N. C. SHARMA, J. - (1.) APPELLANTS Shankar and Nanga, by the judgment of the Additional Sessions Judge, Dausa, dated August 27,1982, have been found guilty for offence under Sec. 363, IPC and they have respectively been sentenced to rigorous imprisonment for one year and rigorous imprisonment for three months and also with a fine of Rs. 200/- each and in default of payment of fine to rigorous, imprisonment for three months. Both of them have come in appeal to this Court. Smt. Bheri (PW/1) wife of Panchu (PW/2) is alleged to have been taken or enticed by the appellants out of keeping of the lawful guardianship of Panchu without his consent. Bheri (PW/1) herself narrates her taking away or being enticed by the appellants out of keeping of her husband. Unfortunately, Panchu (PW/2) husband of Bheri is a blind person and is hard of hearing as well. Bheri was married to Panchu near about the year 1976. As to the age of Bheri on the date of the incident, X-ray was conducted of wrist, elbow and pelvis. According to the report of the Radiologist. Ex. P/12, epihysis of lower end of ulna and radius had appeared but not united. All the carpal bones had appeared. Epiphysis of base of 1st metacarpal had not united. Medial epicondyle had not united. Epiphysis of upper end of radius had appeared but not united. Epiphysis of iliac crests and ishchial lubesosities had not appeared. Epiphsis of head and greater trachanter had not united. On the basis of this X-ray report, it was opined by Dr. M. M. Vyas that the approximate age of Bheri as on August 12, 1980 was about 12 years and below 14 years. Bheri in her statement recorded before the Court on January 7,1982 stated her age as 16 years. Medical opinion about age is approximate and it can be two years this side or that side. Giving longest latitude to the appellants the age of Bheri can at the most be 16 years on the date of the incident. She was thus, under 18 years of age when the offence of kidnapping is alleged to have taken place.
(2.) THE most material question, therefore, now remains is whether the appellant had taken or enticed Bheri out of the keeping of the lawful guardianship of her husband. THE whole incident appears to have taken place in an interesting, manner. Both Bheri and her husband had gone to Sambhar to meet the sister of her husband and they had stayed, at Sambhar for five-six days. She had gone to market in Sambhar with her blind husband to purchase 'loogadi' and 'kanchali' for his husband's sister. She purchased and then stated back to go to the husband's sister. At that time, it is stated by her that the two appellants and Ramchandra and Parsa met her in Sabzi Mandi 'loogadi' purchased by her to her husband, left that place to ease herself. When she was going for that purpose, the appellants met her and they told her that her mother was ill at Jaipur and her father was calling her at the bus-stand. Accordingly, she accompanied the appellants. Ram Chandra and Parsa to the bus- stand. However, her father was not there at the bus-stand. She inquired from Shankar appellant about her father. She stated that there upon Shankar appellant told her that her mother was ill at Jaipur and he may start for Jaipur. THEn Bheri along with Shankar, Nanga and Ram Chandra came to Jaipur. She inquired about her mother, but she was told that her mother wassat sanganer then she was taken to Sanganer at the house of Shanker appellant. Her parents were not there, she lived in the house of Shanker for 25 days and, it is said by her, that Shanker committed sexual intercourse with her. THEn after 25 days, her father came in search for her and when she was found, she was taken by her father to Sardarpura. She live with her father for a month. She has also stated that when she along with the appellants, she had told her husband that he may go and she was just coming. She did not raise any cry in the way. It is admitted by her in her cross-examination that as there was crowd at the bus stand, she had herself purchased ticket and gave it to Shankar. She was following Shankar in the way and did not have any talk with him. at Jaipur railway station also, it was she who purchased the ticket. She admits that she did not know Shankar and Nanga from before. How this interesting lady can be believed who having attained the age of 16 years and not knowing the appellants from before, believed that they knew her parents. Seeing them, she left her husband and even asked her husband to go to his sister's house and she was coming. She follows the appellants, purchases ticket at the bus-stand, Sambhar and also at the railway station at Jaipur, goes to Sanganer and lives with Shankar, without murmur for 25 days. This cannot be said to be taking away or enticing. It only amounts to following. by Bheri to Shankar with whom she wanted to go. There was no initiation on the part of Shankar to take her or entice her. She herself very much wanted to go with Shankar and left her blind husband on her own accord. Her theory that Shankar and Nanga misled her that her father was at the bus-stand or her mother was ill has no legs to stand, especially when she did not know the appellants from before and further when she feels contented by living at the house of Shankar for 25 days without any worry for her parents. If a girl aged 16 years herself follows a person with whom she wanted to go, it cannot be said that person took her or enticed her. The taking must be at the instance of the accused and not at the instance of the girl. So far as appellant Nanga is concerned, he did not play any part. I, therefore, hold that the offence under sec. 363, IPC has not been brought home against the appellants and they deserve acquittal. I allow this appeal, set aside the conviction and sentence awarded to the appellants by the Additional Sessions Judge, Dausa and acquit both the appellants from the offence under sec. 363, IPC. The appellants are on bail. Their bail and bonds are cancelled and they need not surrender. .;