Judgment KOTHARI, J. This is yet another case under Secs. 363 and 366 of the Indian Penal Code, but the present case is one of those few cases wherein at the end of the trial, accused came to be convicted for the said offences. 2. It is the say of the prosecution that victim was aged 15 years plus, and therefore, she was minor. About the incident, story is same, as in all other such cases barring the change in the name of parties and the name of places of alleged occurrence. But, "same story" did weigh with the Court and accused came to be convicted, hence, few brief facts may be referred to in order to appreciate properly the case of the parties. That victims family resides at village Manipur; one Janiben is their neighbour; the accused is a brother of Janiben; the accused is not resident of village Manipur, however, he has visited couple of times prior to the incident his sister's house; at that times, the victim and accused had met; In fact, the accused had visited the house of the victim to have a cup of tea etc.; one Champa is a friend of the victim; the victim and accused said to have come to Babara Bus Stand from village Manipur by walking there, relatives of the victim and accused came and respective relative had taken the victim and accused with themselves, and complaint came to be lodged. 3. The complainant is the brother of the victim. The complaint is lodged on 14-5-1990. The material witnesses examined by the prosecution are complainant (Exh. 7), the other brother of the victim Ravjibhai, (Exh. 9), victim (Exh. 11), friend of the victim Champa, (Exh. 10), Principal Teacher of the School Kantibhai, (Exh. 15), Dr. Ashar (Exh. 97) and the Investigating Officer (Exh. 24). 4. The learned trial Court has framed mainly three issues : (i) age of the victim, (ii) kidnapping and abduction by the accused, and (iii) about the offence under Sec. 366 of the I.P.C. 5. Upon considering the evidence on record, the trial Court has concluded that victim was aged 15 years, 2 months and 14 days at the time of incident. In support of this conclusion, the trial Court has placed reliance on (i) School Leaving Certificate (Exh. 16) and (ii) Opinion of the doctor. In Exh. Upon considering the evidence on record, the trial Court has concluded that victim was aged 15 years, 2 months and 14 days at the time of incident. In support of this conclusion, the trial Court has placed reliance on (i) School Leaving Certificate (Exh. 16) and (ii) Opinion of the doctor. In Exh. 16, the birth date of the victim was recorded as 1-3-1975', while as per medical opinion, she may be aged about 16 to 18 years. The trial Court has discussed the issue of age quite at length. It appears that the trial Court is persuaded by the submission that if the exact date of birth is not known, then usual practice is to mention' 1st June' as a date of birth and because in the present case, 1st June is not recorded in the L.C. and' 1st March', is recorded and that being so, in the opinion of the Court registering of 1st March' may not be incorrect. The trial Court was pleased to believe though there was no material that, the parents of the victim may have produced some material before the school authority in support of their say about the age-date of birth of the child/victim. 6. Shri Tolia, learned Advocate for the applicant has drawn the attention at the time of hearing to a decision of this Court rendered in the case of State of Gujarat v. Jivanlal Chhotalal Patel, 1985 GLH 388 . The Division Bench in that case was pleased to point out for the benefit of Investigating Agency as to how, "to find out and bring on record the correct date of birth of the victim." (Paras 5 and 6). It may be stated that it was observed therein that mere producing and relying on School Leaving Certificate is of no use. Shri Tolia has also drawn attention to a decision of this Court in the case of Vinu Karmashi Radadia v. State of Gujarat, 2006 (3) GLH 530 : [ 2006 (4) GLR 3274 ]. In that case, the Court was not prepared to believe the school certificate produced by the Principal of the school in order to prove the birth date of the victim because the basis on which the birth date was entered into school register was not produced by the prosecution. In that case, the Court was not prepared to believe the school certificate produced by the Principal of the school in order to prove the birth date of the victim because the basis on which the birth date was entered into school register was not produced by the prosecution. In view of the law laid down in these binding decisions, it can be said that the learned trial Court has seriously erred in relying on School Leaving Certificate in the present case. Shri Tolia has also drawn attention to a decision of this Court in the case of State of Gujarat v. Babu @ Roni Manilal, 1987 (2) GLH 41 : [ 1987 (1) GLR 590 ]. In that case, the Court was pleased to hold that if there is reasonable doubt about the age of the victim, then the prosecution case must fail. It may be stated that in that case, parents of the victim were examined as a witness, while in the present case parents have not come forward to depose before the Court and as observed above, issue of birth date of the victim is discussed by the learned trial Court at considerable length. Discussion of issue of age at length, and in addition to it medical opinion about age of victim (16 to 18 years) with concession that actual age of victim may be 2 years more or 2 years less than age found in medical opinion are the material possible to read in favour of accused in the circumstances of the case. 7. The issue of kidnapping and abduction may now be considered. The Investigating Officer in his evidence says that victim has stated in her statement before the police that she had stated to the accused that she would go to collect the firewood at 4-00 p.m. at the boundary of the village and that accused may come there. The learned trial Court has believed this say of the Investigating Officer. Before offering comments on this, the other points, which the learned trial Court has referred while believing the case of kidnapping and abduction, may be briefly referred to. 8. The learned trial Court has believed this say of the Investigating Officer. Before offering comments on this, the other points, which the learned trial Court has referred while believing the case of kidnapping and abduction, may be briefly referred to. 8. The learned trial Court has held that, the victim and Champa, proceeded to collect firewood despite saying 'No' by the father of the Champa - as the father of Champa was of the view that it is not proper time to go - does show that victim has some attachment or attraction towards accused. It may be stated that mere holding so is hardly of any consequence. It is neither here nor there. That the victim had some attachment or attraction towards accused is not of much significance in the