JUDGMENT: Radhe Shyam Sharma, J. [1] This appeal is directed against judgment dated 16-2-2004 passed by Additional Sessions Judge, Sakti, District Bilaspur in Sessions Trial No. 449/2003. By the impugned judgment, accused persons/appellants Badanbai, Jaikumari, Chhatram and Jasbai have been convicted under Sections 363, 366 read with Sections 34 and 149 of the Indian Penal Code and sentenced each of them in the following manner: Conviction Sentence Under Section 363 read with Sections 34 and 149, IPC Rigorous imprisonment for three years and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo R. I. for 1 month Under Section 366 read with Sections 34 and 149, IPC Rigorous imprisonment for five years and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo R. 1. for 1 month Both the sentences are directed to run concurrently. [2] Case of the prosecution, in brief, is as under: On 8-7-2003, prosecutrix Kumari Maheshwari (PW-1) was taken by her father Panchram (PW-2) to the house of accused Chhatram for her admission in a school situated at Village Jarve. Panchram (PW-2) had left his daughter (the prosecutrix) at the house of accused Chhatram and returned. Accused Chhatram took prosecutrix Kumari Maheshwari (PW-1) to the school for her admission and on that date itself, i. e., on 8-7-2003, he asked her to marry Yogesh alias Banti, nephew of his wife (accused Jasbai). Prosecutrix Kumari Maheshwari (PW-1) rej fused to marry. On 9-7-2003, accused peiv sons Chhatram and Jasbai deliberately sent the prosecutrix to Mungeli along with their daughter Gulshanbai on a motorcycle. Accused persons Chhatram and Jasbai came to the house of Yogesh alias Banti at Mungeli. At Mungeli, prosecutrix Kumari Maheshwari (PW-1) was forced by Vidya Lahare, father of Yogesh alias Banti, accused Badanbai, mother of Yogesh alias Banti and Gulshanbai to marry Yogesh alias Banti. They threatened her also. They caused her to sit in a jeep, took her deliberately to Giraudpuri and deliberately got her married with Yogesh alias Banti. On 10-7-2003, even after preventing by the prosecutrix, Yogesh alias Banti committed rape with her. On 11-7-2003, prosecutrix Kumari Maheshwari (PW-1) informed her uncle Tulsiram Bandhekar (PW-3) making a telephonic call from Mungeli. On this, father of the prosecutrix (Panchram - PW-2) lodged a written report (Ex. On 10-7-2003, even after preventing by the prosecutrix, Yogesh alias Banti committed rape with her. On 11-7-2003, prosecutrix Kumari Maheshwari (PW-1) informed her uncle Tulsiram Bandhekar (PW-3) making a telephonic call from Mungeli. On this, father of the prosecutrix (Panchram - PW-2) lodged a written report (Ex. P-6) in Police Station Baradwar on 13-7-2003, on which, Crime No. 149/2003 was registered vide First Information Report (Ex. P-7) and the prosecutrix was recovered from the house of Vidya Lahare at Mungeli vide Recovery Panchnama (Ex. P-11). A brown chaddi (underwear) of the prosecutrix was seized vide Ex. P-4. Spot-map was prepared by police vide Ex. P-5. Prosecutrix Kumari Maheshwari (PW-1) was handed over to her father Panchram (PW-2) on Supurdnama (Ex. P-8). Another site map (Ex. P-12) was prepared by Patwari Ghanshyam Bhardwaj (PW-7). Site Panchnama of the place of incident was also prepared by Patwari Ghanshyam Bhardwaj (PW-7) vide Ex. P-13. Certificate-cum-mark-sheet of Middle School Examination, 2002 (Ex. P-3) of the prosecutrix Kumari Maheshwari (PW-1), in which date of birth of the prosecutrix is mentioned as 21-1-86, was seized vide Ex. P-9. Prosecutrix Kumari Maheshwari (PW-1) gave her consent for examination of her private part (vagina) vide Ex. P-1 and her father Panchram (PW-2) also gave his consent therefor vide Ex. P-10. Prosecutrix Kumari Maheshwari (PW-1) was sent to Community Health Centre, Sakti for examination of her private part (vagina) vide Ex. P-14. Dr. Smt. C. K. Singh (PW-8) examined prosecutrix Kumari Maheshwari (PW-1) and gave her report (Ex. P-2), in which she found labia majora and minora were torn at 5 to 7 o'clock position. Blood oozing was present on touch. Intercourse was done with the prosecutrix. Prosecutrix Kumari Maheshwari (PW-1) was also sent to Sardar Patel District Hospital, Bilaspur for x-ray examination regarding her age. Radiologist Dr. G. S. Kanwar (PW-9) examined prosecutrix Kumari Maheshwari (PW-1) and gave his report (Ex. P-15), in which he found that the age of the prosecutrix was 18 to 19 years. After completion of the investigation, charge-sheet was filed against the accused