Taking a minor from the keeping of her lawful guardian constitutes the offence of kidnapping under Section 366 of the Indian Penal Code, even if the minor is a consenting party.

, J.

1. Sulekh Chand was committed for trial on a charge Under Sec.366, Indian Penal Code, but was acquitted. The State has filed this appeal against the order of acquittal.

2. The prosecution story is that Tilak Ram, a native of a village in Muzafarnagar district, U. P. , was employed by Messrs. Ram Parkash Uppal and Co. as a labour contractor in connection with the construction of a large building in Sector 17-B, Chandigarh. He was living in a hut near the site of the construction with his daughter Balblri Aged about 14 and his younger son called Balbir. Sulekh Chand respondent, whose age was recorded in the committing Court as 22 and at the trial as 24, was also employed by the same company as the driver of a mortar mixing machine and he was living in a hut close by and was on friendly terms with Tllak Ram at whose hut he sometimes used to take his food.

3. It is alleged that on the afternoon of the 30th of October 1961 when Tilak Ram was away from his hut Sulekh Crjand went there and persuaded Balbiri to accompany him telling her that her father wanted to make some purchases in the bazar. For this purpose she took with tier Rs.70/- in currency notes. However, instead of taking her to the bazar, Sulekh Chand took her outside the town and told her that he wanted to marry her and thsn took her i to the bus stand from where they travelled to Ambala by a bus. From Ambala they travelled to Delhi, also by bus, and then Sulekh Chand took her by a scooter-rickshaw to Okhla and eventually to his house in a village called Khanpur. The girl has alleged that she was compelled to accompany Sulekh Chand because he threatened, to kill her and she alleged that he had sexual Intercourse with her on various occasions against her will.

4. In the meantime lilak Ram returned to his hut In the evening and found his daughter missing. Som Nattl P. W.5 who is also employed on the site and others told Tilak Ram that they had seen his daughter going away with Sulekh Chand. Tilak Ram continued searcmng for them throughout the night, but could not find any trace of them and his report was recorded at Chand?arh Police Station at 10.55 a. m. on the 31st of October 1961.

5. The police were able to trace the home address of Sirlekh Chand through a postal money order form found In his hut. S. I. Gian Chand P. W.10 went to Delhi an the 3rd of November and accompanied by Amar Singh P. W.6. Pardha;n of Devli, and Makhan Singh P. W.7 of Khanpur went to the house of Sulekh Chand at Khanpur on the 4th of November. They found the door fastened from Inside, but the police forced an entry end found Sulekh Ciunff present there with the missing girl. He was arrested and the girl was taken to the Irwin Hospital at New Delhi where she was examined by Dr. Miss P. Hingorani P. W.1 who found her age to be 13 or 14. She found that the hymen of the girl was very much stretched, but not actually ruptured. She was of the opinion that there had beaa an attempt to rape without penetration. The girl was also examined by a Radiologist Dr. C. P. Sethi at the hospital at Chandigarh who found her age to be between 14 and 15}. H. C. Mauji Ram P. W.11 went to Reta Nangh, Muzafarnagar district, U. P. , and obtained a copy of that entry in a register regarding the date of birth of Balbirt. The certified copy of the entry, Ex. P. G. , shows the date of her birth to be the 7th of April 1948 and according It that her age at the time of the occurrence waa aboil 13.

6. The accused denied his guilt. He denied having taken the girl away and denied even that she was fount at his house when the police went there. He alleged that a false case had been brought against him because Tllak Ram had borrowed Rs.200/- from one Ram Nehor, ostensibly on account of the accused, and had also borrawaff Rs.100/- from the accused who wanted the return of the money because he had to perform the marriage of his so. For that purpose he had gone to Khanpur on the 29th of October 1961. He alleged that Tilak R