circumstances of the case. 9. Repelling the submission of learned Advocate for defence, the learned trial Court has also held that, "victim cannot be said to have voluntarily left the house of her father because in that case, the victim would not have taken Champa with her nor she would have taken sickle and iron basket (tagaru) with her." This, in the circumstances of the case is an erroneous approach. Just because victim had taken her friend Champa with her and had a sickle and iron basket with her, the real reason for going to the boundary of the village at that time cannot be ignored or glossed over. 10. Then, it is also held by the learned trial Court that, conduct of the victim, viz., conduct of seating there and indulged in talk with the accused in the presence of Champa shows that if the victim had intended to left the house of her father, she would have gone with the accused from that place at that time instead of seating there and indulged in talk at that place at that time. It would be enough to say that such a dissection in the circumstances of the case was uncalled for. The fact that the victim even after her brother Ravji came at the scene at that time and even though Ravji has alleged to have instructed Champa to bring victim with her - she, the victim opts to go away with the accused, cannot be brushed aside or ignored by referring the aforesaid fact in the manner that Court did". 11. 11. Then, the learned trial Court also records that accused and victim had met at least couple of time prior to the present incident of lodging of the complaint when accused had come to see and meet his sister Janiben. It records that, the victim and accused did meet at those times shows that process of 'inducing' the minor has started around those points of time. That the 'inducement' need not be only on the day of incident itself. In this regard, it may also be noted that saying of accused to the victim that, 'what is in a village life, we would have better life in the city', is also considered by the Court as an inducement. This appears to be erroneous approach. The material aspect missed by the learned trial Court is absence of mens rea. It ought to have been brought on record or culpable state of mind should be possible for the Court to infer from the circumstances of the case. The accused may be unrefined and rustic, but the record does not reveal anything that can be considered as criminal design on the part of accused. No such case herein. 11.1. In this regard, it may also be noted that when brother of the victim, Ravji came at the scene and he gave couple of slaps to the victim - on seeing the victim with the accused - and say of the accused at that time to the Ravji that, - beat me (accused) and not to beat her - was read by the Court is an attempt to win the sympathy or to win the victim, and thereby, to induce her, is not only erroneous reading in the circumstances of the case, it is almost perverse approach. Travelling in that direction to test the case of inducement was not necessary in the present case. 12. In S. Varadarajan V. State of Madras, AIR 1965 SC 942 , the accused was convicted for an offence under Sec. 363 of the Indian Penal Code. The Supreme Court, while allowing the appeal of the accused and setting aside the concurrent finding of conviction, has pointed out that in the circumstances of the case, taking of the girl by the accused is not possible to believe. In that case, the victim had asked the accused to see her at particular place. The Supreme Court, while allowing the appeal of the accused and setting aside the concurrent finding of conviction, has pointed out that in the circumstances of the case, taking of the girl by the accused is not possible to believe. In that case, the victim had asked the accused to see her at particular place. So also, in the present case, it is the victim who had stated to the accused to meet her at the boundary of the village. This is the say of the victim in her statement before the police as referred above and the learned trial Court was pleased to believe this statement. In the facts and circumstances of the present case, it can be said that - as in Varadarajan case (supra), "- 'taking' of Savitri ... (Sarda herein) out of keeping of her father has not been established....." (Para 7). It may also be noted that neither father nor the mother of the victim are examined by the prosecution in the present case. 13. Learned trial Court has also held, that offence under Sec. 366 is established in the present case. For this purpose, while relying on the finding recorded for the offence under Sec. 363, it has also held that for the purpose of Sec. 366, the intention is the real test. Further, it says that the wish, intention or act of the girl/woman is not material. As the case of the prosecution for offence under Sec. 363 fails, the case under Sec. 366 also fails. Further, the Supreme Court in Shyam v. State of Maharashtra, AIR 1995 SC 2169 , setting aside the concurrent finding for offence under Sec. 366 of I.P.C. has held, that "prosecutrix has not put up any struggle or raising alarm while being taken away by the accused". The Court was pleased to allow the appeal as in that case it was found that prosecutrix to be willing party to go with the accused. In that case the accused had taken the prosecutrix on bicycle. In the present case, the victim and accused had gone by walking to Babara Bus Stand. In short, there is no evidence worth the name for offence under Sec. 366 of the I.P.C. 14. Sessions Case No. 52 of 1990 from which the present Revision arises was decided by the Assistant Judge, Amreli. In the present case, the victim and accused had gone by walking to Babara Bus Stand. In short, there is no evidence worth the name for offence under Sec. 366 of the I.P.C. 14. Sessions Case No. 52 of 1990 from which the present Revision arises was decided by the Assistant Judge, Amreli. The accused had preferred an appeal under Sec. 374 of Cr. P.C. before the Sessions Court, Amreli. It would appear from the judgment of the Sessions Court that beside recording facts and evidence of the case, learned Sessions Judge had hardly tried to appreciate the evidence. While dismissing the appeal, it has observed that in the judgment under appeal, the Court has properly appreciated the evidence in its 29 page judgment'. What the Court has considered in 29 page judgment' ought to have been appreciated by the learned Sessions Judge. 15. In view of the above discussion, the judgment of the learned Sessions Judge in Sessions Case No. 52 of 1990 and of learned Sessions Judge in Criminal Appeal No. 13 of 1993 are unsustainable in facts and law, and therefore, interference in Revision is called for in the present case. Both the judgments are hereby quashed and set aside. The Revision Application is allowed. The applicant-accused is acquitted. Rule is made absolute. (HSS) Application allowed.