ORDER : 1. This appeal arises out of the judgment of conviction and order of sentence dated 9.7.2002 passed by the learned 2nd Additional Sessions Judge, Ambikapur, District Surguja in S.T. No.252/99 thereby convicting accused/appellant under Section 363 of the Indian Penal Code (for short 'the IPC') and sentencing him to undergo RI for 01 year & fine of Rs.500/-, in default to undergo additional RI for 3 months (wrongly mentioned as 3 years' in memo of appeal). 2. Case of the prosecution, in brief, is that the prosecutrix lodged report on 30.7.1999 alleging therein that on 18.7.1999 at about 18:30 hrs when her parents were sleeping in house, appellant came there, asked her to go for wandering and saying so, he took her firstly to Banki dam and thereafter to jungle where they stayed in night and during that period, appellant committed sexual intercourse twice with her. Next day at about 11:00 a.m. appellant dropped the prosecutrix at her house. It is also alleged that on the pretext of marriage, appellant committed sexual intercourse with prosecutrix but after lapse of time he refused to marry her and therefore prosecutrix consumed some poisonous substance. She was admitted in the hospital. Based on aforementioned report, police registered crime bearing No.438/99 against the appellant for commission of offence punishable under Sections 363, 366, 376 of IPC. 3. After completion of investigation, police filed charge sheet before the Court of competent jurisdiction. The trial Court framed charges under Sections 363, 366, 376 (1) of IPC against the appellant. So as to hold the appellant guilty, prosecution examined 15 witness in all. Statement of accused/ appellant was recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence & false implication. 4. After conclusion of trial, the trial Court upon appreciation of oral and documentary evidence available on record, convicted and sentenced the accused/appellant vide impugned judgment in the manner as mentioned in para-1 of this judgment. 5. Learned counsel for appellant would submit that provisions of Section 363 of IPC would be attracted only when prosecution proves beyond reasonable doubt that on the date of incident, prosecutrix was below the age of 18 years. In case at hand, prosecution utterly failed to prove by adducing cogent and reliable piece of evidence that prosecutrix was below 18 years of age. In case at hand, prosecution utterly failed to prove by adducing cogent and reliable piece of evidence that prosecutrix was below 18 years of age. To prove the age of prosecutrix, prosecution placed on record copy of admission register as Ex.P-29 in which date of birth of prosecution is mentioned as 7.11.1984' and to prove the said document examined Smt. K.L. Arthur (PW-13), who had not entered date of birth of prosecutrix in said document. The person who entered the date of birth of prosecutrix in school admission register (Ex.P-29) was not examined before the Court. Since the school admission register is not proved in accordance with law i.e. by examining the person who made entry of date of birth of prosecutrix, the same cannot be relied upon as proof of age of prosecutrix. In support of his contention learned counsel for appellant places reliance on the judgment of Hon'ble Supreme Court in case of S. Varadarajan v. State of Madras reported in AIR 1965 SC 942 and Munnlal vs. State of MP reported in ILR 1978 MP 973. He also submits that on the advice of Smt. Pratibha Rajul (PW-6), who conducted MLC of prosecutrix, radiological test of prosecutrix was done for ascertaining her age. Dr. M.K. Jain (PW-5), Radiologist, opined that according to radiologist report (Ex.P-3), radiological age of prosecutrix is in between 17 and 19 years. Hence, from the aforementioned piece of evidence also, it cannot be said that on the date of alleged incident, the prosecutrix was below 18 years of age. He also submits that for attracting provisions of Section 363 of IPC, prosecution is required to prove beyond reasonable doubt that accused had enticed the prosecutrix and taken her away from the lawful guardianship of her parents. In present case, there is no evidence that appellant had enticed the prosecutrix in any manner or forcibly taken her away from lawful custody of her parents. In fact, testimony of prosecutrix would show that she herself left the lawful guardianship and willingly went with the appellant to have his company. Prosecutrix had attained the age of discretion, she was well aware about the pros and cons of steps taken by her of accompanying appellant. Prosecutrix herself stated in her statement before the trial Court that she went along with appellant of her own will. Prosecutrix had attained the age of discretion, she was well aware about the pros and cons of steps taken by her of accompanying appellant. Prosecutrix herself stated in her statement before the trial Court that she went along with appellant of her own will. In view of evidence of prosecutrix, it cannot be said that appellant had enticed the prosecutrix in any manner. Hence, finding of the trial Court holding appellant guilty for the offence under Section 363 of IPC, in view of aforementioned fact situation, is per se wrong. In alternate, he submits that if this Court reaches to the conclusion that prosecution has been able to prove its case beyond reasonable doubt, then considering the fact that appellant is the first offender, at the time of commission of offence appellant was 23 years old only; he is facing agony and trauma of criminal trial for last more than 23 years from the date of his arrest and further considering the period of sentence already served by appellant i.e. 14 months & 19 days, the jail sentenced imposed upon him may be reduced to the period already undergone by him. 6. On the other hand, learned Panel Lawyer for the State supported the impugned judgment. Referring to Paragraph 10 12 of the impugned judgment, he submitted that learned trial Court on due appreciation of documentary evidence brought on record, has rightly convicted and sentenced the appellant for the offence under Section 363 of IPC. The impugned judgment is well founded based on proper appreciation of evidence, hence it does not call for any interference. 