( 1 ) THIS criminal appeal is directed against the judgment and order of conviction dated 11-1-1996 passed by the learned Additional Sessions Judge in sessions Trial No. 814/91, whereby the appellant-accused has been convicted for the offence punishable under Section 363 of the indian Penal Code and sentenced to undergo rigorous imprisonment for one year. ( 2 ) BRIEF case of the prosecution is as under :- (A) Jagdish Kori (PW 1) along with his family members including Nirmala (PW 2) and Anita (PW 4) are residing in railway quarters at Ajani. Anita and Nirmala are his daughters. On 4-8-1991 at about 11. 00 p. m. , anita told to her father that Nirmala was missing from home and the door of the house was open. Jagdish tried to search Nirmala, but she could not be found. From the neighbour he came to know that Nirmala was at the house of the accused and therefore, on suspicion he lodged the first information report (Exh. 36 ). Police Station Officer, police Station, Ajani registered the offence bearing Crime No. 324/91 punishable under sections 363 and 376 of the Indian Penal code. It was transpired during the investigation that the age of the prosecutrix was below 18 years and it is also alleged that the accused did commit rape on the prosecutrix, and therefore, the charge-sheet was filed against the accused in the court of learned Chief Judicial Magistrate who committed the case to the Court of Sessions, for trial, according to law. (B) After committal of the case, the learned Additional Sessions Judge framed and explained the charge to the accused to which he pleaded not guilty, and therefore, trial proceeded with. The prosecution has examined as many as seven witnesses including the prosecutrix and her father jagdish and sister Anita. The defence of the accused is of total denial. He did not examine any defence witness. The learned Additional sessions Judge, on appreciation of the evidence acquitted the appellant-accused of the offence punishable under section 376 of the Indian Penal Code against which no appeal is filed by the State. However, the accused has been convicted for the offence punishable under section 363 of the Indian penal Code and this judgment and order of conviction is under challenge in this appeal. ( 3 ) MR. However, the accused has been convicted for the offence punishable under section 363 of the Indian penal Code and this judgment and order of conviction is under challenge in this appeal. ( 3 ) MR. Gaikwad, the learned counsel for the appellant-accused contended that the radiological age of the prosecutrix is 17 years + 1 year. He pointed out that the evidence of Anita (PW 4) shows that the prosecutrix had eloped from home at about 10. 00 p. m. in the night on 4-8-1991 and there is no evidence to show that the accused had taken away the prosecutrix from the lawful guardianship of her father. He contended that anita voluntarily left her home and joined the accused for which the accused is not responsible because it cannot be said that the prosecutrix was under the age of 18 years on the relevant date and time. He also contended that the evidence of the prosecutrix is not consistent with the evidence of Anita, and therefore, the impugned judgment and order of conviction passed by the learned additional Sessions Judge cannot be sustained-in-law and the appeal may kindly be allowed. ( 4 ) THE learned Additional Public prosecutor contended that though the State did not prefer any appeal against acquittal of the appellant-accused for the offence punishable under section 376 of the Indian penal Code, it is obvious that the impugned judgment and order of conviction for the offence punishable under Section 363 of the indian Penal Code is perfectly legal. He contended that the age of the prosecutrix has been proved to be below 18 years through the evidence of Headmaster Cristkumarsingh (PW 6) who has produced the extract of the school admission register which would reveal that the date of birth of the prosecutrix, according to the school register is 08-01- 1977, and therefore, the age of the prosecutrix was obviously below 18 years on the date of the offence. He contended that radiological report do indicate that the age of the prosecutrix could be 17 + 1 years, but this fact is not sufficient to jump at the conclusion that the age of the prosecutrix was above 18 years. He, therefore, supports the impugned judgment and order of conviction passed by the learned Additional Sessions Judge and contended that no case has been made out for interference and the appeal may kindly be dismissed. He, therefore, supports the impugned judgment and order of conviction passed by the learned Additional Sessions Judge and contended that no case has been made out for interference and the appeal may kindly be dismissed. ( 5 ) THIS Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is necessary to reproduce Section 361 of the indian Penal Code which contemplates as under :-"361. 