Ranawat, J.—This is an appeal by Madan Singh, who has been convicted of an offence under sec. 363 I.P.C. and sentenced to two years rigorous imprisonment by the Sessions Judge, Jaipur City.

2. It is alleged by the prosecution that Mst. Sohni, daughter of Ramchandra, was for some time in the employment of Madan Singh, who was a peon in the Customs Department posted at Niwaria. A few days before the occurrence Sohni left the service of the accused, though she used to visit occasionally his house. On or about the 19th of October, 1948, it is said the accused came to Devpura in a motor truck from Jaipur and in the evening the same day he went to Niwaria and brought Mst. Sohni with him. He then left Sohni on the roadside and came to Devpura and again returned to the place where he had left Sohni and he got into the motor truck along with Sohni and took her to Jaipur. Sohni was left by the accused at the house of one Chitar from which place the police recovered her a few days later. The father of Sohni lodged a complaint at the Police Station, Panwar on the 21st of October 1948 and the police recovered the girl on the 30th of October 1948 from the house of Chitar and got her medically examined by Dr. Bhatnagar as to her age. The case was challaned under sec. 366 I.P.C. against the accused but subsequently the charge was altered from sec. 366 to 363 I.P.C. The Sessions Judge, Jaipur, after holding the trial held that the accused had taken Mst. Sohni out of the guardianship of her father and that Sohni was a minor girl of the age of below 16 years. The accused was therefore convicted under sec. 363 I.P.C.

3. The case of the accused was that the mother of the girl had requested him to take the girl to Jaipur some day for site seeing, and the girl herself told him that she had obtained the consent of her father for going to Jaipur. The accused, with the permission of the mother and the father, brought Sohni to Jaipur and that he had not kidnapped her from the guardianship of her father. On behalf of the defence the fact of the minority of Mst. Sohni was also disputed.

4. The trial court, considering the evidence of Dr. Bhatnagar and an entry made by Bhanwarlal in his panchang on the basis of the statement of the father himself, came to the finding that the age of Mst. Sohni, at the time of the occurrence, was below 16 years.

5. In this appeal, the learned counsel of the accused has pressed the following two points (1) that the trial court erred in admitting the entry made by Bhanwarlal in his panchang into evidence and that entry was not admissible into evidence under sec. 32(5) of the Evidence Act. The statement of Dr. Bhatnagar is based on the report of, and a skiagram taken by, the Radiologist which have not been brought on the record of the case and it has not been proved that the skiagram on which the opinion of the learned Doctor was based related to Mst. Sohni. The statement of the father of Mst. Sohni should not have been believed as he was found to be wrong at least in one particular, in so far as he has stated that the girl was married in Sambat year 2006 about 8 or 9 months before the occurrence. The occurrence took place in the Sambat year 2005 and hence the marriage of the girl could never have taken place in Svt. 2006. The finding regarding the age of the girl being below 16 years therefore is wrong; (2) that Sohni herself accompanied the accused from Niwaria to Jaipur and that the accused did not take her out of the keeping of the lawful guardian.

6. The learned Government Advocate has frankly conceded that Dr. Bhatnagars statement is not of much assistance to the prosecution as his opinion has been based on a report and skiagram taken by the Radiologist, which have not been produced as pieces of evidence by the prosecution and the prosecution also failed to prove that the skiagram which was considered by Dr. Bhatnagar was of Mst. Sohni. It is, therefore, not necessary to discuss the question of the value of the medical eviden

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