ORDER : Goverdhan Bardhar, J. This criminal appeal has been filed by the accused appellant under Section 374 Cr. P.C., 1973 against the judgment dated 21.11.1994 passed by learned Additional Sessions Judge, Neem Ka Thana, (the learned trial court' for short) in Sessions Case No. 16/1993 whereby the appellant has been convicted and sentenced under Section 363 IPC to two years rigorous imprisonment and a fine of Rs. 1,000/-. In default of payment of fine the accused appellant has been directed to further undergo four months Simple Imprisonment. 2. The brief facts of the case are that complainant Lal Chand submitted a written report at Police Station Neem Ka Thana stating therein that on 3-12-1992, his niece 'S' (hereinafter to be referred as 'the victim') aged 13-14 years went for call of nature but she did not turn up. On the basis of aforesaid written report, an FIR No. 327/1992 was registered under Sections 363 & 366 IPC. After registration of the FIR, the police started investigation. Thereafter, the appellant was arrested by the police and after investigation the police submitted charge sheet against the accused appellant under Sections 376, 363 and 342 IPC. 3. The learned trial court framed charges against the appellant for the offence under Sections 376, 366 and 342 IPC. The accused denied the charges, pleaded not guilty and claimed to be tried. 4. The prosecution in support of its case produced 14 witnesses and certain documents were got exhibited. Thereafter the statement of the accused appellant was recorded under section 313 Cr.P.C., 1973 5. The learned trial court after hearing the arguments held the appellant guilty for offence under Section 363 IPC and convicted and sentenced the appellant as stated above. 6. Learned counsel for the appellant has argued that with regard to the age of victim, PW-10, Dr. O.P. Khandelwal has stated that as per expert report and radio logical examination, the age of victim is in between 17 to 19 years. PW-7 Dr. J.R. Tanwar in his cross-examination has stated that as per opinion of the Radiologist, the age of victim was in between 17 to 19 years but in his opinion, she was 17 years. However, in cross-examination he admitted that such opinion of age is tentative and there may be some variations of years with the actual age. 7. PW-7 Dr. J.R. Tanwar in his cross-examination has stated that as per opinion of the Radiologist, the age of victim was in between 17 to 19 years but in his opinion, she was 17 years. However, in cross-examination he admitted that such opinion of age is tentative and there may be some variations of years with the actual age. 7. Learned counsel for the appellant has further argued that the medical report about the age is approximate and it may be two years this side or that side and it is not a conclusive proof to base the conviction. The date of birth of the appellant is 3.7.1975 and the date of incident is 3.12.1992. Thus, at the time of alleged incident, he was about 17 years and 5 months of age. Counsel further argued that looking to the age of accused appellant, the trial court has failed to consider the material questions whether appellant had taken away the victim or insisted upon by the victim to keep her away from her parents. In the present case, victim has voluntarily left her parents, offence under section 363 IPC is not made out against the accused appellant. Counsel further argued that the learned trial court committed serious error in holding the accused appellant guilty under Section 363 Cr.P.C., 1973 The prosecution has failed to prove the charge under Section 363 Cr.P.C., 1973 in-spite of the clear fact that victim has accompanied the accused appellant with her full consent and she was not taken away forcefully by the appellant. Counsel has further argued that while being taken away by the accused neither made any complaint to her relatives nor made any mention to any one while traveling to Jodhpur that she was being taken away. The circumstances clearly indicate that she was a willing party and no offence is proved against the accused appellant. 