JUDGMENT I.A. Ansari, J. 1. This appeal is directed against the judgment and order, dated 27.06.2005, passed, in Sessions Case No. 77(M)/04, by the learned Sessions Judge, Tinsukia, convicting the accused-appellant, under Section 363 IPC and sentencing him to suffer rigorous imprisonment for 2(two) years and to pay fine of Rs.1,000/- and, in default of payment of fine, undergo rigorous imprisonment for a period of 1(one) month with further direction that the convicted person shall be entitled to receive, in terms of Section 428 CrPC, the benefit of set off for the period of detention already undergone by him during the intervening period. The case of the prosecution may, in brief, be described thus: The accused and also the alleged victim, who is hereinafter referred to as 'SC' (PW5), belongs to Borgolai. The accused was, at the relevant point of time, an agent of Sahara India Limited and, in connection therewith, he used to visit the house of SC (PW5) in order to collect payments of premiums in an investment policy of his company. On 13.01.2004, at about 8-00 a.m., while SC (PW5) was proceeding, on her way to her school, to appear in the examination, the accused, who was waiting on the road with a taxi, requested SC (PW5) to come into the car with the assurance that he would drop her at her school; but, instead of taking her to her school, the accused took her towards Margherita and, after asking as to where he was going, SC (PW5) became senseless and, when she regained her senses, at about 10-00 a.m., she found herself in a house. On the disappearance of SC (PW5), her father (PW1) lodged an Ejahar (Exbt. 1) at Margherita Police Station. Treating the Ejahar as the First Information Report, Margherita Police Station Case No. 10/04, under Section 366(A) IPC, was registered against the accused. On the very day of the occurrence, in the evening, SC (PW5) was recovered from the house of the sister of the accused, located at Hijuguri, Tinsukia town. On her recovery, SC (PW5) was medically examined and, on completion of investigation, a charge-sheet was laid against the accused for having allegedly committed an offence under Section 366A IPC. 2. During trial, when a charge, under Section 366A IPC was framed against the accused, the accused pleaded not guilty thereto. 3. On her recovery, SC (PW5) was medically examined and, on completion of investigation, a charge-sheet was laid against the accused for having allegedly committed an offence under Section 366A IPC. 2. During trial, when a charge, under Section 366A IPC was framed against the accused, the accused pleaded not guilty thereto. 3. In support of their case, prosecution examined altogether 10 (ten) witnesses. The accused was, then, examined under Section 313 CrPC and, in his examination aforementioned, the accused denied that he had committed the offence, which he was alleged to have committed, his case being that that SC (PW5) had gone with him on her own volition. In support of his case, the accused also adduced evidence by examining two witnesses. Having, however, found the accused guilty of an offence under Section 363 IPC, the learned trial Court convicted him accordingly and passed sentence against him as mentioned above. Aggrieved by his conviction and the sentence, passed against him, the convicted person has preferred this appeal. 4. I have heard Mr. B.K. Bhattacharjee, learned counsel for the accused-appellant, and Mr. K.A. Majumdar, learned Additional Public Prosecutor, Assam. 5. While considering the present appeal, it needs to be noted that, according to the evidence of PW1 (i.e., father of the alleged victim (PW5), on 13.01.2004, his daughter (PW5) had left home, at about 8-00 a.m., for her school to appear in her examination and, when he (PW1) was returning home from market, at about 6-00 p.m., he was told by his co-villagers that his daughter was not at home and his co-villagers also informed him that they had seen his daughter (PW5) with the accused, whereupon he went to the police station and lodged there the Ejahar, which is Exhibit 1, and his daughter PW5) was recovered, on that very day, from a place known as Hijuguri, near Tinsukia town, with the help of the police. 6. It is the categorical evidence of PW1 that his daughter (SC) was 13 years old on the day of the occurrence. 7. Though PW1 was cross-examined by the defence, nothing was really elicited from him to show that his evidence, that his daughter (PW5) was, on the day of the occurrence, 13 years old is untrue of false. 6. It is the categorical evidence of PW1 that his daughter (SC) was 13 years old on the day of the occurrence. 7. Though PW1 was cross-examined by the defence, nothing was really elicited from him to show that his evidence, that his daughter (PW5) was, on the day of the occurrence, 13 years old is untrue of false. In fact, except offering suggestion to PW1 to the effect that his daughter was not 13 years old, the defence elicited nothing to show that PW5 was older than 13 years on the day of the occurrence. 8. Thus, there was no meaningful and effective cross-examination of PW1 as far as his evidence, with regard to the age of his daughter, was concerned. Consequently, the evidence of PW1, that his daughter (PW5) was 13 years old on the day of the occurrence (i.e., 13.01.2004), has remained completely unshaken and cannot, therefore, be disbelieved. 9. Coming to the evidence of PW3, who is elder brother of PW5, I notice that, according to his evidence, PW5 was, on the day of the occurrence, aged about 13/14 years. Even this witness, namely, PW3, was left almost untouched by the defence, while cross-examining him with regard to the age of his sister (PW5). This apart, both PW1 and PW3 have deposed that PW5 was a student of class IX on the day of the occurrence. The evidence, so given by PW1 and PW3, has remained undisputed by the defence. 