L.S. Mehta, J.
1. The prosecution story, in brief, is that accused Ganpat Singh was a teacher in the Secondary School, Merta Road P.W. 7 Mst. Kamla was studying in Class X. Both Ganpat Singh and Mst. Kamla developed infatuation for each other. The prosecution story is that accused Ganpat Singh made a plan to kidnap Mst. Kamla with intent that she might be compelled to marry him against her will or in order that she would be forced or reduced to illicit intercourse. On February 22.1967, the accused persuaded Mst. Kamla to reach the Railway Station, Merta Road, before Jodhpur-Jaipur train time. She accordingly went to the Railway Station. The accused also arrived there along with his luggage, lifted by P.W.I 1 Ramjiwan. Accused Ganpat Singh then brought tickets from the booking window. Both of them sat together in one compartment. Next day morning they reached Jaipur Station. Soon after they left Jaipur for Kota. In Kota they first stayed in Payal hotel, in room No. 2, on February 23, 1967. On February 24, 1967, they left the above hotel in the evening. In Payal Hotel Ganpat Singh signed his name in the relevant register Ex. P. 8 as G.S. Rathore. There after they shifted to Air Lines Hotel, which was less expensive Their they stayed up to Section 12 p m. on February 25, 1967. In the Hotel's register Ex. P. 6 the accused made entry G.S. Ratore and his wife Mst. Kamla.' Then the entry went to Jaipur. Both the accused & Mst. Kamla lived in Jaipur in Ashok Hotel up to March 1, 1967. Later, they stared living in one Arjun Singh's bungalow. On March 12, 1967, Mst. Kamla took out some money from Ganpat Singh's suit case in his absence. She went to the Railway Station, Jaipur and returned to her parents' residence at Merta Road. As soon as she reached home during the night, she related the whole story to her mother. Her father was not then present there. When arrived the next[ day. she also apprised him of the whole episode. First information report of the happening was made by P.W. 2 Nanu Ram, father of Mst. Kamla at the police Station, Merta Road, on February 27, 1967. The police registered a case under Section 366, I.P.G. and took over investigation. The accused was arrested in the course of investigation Certain articles were recovered at his instance from the house of one Bheru Singh, P.W 1. After completing investigation the police presented a challan to the court of Munsiff Magistrate, Merta. Learned Munsiff-Magistrate conducted a preliminary inquiry and committed accused Ganpat Singh to the Court of Session Judge, Merta. The accused pleaded not guilty to the charge under Section 366, I.P.C. In support of its case the prosecution examined 18 witnesses. The accused in his statement, recorded under Section 342, Cr. P.C. denied the prosecution allegations. He further stated that he went to Jaipur by the night train of February 22, 1967 Next day morning when he reached Jaipur Station, he saw Mst. Kamla there. He entreated her to go back to her parents but she declined to do so Thereafter they left for Kota, where he implored her not to accompany him. She, however, did not agree. After some time they proceeded to Jaipur, where they first lived in Ashoka Hotel and then at Ganpat Singh's house He beseeched her in Jaipur to leave him. But she threatened him with the commission of suicide and insisted to stay with him. Somehow he left her at the Railway Station, Jaipur, for going back to her home at Merta Road. The accused did not produce any evidence in his defence. The trial Court by its judgment, dated February 20, 1971, concluded that Mst. Kamla was kidnapped in order that she might be seduced to illicit intercourse and convicted accused Ganpat Singh for offence under Section 366, I.P C. and sentenced him to (SIC) years' rigorous imprisonment.
2. Dissatisfied by the above verdict, the accused has taken this appeal. The following points were raised by learned Counsel for the appellant in the course of his arguments:
1. That the lower court fell in to error in holding that Mst. Kamla was minor;
2. that even if the girl was held to be a minor, the prosecution has failed to prove that she was taken away by the accused in accordance with the provisions of and with the object mentioned in Section 366, I.P.C.
