1. - This appeal by accused Subhash Chand has been preferred against the judgment dated 1.9.98 passed by the Additional Sessions Judge, Khetri District, Jhunjhnu by which he has convicted the accused appellant under Sections 363 and 366-A IPC and sentenced him to undergo four years rigorous imprisonment and a fine of Rs. 500/-, in default thereof, to further undergo three months rigorous impressment on the first count and to undergo five years rigorous imprisonment with a fine of Rs. 1,000/-, in default thereof, to further undergo six months rigorous imprisonment. Both the sentences were to run concurrently.

2. A girl named Sunita aged about 15 years was kidnapped by the accused appellant and her brother Shri Nathu Ram lodged a report Ex.R1 at Police Station, Khetri on 21.02.97, Stating therein that her sister Sunita aged about 15 years has been kidnapped by his neighbour Subhash S/o Shri Shiv Lal Chamar. Despite search she could not be traced. Upon this report Ex.R1 police registered a case vide FIR No. 29/97 and proceeded to investigate the case. During investigation police arrested the accused vide arrest memo Ex.R3 seized his under-wear vide memo Ex.R4 and recovered Kumari Sunita on 6.3.97 from Khetri Nagar vide memo Ex.R5., collected X-ray report of Sunita, which is Ex.R9, got the accused and Sunita medically examined, the reports of which are Ex.P 10 and Ex.R13, respectively and also recorded the statements of witnesses u/s 161 Cr.RC.

3. After completion of investigation, the police submitted a charge sheet against the accused for offence under Section 366 A, 363 and 376 IPC in the Court of Judicial Magistrate, Khetri who in turn, committed the case to the court of Additional Sessions Judge, Khetri for trial.

4. The learned trial Judge on the basis material on record framed charges against the accused appellant under Sections 366-A, 363 and 376 IPC. The charges were read over to the accused, to which he pleaded not guilty and claimed trial.

5. During investigation, the prosecution in support of its case examined as many as 17 witnesses and exhibited some documents. Thereafter, the trial court examined the accused under Section 313 Cr.RC. to personally enable him to explain the circumstances appearing against him. The accused also examined D.W. 1 Jagdish Prashad in his defence.

6. After completion of trial, hearing arguments of both the sides and considering the material on record, the trial court found the accused appellant guilty of the offences charged and consequently, convicted and sentenced him for offence under Sections 363 and 366 A IPC. However, the learned trial court acquitted the appellant of the charge under Section 376 I.P.C. and hence this appeal.

7. I have heard the learned counsel for the accused appellant and the learned public prosecutor and perused the impugned judgment and the evidence on record.

8. Though the learned counsel appearing for the appellant has not seriously challenged the conviction and has mainly confined his arguments on the question of sentence, but I am of the view that to appreciate the findings of guilt under Section 363 and 366 A IPC against the accused arrived at by the trial court, it is necessary to examine the evidence and material on record.

9. To establish the charge under Section 363 I.P.C. It is necessary that the girl enticed from the lawful guardianship without the consent of guardian is below the age of 18 years. While recording a finding of guilt under Section 363 IPC the learned trial Court has relied upon the documents namely; the transfer certificate Ex.D.4A, application for admission Ex.D.SA and scholar register Ex.D.6A which show that the date of birth of Sunita is 19th March, 1980. PW.1 Nathu father of Sunita has stated the age of Sunita 14-15 years. PW. 13 Dr. Ranveer has also stated the age of Sunita between 14-16 years. Thus, from the evidence on record, it can safely be said that in any case Ku. Sunita was below the age of 18 years at the time of incident an