persons/appellants in the Court of Judicial Magistrate First Class, Sakti, who, in turn, committed the case to the Court of Session at Bilaspur, from where it was received on transfer by the learned Additional Sessions Judge, Sakti, who conducted the trial and convicted and sentenced the appellants as mentioned above. [3] Shri M. D. Dhote, learned counsel for the appellants argued that the age of Kumari Maheshwari (PW-1) was above 18 years on the date of incident. He further argued that the conclusion reached by the trial Court is perverse. The evidence of the prosecutrix is full of inconsistencies and contradictions, which destroys the root and foundation of the prosecution case. The prosecutrix left house of appellant Chhatram willingly. The prosecutrix had several opportunities to run away, but she did not do so. The prosecutrix married with absconded accused Yogesh alias Banti. These appellants were present only at the time of marriage. Mere presence is not sufficient to convict the appellants. Therefore, the appellants cannot be convicted under Section 363 read with Sections 34 and 149, IPC and under Section 366 read with Sections 34 and 149, IPC. The finding of the trial Court is perverse and deserves to be set aside and the appellants are entitled for acquittal. [4] Shri Sandeep Yadav, learned Deputy Government Advocate, and Smt. Madhunisha Singh, learned Panel Lawyer for the State/ respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court, [5] Having heard rival contentions of the parties, I have perused the record of Sessions Trial No. 449/2003. [6] The first issue which comes for consideration in this case is as to what was the age of the prosecutrix on the date when she was alleged to have been kidnapped? [7] Kumari Maheshwari (PW-1) stated her age to be 18 years on the date of her deposition, i. e., 23-1-2004 and the date of incident was 8-7-2003. In paragraph 8, she deposed that her date of birth is 21-1-1986. Panchram (PW-2), father of the prosecutrix, also deposed that the date of birth of the prosecutrix is 21-1-1986. [8] In the case of determination of date of birth of the child, the best evidence is of the father and the mother of the child. In the instant case, Dr. G. S. Kanwar (PW-9) deposed that he examined prosecutrix Kumari Maheshwari (PW-1) and he gave his report (Ex. P-15), in which he found that the age of the prosecutrix was 19 years. In this case, the prosecution produced Certificate-cum-Mark-Sheet of Middle School Examination, 2002 (Ex. In the instant case, Dr. G. S. Kanwar (PW-9) deposed that he examined prosecutrix Kumari Maheshwari (PW-1) and he gave his report (Ex. P-15), in which he found that the age of the prosecutrix was 19 years. In this case, the prosecution produced Certificate-cum-Mark-Sheet of Middle School Examination, 2002 (Ex. P-3) of the prosecutrix Kumari Maheshwari (PW-1), in which, date of birth of the prosecutrix is mentioned as 21-1-1986. [9] In Harpal Singh and another v. State of Himachal Pradesh, 1981 AIR(SC) 361, the Hon'ble Supreme Court observed that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author. From whatever angle we view the evidence. [10] Prosecutrix Kumari Maheshwari (PW-1) studied in Government Middle School Jarve, which is a Government School, therefore, the document Ex. P-3 is admissible under Section 34/35 of the Evidence Act. According to the evidence of Panchram (PW-2) and Ex. P-3, the date of birth of prosecutrix Kumari Maheshwari (PW-1) is 21-1-1986. Dr. G. S. Kanwar (PW-9) is not a witness of fact and his evidence is really of an advisory character led on the basis of symptoms found on the examination. [11] Prosecutrix Kumari Maheshwari (PW-1) and Panchram (PW-2) specifically deposed that the date of birth of the prosecutrix is 21-1-1986. Their statements are statements of facts, which prevail over the expert opinion given on the basis of ossification test. On the basis of evidence of prosecutrix Kumari Maheshwari (PW-1), Panchram (PW-2) and Ex. P-3, the date of birth of the prosecutrix is 21-1-1986 and according to the prosecution, the date of incident is 8-7-2003. Therefore, on the date of incident, the age of the prosecutrix was 17 years 5 months and 17 days. It appears that on the date of incident, the prosecutrix was below 18 years. [12] As regards charges under Sections 363 and 366, IPC, in order to prove kidnapping, the prosecution was required to prove that the accused had taken or enticed the prosecutrix out of the keeping of her lawful guardian. The