JUDGMENT Mr. Arvind Kumar, J.: - The appellant has been held guilty under Section 376 IPC for committing rape upon prosecutrix (PW10) and has been sentenced to undergo life imprisonment with a fine of Rs.50,000/-, which on realization has been ordered to pay to the prosecutrix, as compensation and in default thereof, further rigorous imprisonment for one year has been provided, by dint of judgment and order dated 13.10.2001, which has been impugned in the instant appeal. 2. The case of the prosecution, in brief, is that on 20.6.1999 Jagdish (PW9), a labourer and resident of Eedgah Colony,Panipat along with his daughter i.e. prosecutrix (PW10), aged about 14 years came to the police station and got recorded his statement (Ex.PH) to the effect that on 17.6.1999 Kundan son of Jagdish i.e. the appellant herein after alluring and extending threat, took her away and confined her. Now both of them were recovered from the Sabji Mandi Chowk, Panipat and produced before the police. The police was also apprised that the appellant committed rape with the prosecutrix without her consent. The statement of the prosecutrix under Section 161 Cr.P.C. to this effect was also recorded. Consequently, case FIR No.210 dated 20.6.1999 was registered against the appellant under Sections 363, 366, 376 and 342 IPC at P.S. Model Town, Panipat. He was arrested. The prosecutrix as well as the accused were got medicolegally examined. Thereafter, final report under Section 173 Cr.P.C. was filed against him for trial. 3. The learned trial Court framed charges under Sections 363, 366, 342, 376 and 506 IPC against the accused, to which he pleaded not guilty and claimed trial. 4. On the strength of the evidence adduced by the prosecution consisting of prosecutrix (PW10), her father Jagdish (PW9), coupled with the opinion of the doctor, wherein the sexual intercourse with the prosecutrix was not ruled out, the learned trial Court convicted the appellant under Section 376 IPC alone and sentenced him in the manner indicated above. 5. Hence, the instant appeal. 6. We have heard learned counsel for the parties and have gone through the record carefully. 7. Firstly, we would like to take the issue as regards the age of the prosecutrix. In the case of such a nature, the age of the prosecutrix is of utmost importance. 5. Hence, the instant appeal. 6. We have heard learned counsel for the parties and have gone through the record carefully. 7. Firstly, we would like to take the issue as regards the age of the prosecutrix. In the case of such a nature, the age of the prosecutrix is of utmost importance. A perusal of the impugned judgment reveals that no findings as to the age of the prosecutrix have been returned by the Court below. While getting the case registered against the appellant, complainant Jagdish gave the age of his daughter as 14 years while when she was medicolegally examined by the doctor on 20.6.1999, she gave her age as 15 years. The father of the prosecutrix when stepped into the witness box as PW9 he stated that his elder daughter Pinki is aged about 22/23 years and prosecutrix is younger to her by three years, whereas the prosecutrix when appeared as PW10 gave her age as 14/15 years. There is complete variance as to the age of the prosecutrix, so far as ocular version is concerned. However, the documentary evidence produced on record with regard to the age of the prosecutrix i.e. school leaving certificate (Ex.PC), speaks otherwise as according to the same date of birth of prosecutrix is 5.11.1982 and as per this certificate she took the admission in the school on 5.5.1988 and studied upto 3rd standard and left the school on 1.4.1991. The father of the prosecutrix is a labourer and the prosecutrix herself has not studied much. Both the prosecutrix as well as her father put their respective thumb impressions on their statements recorded in the Court. Thus, from this it can be inferred that they gave the age of the prosecutrix by way of approximation and the same lost significance in contrast to the documentary evidence produced on record qua the age of the prosecutrix. The incident in this case took place on 17.6.1999 and at that time she was about 16 years and 8 months of age being born of 5.11.1982. 8. Now we have to glance over the evidence produced on record and circumstances attached thereto in which the prosecutrix claimed that she was taken by the accused under coercion and threat and then raped by the accused. In our considered opinion, the tenor and manner of the occurrence is not free from doubts. 8. Now we have to glance over the evidence produced on record and circumstances attached thereto in which the prosecutrix claimed that she was taken by the accused under coercion and threat and then raped by the accused. In our considered opinion, the tenor and manner of the occurrence is not free from doubts. She appeared in the witness box as PW10 and state that on 17.6.1999 when he had gone to the market at about 9:30 a.m. to purchase the accessories used in the stitching of clothes, the accused met her in the market and asked to accompany her, to which she refused. The accused threatened her to face dire consequences as he would kill his brother in case of her refusal and out of fear, she accompanied him. Firstly, the accused took her to a closed factory where he committed rape upon her. Thereafter, she was taken to the railway station Panipat from where in a train the accused took her to Karnal at the house of his maternal uncle and committed rape there as well. She further deposed that the accused then took her to village New Bohli where they stayed at the house of one Sikh gentleman and the accused committed rape with her there. On 20.6.1999 the accused brought her back to Panipat where while present in the Sabzi Mandi Chowk, they were noticed and apprehended by her father and brother-in-law Ramphal. Thereafter, they were produced before the police where her statement was recorded. However, the act and conduct of the prosecutrix is such, from which it can safely be inferred that she was a consenting party to the sexual acts. In her cross-examination she admitted that in the market where the accused met her, people were passing from that place and she did not disclose the threat being given by the accused under the fear. It is apt to mention here that the threat to kill her brother in case of refusal do not find mention in her statement recorded by the police soon after the recovery. Further, she