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. Explanation - The word "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception - This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. " ( 6 ) SIMPLE reading of the aforesaid provisions of law would reveal that it is necessary for the prosecution to claim conviction under section 363 of the Indian penal Code that, if a female person is kidnapped, she must be below the age of 18 years and the taking or enticing must be out of the keeping of the lawful guardianship and such taking or enticing must be without the consent of such guardian. Therefore, the age of the person kidnapped is of a paramount importance in such cases. The evidence of cristkumarsingh (PW 6) would reveal that he was working as Headmaster at Railway janmandal High School, Ajani, Nagpur and he has produced the extract of School register (Exh. 51) which indicates that the date of birth of the prosecutrix is 08-01-1977. If this date of birth is taken into consideration, then it is obvious that the age of the prosecutrix would be around 15 years. 51) which indicates that the date of birth of the prosecutrix is 08-01-1977. If this date of birth is taken into consideration, then it is obvious that the age of the prosecutrix would be around 15 years. However, the prosecution did not adduce consistent evidence to show that the age of the prosecutrix was below 18 years on the date of the incident. The extract of school register do not show who recorded the entries, what was the basis and information for recording the entry. It is common knowledge that the parents do underestimate the age of their wards at the time of their admission in the school and therefore, the entries recorded in the school register would not be decisive in the matter unless corroborated by cogent and reliable evidence. ( 7 ) NIRMALA (PW 2) did not whisper in her evidence as to what was her age at the time of incident. Her father (PW 1) says that her age was 15 years but his version is not in tune with the medical experts opinion which shows that her age could be above 18 years. ( 8 ) WHAT is significant to note is that the learned Additional Sessions Judge observed in para No. 8 of his judgment like this; "then, I have to consider radiological age of the prosecutrix determined by the radiologist, which is filed at Exh. 47. It reveals from the said certificate that age of the prosecutrix is 17 years plus or minus one year from either side". ( 9 ) PERUSAL of the contents of the radiological certificate (Exh. 47) which is admitted in evidence before the trial Court would reveal that the radiological age is 17 1 year and this conclusion drawn by Dr. Mrs. S. V. Pantane, Reporting Officer, Department of Radiology, Government Medical College and Hospital, Nagpur on the basis of the following data mentioned in the certificate; pelvis: Epiphysis for iliac crest appeared but not fused. Normally appears at 14-17 yrs. And fuses at 17-20 years. Shoulder Jt. :epiphysis for upper end of humerus not fused. Normally fuses at 16-17 yrs. Wrist Jt. : Lower end of radius and ulna not fused. Normally fuses at 16-18 yrs. Elbow Jt. : Medical Epicondyle of humerus fused. Normally fuses at 14-15 yrs. Knee Jt. : Upper end of tibia not fused. Normally fuses at 15-17 years. Ankle Jt. Shoulder Jt. :epiphysis for upper end of humerus not fused. Normally fuses at 16-17 yrs. Wrist Jt. : Lower end of radius and ulna not fused. Normally fuses at 16-18 yrs. Elbow Jt. : Medical Epicondyle of humerus fused. Normally fuses at 14-15 yrs. Knee Jt. : Upper end of tibia not fused. Normally fuses at 15-17 years. Ankle Jt. : Low,er end of tibia partially fused. Normally fuses at 15 yrs. Conclusion : Radiological age is 17 1 years. ( 10 ) IF the aforesaid medical experts evidence is taken into consideration, then it would be quite obvious that the learned additional Sessions Judge has committed an error in observing in para 8 of his judgment, that since the radiological age is 17 years plus minus one year from either side, the prosecutrix was under the age of 18 years. There is no consistency in the findings of the learned Additional Sessions Judge, and therefore, it is not possible to support the view taken by the learned Additional Sessions judge that the age of the prosecutrix was below 18 years especially when the radiological report itself shows that the age of the prosecutrix must have been not less than 18 years and could be above 18 years on the date of the offence. This certainly creates a doubt regarding the exact age of the prosecutrix on the date of the incident, and therefore, the benefit must go to the accused. ( 11 ) HOWEVER, it may be mentioned that even there is no evidence to show that the prosecutrix was enticed or taken away from the lawful guardianship of her father. The evidence of Anita (PVV 4) who is sister of the prosecutrix would clearly reveal that at about 10. 00 or 11. 00 p. m. in the night she told her father that the prosecutrix was missing from home and the back door of the house was open. From this evidence a conclusion could be reached that the prosecutrix herself on her own accord eloped from the house of her father, and therefore, it is not possible to accept that the prosecutrix was enticed or taken away from the lawful guardianship of her father. In such circumstances, it is obvious that the impugned judgment and order of conviction cannot be sustained-in-law and deserves to be set aside. Therefore, in the result, the appeal is allowed. In such circumstances, it is obvious that the impugned judgment and order of conviction cannot be sustained-in-law and deserves to be set aside. Therefore, in the result, the appeal is allowed. The impugned judgment and order of conviction for the offence punishable under section 363 of the Indian Penal Code is set aside and the appellant-accused is acquitted of the same offence. His bail bond shall stand discharged. Appeal allowed.