object behind Section 361, IPC, which defines kidnapping, is to protect the minor children from being seduced for improper purposes and to protect their rights. The object behind Section 361, IPC, which defines kidnapping, is to protect the minor children from being seduced for improper purposes and to protect their rights. [13] In Thakorlal D. Vadgama v. State of Gujarat, 1973 AIR(SC) 2313, the Hon'ble Supreme Court observed thus: "Section 361 uses the expression 'whoever takes or entices any minor'. The word 'takes' no doubt, means physical taking but not necessarily by use of force or fraud. The word 'entice' seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time in achieving its ultimate purposes of successful inducement. The two words read together suggest that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then latter cannot be considered to have committed the offence of kidnapping. But if the guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the guilty party then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her father's protection by conveying or indicating an encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him. " [14] Prosecutrix Kumari Maheshwari (PW-1) deposed that on 8-7-2003, her father had left her in the house of appellant Chhatram for her study in Jarve School. Appellant Chhatram is her maternal uncle (Mausa) and appellant Jasbai is her maternal aunt (Mausi). She further deposed that absconded accused Yogesh alias Band and one Santosh came to the house of appellant Chhatram and stayed there in the night. On the next morning, she was threatened by appellants Chhatram and Jasbai and absconded accused Yogesh alias Banti and thereafter she was forcibly taken to Mungeli on a motor cycle. She further deposed that absconded accused Yogesh alias Band and one Santosh came to the house of appellant Chhatram and stayed there in the night. On the next morning, she was threatened by appellants Chhatram and Jasbai and absconded accused Yogesh alias Banti and thereafter she was forcibly taken to Mungeli on a motor cycle. The motor cycle was being driven by Yogesh alias Banti and absconded accused Gulshanbai was sitting behind her on the motor cycle. [15] Prosecutrix Kumari Maheshwari (PW-1) further deposed that on the next morning, elder son of absconded accused Vidya Lahare caused her to sit on the motor cycle and took her from Mungeli to Giraudpuri. At that time, the appellants and absconded accused Vidya Lahare had come to Giraudpuri on a jeep following the motor cycle from Mungeli. They forcibly got her married with absconded accused Yogesh alias Banti. [16] Panchram (PW-2) deposed that on 8-7-2003, he had come to the house of appellant Chhatram along with the prosecutrix for her study in Jarve School. Appellant Chhatram had told him that the prosecutrix is weak in study, if she would be admitted in Jarve School, she would pass the examination. Therefore, he left the prosecutrix at the house of appellant Chhatram. He further deposed that on 11-7-2003, Tulsiram Bandhekar (PW-3) told him that the prosecutrix had telephoned him that the appellants had forcibly got her married with absconded accused Yogesh alias Banti. Tulsiram Bandhekar (PW-3) also deposed in similar fashion. [17] Now, I shall examine whether the appellants had forcibly taken the prosecutrix or enticed her out of the keeping of her lawful guardian? [18] Prosecutrix Kumari Maheshwari (PW-1) deposed that at about 10-11 a. m. Yogesh alias Banti took her from Jarve to Mungeli. It is true that distance between Jarve and Mungeli is 100 Kilometres. It is also true that Bilaspur, which is a crowded city, is situated between Jarve and Mungeli. She further deposed that she was taken from Mungeli for Giraudpuri at about 9-10 a. m. and they reached Giraudpuri at about 5 p. m. The distance between Mungeli and Giraudpuri is also 100 Kilometres. It is true that Bilaspur, Shivrinarayan and Giraudh are situated between Mungeli and Giraudpuri. It is true that her marriage was performed in Giraudpuri Temple. [19] Prosecutrix Kumari Maheshwari (PW-1) deposed that on 10-7-2003, she informed Tulsiram Bandhekar (PW-3) regarding the incident telephonically. It is true that Bilaspur, Shivrinarayan and Giraudh are situated between Mungeli and Giraudpuri. It is true that her marriage was performed in Giraudpuri Temple. [19] Prosecutrix Kumari Maheshwari (PW-1) deposed that on 10-7-2003, she informed Tulsiram Bandhekar (PW-3) regarding the incident telephonically. On 11-7-2003 