JUDGMENT : 1. Appellant has preferred this appeal against the judgment dated 6th November 1996, passed by Sessions Judge, Mandla, in Sessions Trial No.66/1987, convicting the appellant under sections 366-A and 376 of the Indian Penal Code and sentencing him to rigorous imprisonment for three years, on each count respectively. Both the sentences have been directed to run concurrently. 2. In short, the prosecution case is that on 14-6-1985 appellant went to the house of prosecutrix when her parents were not present and told to her that her mother was seriously ill and her father had taken her to Jabalpur. He also told her that her father had called her with money. Father of the prosecutrix viz. Sudarshan, who was a Patwari, had kept ` 30,000/- in a box for the marriage of the prosecutrix. Prosecutrix took that money and went with the appellant. He took her by bus to Niwas, Shahpura and kept her in a lodge. In the morning, he took her to Shahdol in a bus. Thereafter, he took her to Maihar and told to her that he would marry her. In the night, they stayed at Maihar and then went to Jabalpur. On the next day, he took her to Bhopal and kept her in a rented room. He told to other people that she was his wife. While they stayed at Bhopal, he committed sexual intercourse with her. Sudarshan, father of the prosecutrix, gave a written report on 21-6-1985 to Station Officer of Police Station, Tikariya, that appellant enticed away his minor daughter and also took away ` 30,000/-. 3. In search of prosecutrix, Sudarshan reached Bhopal and found her with appellant. On 28-7-1985, then first information report (Ex.P/7) under section 366 of the Indian Penal Code was registered at Police Station, Tikariya. Appellant and the prosecutrix were subjected to medical examination. 4. Investigating Officer seized a school certificate from the father of the prosecutrix, and after completing the investigation, filed charge-sheet in the court. 5. Trial Court framed charges under sections 366-A and 376 of the Indian Penal Code against the appellant. 6. Appellant abjured his guilt. Appellant and the prosecutrix were subjected to medical examination. 4. Investigating Officer seized a school certificate from the father of the prosecutrix, and after completing the investigation, filed charge-sheet in the court. 5. Trial Court framed charges under sections 366-A and 376 of the Indian Penal Code against the appellant. 6. Appellant abjured his guilt. Though no specific plea was put forth by the appellant in his statement under section 313, Criminal Procedure Code, however, it was suggested to witnesses that prosecutrix herself abandoned guardianship of her father and insisted appellant to take her, and that she was not under the age of 16 years. He also tendered Ex.D/1, D/2 and D/3 in his defence evidence. 7. Prosecution examined 7 witnesses in the case to prove the charge against the appellant. 8. Upon trial and after appreciation of the evidence learned trial judge though impliedly found prosecutrix to be a consenting party, however, finding her under 16 years of age, held the appellant guilty, convicted and sentenced him on both the counts. Aggrieved by the impugned judgment of his conviction, appellant has preferred this appeal. 9. Learned counsel for the appellant submitted that learned trial Judge committed serious error in holding that prosecutrix was a girl under the age of 16 years and that appellant had taken/enticed her. He submitted that the evidence of Sudarshan (PW-6), the father of prosecutrix, about her age was not reliable. It was established by the evidence of school record that the prosecutrix was above 16 years of age on the day of occurrence. He further submitted that from the documents tendered by the appellant in his defence, it was clear that prosecutrix persuaded appellant to take her with him. Appellant at the time of occurrence was a young boy of about 19-20 years of age. On the other hand, learned Penal Lawyer supported and justified the finding of conviction recorded by the trial judge. 10. I have heard the learned counsel for the parties and perused the impugned judgment and the evidence adduced by both the parties in the case. 11. Prosecutrix (PW-2) deposed that while she was at her house at village Majhgaon, appellant came to her and informed that her parents had gone to Jabalpur because her mother was ill and that they called her to bring the money. 11. Prosecutrix (PW-2) deposed that while she was at her house at village Majhgaon, appellant came to her and informed that her parents had gone to Jabalpur because her mother was ill and that they called her to bring the money. Since she had no money, appellant broke open the lock of the box in which ` 30,000/- were kept by her father. Appellant took her to Jabalpur and said that her mother had been sent to Bhopal. He then took her to Bhopal in a train. Her mother was not there. Appellant took her to the house of a friend. In the night, they stayed there. Next day, he took her in a different room and intimidated her. In the night, he forcibly committed sexual intercourse with her. He kept her there for about 10 days and committed rape on her daily. When her parents reached Bhopal, they took her out from the room. Appellant then ran away. She was then taken to village Majhgaon where she was subjected to medical examination. In the cross-examination, prosecutrix admitted that letters (Ex.D/2, D/3 and D/4) were written and signed by her, though, according to her, these letters were got written by her under intimidation by accused. She also admitted that the photograph, in which she was shown with the appellant, was snapped at Bhopal. From these letters, it is revealed that she insisted appellant to take her from her house, otherwise, she would hang herself or jump in the Well. The fact that appellant intimidated her to write letters was not mentioned by the prosecutrix in her police statement (Ex.D/5) with which she was duly confronted. She was further confronted with her police statement in which she mentioned that she went with the appellant to Shahpura and stayed in the lodge of Agrawal Seth. She also denied to have mentioned in the said statement that she went to Shahpura, Shahdol and Maihar with the appellant. According to her, at the time of occurrence she was studying in Class VIII. She denied the suggestion put by the defence that she had sexual relations with the appellant and as a result of which she conceived and that her pregnancy was got terminated. 12. From the evidence of Dr. According to her, at the time of occurrence she was studying in Class VIII. She denied the suggestion put by the defence that she had sexual relations with the appellant and as a result of which she conceived and that her pregnancy was got terminated. 