8. Learned counsel for the appellant, in support of his submissions, placed reliance on the judgment of the Rajasthan High Court given in case of Gopal @ Sukhpal v. State of Raj., RCC March 1989, Nanga and Shankar v. State of Rajasthan RCC July, 1990 and Mansingh and ors v. State of Rajasthan Cr. L.R. (Raj.) 1997. Heard learned counsel for the parties and perused the relevant material placed before me. 9. L.R. (Raj.) 1997. Heard learned counsel for the parties and perused the relevant material placed before me. 9. At the time of incident, on the basis of report of radiologist PW-9, the age of the victim was in between 17 to 19 years. Undoubtedly, it may be approximate and it can be two years this side or that side. The trial court has considered the age of the victim as 17 years on the date of incident. Now, the question remains whether she has left her parents or ousted. At the time of incident, age of the accused-appellant was also below 18 years. Being a girl of aged about 17 years, herself follows a person of similar age group with whom she wanted to go, unless proved it cannot be said that person took her or enticed her. 10. PW-8-Victim in her cross-examination admits that house of appellant accused-Tara Chand and the victim is adjacent of the house of the victim and in the night, she went with Tara Chand to bus stand,she passed through in front of her house and on Neem Ka Thana Bus Stand, they waited for bus for about one and half hour. When they entered in a bus, they found that there was no seat to occupy, therefore they chose to go to Naguar with another bus. When they reached at Bus Stand Nagaur, they saw in surroundings, there were many buses and there was crowd enough. After reaching at Nagaur, they sit in a bus which was going to Jodhpur and when they reached at Jodhpur Bus Stand, they took tea. 11. In the case reported S. Verdhrajan v. State of Madras AIR 1965 SC 942 , it has been observed: "It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what, we have to find out is whether the part played by the appellant amounts to "taking", out of the keeping of the lawful L2Sup./64-3 guardian, of Savitri. Here, we are not concerned with enticement but what, we have to find out is whether the part played by the appellant amounts to "taking", out of the keeping of the lawful L2Sup./64-3 guardian, of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan, She still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her own side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping, of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or un-sophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area. The learned Judge of the High Court has referred to the decision In re : Abdul Sathar in which it was held that where the evidence disclosed that, but for something which the accused consented to do and ultimately did, a minor girl would not have left her husband's house, or would not have been able to leave her husband's house, there was sufficient taking in law for the purpose of Section 363 and expressing agreement with this statement of the law observed: "In this case the minor, P.W. 4, would not have left the house but for the promise of the appellant that he would marry her." Quite apart from the question whether this amounts to blandishment we may point out that this is not based upon any evidence direct or otherwise......................... It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking". 12. Perusal of statement of victim PW8, it reveals that she accompanied with accused at her own free will and traveled from one place to another along with accused. Both stayed at Jodhpur at the house of relative of the accused. 12. Perusal of statement of victim PW8, it reveals that she accompanied with accused at her own free will and traveled from one place to another along with accused. Both stayed at Jodhpur at the house of relative of the accused. Therefore, element of "enticing and taking away" does not exist. Prosecution failed to establish ingredients of Section 363 of enticing and taking up. The trial Court, without considering this aspect of the matter, has wrongly passed the order of conviction under Section 363 IPC. 13. In the case of Manohar Singh v. State of Rajasthan 2012(1) RLW 268, it has been observed as under: "A bare perusal of prosecutrix's testimony clearly reveals that in her cross-examination she has admitted that when she was called by the appellant to the medical hostel, she went of her own volition. Moreover, while leaving her house, she took clothes with her. Furthermore, while she traveled with the appellant from Jodhpur to Jaipur, she did not raise any hue and cry. Further, according to her, she had lived with the appellant's relatives and played with their children. Thus, she had gone of her own free will and had resided with the appellant for one month at Jaipur. Hence, the element of "enticing" and "taking away" does not exist in the present case." 14. I, therefore, having no hesitation to hold that offence under section 363 IPC is not made out against appellant and the appellant deserves acquittal. 15. In view of the above, this appeal is allowed and the order dated 21/11/1994 passed by the Addl. Sessions Judge. Neem Ka Thana is quashed and set aside. The appellant is acquitted for the charge of offence under Section 363 IPC. The appellant is on bail. His bail bonds stand cancelled and he need not to surrender.