Consent obtained by misrepresentation or fraud does not constitute valid consent under the Indian Penal Code.

1. In this case the appellants have been convicted under Section 366, Indian Penal Code of the offence of kidnapping a girl (prosecution witness No. 1) of about 10 years of age from the guardianship of her mother prosecution witness No. 2 with intent that she might be compelled to marry against her will. The facts found by the lower Court are that the second accused, a relation of prosecution witnesses Nos. 1 and 2, asked prosecution witness No. 2 and prosecution witness No. 3, her (prosecution witness No. 2s) grand-mother to send the girl for three days for Bogikolusu (or present gathering at a festival) but really with the intention of disposing of the girl in marriage to the first accused without the consent of the girl and prosecution witness No. 2 and prosecution witness No. 3. Prosecution witness No. 3, the girls great grand-mother, let her go. More than a week after the second accused had taken the girl to her village she led her to another village on a false pretext. She then took her to a temple there, where the first accused was waiting, and there the girl was married to the first accused against her will.

2. The defence was that the girl was taken and married to the first accused with the consent of prosecution witness No. 2 and prosecution witness No. 3.

3. We agree with the Lower Court in holding that the evidence adduced on behalf of the defence is not worthy of credit and that no consent was given by either prosecution witness No. 2 or prosecution witness No. 3 to the marriage. The Sessions Judge convicted both the accused under Section 366, Indian Penal Code. He held that "if, as alleged by the prosecution, prosecution witness No. 2 allowed second accused to take her only for Bogikolusu, and second accused took her and got her married in violation of her legal guardians authority the offence of kidnapping is complete," This statement of the law cannot be accepted as correct. The offence of kidnapping consists in taking or enticing a minor out of the keeping of the lawful guardian of such minor without the consent of such guardian. If a minor is taken with the consent of the guardian and subsequently married improperly without the consent of the guardian to any person, such improper marriage would not by itself amount to kidnapping. So far as the first accused is concerned it was not alleged by the prosecution that he was a party to the taking away of the girl from the guardianship of prosecution witness No. 2 nor was it alleged that he took her away from the custody of the second accused. The District Judge finds that he "acted in concert with her and assisted in the kidnapping." We do not find any evidence that he instigated or aided her in the taking of prosecution witness No. 1 nor is there any charge or proof of conspiracy as regards this part of the transaction. There is no evidence that prior to the time of the marriage the girl had been removed by the first accused from the custody of the second accused, who took her from prosecution witnesses Nos. 2 and 3. The offence charged has not been made out against the first accused. His conviction cannot, therefore, be sustained.

4. It remains to be considered whether the second accused is guilty under Section 366 or not. Prosecution witness No. 2 said that she refused to consent to the second accused taking the girl and that she had gone away from the house when she actually took her, but prosecution witness No. 3 does not corroborate her in this statement; and the girl prosecution witness No. 1 clearly says that her mother prosecution witness No. 2 sent her. We are of opinion on the evidence that prosecution witness No. 2 also consented to the girl going with the second accused. But it appears that the second accused obtained the consent of the girls guardian by falsely representing that the object of taking her was only to gather presents at a festival. The question is, whether in these circumstances it can be said that the guardian gave her consent to t