12. From the evidence of Dr. (Mrs.) P. Singhai (PW-1), who examined the prosecutrix on 7-9-1985, it is revealed that prosecutrix was habituated to sexual intercourse and that she got her pregnancy of more than 2½ months terminated. 13. On a close scrutiny of the evidence of prosecutrix (PW-2), it clearly transpires that she was a consenting party. She moved from her house with the appellant, travelled to several places and lived with him for about 10 days at Bhopal without making any sort of complaint to anybody. Admittedly she wrote letters to appellant persuading him to take her with him else she would end her life. 14. Learned counsel for the appellant contended that the evidence of Sudershan (PW-6), father of prosecutrix, that the date of birth of prosecutrix was 9-9-1969, was false and unreliable. It was proved by the evidence of school record adduced by the Headmaster of school viz. Raghuveer Singh (PW-5) that the correct date of birth of prosecutrix was 1-1-1969. Learned Panel Lawyer, on the other hand, submitted that the evidence of father regarding date birth of prosecutrix was more reliable. 15. Sudershan (PW-6) deposed that the date of birth of his daughter was 9-9-1969 and the same date he got recorded in the school and Kotwari Register. According to him, if 1-1-1969 was recorded in the school record, it was not correct. 16. Investigating Officer, A. K. Samadhiya (PW-7), stated that vide seizure memo Ex.P/6 he seized a school certificate in respect of the date of birth of prosecutrix from Sudershan Prasad. However, this certificate was not produced in the court. Similarly no Kotwari register, in which the date of birth of the prosecutrix was said to have been recorded, was produced. This gives an indication that if the said documents would have been produced, they would have gone against the prosecution. If the evidence of Sudershan Prasad (PW-6) is seen in juxtaposition to the evidence of Raghuveer Singh (PW-5), the Headmaster of Primary School, Majhgaon, it is found that the date of birth of prosecutrix in the admission register (Ex.P/4) was recorded as 1-1-1969. If the evidence of Sudershan Prasad (PW-6) is seen in juxtaposition to the evidence of Raghuveer Singh (PW-5), the Headmaster of Primary School, Majhgaon, it is found that the date of birth of prosecutrix in the admission register (Ex.P/4) was recorded as 1-1-1969. Raghuveer Singh (PW-5) categorically deposed that in the admission register of the school entries of the admissions and date of birth were recorded right from 25-12-1954 to 30-6-1994. At Sl.No.482, the date of birth of prosecutrix was recorded as 1-1-1969. He deposed that the dates of birth of the children were recorded on the basis of the information given by their parents. Sudershan (PW-6) also admitted that he got recorded the date of birth of prosecutrix in the school, however, he stated that he had given the date of birth of prosecutrix as 9-9-1969. The evidence of entry of the date of birth in the admission register of the school appears more reliable. It appears that with a view to make out a case under section 376, father of prosecutrix deliberately gave the date 9-9-1969 as date of birth. If the age of prosecutrix on the date of occurrence i.e. on 14-6-1985 is calculated from 1-1-1969, it comes around 16 years and 6 months. Thus, in view of the fact that prosecutrix has been found to be a consenting party, the charge under section 376 of the Indian Penal Code against the appellant fails. 17. As far as the conviction of appellant under section 366-A of the Indian Penal Code is concerned, an essential ingredient of the offence is that a minor girl under age of 18 years is induced to go from any place with intent that such girl may be or is likely to be forced or seduced to illicit intercourse with another person. Since it has been found that the prosecutrix was a consenting party to the sexual intercourse, no charge under section 366-A of the Indian Penal Code is made out. 18. Now the question before this Court would be whether appellant is liable to be convicted under section 363 of the Indian Penal Code, since the age of prosecutrix at the time of occurrence, in the instant case, was around 16 years and 6 months. 18. Now the question before this Court would be whether appellant is liable to be convicted under section 363 of the Indian Penal Code, since the age of prosecutrix at the time of occurrence, in the instant case, was around 16 years and 6 months. Learned counsel for the appellant placing reliance on S. Varadarajan vs. State of Madras, AIR 1965 SC 942 submitted that since the prosecutrix was a girl of mature understanding and was on the verge of majority and that she herself persuaded appellant to take her away from her house, no offence under section 363 of the Indian Penal Code was made out against him. 19. The Apex Court in S. Varadarajan (supra) observed that "there is a distinction between "taking" and allowing the 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 purpose of section 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing voluntarily joins the accused person, the accused person cannot 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 guardian.................when the girl (who though a minor had attained the age of discretion and is on the verge of majority and is a senior college student) from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's Office....................., the accused by complying with her wishes can by no stretch of imagination be said to have "taken" her out of the keeping of her lawful guardianship." 20. In the instant case also, the prosecutrix was a student of Class VIII. In the instant case also, the prosecutrix was a student of Class VIII. She wrote letters to appellant persuading him to take her away from her parents' house or else she would end her life. The last letter was written by her on 13-6-1985 and she went with the appellant on 14-6-1985. It clearly indicates that whatever appellant did, was to fulfil the wishes of prosecutrix. It was also established from her medical evidence that she got terminated her pregnancy, though she denied to have sexual relations with anybody. 21. On appraisal of the above circumstances in the light of the above proposition laid down by the Apex Court, in my opinion, no offence, even under section 363 of the Indian Penal Code, is made out against the appellant. As such, he is entitled to be acquitted. 22. In view of the foregoing discussion, this appeal is allowed. Conviction and sentence of appellant under section 366-A and 376 of the Indian Penal Code are set aside. He is acquitted. 23. Appeal allowed.