3. In so far as the first point is concerned, the medical evidence produced by the prosecution in this case is not very helpful. P.W. 17 Har Govind Medical Jurist, Mahatma Gandhi Hospital, Jodhpur, states that the estimated age of Mst. Kamla was between 16 and 17 years. Radiologist, Dr. K.N. Punjal, conducted ossification test. He gives the following data in respect of her age:
1. epihpysis of all the house forming the elbow joints fused,
2. epiphysis of lower ends of radius and ulna have just started fusion;
3. epiphysis of the crest of ilium not fused.
His report is marked Ex.p. 22. According to these dates the girl, the Radiologist opines, should be below 18, years of age. In the cross-examination he says:
On the date of examination when I issued the report Ex. P. 23 the girl examined by me should not be below 17 years of age She could be below 18 years of age.
P.W. 2 Hem Ram, father of the girl Mst. Kamla, states that the prosecution was born on January 7, 1951. This date of birth was shown by him in the year 1957 when she was admitted at the initial stage to the school. Thereafter he had to change his stations, and had to obtain transfer certificates from the schools concerned. This fact is corroborated by Ex. P. 16 Scholar Register Form of Luni School of the year 1962, wherein the date of birth of Mst. Kamla is entered as January 7, 1951. P.W. 10 Nihal Mohan Das, Headmaster of the Secondary School, Merta Road, deposes that Mst. Kamla had been admitted to his school on August 7, 1963, in Class VII. At that time he received a transfer certificate. The date of birth entered in his school's Scholar Register (Ex. P. 15) is January 7, 1951. Kamla has also stated on oath in her statement that she was born on January 7, 1951. The only conclusive piece of evidence of Mst. Kamla's age may be her birth certificate, but as has been observed in by their Lordships of the Supreme Court in Sidheshwar Ganguly v. State of West Bengal : 1958CriLJ273 such a document is not readily available in our country. The Court, therefore, has no other alternative but to base its conclusion upon all the relevant facts and the circumstances disclosed on the record. Mst. Kamla at the primary stage of her education was admitted to the school in the year 1957, when she was hardly 5 to 6 years' old At that time the age disclosed by the school authorities was January 7, 1951 and this age endured on the basis of the transfer certificates in other schools. This evidence appears to me to be more dependable, particularly within it is supported not only by Kamla but by her father as well. I therefore, hold that Kamla was below 18 years of age on February 22, 1967, the date when the alleged occurrence took place.
4. Next crucial point that deserves serious consideration is whether prosecution has been able to prove beyond reasonable doubt that it was the accused Ganpat Singh, who took away Mst. Kamla on February 22, 1967, from her lawful guardianship for the purpose mentioned in Section 366, I.P.C. In this connection Mst. Kamla's statement is most vital. She supports the prosecution story in her evidence in-chief. In her cross-examination she says:
I knew that Ganpat Singh was a married person and that he bad children, still I went with him....
The witness further says:
When I left with the accused I knew that my parents and my in-Jaw would blame me. I also knew that if I went with Ganpat Singh, my husband would cot accept me....
The witness also deposes:
I purchased the articles for the journey about a month and a half or two before the occurrence. The accused gave me the money.
The witness then says:
Ex D. 3 to Ex. D. 48 (love letters) were written by me in my room. I used to carry these letters in. my book and would hand them over to the master. Whatever letters the teacher gave to me I copied them and returned both the original and the copies. I did not make a complaint about such letters to my parents.
The witness also told the Court that she had lived with the accused from February 23, 1.967, to March 12, 1967, but he had not behaved indecently during this period. He even had not touched her body.
5. Apart from the above account, a perusal of some of the letters will throw useful light in the matter. In Ex. D. 4, dated December 20, 1966, Mst. Kamla writes:
Do not worry, that day is also approaching near. I again think that we need money.
In the same letter she further writes.
Lest-somebody may see, 1 will come through the back door by scaling the wall.
In Ex. D 5, dated January 14, 1967, she writes:
If you are physically weak, I will not feel satisfied with you.
