In cases of kidnapping, the prosecution must prove beyond reasonable doubt that the victim was less than 18 years old and that the accused took the victim away from the lawful guardianship of the victim's parents.

1. This is appeal by Raunqi Saroop from the judgement of the Sessions Judge, Ambala dated June 6, 1968 convicting the appellant under Section 366, Indian Penal Code and sentencing him to rigorous imprisonment for one year.

2. The prosecution case is that Smti. Mohani Kumari lives with her father Dial Chand in Ambala Cantt. There is a temple in the Cantt. The appellant used to play harmonium at the time kirtan was recited in the temple. Smti. Mohani Kumari visited the temple in the company of her mother. Mother of Smti. Mohani Kumari arranged kirtan at her house. The appellant participated in it. This happened couple of months before the date of occurrence, which came off on October 13, 1967.

3. On the night between October 13 and 14, 1967, Smti. Mohani Kumari was sleeping in the house. It was 10.00 p.m. Krishan Lal neighbour of Dial Chand knocked the door of his own house. Smti. Mohani Kumari got awakened as a result of the knocking of the door of the house of Krishan Lal. She left the house and proceeded for seeing drama, which was going on in Anai Mandi in the Cantt. It is stated by her that the appellant met her near Ganda Nullah and on his request to accompany him, she at first declined but later agreed to accompany him to Bhiwani, where the appellant said he was employed as professor of Music. Both of them proceeded to the Railway Station at Ambala Cantt, and got into a train for Delhi. They reached Delhi the following morning.

4. The appellant brought Smti. Mohani Kumari from Delhi to Bhiwani and took her to his quarter where the appellant was staying. She was kept in the quarter. He confined her in the quarter by locking the door from outside. It is stated that the appellant proposed himself for marriage to Smti. Mohani Kumari but she did not accede to his proposal. The appellant committed rape upon her at night. She was kept there for five days.

5. Finding that Smti. Mohani Kumari disappeared from the house and was missing since 10.00 p.m. on October 13, 1967, Dial Chand lodged report Exhibit P.L. on October 18, 1967 at Cantonment Police Station, Ambala Cantt.

6. In pursuance of the report lodged by her father. Smti. Mohani Kumari was recovered by the Police from the quarter of the appellant on October 19, 1967. She produced her clothes. Memo pertaining to their recovery is Exhibit P.A.

7. Smti. Mohani Kumari was medically examined at 10.00 a.m. on October 21, 1967 by Dr. Shanti Sachdeva. She gave the opinion that the girl was not (sic) accustomed to sexual intercourse, that she had been subjected to sexual intercourse, that her hymen was not freshly torn, that there were no injuries on her private parts or any other part of the body and that her age was about 20 years.

8. Dr. K.C. Marwaha, Radiologist conducted X-ray examination of the girl on October 21, 1967. He found that the ends of bones of joints of the arms and the legs were fused and their epiphyses was complete. He however, found that epiphysis of iliac crest had not fused. He gave the opinion that the age of the girl was about 18 years but not more than 19 years.

9. In support of the age of the girl, Dial Chand father of Smti. Mohani Kumari produced in course of investigation her school pass certificate, Exhibit P.B. In that certificate, date of her birth shown is April 6, 1950.

10. The appellant was proceeded against for trial under Section 366 Indian Penal Code. In support of the case of the prosecution, the evidence of Smti. Mohani Kumari P.W. 3, Amar Dass P.W. 5, Dial Chand P.W. 6 and Smti. Phulla Wati mother of Smti. Mohani Kumari P.W. 7 was adduced to show that Smt. Mohani Kumari had been kidnapped or abducted by the appellant.

11. In his statement under Sec. 342, Criminal P.C., the appellant admitted that he took the girl to Bhiwani with her consent, that he had kept her in his quarter and she was recovered from there.

12. The trial Court took the view that the girl had left the house of her own free will without any coercion or deception prac