Judgment Wangdi, J. 1. The Appellant was sent up for trial for offences under Sections 363 and 366 of the Indian Penal Code (in short “IPC”) before the Court of the Learned Sessions Judge, Special Division – II, East Sikkim at Gangtok, registered as Sessions Trial Case No.22 of 2012 and was ultimately found guilty of the offences on both accounts and sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.500/-(Rupees five hundred) under Section 363 IPC and, rigorous imprisonment for 4 years and to pay a fine of Rs.1,000/-(Rupees one thousand) for offences under Section 366 IPC. In default of payment of the fine, he was directed to undergo further simple imprisonment for 1 month and 2 months respectively for the offences by the impugned judgment dated 25-03-2013. 2(i). Stated briefly, the case of the prosecution is that on 17-01-2012 at 1340 hours, the Officer-in-Charge, Sadar Police Station, Gangtok, received a written FIR from Smt. Parbhati Devi, P.W.1, stating that her 14 years old daughter, Pinky Kumari, P.W.2, was abducted by one Md. Aktar Alam, i.e., the Appellant, resident of Bojoghari, Gangtok, East Sikkim, with ulterior motives. (ii) Based on this, Sadar P.S. Case FIR No.08/2012 dated 17-01-2012 was registered against the Appellant under Sections 363/366 IPC which was endorsed to SI Bimal Gurung, P.W.11, for investigation. (iii) Investigation revealed that on 16-01-2012 at about 1000 hours when the victim was returning from a nearby ‘dhara’ (water source) carrying water, she came across the Appellant who lived nearby her house. He called out to her and gave her a sweet which she accepted and after having it, she continued on her way home and on reaching there, she felt nauseated. When she came out on the verandah for some work, the Appellant who she found was already there, caught hold of her hand and led her to a nearby taxi stand where he put her in a taxi van and took her to a place called ‘Vajra’ and from there onwards to his brother’s place at Sichey, where they spent the night together. (iv) The following morning, i.e., on 17-01-2012, the victim was taken by the Appellant in a taxi to Siliguri and from there further on to NJP Railway Station where they were apprehended by the brother of the victim, Krishna Kumar Ram, P.W.4 who was accompanied by one Dawa Tamang, P.W.5. (iv) The following morning, i.e., on 17-01-2012, the victim was taken by the Appellant in a taxi to Siliguri and from there further on to NJP Railway Station where they were apprehended by the brother of the victim, Krishna Kumar Ram, P.W.4 who was accompanied by one Dawa Tamang, P.W.5. It was found that the Appellant was about to board the train to New Delhi taking the victim girl along to compel her to marry him. (v) On completion of the investigation, charge-sheet under Sections 363/366 IPC was filed against the Appellant for trial. 3. The Appellant having pleaded not guilty to the charge, the trial commenced against him which ultimately resulted in the impugned judgment being passed against him. 4(i). Before this Court, Mr. S. S. Hamal, Learned Legal Aid Counsel, appearing on behalf of the Appellant, did not dispute the fact that the victim had travelled with him on 16-01-2012, spent the night at Sichey and in the morning of 17-01-2012 travelled to Siliguri and onwards to NJP Railway Station. His contention was that the victim girl had travelled willingly with the Appellant as they were in love with each other and had intended to get married. His conviction under Section 363 IPC was seriously contested on the plea that the victim was not a minor and that the prosecution had failed to prove beyond reasonable doubt that she was a minor. (ii) As per the Learned Counsel, from the evidence of the prosecution witnesses, it was manifest that the Appellant had neither used force against the victim girl nor was she induced for the journey. Of the 11 prosecution witnesses, the evidence of Dawa Tamang, P.W.5, neighbour of the Appellant and, Md. Firoj Alam, P.W.8, the brother of the Appellant, would establish that the victim had travelled with the Appellant willingly free from any coercion. It was next submitted that there was a serious embellishment in the deposition of the victim girl as P.W.2 before the Court in as much as she had improved her statement by deposing that she was “forcefully” put inside the taxi vehicle and that she “was confined for whole night” when the term ”forcefully” and the latter words were not used by her in her statement recorded by the Learned Chief Judicial Magistrate, P.W.10, under Section 164 of the Code of Criminal Procedure, 1973 (in short the “Cr.P.C.). (iii) The Learned Counsel further went on to submit that her statement that she became ‘nauseous’ after taking sweet offered by the Appellant and got disoriented because of which she could not resist, is a made up story since she has narrated in graphic detail the sequence of events pertaining to her alleged abduction which reflected that she was in her full senses. This, as per him, stands established by her own statement that she was not completely senseless after taking the