In Ex, D. 7 dated January 15, 1967, she says:
You arrange for the money and then I shall be with you for all times.... Before my father comes to know, it would be better that we should leave the place and you should not hesitate at all in doing so.... We have to leave the place as early as possible. Take care of this how early we leave.
In Ex. D. 10, dated February 3, 1967, she writes:
As soon as money is received, we shall start soon
In Ex. D. 11, dated February 4, 1967, she mentions:
In between the 8th of this month and the 8th of next month we have to leave on any day. I have no objection to it.
In Ex. D. 13, dated February 7, 1967, she writes:
Whenever you order me I shall come You may put your luggage with Kesarji's house in the day. Then in the night you should go straight to the station and buy tickets and then you should come back to Kesarji's house and take your luggage at the railway platform and there you should wait for me and I will soon meet you.... I am not feeling happy at home. I remember you so much that I have become mad. I am not at ease. If you think of starting in the evening of 9th, do so, do not hesitate
In Ex. D. 14, dated February 6, 1967, she says;
If you do not want to take me or if you are frightened of it, I will commit suicide. There is no doubt about it. If I want to live, I would live with you, otherwise I would not live in this world.
The contents of various letters (Ex. D. 2 to Ex. D 48) show that Mst. Kamla was inspired or infatuated with wild and foolish passion and it was she who dominated accused Ganpat Singh. She made plans to leave her residence and moved cut with her paramour. She implored him to collect funds for delectation or ecstasy. She further threatens him that if he declined to take her away, she would commit self murder It is under this predicament that the accused had to leave Merta Road on February 22, 1967, Mst. Kamla met him at the railway station and then both of them stayed in Kota, Jaipur etc. It is fatuous to conceive, that drafts of all these letters were prepared by the accused. Where, as here, the girl (though a minor) attains the age of discretion and is on the verge of attaining majority, herself leaves her house to meet her paramour, and the accused takes her to various places and where there is no suggestion that this was done by force or blandishment or anything like that on the part of the culprit the accused by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardianship: vide Varadarajan v. State of Madras AIR 1963 S.C. 942. The fact of her accompanying the accused all alone is quite consistent with her own desire. In that circumstance, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her guardian. Mst. Kamla has willingly accompanied the accused and the law does not cast upon him the duty of taking her back to her guardian's house or even of telling her not to accompany him. There is a distinction between 'taking' and allowing a minor to accompany a person The two expressions are not synonymous. Where the minor leaves her guardian's protection knowing or having capacity to know the full import of what she does, voluntarily joins the accused, the accused cannot be said to have taken her away from the keeping of her lawful guardian Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian No doubt the part played by the accused in this case could be regarded as facilitating the fulfillment of the intention of the girl, but such a part falls short of an inducement of a minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to taking. A reference in this connection is also made to an unreported judgment of the Supreme Court, Ram Das v. State of M.P. 1970 U.J. (S.C) 864. In that case it has been observed by his Lordship Sikri. that if the girl entered in an agreement of marriage and there-after she went back and lived with her parents for sometime and then returned to stay with the appellant, it could be said that it was the accused who took her away within the meaning of Section 363, I P.C. Learned Deputy Government Advocate cited Chhajju Ram v. State wherein, it has been observed by Bedi J. that taking' under Section 363, I P C. need not be by force, actual or constructive, and it is immaterial whether the girl consents or not. The word 'taking' means to cause to go, to escort, or to go into possession. In the same judgment, it has been further said down that what is required is that there must be proof that the accused had played some active part in the girl leaving her lawful guardian's house and taking shelter in the house of the accused. Here there is no satisfactory evidence regarding the active part played by the accused. Therefore, Chhajju Ram's case (supra) is of no assistance to the State. In Chhajju Ram's case the accused went to the 'Kotha', where the prosecutor was sleeping, woke her up and look her away with them after placing hands on her mouth and close to her nose a kerchief, which was besmeared with some medicine to cause drowsiness to Vijay Kumar. The facts in that case were entirely different and, therefore, that authority is not applicable to the case in hand
6. Learned Deputy Government Advocate laid stress upon 2 documents, Exs. P. 2 and Ex. P 3, which Mst. Kamla had left at her house before she departed. According to learned Deputy Government Advocate the documents suggest that it was the accused who induced the girl to move away from her parent's home.