admitted that she was taken in a rickshaw to the closed factory, but there also she did not disclose anything to the rickshaw puller. After remaining there for 2/3 hours, they came to the railway station in a rickshaw from where they boarded the train. Further, she admitted that she was taken in a rickshaw to the closed factory, but there also she did not disclose anything to the rickshaw puller. After remaining there for 2/3 hours, they came to the railway station in a rickshaw from where they boarded the train. But there also she opted to remain silent though she admitted that number of passengers were there at the railway station and that her house is situated about 150 houses away therefrom. The things do not rest here. She admitted that she had not told anybody about the commission of rape. The prosecutrix admitted that from Karnal they went to village New Bohli in a bus and remained there for one day. But there, there was no resistance on her part. At no point of time she raised hue or cry. Had there been any threat or coercion upon the prosecutrix or she was not desirous of being in the company of the accused, she would not have remained mum and must have raised the noise for help. That apart, there was no struggle marks or external injury on her person when she was examined by the doctor. The statement of prosecutrix when read in juxtaposition with the medical evidence on record, coupled with the circumstances referred to above, there remains no doubt that there she was a consenting party to the sexual acts, which she can validly give being more than 16 years of age. 9. In the instant case, during trial, as noticed above, the accused was charge-sheeted under five heads namely 363, 366, 376, 506 and 342 IPC. However, the learned trial Court returned the finding of guilty only under Section 376 IPC, which in our opinion, as discussed above, is not sustainable. The trial Court, in a very casual manner, made no discussion as to the fate of other offences under which the appellant was charged. Such a callous approach is deprecated. However, for rectification of such an irregularity, in our considered opinion, it will not be in the fitness of things to remand the matter back to the trial Court for decision afresh on the aforesaid charges now, after a gap of about 10 years. Therefore, we are evaluating the evidence on record in respect of other charges against the accused as well. 10. Therefore, we are evaluating the evidence on record in respect of other charges against the accused as well. 10. The statement of prosecutrix as PW10 and her conduct has been discussed, in length, hereinabove. She accompanied the accused from Panipat to Karnal in a train and then to village Bohli in a bus. At no point of time, she showed any resistance. Even no complaint was made by her at Karnal where she remained in the house of maternal uncle of the accused. From the same, it can safely be inferred that there was no threat or coercion from the side of accused; she had accompanied the accused of her own and she was not wrongfully confined. Her statement is not suggestive of the fact that the appellant kidnapped her with the intention to marry with her against her will or in order that she may be forced to illicit intercourse. Therefore, in our opinion the accused deserves acquittal under Sections 342, 506 and 366 IPC as well. 11. The residual question now is with regard to applicability of Section 363 IPC, which provides for punishment of offence committed under Section 361 IPC. Section 361 IPC says that 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. The object of S. 361 seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. Section 361 is designed to protect the sacred right of the guardians with respect to their minor wards. On 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. Section 361 is designed to protect the sacred right of the guardians with respect to their minor wards. On 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 is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion 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. For reliance, reference can be made to the case of State of Haryana Vs. Raja Ram, 1973 Crl. L.J. 651. 12. In the case of Kuldeep K. Mahto Vs. State of Bihar, 1998 Crl.L.J. 4033, the Hon’ble Apex Court in the similar situation, though acquitted the appellant therein under Sectioins 376 and 366 IPC, but having regard to the age of prosecutrix being less than 18 years of age, held the appellant guilty of an offence under Section 363 IPC. 13. In the case of Akeel Vs. State of Madhya Pradesh, 1998 Crl.L.J 4530, Hon’ble Madhya Pradesh High Court, though acquitted the accused of the charge under Section 376 IPC, but convicted him under Section 363 IPC since the prosecutrix was found less than 18 years of age. 14. Similarly, in the case of Vishnu Kumar Vs. The State of Rajasthan, 2002 Crl.L.J 3346, while relying upon the case of Raja Ram’s case (supra), the conviction of the appellant therein under Section 366 and 376 IPC was set aside, but his conviction under Section 363 IPC was maintained. 15. In the instant case, the prosecutrix is found more than 16 years, but less than 18 years of age. There is overwhelming evidence on record to prove that the accused enticed away the prosecutrix, a minor, without the consent of her parents. Hence, in view of the discussion above, the appellant is liable for his conviction under Section 363 IPC. 16. In view of the discussion above, the conviction and sentence of the appellant under Section 376 IPC is set aside. That apart, he is also acquitted of the charges under Sections 363, 342 and 506 IPC. Hence, in view of the discussion above, the appellant is liable for his conviction under Section 363 IPC. 16. In view of the discussion above, the conviction and sentence of the appellant under Section 376 IPC is set aside. That apart, he is also acquitted of the charges under Sections 363, 342 and 506 IPC. However, he is held guilty under Section 363 IPC and sentenced to undergo rigorous imprisonment for three years and shall also liable to pay a fine of Rs.50,000/-, which on realization, be paid to the prosecutrix as compensation. In default of payment of fine, the appellant shall further undergo rigorous imprisonment for nine months. 17. Copy of this order be sent to the learned Chief Judicial Magistrate concerned for compliance. 18. The appeal stands disposed of in aforesaid terms. -----------0.K.B.0------------