sweet offered by the Appellant and was well aware as to where the Appellant was taking her. This stands further confirmed when she has stated that she had gained complete sense on the following day and had requested the Appellant to reach her home. Under such circumstances, it was the submission of the Learned Counsel that the victim, P.W.2, was obviously not being honest and, therefore, her evidence could not be relied upon. (iv) It was seriously contended that the prosecution had failed to establish that the victim girl was a minor. As per him, although the birth certificate, Exhibit 5, does indicate that she was just over 14 years, this document could not be relied upon as on a bare reading, it was apparent that it was prepared on 04-03-2006 when her date of birth is said to be 12-05-1997. It was further submitted that the content of this document was also not supported by the oral evidence of the mother, P.W.1 and the brother, P.W.4. The evidence of P.W.1 reveal that she could not say the exact date of birth of the victim who she was her own daughter and, even her brother, P.W.4, did not know whether the date of birth as mentioned in the document, Exhibit 5, was correct or not. Exhibit 5 having been prepared by the father of the victim as has been stated by P.W.4, he ought to have been produced as a prosecution witness but he was neither questioned during the investigating nor was he cited as a witness in the charge-sheet and was not at all examined. Exhibit 5 having been prepared by the father of the victim as has been stated by P.W.4, he ought to have been produced as a prosecution witness but he was neither questioned during the investigating nor was he cited as a witness in the charge-sheet and was not at all examined. The veracity of Exhibit 5 which, inter alia, mentions the place of the victim girl as being, Bojoghari, also becomes suspect as it has come in the evidence of the I.O., P.W. 11, that the victim in her statement marked ‘X’ recorded under Section 161 Cr.P.C. during investigation, had stated that she was brought to Sikkim when she was a minor. It is also urged that the Authority who had issued the birth certificate, Exhibit 5, was not examined by the prosecution. Even the report pertaining to her bone age estimation, Exhibit ‘X’, indicates the approximate age of the victim as being between 17 and 19 years. On such vague evidence, it could be said that the victim girl was a minor as alleged by the prosecution. It is thus submitted that the case against the Appellant both under Sections 363 and 366 IPC cannot be said to have been proved. 5(i). Mr. Karma Thinlay Namgyal, Learned Additional Public Prosecutor, on the other hand, submitted that the prosecution has been able to prove the case against the Appellant to the extent required under the law and there is no reason as to why the impugned judgment should be interfered with. (ii) It is submitted that the efforts on behalf of the Appellant to question the veracity of Exhibit 5, the birth certificate, cannot be sustained in the eye of law as the document itself indicates that the victim at the time of incident was just over 14 years of age. Under such circumstances, there was no necessity to examine the father at whose instance Exhibit 5 had been issued. In view of the unambiguous entry in Exhibit 5 issued by a competent Authority, other evidence on the question, oral or otherwise, would be redundant. Under such circumstances, there was no necessity to examine the father at whose instance Exhibit 5 had been issued. In view of the unambiguous entry in Exhibit 5 issued by a competent Authority, other evidence on the question, oral or otherwise, would be redundant. (iii) It is then contended that the fact that the victim girl was taken against her will from her home and her parents, stands established by the fact that she had been lured into taking a substance which made her incapable of resisting the Appellant and also that under such condition she had been taken and kept in confinement stands Established by the evidence of the victim girl, P.W.2, which stands corroborated by P.W.8, brother of the Appellant. The fact that on 17-01-2012 the mother of the victim, P.W.1 and her brother, P.W.4 had lodged the FIR, Exhibit 1, establishes that she had been taken against the consent of her guardian. It is proved by ample evidence that when the victim girl did not return home, her family had made intense searches for her which ultimately led to the Appellant getting apprehended in her company at NJP Railway Station late in the evening of 17-01-2012. These facts stand proved by the evidence of the mother, P.W.1, the brother P.W.4 and P.W.3, Minu Roy, the wife of the Appellant. Although P.W.3 had turned hostile, in her cross-examination when confronted under Section 145 of the Indian Evidence Act, 1872, she had admitted that she had given the statement marked Exhibit ‘Y’ to the Police during the investigation. The evidence Exhibit ‘Y’ which can be validly relied upon by the prosecution, would clearly reveal that she was having a strained relation with the Appellant and that he was