7. Ex P. 2, dated February 22, 1967, has been admittedly written by Mst. Kamla its relevant portion reads as under:
I have full confidence in master Ganpat Singh, who has promised to make my life worth living. Therefore, I am going with him.
The pertinent passage in Ex. P. 3, dated February 19, 1967, is reproduced below:
For a considerable time I have been in touch with Ganpat Singh. He has promised repeatedly that he would keep me comfortably and raise standard of my life. He would also take me around India and I would experience enjoyment of life.... Everybody makes serious attempt to better his life and make it successful.... If you will persue, me, you will find two dead bodies. We should be left to determine our own fate. Who does not make an effort to satisfy her own ambitions.
The above documents do not connote that it was the accused who held out inducement to the girl to leave her home on the date of the occurrence True it is that the accused joined the girl and he helped her in her design not to return to her guardian's house by taking her along with him from place to place But that part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian.
8. Another argument canvassed by learned Deputy Government Advocate is that the accused was a teacher in the Secondary School, Merta Road. Mst. Kamla was his taught. The accused was having a dominant position In that context, it should be, according to learned Counsel for the State, inferred that Mst. Kamla left her home as a result of inducement or influence exerted by him
9. Various love letters Exs. D. 2 to Ex D. 48, admittedly written by Mst. Kamla, cover most extravagant manifestation of her anxious and abnormal sexual impulse. These letters fore show that the accused left Merta Road because the girl tempted him to do so. The girl was very anxious to move out and even she threatened the accused with the commission of suicide if he did not agree to fulfill her design It was the girl who prepared the whole plan and impelled the accused to collect funds for the purpose. In the absence of a dear, cogent and convincing evidence to show that it was the accused who took her away, or that her leaving was in other manner caused or brought about by something what the accused did, it would be difficult to raise a presumption against him. According to Mst. Kamla the author of the various love letters was Ganpat Singh who had prepared the drafts of these documents. It is not easily understandable why the should be prepared by the accused and then they should be faired out by Mst. Kamla. It is outrageously preposterous to assume that all these letters were the reproduction of the original drafts prepared by 'he accused. The pretext put forth by Mst. Kamla appears to be fantastic. In this view of the matter, it would not be legitimate to infer that the accused took away Mst. Kamla out of the keeping of her lawful guardian simply on the basis of conjecture or surmises or on the ground that the accused was holding a dominant position as a teacher.
10. Lastly, learned Deputy Government Advocate urged that had the intention of the accused been not guilty, he would have not given false name to P.W. 3 Harbhajan Singh, Proprietor of the Air Lines Hotel, Kota, and to P W 4 Gauri Shanker of the Payal Hotel, Kota. In this connection suffice it to say that when both Ganpat Singh and Mst. Kamla left Merta Road of their own sweet will, only two options were left before the accused. He could have either called Mst. Kamla as his sister or his wife. He evidently could not have called her as his sister Had he not called her as his wife he should have aroused a posture of suspicion along the people. That apart, this conduct of his is subsequent to the actual happening and, therefore, it is irrelevant Such a behavior does not establish the fact that it was the accused who took away Mst Kamla for the object specified in Section 366, I.P. C It cannot be gainsaid that the act of the accused displays reprehensible and deplorable misbehavior in falling in love with his taught. He should have behaved like an ideal teacher and should have kept his hands off from such a hobnobing. But unless the prosecution brings home to the hilt all the ingredients of Section 366, I.P.C. he cannot be convicted and where, as here, there is doubt, its benefit must go to the accused.
11. In the result, I accept the appeal of accused Ganpat Singh & while extending to him the benefit of doubt acquit him or the charge under Section 366, I.P.C. He is on bail and need not surrender to it. His bail bonds stand cancelled.