7. I have heard learned counsel for parties and perused record of trial Court. 8. Learned counsel for appellant raised two vital grounds before this Court that it is not proved by admissible piece of evidence that on the date of incident, prosecutrix was below 18 years of age and in view of evidence available on record, there is no allegation of enticement or inducement to prosecutrix so as to attract offence under Section 363 of IPC. Before discussing facts of case and evidence available on record, I find it appropriate to go through relevant provisions under the IPC. 9. Section 363 of IPC prescribes punishment for kidnapping, which reads as under:- “363. Before discussing facts of case and evidence available on record, I find it appropriate to go through relevant provisions under the IPC. 9. Section 363 of IPC prescribes punishment for kidnapping, which reads as under:- “363. Punishment for Kidnapping.- Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 10. 'Kidnapping' is of two kinds; 'kidnapping from India' and 'kidnapping from lawful guardianship'. The term 'kidnapping from lawful guardianship' is defined in Section 361 of IPC, which is reproduced below for ready reference;- “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.” 11. From perusal of definition of 'kidnapping' it is clear that in order to prove charge of kidnapping, prosecution is required to prove either of two ingredients as provided under Section 361 of IPC i.e. person had taken or enticed any minor under 16 years of age,in case of male, or under 18 years in case of female. In case at hand, based on FIR (Ex.P-12) and final report, trial Court framed charges against appellant under Sections 363, 366 & 376 of IPC. On conclusion of trial, based on evidence brought on record by the parties, trial Court acquitted appellant from the charges under Sections 366 & 376 of IPC by extending benefit of doubt, however, convicted and sentenced him for the offence under Section 363 of IPC. 12. In FIR (Ex.P-12), date of incident is mentioned as 18.7.1999 and date of report is mentioned as 30.7.1999. FIR was registered on 31.7.1999. Cause for delay in lodging report, as mentioned in FIR, is 'anticipation of marriage'. In FIR it is mentioned that appellant came near house of prosecutrix in morning at about 6:00 a.m., said to her that he will take her for wandering and thereafter took her to nearby dam, stayed there till evening. In late night, appellant dropped her to her house. It is also mentioned in FIR that appellant assured prosecutrix of marriage. In FIR it is mentioned that appellant came near house of prosecutrix in morning at about 6:00 a.m., said to her that he will take her for wandering and thereafter took her to nearby dam, stayed there till evening. In late night, appellant dropped her to her house. It is also mentioned in FIR that appellant assured prosecutrix of marriage. Prosecutrix was examined before trial Court as PW-15. She stated in her statement that her age is 17 years and her date of birth is 7.11.1984. 13. In the aforementioned allegation and evidence, so far as first ground raised by learned counsel for appellant with regard to age of prosecutrix, is concerned, perusal of record would show that prosecution produced school admission register of prosecutrix (Ex.P-29) in which name of prosecutrix is mentioned at Sr. No.6143. Date of admission in school is mentioned as 1.7.1995 in Class 6th. Date of birth of prosecutrix is mentioned as 7.11.1984. Copy of school admission register is proved by Smt. K.L. Arthur (PW-13), Head-mistress of Government Girls Higher Secondary School, Ambikapur. This witness stated that entries relating to prosecutrix in school admission register were made by the then Headmaster Shri E. Lakra and she is acquainted with his handwriting. She also stated that prosecutrix left the school on 30.4.1988. School admission bears signature of Principal Shri Suryavanshi and she is acquainted with his signature. No question was put to this witness by defence counsel in cross-examination. Submission of learned counsel for appellant is that school admission register is not proved in accordance with law because Headmaster who made entry in it was not examined before trial Court. This submission of learned counsel for appellant is not acceptable on the ground that school is an institution and government school teachers and Headmaster are posted to discharge their official duty and they are holding transferable post. Even sometimes the teacher who made entries in school admission register, retired after attaining age of superannuation and therefore, it may not be possible all the time to prove entries in school admission register by same teacher who made it. Even sometimes the teacher who made entries in school admission register, retired after attaining age of superannuation and therefore, it may not be possible all the time to prove entries in school admission register by same teacher who made it. School admission register is being maintained and preserved as government record and to prove age of a student if a school admission register is produced in Court by government teacher posted in that school and said government teacher deposed in evidence about entries made in school admission register, then said evidence, in the opinion of this Court, in absence of any other evidence available on record, cannot be ignored and stated to be inadmissible in evidence merely because the teacher who made entry is not examined to prove entry made in school admission register. 