living away from home at Bojoghari. It has come in her evidence that on 17-01-2012 P.Ws 4 and 5 had gone to her house to enquire about the whereabouts of the Appellant and the victim girl. As per the Learned Additional Public Prosecutor the Appellant had also failed to explain the incriminating circumstances put to him in the proceedings under Sections 313 Cr.P.C. which in law was an additional circumstance that fully corroborated the other circumstances appearing against him. As per the Learned Additional Public Prosecutor the Appellant had also failed to explain the incriminating circumstances put to him in the proceedings under Sections 313 Cr.P.C. which in law was an additional circumstance that fully corroborated the other circumstances appearing against him. (iv) He further went on to submit that the discrepancies pointed out in the prosecution case by the Learned Counsel for the Appellant were not so serious as to vitiate the foundation of the prosecution case. It is also stated that the evidence of P.W.8 clearly establishes the fact that the Appellant had abducted the victim to compel her to marry him against her will and, therefore, the charge against the Appellant both under Sections 363 and 366 IPC stood established beyond reasonable doubt and, therefore, there was no reason as to why the finding of the Learned Trial Court should be interfered with. 6(i). Upon careful consideration of the records, the evidence and the oral submissions placed by the Learned Counsel, I find that the questions for determination in this Appeal are as to whether (i) offence under Section 361 IPC punishable under Section 363 IPC and (ii) under Section 366 IPC of kidnapping the victim with the intent to compel her to marry him against her will, had been made out against the Appellant. (ii) Before considering the aforesaid questions, it would be necessary to arrive at a finding as regards the age of the victim girl as it is essential and germane to the offence Under Sections 361/363 IPC in view of the controversies on this question discussed earlier. The respective submissions on behalf of the parties on the question having been noted in detail, those are not repeated for the sake of brevity. However, it may be observed that strenuous efforts were made on behalf of the Appellant to demonstrate that the victim was not a minor and, on the other hand, similar efforts were made on behalf of the prosecution to impress upon this Court that she was indeed a minor. In my view, the evidence which they have referred to, particularly, the bone age estimation, Exhibit ‘X’, would pale into insignificance and rendered redundant in view of the birth certificate, Exhibit 5, issued by the Registrar of Births and Deaths. In my view, the evidence which they have referred to, particularly, the bone age estimation, Exhibit ‘X’, would pale into insignificance and rendered redundant in view of the birth certificate, Exhibit 5, issued by the Registrar of Births and Deaths. Judicial notice is taken of the fact that an elaborate procedure for verification is required to be followed before such certificates are issued and, therefore, it can be safely inferred that the content of this document is true and correct. Efforts to contradict its content by oral evidence would indubitably fall within the mischief of Sections 91 and 92 of the Evidence Act. For these reasons, I am of the view that the age of the victim girl on the date of the incident, i.e., 16-01-2012, was just about 14 years and, therefore, a minor. (iii) Having held so, we may now proceed to examine the other two questions set out earlier. (iv) As we have noted, the case of the Appellant is that the victim girl was a consenting party and in view of her age, which as per the Appellant had crossed the age of majority, no offence under Section 363 IPC had been made out. In order to arrive at a finding on this, it would be useful to examine the scope of Section 361 IPC. For convenience Section 361 IPC is reproduced below:- “361. Kidnapping from lawful guardianship.—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. ………………………………………………………..” As would be evident from a bare reading, Section 361 IPC contemplates taking or enticing “any minor ……… under eighteen years of age” if the victim girl is a female and that taking or enticing ought to be “out of the keeping of the lawful guardian …………………. without the consent of such guardian”. In other words, in order to constitute the offence of kidnapping the accused ought to take or entice any minor out of the keeping of the lawful guardian without the consent of such guardian. without the consent of such guardian”. In other words, in order to constitute the offence of kidnapping the accused ought to take or entice any minor out of the keeping of the lawful guardian without the consent of such guardian. In the present case, the facts as would appear are that the Appellant had caught hold of the minor victim girl when she was under the influence of some substance which she had been lured by him to consume and, under such condition she was led away first to his brother’s house