also, she had telephoned to Tulsiram Bandhekar (PW-3). Tulsiram Bandhekar (PW-3) deposed that on 11-7-2003, at about 12.30 p. m., prosecutrix Kumari Maheshwari (PW-1) had telephoned him and narrated the incident. [20] Ex. P-3 is a Certificate-cum-Mark-sheet of Government Middle School. Jarve. Looking to Ex. P-3, it appears that prosecutrix Kumari Maheshwari (PW-1) was already studying in Jarve School. The prosecution did not produce any document which could indicate that after passing examination of Class 8 from Jarve School, the prosecutrix studied for Class 9 somewhere else. [21] According to prosecutrix Kumari Maheshwari (PW-1), she telephoned Tulsiram Bandhekar (PW-3) twice. It shows that the prosecutrix had sufficient opportunities to escape from the house of absconded accused Yogesh alias Banti at Mungeli, but she did not do so. [22] According to prosecutrix Kumari Maheshwari (PW-1), she was taken from Jarve to Mungeli on a motor-cycle and thereafter from Mungeli to Giraudpuri on the mqtor-cycle itself. During this journey period, she did not raise any alarm, whereas, Bilaspur City and Shivrinarayan Town, which are crowed places and some police stations fell between the places of said journey. [23] In Shyam and another v. State of Maharashtra, 1995 CrLJ 3974 , the Hon'ble Supreme Court observed thus: "In her statement in Court, the prosecutrix has put blame on the appellants. She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the so-called "taking", it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts vfould be under check by both the appellants/ accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touch 18 years of age, but still she was in the age of discretion, sensible and aware of the intention of the accused Shyam, that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam the appellant on her own and in that sense there was no 'taking' out of the guardianship of her mother. . . . . . . . . . . . " [24] Looking to the evidence of prosecutrix Kumari Maheshwari (PW-1), it appears that when she was being taken from Jarve to Mungeli, thereafter from Mungeli to Giraudpuri and even at Mungeli, she had ample opportunity to raise alarm and lodge complaint. Despite having the aforesaid repeated opportunities, she did not do so and continued to accompany with absconded accused Yogesh alias Banti. [25] The prosecution did not adduce any evidence which could prove that the appellants formed an unlawful assembly and being members of the unlawful assembly, forcibly took the prosecutrix from Jarve to Mungeli and thereafter from Mungeli to Giraudpuri and got her married with Yogesh alias Banti. [26] Looking to the evidence of prosecutrix Kumari Maheshwari (PW-1), it appears that she willingly left the house of appellant Chhatram. It appears that the prosecutrix did not complain anybody while she was going to Mungeli and Giraudpuri. It indicates that she had gone willingly. [26] Looking to the evidence of prosecutrix Kumari Maheshwari (PW-1), it appears that she willingly left the house of appellant Chhatram. It appears that the prosecutrix did not complain anybody while she was going to Mungeli and Giraudpuri. It indicates that she had gone willingly. In absence of any threat or coercion or inducement, having been established by the prosecution, I think it is not possible to rely upon the prosecution case to come to conclusion that the appellants formed an unlawful assembly and in furtherance of their common object, they forcibly got the prosecutrix married with Yogesh alias Banti. The prosecutrix had ample opportunities to run away not only from the abovementioned places, but also from the house at Mungeli where she was kept. [27] It appears that on the date of incident, the age of the prosecutrix was near about 17 years 5 months and 17 days, which is below 18 years, but looking to the evidence of the prosecutrix, she left Jarve for Mungeli willingly. There is no any evidence that she was under any threat or coercion or inducement or enticement by the appellants. Therefore, the conviction of the appellants under Section 363 read with Sections 34 and 149, IPC and under Section 366 read with Sections 34 and 149, IPC cannot be sustained. [28] For the foregoing reasons, the appeal is allowed. The conviction and sentence awarded by the learned trial Judge to the appellants are set aside. The appellants are acquitted of the charges framed against them: They are on bail. Their bail bonds are cancelled and sureties stand discharged. Appeal allowed.