14. Submission of learned counsel for appellant that prosecutrix was sent for ossification test and the doctor, who conducted ossification test, is examined as PW-5. The doctor proved ossification test report (Ex.P-3) in which prosecutrix is shown to be 17-19 years of age and therefore, in the facts and circumstances of case, nature of evidence available on record, ossification test report is to be given priority to ascertain age of prosecutrix, is not acceptable. Ossification test report is an opinion given by expert, whereas authenticity of ossification test report and its admissibility is acceptable only where documentary proof with respect to age of person is not available on record. Ossification test report cannot be given preference over the age mentioned in government records of the person and that too when it is proved by producing original record before the Court by witness working in government institution. Hon'ble Supreme Court in case of State of Karnataka v. Bantara Sudhakara alias Sudha and another, reported in (2008) 11 SCC 38 held thus:- 11. It is to be noted that the teacher, PW 16 referred to the certificates which indicated that the date of birth of PW 1 was 5.3.1974 and the date of birth of PW2 was 1.2.1974. Exhibits P.16 and P.17 are the certificates. The High Court referred to the evidence of the lady doctor, PW 24 with reference to the x- ray report which indicated that the age of PWs 1 and 2 fell between 14 to 16 years. Exhibits P.16 and P.17 are the certificates. The High Court referred to the evidence of the lady doctor, PW 24 with reference to the x- ray report which indicated that the age of PWs 1 and 2 fell between 14 to 16 years. The High Court observed that there was possibility of two years' variation and therefore it was to be taken that the victims were more than 16 years of age. The High Court accepted that there was sexual intercourse and rejected the plea of false implication. Thereafter it went on to examine the question of consent. 12. So far as the reasonings of the High Court are concerned they border on absurdity. All types of surmises and conjectures have been arrived at. Strangely, it was observed that the Headmaster's (PW-16) evidence was to be discarded on the ground that the date of birth may not have been recorded on the basis of any medical certificate or other documentary evidence to show that these two girls were born on the date as mentioned. The High Court's conclusions in this regard are not only fallacious but contrary to the evidence on record. The High Court recorded a further finding that the two certificates may not relate to the victims though it specifically recorded that there was no such challenge raised by the accused. Additionally, merely because the doctor's evidence showed that the victims belong to the age group of 14 to 16, to conclude that the two years' age has to be added to the upper age limit is without any foundation. There was no basis for coming to such a conclusion. In any event, the accused persons did not take the stand that there was any consent. On the contrary, they pleaded that they were falsely implicated. In State of H.P. v. Shree Kant Shekari it was observed as follows (SCC pp. 158-59, paras 13-15): “13. The factors which seem to have weighed with the High Court are (i) the age of the victim, which according to the High Court was more than 16 years; (ii) no evidence has been placed by the prosecution to show that the victim had not consented to the act; and (iii) the time of alleged rape as given by the victim and her mother was improbabilised by the medical evidence. A particular reference was made to the fact that a child was born on 10.4.1979 and if the alleged rape has been committed during the period indicated by the victim and her mother the same would have been altogether different periods. The delay in lodging the first information report was also highlighted to attach vulnerability to the prosecution case. 14. We shall first deal with the question of age. The radiological test indicated age of the victim between 15 to 16 ½ years. The school records were produced to establish that her date of birth was 10.4.1979. The relevant documents are Exts. PW6-A to PW6-C. The High Court was of the view that these documents were not sufficient to establish age of the victim because there was another document Ext.PW7/A which according to the High Court did not relate to the victim. Merely because one document which was produced by the prosecution did not, according to the High Court, relate to the victim that was not sufficient to ignore the evidentiary value of Ext.PW6/A to Ext.PW6/C. These were records regarding admission of the victim to the school and her period of study. These documents unerringly prove that the date of birth of the victim as per official records was 10.4.1979. Therefore, on the date of occurrence and even when the FIR was lodged on 20.11.1993 she was about 14 years of age. Therefore, the question of consent was really of no consequence.” 