GOPALA KRISHNA TAMADA, J. ( 1 ) THE petitioner herein was tried for the offence punishable under Section 366-A IPC by the learned Assistant Sessions Judge in sessions Case No. 271 of 1994 and ultimately was found guilty of the said offence and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 200/- ( 2 ) IN appeal, the learned I Additional sessions Judge held that the offence under section 366 (A) IPC was not established but, however, held that the offence under section 363 IPC against the petitioner herein was established. The sentence passed by the trial court was confirmed by the lower appellate court. ( 3 ) THE case of the prosecution is that p. W. 5 Rajitha was aged about 12 years at the time of offence and was a student of 6th class in the private school run by the petitioner. On 16-6-1993, the petitioner took away p. W. 5 without the consent of her guardian i. e. , P. W. 1 on the pretext that he would obtain her T. C. From 16-6-1993, both were together for nine days and subsequently basing on a report lodged by P. W. 1, the petitioner and P. W. 5 were brought by the police and after investigation, the police filed charge-sheet. ( 4 ) SECTION 361 IPC defines kidnap, according to which three requirements are to be satisfied and they are: (1) that the girl must be under 18 years of age; (2) she is taken away or enticed by the accused; and (3) without the consent of her lawful guardians. In order to ascertain the age of the girl, the girl was sent to P. W. 9, who is the professor in Forensic Medicine, for radiological examination. After examination, p. W. 9 opined that P. W. 5 was aged 14 to 15 years as on the date of his examination. In his cross-examination, he stated that he cannot say whether the person covered by Bx. P-5 medical certificate could not be more than 15 years with certainty. After examination, p. W. 9 opined that P. W. 5 was aged 14 to 15 years as on the date of his examination. In his cross-examination, he stated that he cannot say whether the person covered by Bx. P-5 medical certificate could not be more than 15 years with certainty. Thus, on the basis of the evidence of P. W. 9, the age of P. W. 5 can be taken as 15 to 16 years and if the ratio laid down by the Supreme Court in Jayamala v. Home Secretary, Government of Jammu and kashmir that the margin of error in age ascertained by radiological examination is two years on either side, is applied, the age of the girl shall be less than 18 years. No doubt, the petitioner herein and-P. W. 5 were in love with each other and further P. W. 5 left along with the petitioner herein. Thus, in the instant case, all the three aforementioned requirements are satisfied to attract the provisions of Section 361 IPC. But, in varadarajan v. State of Madras, the apex court had an occasion to deal with the situation of this nature as early as in the year 1965, and it was held therein that- (7 ). . . . . "it will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence Of kidnapping. Here, we are not concerned with enticement but what, we have to find out is whether the part played by the appellant amounts to taking , out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law taking . There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to mylapore and other places. Further, savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub Registrar s office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her own side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited - different places. There is no suggestion in Savitri s evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri s own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father s house or even of telling her not to accompany him. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father s house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area. . . . . . . . . "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 we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of Sec. 301 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 father s 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. (10) It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the fathers protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. (10) It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the fathers protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian s house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian s house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to taking . " (12)". . . . . . . . . IT must be borne in mind that while Secs. 497 and 498, Indian Penal code are meant essentially for the protection of the rights of the husband, sec. 361 and other cognate Sections are intended more for the protection of the minors and persons of unsound mind themselves than of the rights of the guardians of such persons. In this connection we may refer to the decision in State v. Harbansing Kisansing (1 ). In that case Gajendragadkar, J. , (as he then was) has, after pointing out what we have said above, observed: "it may be that the mischief intended to be punished partly consists in the violation or the infringement of the guardians right to keep their wards under their care and custody; but the more important object of these provisions undoubtedly is to afford security and protection to the wards themselves. (13)". . . . . . WHILE, therefore,it may perhaps be argued on the basis of the two Madras decisions that the word taking occurring in Secs. (13)". . . . . . WHILE, therefore,it may perhaps be argued on the basis of the two Madras decisions that the word taking occurring in Secs. 497 and 498 of the Indian Penal code should be given a wide interpretation so as to effectuate the object underlying these provisions there is no reason for giving to that word a wide meaning in the context of the provisions of Sec. 361 and cognate sections. " ( 5 ) THE apex court reiterated the same view in another case reported in Shyam and another v. State of Maharashtra. The relevant paragraphs are extracted hereunder: (2) ". . . . . . . The two appellants were friends. They were young people at the time of the commission of the offence in the year 1984. Out of them, Shyam, A-l wanted to marry the prosecutrix, lalita. Hemade a proposal to her about two to three months prior to the occurrence which was spumed by her. On the day of the occurrence, she was incidentally at the common tap for washing clothes and to fetch water back home. The appellants riding their respective bicycles came at that time and at their asking she sat on the carrier of the bicycle of Suresh. A-2 and shyam, A-l followed that bicycle as if escorting. The prosecutrix was taken to a room in the house of someone where she was made to perform a ritual signifying marriage between her and Shyam, A-l. The mother of the prosecutrix finding the girl missing reported the matter to the police and on its activation the prosecutrix was recovered from that room along with shyam the appellant This is the sum and substance of the prosecution case as has been found by the courts below. In her statement in court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge,but having regard to her conduct, as also the manner of the so-called "taking ,it does not seem that the prosecutrix wag truthful in that regard. Normally, her statement in that regard would be difficult to dislodge,but having regard to her conduct, as also the manner of the so-called "taking ,it does not seem that the prosecutrix wag truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/ accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but still she was in the age of discretion, sensible and aware of the intention of the accused-Shyam. That he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam-the appellant on her own and in that sense there was no taking out of the guardianship of her mother. The culpability of neither Shyam, A-l nor that of Suresh. A-2, in these circumstances, appears to us, established. The charge against the appellants/accused under Section 366, indian Penal Code would thus fail. " ( 6 ) FOLLOWING the above two judgments, it must been seen in the instant case as to whether the girl has attained the age of discretion or not. P. W. 5 in her evidence stated that on her own, she went to Warangal along with the petitioner and she got out of the house after informing her parents. " ( 6 ) FOLLOWING the above two judgments, it must been seen in the instant case as to whether the girl has attained the age of discretion or not. P. W. 5 in her evidence stated that on her own, she went to Warangal along with the petitioner and she got out of the house after informing her parents. Further, she stated that the petitioner was affectionate towards her; that he was taking up private classes exclusively for her and that he was touching her frequently and used to caress her and kiss her. From a reading of the entire deposition of P. W. 5 and from her conduct, I am of the considered view that even though P. W. 5 was aged less than 18 years, she attained the age of discretion as on the date of offence and that she left her parents house on her own accord and moved along with the petitioner and lived with him at different places from 16-8-1993 to 25-8-1993. In view of the above evidence, it cannot be said that the petitioner has taken away or enticed the girl and committed the offence punishable under Section 363 IPC. Therefore, he is entitled for acquittal. ( 7 ) IN the result, the revision is allowed and the judgments of both the courts below are hereby set aside and the petitioner is acquitted for the offence punishable under section 363 IPC. The fine amount paid by the petitioner shall be refunded to him. The bail bonds shall stand cancelled.