Judgment Nirmal Singh, J. 1. Appellant alongwith one Mukesh was prosecuted under sections 363.366.376 IPC in FIR No.77 dated 14/3/1989 registered at police station Gohana. After conclusion of the trial Mukesh was acquitted of all the charges whereas appellant was acquitted under sections 366 and 376 IPC. He was convicted by the learned Additional Session Judge, Rohtak under sec. 363 IPC and sentenced to undergo rigorous imprisonment for a period of 3 years. 2. The prosecution story in brief in that Rekha daughter of Bishamber Dayal PW-9 went to school on 13/3/1989 at 9.00 A. M. to appear in the practical paper of science her turn did not come upto 1.00 P. M. She came out of the school for purchasing a kulfi. Appellant Narinder and Mukesh met her at the gate of the school. They called her and told that the kulfi she was purchasing is not good and that they would get her a good kulfi and show her movie. They both then took her into a bus at Gohana. Mukesh accused went away from there. Appellant took her to Industrial Training Institute saying that he would get a kulfi for her at that place. There he threatened her not to make noise. In the verandah, appellant subjected her to sexual intercourse forcibly against her wishes. He then took her towards the fields and from there to Sonepat in a four-wheeler. Thereafter she was taken to village Bayyapur to the house of her fathers sister but they were not allowed to stay in her house, therefore, they stayed in a school in the same village. On the next date they returned to Gohana by bus. 3. On 13/3/1989 at about 7.00 P. M. when Bishamber Dayal returned to his house, he was informed by his wife that Rekha had not returned to the house from the school. He searched for her. On 14/3/1989 he lodged a report at Police Station Gohana. His statement was recorded, on the basis of which formal FIR was recorded. 4. On 14/3/1989 SI Arjun Dass found appellant and Rekha in the area of village Garhi. Statement of prosecutrix was recorded, Appellant was arrested and was got medico-legally examined from Civil Hospital, Gohana by Dr. D. C. Naval. Rekha-prosecutrix was also got medically examined. After completion of necessary formalities challan was put in the court for trial. 5. 4. On 14/3/1989 SI Arjun Dass found appellant and Rekha in the area of village Garhi. Statement of prosecutrix was recorded, Appellant was arrested and was got medico-legally examined from Civil Hospital, Gohana by Dr. D. C. Naval. Rekha-prosecutrix was also got medically examined. After completion of necessary formalities challan was put in the court for trial. 5. After hearing the learned counsel for the parties and perusing the record appellant and his cc- accused were charge-sheeted under sec. 366 IPC. Appellant was also charge sheeted under sec. 376 IPC to which they pleaded not guilty and claimed trial. 6. To prove its case the prosecution has examined Dr. D. C. Naval as PW-1. Dr. (Mrs.) S. P. Malik as PW-2. Nand Lal as PW-3. Tulsi Dass as PW-4. Rajinder Singh as PW-5. ASI Pirthi Singh as PW-6. R. L. Sankhla as PW-7. Rekha as PW-10. SI Ran Singh as PW-11. SI Arjun Dass as PW-12. 7. When the appellant was examined under sec. 313 Cr. P. C. to explain the incriminating circumstances appearing in the prosecution evidence he denied simplicitor and pleaded false implication. He pleaded that he had love affairs with Rekha and that she used to call him by writing letters. He has pleaded that on 13/3/1989, Rekha had come to their plot where they were raising construction and stayed there during night and had gone to her house in the morning. He has alleged that he has been arrested by the police from his house. 8. After hearing the learned counsel for the appellant and the Public Prosecutor for the State the learned Additional Sessions Judge convicted and sentenced the appellant as mentioned in para-1 of the judgment. 9. Shri J. S. Bedi, learned counsel for the appellant contended that the learned Additional Sessions Judge has erroneously convicted and sentenced the appellant under sec. 363 IPC. He submitted that it was a case of consent and the learned Additional Sessions Judge after taking into consideration that it was a consent case has acquitted the appellant for the charges under sections 366.367 IPC but on technical ground the appellant has been convicted under sec. 363 IPC. He submitted that offence under sec. 363 IPC is also not made out. He contended that kidnapping from the lawful guardianship has been defined under sec. 361 IPC. 363 IPC. He submitted that offence under sec. 363 IPC is also not made out. He contended that kidnapping from the lawful guardianship has been defined under sec. 361 IPC. He further contended that as per this section the offence is complete if minor is under 16 years in case of male and 18 years in case of female and anyone takes or entices the minor. He pointed out that from the evidence led by the prosecution it has not been proved that the prosecutrix was forcibly taken or enticed by the appellant. 10. Shri K. S. Chauhan, learned DAG Haryana has supported that judgment of trial court and pointed out that appellant has enticed the prosecutrix on the pretext that he would offer her good quality of kulfi and took away her from the lawful guardianship therefore, he committed the offence under sec. 363 IPC. 11. I have heard the learned counsel for the parties and perused the record. 12. It would be appropriate to notice the provisions of sec. 361 IPC to see whether appellant actually committed the offence under sec. 363 IPC. Sec.361 IPC reads as under p361 Kidnapping from lawful guardianship. Whoever takes or entices, any minor under (sixteen) years of age if a male or under (eighteen) years of age if a female or any person of unsound mind out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. 13. In the instant case, prosecutrix Rekha was below 18 years of age but there is no evidence on record that Rekha was enticed or taken away from lawful guardianship by the appellant rather from the evidence on record, it shows that Rekha went away with the appellant with her free will and appellant has used no force for taking her away Rekha has deposed in her statement that she went to Bus stand with the appellant. She also deposed that there were many persons on the bus stop but she did not tell anybody that appellant had brought her under threat. She admitted in her Cross-examination that she enjoyed movie with the appellant and also enjoyed kulfi and sweets. 14. She also deposed that there were many persons on the bus stop but she did not tell anybody that appellant had brought her under threat. She admitted in her Cross-examination that she enjoyed movie with the appellant and also enjoyed kulfi and sweets. 14. From the facts of the case it shows that there was no inducement or force used by the appellant and prosecutrix went away with him on her own. In S. Varadarajan V/s. State of Madras, it has been held as under There is a distinction between taking and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of 5.361. Where the minor leaves her fathers protection knowing or having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused can not 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, For the reasons mentioned above, no offence under sec. 363 IPC is made out against the appellant, therefore, the conviction and sentence of the appellant under this section is also set aside. The appellant is on bail. His ball bonds and surety bonds are discharged. Appeal allowed.