15. In case of State of Madhya Pradesh v. Preetam, reported in (2018) 17 SCC 658 , Hon'ble Supreme Court while considering proof of age of prosecutrix therein held that opinion of doctor cannot be taken as final opinion on age of prosecutrix. School registers are authentic documents maintained in official course and are entitled to credence of much weight unless proved otherwise. Relevant paragraphs of aforementioned decision of Hon'ble Supreme Court are reproduced below for ready reference:- “10. In our considered view, the answer elucidated in the cross-examination of Dr. Vasnik (PW-6) cannot be taken as a final opinion on the age of the prosecutrix (PW-1). It is to be relevant to note that before the trial court the prosecution has examined Bhaulal (PW-8), Headmaster/Head teacher of Primary School Chor Pind Ke Par, District Balaghat. In our considered view, the answer elucidated in the cross-examination of Dr. Vasnik (PW-6) cannot be taken as a final opinion on the age of the prosecutrix (PW-1). It is to be relevant to note that before the trial court the prosecution has examined Bhaulal (PW-8), Headmaster/Head teacher of Primary School Chor Pind Ke Par, District Balaghat. In his evidence, Bhaulal (PW-8) has stated that the date of birth of the prosecutrix (PW-1) was 16.5.1981 which means that on the date of the occurrence i.e. 6.31993, the prosecutrix (PW-1) was only aged about 12 years. The trial court has neither acted upon the evidence of Bhaulal (PW-8) nor on the school certificate on the ground that the person who has admitted the prosecutrix in the school was not examined. 11. In our considered view, the approach of the trial court was not correct. In each and every case the prosecution cannot be expected to examine the person who has admitted a student in the school. The school registers are the authentic documents being maintained in the official course, entitled to credence of much weight unless proved otherwise. In our view, considering the evidence of Headmaster, Bhaulal (PW-8), and the school certificate produced by him i.e. Ex.P/13-A, age of the victim has to be taken as 12 years at the time of occurrence.” 16. In the aforementioned facts of case as also in the light of decisions of Hon'ble Supreme Court, submission of learned counsel for appellant that prosecution failed to prove age of prosecution to be below 18 years is not sustainable. Trial Court rightly recorded age of prosecutrix to be below 18 years accepting documentary evidence i.e. school register (Ex.P-29) and oral evidence of PW-13 Headmaster of school. 17. Now this brings me to consider second ground raised by learned counsel for appellant that in view of evidence available on record, appellant cannot be convicted under Section 363 of IPC. 18. Section 361 of IPC mentions that whoever takes or entices any minor. Though there is allegation in FIR that appellant took prosecutrix and also gave assurance of marriage, but prosecutrix in her statement before trial Court stated that appellant in morning stated to her that she should accompany him for wandering and thereafter he took her for wandering on the pretext of marriage. Though there is allegation in FIR that appellant took prosecutrix and also gave assurance of marriage, but prosecutrix in her statement before trial Court stated that appellant in morning stated to her that she should accompany him for wandering and thereafter he took her for wandering on the pretext of marriage. But in Paragraph-9 of her cross-examination, prosecutrix stated that she with her own will went along with appellant to visit dam and at no point of time appellant stated that he will marry her. Hon'ble Supreme Court in case of Arvind alias Kalubhai Mohanbhai Lohia v. State of Gujarat, reported in (2019) 11 SCC 617 has held thus;- “4. On merits, it is apparent that the victim, in her deposition has stated that she has voluntarily gone with the appellant and she has not been taken away from the custody of her parents. Therefore, in our opinion, no case under Section 363 was made out.” In case of Mafat lal and Ors. vs. State of Rajasthan, reported in (2022) 6 SCC 589 , Hon'ble Supreme Court while dealing with issue of registration of criminal case against appellant therein under Sections 363 & 366 of IPC, held that kidnapping would necessarily involve enticement or taking away any minor under 16 years, if a female, and abductee therein clearly stated that she was neither taken away nor enticed and that she left home of her own free will. 19. Minute analysis of evidence of prosecutrix, in light of aforementioned decisions of Hon'ble Supreme Court, would reveal that prosecutrix in her Court statement clearly stated that she went along with appellant with her own will and appellant had not proposed to marry her. 20. In view of above evidence of prosecutrix available on record, in the opinion of this Court, appellant cannot be held guilty for commission of offence under Section 363 of IPC. Trial Court has not considered evidence of prosecutrix in its entirety, in particular Paragraph-9 of her cross-examination, and convicted and sentenced appellant under Section 363 of IPC, which is not sustainable in eye of law and is liable to be set aside. 21. For the foregoing discussions, appeal is allowed. Conviction and sentence of appellant under Section 363 of IPC are hereby set aside. Appellant is acquitted from charge of Section 363 of IPC. He is reported to be on bail. His bail bonds stand discharged.