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8. Sri Brijendra Pratap, learned A.G.A. vehemently opposed arguments raised by learned counsel for appellants, with this contention that as per testimony of prosecutrix PW-3, her date of birth was 15.07.1995 and she was student of Class X at the time of occurrence. The occurrence was of 30.07.2010. She comes to the age of 15 years on the date of occurrence, which was said by informant in Ext. Ka-1 as well as in his testimony. The prosecutrix was held to be of 17 years in medical age determination report (Ext. Ka-7). There are various circumstances as well as rule of medical jurisprudence that '2' years either way, may vary to this medical age determination, which goes to support the testimony of PW-1. Prosecutrix, being 15 years of age, as reported in (Ext.Ka-1) and decided to be of 17 years in medical age determination, it has been held by trial court in impugned judgment that she was not of 18 years. Hence, she was minor i.e. below 18 years and under Section 361 I.P.C., her consent or no consent is of no avail to mitigate offence of kidnapping from lawful guardianship, punishable under Section 363 I.P.C. Admittedly, she was taken for registration of marriage before court to have consultation with counsel i.e. this abduction was with intention to get prosecutrix married and she has said in her testimony as PW-3 that even on the date of kidnapping she was subjected to sexual assault. Hence, this kidnapping from lawful guardianship was with a view to have sexual recourse with prosecutrix. Hence, offence under Section 366 I.P.C. was fully proved. She was raped by both convicts appellants, as has been said and proved by her. Hence, sentence awarded by learned trial judge was in correct appreciation of facts and law placed on record. It was commensurate to gravity of offence. Hence, both the appeals be got dismissed.

9. Section 363 I.P.C. provides:- "whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." Kidnapping from lawful guardianship has been defined under Section 361 I.P.C. that "whoever takes or entices any minor under sixteen years of age, if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship." i.e. for punishment of offence under Section 363 I.P.C., Section 361 I.P.C. and its ingredients are to be proved, which requires taking or enticing of a minor under 16 if male and under 18 if female, from lawful guardianship or a person of unsound mind of any age, without consent of that guardian. Apex Court in Thakorlal D. Vadgama vs The State Of Gujarat; AIR 1973 SC 2313, has propounded the words "whoever takes or entices any minor" under Section 361 I.P.C. and observed as to what actually means. According to the Supreme Court, the word "takes", does not necessarily connote taking by force and does not confined to use of force, actual or constructive. These words merely mean "to cause to woke", "to support" or "to get into possession". The gravamen of this offence under Section 361 I.P.C. lies in the taking or enticing of a minor, specified in this section out of the keeping of the lawful guardianship without the consent of such guardian.

11. On a plain reading of this Section, the consent of the minor, who is taken or enticed, is wholly immaterial, it is only the guardian's consent which takes the case within its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person, which creates willingness on the part of minor to be taken out of the keeping of the lawful guardianship would be sufficient to attract this Section 361 I.P.C., as has been held by Apex Court in State of Haryana Vs. Raja Ram; AIR 1973 SC 819. Moreso, this was in corroboration with medical age determination report (Ext. Ka-7) filed and proved on record. Prosecutrix was below 18 years of age on above date and as per testimony, she was enticed and taken by convicts appellants by way of persuasion and she was taken without consent of her lawful guardian informant. Hence, ingredients of offence under Section 361 I.P.C. punishable under Section 363 I.P.C. was fully proved by testimony of prosecutrix PW-3. This has further been corroborated by testimony of PW-1 informant Nirmal Lal that her daughter was at her school and was taken by Shakeel, which was witnessed by PW-2 Rubi. Subsequently, she was apprehended, along with Akhilesh Kumar Verma. She was 15-16 years of age. Convicts appellants took her out of his legal guardianship without his consent. He got this case registered by presenting an application Ext.Ka-1. This has further been corroborated by testimony of PW-2 Km. Rubi, who was eyewitness account of this taking, and she in her testimony has proved that while being with prosecutrix on her way to school, prosecutrix was enticed and taken away by Shakeel and she informed this to her parents. For this testimony, there was no contradiction, exaggeration or embellishment. This has further been corroborated by testimony of PW-4 Sunita Devi, mother of prosecutrix, that Shakeel was under conversation with prosecutrix, for which this witness had scolded both of them. Prosecutrix had said that Shakeel used to transmit messages over mobile to her and for this, this witness had scolded her. Ultimately, prosecutrix was enticed and taken by Shakeel and she was recovered while being in company of Akhilesh Kumar Verma. Regarding this testimony, there is no contradiction, exaggeration or embellishment.

12. This Court in a Division Bench Judgment in Kunwar Singh Vs. State of U.P.; 1993 (3) AWC 1305 has propounded the effect of non cross-examination of witness on a fact appearing in Examination-in-Chief under Section 137 of Evidence Act and held that if some fact has been averred in Examination-in-Chief of testimony of a witness and same is not being cross-examined in Examination-in-Cross, truthfulness of that uncontroverted part of a fact shall be accepted. In the present case, it was specifically said by prosecutrix (PW-3), in her Examination-in-Chief, that her date of birth is 15.07.1995 and this fact was not cross-examined by learned counsel for the defence. Hence, this portion of fact is full truth and is to be accepted. This occurrence was of 30.07.2010 i.e. prosecutrix was below 18 years on above date and as per her testimony, she was enticed and taken by convicts-appellants by way of persuasion. This was with no consent of lawful guardian, informant i.e. Nirmal Lal. Hence, ingredients of offence under Section 361 I.P.C., punishable under Section 363 of I.P.C., was fully proved by testimony of prosecutrix (PW-3). This has further been corroborated by testimony of PW-1 Nirmal Lal (informant) that at the time of alleged occurrence, her daughter was 15-16 years of age. No cross-examination about date of birth of prosecutrix, said by this witness in his examination-in-chief, has been made by learned counsel for the defence. Thereby, this fact is unrebutted in cross-examination. A suggestive question has been put to PW-3 that it was a consensual living with Akhilesh Kumar Verma and willful marriage, which was got signed by some papers at court. This was vehemently denied by prosecutrix. But, this leading suggestive question itself sows that living for 30 days and having physical relation by Akhilesh Kumar Verma is not disputed fact. Rather, it was said to be consensual living. Hence, by factual evidence of these two witnesses, offence punishable under Section 363 I.P.C. was fully proved.