where they spent the night and onwards to New Jalpaiguri Railway Station the next day where they were nabbed. (v) The fact that she had been taken away from her parental home on the day of the incident stands clearly established by the evidence of the victim girl as P.W.2, the relevant portion of which we may reproduce below:- “……………………………….. I used to see him quite often but I never talked to him. That on 16.01.2012 at around 9.30 a.m., I had gone to fetch water from nearby dhara. When I was on my way back, I met accused on the way. The accused called me along with one another small girl and gave us a sweet. I went to the house and ate that sweet. Thereafter, I started feeling giddy and went outside my house to the verandah and at the time, the accused grabbed my hand and took me to the nearby taxi stand. At the relevant point of time, I was not having complete sense as such I could not raise my void (sic) against the action of the accused. He then forcefully put inside the taxi vehicle and brought to near Vajra Cinema. From there, again (sic) the accused again boarded another vehicle took me down to market near the taxi stand of Denzong Cinema, then again accused took me down to Sichey to the house of brother at Sichey. The said house, I was confined for whole night. On the relevant night accused did not commit any offence against me. On the following day, when I gained complete sense, I requested the accused to reach me at home in response to the same the accused has assaulted me with dire consequences. The said house, I was confined for whole night. On the relevant night accused did not commit any offence against me. On the following day, when I gained complete sense, I requested the accused to reach me at home in response to the same the accused has assaulted me with dire consequences. …………… Thereafter, accused took me to uphill side and put me inside the vehicle but I cannot exactly say where the accused person took me on the relevant day. Thereafter, I can say that I along with the accused person was nabbed by my brother while alighting from the vehicle but I do not know the name of the said place. ……………………..” (vi) The witness has remained firm and unshaken and has not been contradicted on any of the material facts in her cross-examination. The evidence is also consistent with her statement recorded by the Chief Judicial Magistrate, P.W.10, under Section 164 Cr.P.C. as would appear from the following extract thereof:- “………………………………………. I had gone to the nearby Dhara to fetch water. When I was on my way back Akhtar (whose rented room is located on the way to the Dhara) called me and gave me a sweet/toffee. I ate it and proceeded to my house. When I reached my house I started becoming nauseous. When I came out to the verandah for some work Akhtar was already there. He suddenly grabbed my hand and started taking me towards the nearby taxi stand. Since I was nauseous/feeling disoriented I could not resist. He put me in a vehicle (taxi) and brought me to Vajra. At Vajra, he made me wait inside another vehicle (probably taxi) and disappeared for sometime. After sometime he came back and told me that my parents were looking all over for me. He then took me to his brother’s house at Sichey. We spent the night there. Though we shared a bed he did not touch or sexually assault me. On the next following morning he took me to Siliguri in a taxi vehicle. After getting down at Siliguri, he hired an Auto rickshaw and took me to the nearby railway station. While we were at the Railway station my cousin brother and two of my neighbors came there. After few moments some police personnel came there. On the next following morning he took me to Siliguri in a taxi vehicle. After getting down at Siliguri, he hired an Auto rickshaw and took me to the nearby railway station. While we were at the Railway station my cousin brother and two of my neighbors came there. After few moments some police personnel came there. We both were then brought to Gangtok.” (vii) No doubt on behalf of the Appellant, it was pointed out that there were certain embellishments in her deposition in Court, one of which was the use of the term “forcefully” before the words “inside the taxi vehicle”. This, in my view, is quite immaterial and is not of such a character as would vitiate the entire prosecution evidence and, therefore, inconsequential. The aforesaid evidence of P.W.2, in any case, finds support in the evidence of P.W.1, the mother, P.W.4, the brother and P.W.3, the wife of the Appellant, which when considered cumulatively establishes the fact that when the victim girl did not return home, they had carried out intensive searches for her at different places which eventually led to the FIR being lodged by P.W.1 with the help of P.W.4. The Learned Counsel for the Appellant drew the attention of this Court to the portions of the evidence of P.W.5 where he had stated that “It is true that when we met victim and the accused, victim was not looking sick” and that of P.W.8 where he has deposed that “It is true that on the relevant night, my family, accused and the victim