10. So far as the medical evidence on record is concerned, the doctor (PW4) has deposed that he examined PW5, on 17.01.2004, and found that there was no fusion of her ulna. It is also in the evidence of PW4 that fusion of ulna gets completed at the age of 17 years. The doctor has opined that in terms of the X-ray report, PW5 was aged above 14 years, but below 17 years. Even the evidence of PW4 has remained unshaken by the defence. 11. There is, thus, overwhelming evidence on record proving that, at the time of the occurrence, PW5 was a minor. 12. Considering the fact that PW5 is the alleged victim, when I turn to the evidence of PW5, I find that according to her evidence, she knew the accused, who used to visit her house to collect premiums in connection with a scheme floated by Sahara India Ltd. 13. 12. Considering the fact that PW5 is the alleged victim, when I turn to the evidence of PW5, I find that according to her evidence, she knew the accused, who used to visit her house to collect premiums in connection with a scheme floated by Sahara India Ltd. 13. As regards the occurrence, PW5 has deposed that, on 13.01.2004, she left her home, at about 8-00 a.m., for her school and, on the way, she found the accused standing on the road with a taxi and when she was proceeding on foot, the accused requested her to board his taxi and assured her that he would drop her at her school, but, instead of dropping her at the school, she found that the accused was taking the taxi towards Margherita town and, after making enquiry from the accused as to why he was taking the taxi towards Margherita, she became senseless. It is in the evidence of PW5 that she regained her senses at about 10-00 a.m. and she found that she was in the house of the sister of the accused, at Hijuguri, Tinsukia, and on that very day, at night, her uncle and cousin came there and recovered her with the help of the police. 14. Though PW5 was cross-examined, nothing was really elicited by the defence to show that her evidence, that she had been taken, in a taxi, by the accused-appellant, was untrue or false. Thus, the description of the occurrence, given by PW5, has remained intact and unshaken. 15. Coupled with the above, even PW5 has deposed that she was 14/15 years old and she was a student of class IX at the relevant point of time. In fact, she has stated that her date of birth is 31.12.1989, and this assertion was not even disputed by the defence. There can, therefore, be no escape from the conclusion that PW5 was a minor at the relevant point of time. 16. Though the accused has also adduced evidence by examining two witnesses to show that PW5 had gone with him voluntarily, the fact remains that when PW5 is clearly proved to be a minor, at the relevant point of time, it becomes immaterial as to whether she had gone with the accused-appellant willingly or she was taken by the accused-appellant against her will. This apart, the learned trial Court has pointed out, while dealing with the defence evidence, that, according to DW1, the victim girl (PW5) boarded the taxi at New Colony, whereas, according to DW2, the victim girl boarded the taxi at Borgolai Chariali and that, according to both these witnesses, namely, DW1 and DW2, PW5 had got down from the taxi at Makum, but this fact is unbelievable due to the fact that PW5 was recovered, according to the unassailable evidence on record, from the house of the sister of the accused-appellant, at Hijubari, Tinsukia. 17. Situated thus, this Court does not find that the learned trial Court's finding, that the accused-appellant had committed an offence, under Section 363 IPC, suffers from any infirmity, legal or factual, inasmuch as an offence of kidnapping, in terms of the definition of kidnapping from lawful guardianship, as embodied in Section 361 IPC, is complete when a person takes any minor (under 18 years of age if a female and 16 years of age if a male), out of the keeping of his/her lawful guardian, without the consent of such guardian, and the offence of kidnapping is punishable by Section 363 IPC. 18. While the conviction of the accused-appellant, under Section 363 IPC, does not, therefore, call for interference, the fact that the accused-appellant was a young person and there is no allegation of his having misbehaved with PW5 and also the fact that no resistance is alleged to have been offered by him to the recovery of PW5, the sentence of imprisonment, as rightly contended by Mr. Bhattacharjee, learned counsel for the accused-appellant, needs to be reduced. 19. In the case at hand, the accused-appellant was arrested on 14.0.2004 and released on bail, on 27.04.2004, i.e., after more than 31/2 months. 20. In the backdrop of the facts and circumstances of the present case, this Court is of the view that the sentence of imprisonment for a term of 6 months with a fine of Rs.1,000/- and, in default thereof, to suffer simple imprisonment for a period of two months, would serve the ends of justice. 21. In the result and for the reasons discussed above, this appeal partly succeeds. 21. In the result and for the reasons discussed above, this appeal partly succeeds. While the conviction of the accused-appellant, under Section 363 IPC, is hereby upheld, his sentence is reduced to rigorous imprisonment for a term of 6 months with further direction to pay fine of Rs.1,000/- and, in default thereof, suffer simple imprisonment for further period of two months. It is, however, made clear that the accused-appellant shall remain entitled to receive the benefit of set off as provided by Section 428 CrPC. It is further directed that the accused-appellant shall appear, within a period of one month from today, in the Court of the learned Chief Judicial Magistrate, Tinsukia, in order to serve out the sentence of imprisonment passed against him. 22. With the above observations and directions, this criminal appeal stands disposed of. Send back the LCR with a copy of this judgment and order.