The main legal point established in the judgment is that a person who is in fact the father of the child, and therefore in law entitled to the lawful custody of the child, cannot be held guilty of kidnapping from lawful guardianship under Section 361 of the Indian Penal Code.

Burn, J.

1. This is a case of an unusual kind. In fact I am informed that it is the first case of its kind. The appellant in C.A. No. 456 of 1937 was the first accused and the appellant in C.A. No. 465 of 1937 was the second accused in S.C. No. 22 of 1937 on the file of the learned Sessions Judge of Guntur. Along with them two Muhammadans were tried and the charges upon which they were put up for trial were that the first accused kidnapped a minor boy from lawful guardianship with intent that he should be murdered (Section 364, Indian Penal Code). The second, third and fourth accused were charged with abetment of this offence. The learned Sessions Judge found the first accused guilty of an offence under Section 363, Indian Penal Code, holding it not proved that the kidnapping was in order that the little boy might be murdered. The first accused has been sentenced to 7 years rigorous imprisonment. The second accused was convicted of abetment o the offence under Section 363, Indian Penal Code, and sentenced to 5 years rigorous imprisonment. The third and fourth accused were acquitted.

2. The remarkable feature of this case is that the first accused is the father of the boy, whom he is said to have kidnapped from the keeping of the boys mother (P.W. 1). P.W. 1 and the first accused were married several years ago and according to P.W. 1 her husband deserted her. She filed a suit for maintenance and this was compromised on terms by which the first accused gave her some land to defray her cost and some additional land for her maintenance. This compromise took place on the 19th July, 1933, and in 1936 P.W. 1 put the decree in execution and got delivery of the lands. In the meanwhile in 1935 the first accused had filed a suit in the Court of the District Munsiff, Guntur, to set aside the compromise entered into in July, 1933, on the ground that it had been obtained by fraud. A copy of the plaint has been filed as Ex. 1 and it shows that the first accused alleged that his marriage with P.W. 1 had never been consummated, that her child was illegitimate, and that she was actually pregnant as the result of adulterous intercourse at the time the compromise took place. The plaint was dated the 22nd November, 1935. In that it is alleged that P.W. 1s son was born on the 2nd January, 1934.

3. In these circumstances on the 11th April, 1937, it was alleged that the first accused with the help of the other three kidnapped his own son from the guardianship of the little boys mother. Earned Counsel for the appellants has argued that the evidence of P.Ws. 1 to 5 who speak to the kidnapping ought not to be accepted. P.W. 1 is the mother of the child; P.W. 2 is the woman with whom P.W. 1 was lodging while she was in Guntur for the purposes of her litigation : P.W. 3 is another woman who was lodging in the same house, and P. Ws. 4 and 5 are boys aged 13 and 11 respectively who were employed in sweetmeat shops in Guntur. The boys described how the 2nd accused picked up the child in front of their shops, took him down a side lane and handed him over to the first accused. These two boys picked out the first and second accused at an identification parade which was held on the 12th April, and there is really no reason for rejecting their evidence. In addition to this there was a confession (Ex. C), made by the 2nd accused to the Taluk Magistrate, Guntur, on the 17th April. The learned Sessions Judge discarded this confession on the ground that the Taluk Magistrate had not in spirit observed the proper precautions to ensure that the confession should be voluntary. Mr. Vepa who appears for the appellants contends that the learned Sessions Judge was right. The learned Public Prosecutor on the other hand contends that the learned Sessions Judge was wrong, and that there are no proper reasons for supposing the second accuseds confession to have been anything but voluntary. I do not see any necessity to discuss this question at length, because I am satisfied