prepared for dinner and served us”, to emphasise that there was neither force nor coercion applied upon the victim and, therefore, the charge against the Appellant for the offences under Sections 363 and 366 IPC ought to fail. (viii) The submissions, in my view, do not appear to be sound as it stands established that the victim had been lured to consume some substance in the form of sweet which had the effect of making her powerless to resist the Appellant and under such influence she had been taken away from the keeping of her lawful guardian without seeking any consent of such guardian. Otherwise also, offence under Section 361 IPC does not involve the use of force. Otherwise also, offence under Section 361 IPC does not involve the use of force. It is an offence against guardianship and, the moment the minor is taken or enticed away out of the keeping of her lawful guardian, the offence is complete. I find support in this view in The State vs. Sulekh Chand son of Dalel : AIR 1964 Punjab 83 (Division Bench) in which it was held as under:- “(11) ………………………… In Section 361 which defines the offence of kidnapping from lawful guardianship all that is required is that a minor, under 16 in the case of a male or under 18 in the case of a female, must be “taken or enticed” from the keeping of the lawful guardian. ‘Taking’ implies neither force nor misrepresentation and in my opinion if a girl of less than 18 is taken away from the keeping of her lawful guardian, even at her own wish, the offence of kidnapping is established. The word ‘take’ in this context means no more than the sense in which one would use the word if one said one was ‘taking’ one's sister to the cinema. The extent to which the girl is a consenting party is a matter for consideration under the question of sentence, and does not affect the commission of the offence.” [underlining mine] In view of the above facts and circumstances, I am inclined to maintain the conviction of the Appellant for the offence under Section 363 IPC. (ix) As far as the conviction under Section 366 IPC is concerned, I am of the considered opinion that the prosecution has not been able to establish offence against the Appellant. Section 366 contemplates that “whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse”. The evidence that have come on record is clearly deficient to bring home this charge. First of all, the victim, P.W.2, in her own statement had stated that “On the relevant night accused did not commit any offence against me”. The evidence that have come on record is clearly deficient to bring home this charge. First of all, the victim, P.W.2, in her own statement had stated that “On the relevant night accused did not commit any offence against me”. Even the evidence of P.W.8 clearly reflects that the victim girl was not in a compelling circumstance either to marry the Appellant or to be sexually assaulted. In these circumstances, the principle ingredients necessary to constitute an offence under Section 366 IPC are found wanting and, therefore, no case under that provision can be said to have been made out against the Appellant. In Sulekh Chand (supra) the following extract most succinctly sets out the distinction between the offence under Sections 363 IPC and 366 IPC:- “(12) The offence of kidnapping under Section 363 consists solely of taking a minor from the keeping of her lawful guardian, and no intention needs to be established. Section 366 applies whether the offence is kidnapping or abduction, the additional ingredient being required that such kidnapping or abduction is with the object of marriage or seduction. In the present case I have no doubt that this was the object with which the accused kidnapped the girl although, as I have said, he did not press the matter to extremes.” [underlining mine] For these reasons, the conviction of the Appellant under Section 366 IPC stands set aside. 7. In the result, the Appeal is allowed in part. 8(i). In so far as the sentence is concerned, the Learned Trial Court has sentenced the Appellant to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 500/-(Rupees five hundred) for the offence under Section 363 IPC and in default of payment of the fine to undergo further simple imprisonment for 1 month. It is informed that the Appellant has already undergone imprisonment of about 2 years and 7 months. (ii) Considering the fact that the Appellant was a young man of about 25 years when the offence was committed and is now about 28 years and that there are no adverse record antecedent in respect of the Appellant, interest of justice would be served if the sentence is confined to the period of imprisonment already undergone by the Appellant with the sentence of fine remaining undisturbed. (iii) Consequently, the Appellant be released forthwith subject to payment of the fine of Rs.500/-(Rupees five hundred) as imposed by the Learned Trial Court. 9. No order as to costs. 10. A copy of this judgment and the original case records be transmitted to the Court of the Learned Sessions Judge, Special Division -II, East Sikkim at Gangtok, for its due compliance.