The essential ingredients of kidnapping from lawful guardianship under Section 361, IPC and the intention of the accused is the basis and the gravemen of offence under Section 366, IPC.

ARIJIT PASAYAT, J.

( 1 ) PETITIONER Biswanath Mallick (also referred to as 'accused' hereinafter) calls in question legality of his conviction for commission of offences punishable under Sections 363/366 of the Indian Penal Code, 1860 (in short, 'ipc') and sentence of two years' rigorous imprisonment and fine of Rs. 100. 00, in default to undergo two months rigorous imprisonment on each count. The conviction and sentence as awarded by the learned. Assistant Sessions Judge, Kendrapara were affirmed in appeal by the learned Additional Sessions Judge, Kendrapara.

( 2 ) PROSECUTION version as unfolded during trial is as follows :on 9-12-1989, around midnight Kalyani (P. W. 2) had gone out to attend call of nature. She was forcibly kidnapped by the petitioner, who took her first to Cuttack subsequently to Bhubaneswar and lastly to Jeypore. Information was lodged at the Police Station by Kalyani's father Baishnao (P. W. 1) on 11-12-1989. During investigation the victim was rescued from house of one accused's relations and was given in the custody of her parents (P. Ws. 1 and 3 ). The victim girl and the accused were medically examined on police requisition. On completion of investigation, chargesheet was submitted and the accused-petitioner faced trial.

( 3 ) THE accused-petitioner pleaded innocence and stated that he was falsely implicated.

( 4 ) NINE witnesses were examined to further the prosecution case. As indicated above, P. W. 2 is the victim and P. Ws 1 and 3 are her parents. P. W. 7 is the doctor who examined the victim and the accused and P. W. 9 is the Investigating Officer.

( 5 ) ON consideration of the evidence on record, the learned trial Judge found the petitioner guilty, and convicted and sentenced him, which got seal of approval in appeal.

( 6 ) IN support of the revision application, Mr. S. S. Das learned counsel for petitioner submitted that the age of the victim was more than 18 years, and in any event she had attained the age of discretion, and therefore, even if the stand taken by the informant that the age of the victim girl was 17 years 8 months and 7 days on the date of occurrence, the same is of little consequence. It is further stated that the evidence on record clearly shows that the victim had done with the accused on her own volition, and there was no compulsion for marriage. It was further submitted that the sentences awarded are also high. Learned counsel for State on the other hand submitted that the courts below have elaborately enalysed the evidence any while exercising revisional jurisdiction it is impermissible to make fresh assessment unless the conclusions are shown to be perverse and unreasonable.

( 7 ) SO far as offences punishable under Sections 363 and 366, IPC are concerned, it is necessary to note their essential ingredients, Section 363 provides for punishment in case of kidnapping of any person from India or from lawful guardianship. Kidnapping from lawful guardianship has been defined in Section 361. Essential ingredients of the said Section are four in number, i. e. , (i) taking or enticing away a minor or a person of unsound mind; (ii) such minor must be under sixteen years of age, if a male, or under eighteen years of age, if female; (iii) the taking or enticing must be out of the keeping of the lawful guardian, of such minor or person of unsound mind; (iv) such taking or enticing must be without the consent of such guardian. If the girl is less than 18 years of age, it is immaterial whether the girl consents or not. The taking need not be by force, actual or constructive. There must be a taking of the child out of the possession of the guardian. The Explanation to Section 361 provides that the words 'lawful guardian' in the said Section include any person lawfully entrusted with the care or custody of such minor or other person. The word 'take' means to cause to go, to escort or to get into possession. It implies want of wish and absence of desire of the person taken. There i