrix in her cross examination has admitted that love affairs were going on between her daughter and the accused appellant. In cross-examination, when confronted with the photographs Ex.D1, D2 and D3, the witness identified his daughter and accused appellant. 18. PW 2 Chiranjee @ Chiru, mother of the prosecutrix in her cross examination has admitted that love affairs were going on between her daughter and the accused appellant. She has admitted the age of her daughter being 17 years. The witness has also identified her daughter and the accused in the photographs Ex.D1 to D3. 19. PW 5 Sukhmani prosecutrix herself has stated in her examination in chief that accused took her towards village Chhabara, where he kept her for about 2-3 months. At one place the witness states that she was sleeping with the sister of accused and at the next, she states that she was sleeping with the accused. In cross-examination, the witness has denied the fact of love affairs between her and the accused. She stated that when she came out of the mines, the accused forcibly took her away in a tractor trolly. The accused had come at the mines itself and 2-3 unknown persons were sitting in the trolly. They travelled in trolly up to Dabi and thereafter she was made to sit in a bus. She then stated that there was a hotel at the place where they got down from the tractor and number of persons were present there. She further stated that 3-4 persons were sitting in the bus in which they came to Kota and that bus belonged to Roadways. She then stated that 50-60 persons were sitting in the bus and that she did not raise alarm as the accused did not permit her to do so. She did not state any person in the bus that accused was forcibly taking her. According to the witness, number of persons were present at the place where they got down from the bus in Kota and from there, they proceeded to Chhabara in the train. Number of persons were travelling in the train and she did not talk to any one and that they covered the distance from bus stand to railway station on foot. The witness stated that number of persons were present at the place where they got down from the bus in Chhabara and that they went to a village which was at a distance of more than a kilometre and that number of persons met them on way. The witness stated that number of persons were present at the place where they got down from the bus in Chhabara and that they went to a village which was at a distance of more than a kilometre and that number of persons met them on way. In cross-examination, the witness further stated that accused had informed her father that he has married her and the accused had forcibly got her photographs. She then stated that accused forcibly got himself married with her in the court at Ashok Nagar and 2-3 persons were present there, including the employees of the court and the Collector. The accused kept her with him for about 2-3 months after the marriage. 20. On examination and scrutiny of the entire evidence on record, the uncontrovered facts which emerge are mention in the succeeding paragraphs: (a) the prosecutrix came in close contact with the appellant and both fell in love; (b) both married together; (c) the prosecutrix remained with the accused for sufficiently long time; (d) during the period the accused and the prosecutrix remained together, both visited various places and that prosecutrix did not complain against the appellant. (e) the medical evidence does not at all support the version of the prosecutrix that she was subjected to forcible intercourse against her will. 21. Thus the conduct of the prosecutrix dearly reveals that she had gone voluntarily with the accused appellant as both fell in love with each other. In these circumstances, it can be safely inferred that the prosecutrix, who was more than 16 years of age had been surrendering herself before the accused appellant. If a girl of more than 16 years of age voluntarily surrenders herself before a male for the purposes of enjoying sexual intercourse, it cannot be said that rape has been committed by the male person. In the case in hand, it stands proved from the evidence on record that the prosecutrix developed love affairs with the appellant, got her married with him and both lived together for sufficiently long time and also visited various places. Resultantly, it must be held that the trial court was not justified in recording conviction under Section 376 Indian Penal Code against the appellant and he stands acquitted of this charge. 22. Resultantly, it must be held that the trial court was not justified in recording conviction under Section 376 Indian Penal Code against the appellant and he stands acquitted of this charge. 22. Now coming to the conviction of the appellant under Section 366 Indian Penal Code, it has to be seen whether Sukhmani was compelled by force or induced by any deceitful means to go from her house to another place with the intention specified in Section 366 Indian Penal Code and then was subjected to intercourse against her will. The conduct of the prosecutrix throughout indicates that whatever happened, was with her consent. Having scrutinised the evidence on record, I do not find an iota of evidence to establish that the prosecutrix was kidnapped with an intention that she would be compelled or was likely to be compelled to marry the appellant against her will or in order that she will be forced or seduced to illicit intercourse or that he was knowing that she was likely to be forced or seduced to illicit intercourse. Thus the conviction for the appellant under Section 366 Indian Penal Code is also not sustained. 23. To establish the charge under Section 363 Indian Penal Code, it is necessary that the girl was kidnapped from the lawful guardianship without the consent of her guardian is below the age of 18 years. From the evidence of parents of the prosecutrix, the evidence of prosecutrix herself and that of medical evidence, if scrutinised in the light of the law discussed hereinabove, it can safely be held that in any case the girl was below the age of 18 years at the time of incident and that it stands proved from the evidence on record that accused appellant kidnapped the prosecutrix or took her away from the lawful guardianship without the consent of her guardian. The consent of the prosecutrix, who was minor is immaterial. I am fortified in my view by the following observations of the Apex Court in State of Haryana v. Raja Ram (1973 Cr. L.J (SC) 651) : "....On a plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which takes the case out of its purview. L.J (SC) 651) : "....On a plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent which takes the case out of its purview. Nor it is necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuation by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section." Therefore, I am of the considered view that the finding of guilt under Section 363 Indian Penal Code against the appellant arrived at by the trial court calls for no interference. For the reasons aforesaid, the appeal is partly allowed. The conviction of the appellant under Sections 376 and 366 Indian Penal Code is set aside and he is acquitted of the charges. The conviction of the appellant under Section 363 is maintained. The accused appellant is in jail and since he has already undergone the sentence of two years passed by the trial court while convicting him under Section 363 Indian Penal Code, he be released forthwith, if not required in any other case.Appeal partly allowed. *******