HARISH CHANDRA, J.

( 1 ) THE appellant Rashid has been convicted under Section 366, Penal Code, and sentenced to rigorous imprisonment for three years and a fine of Rs. 100. in default of payment of fine he has been ordered to undergo rigorous imprisonment for a further period of six months. The victim was one Sm. Anwari, the daughte of one Sharif who was employed in the Loco Shed at Mau railway station in the district of Azamgarh as a sweeper. He lived in one of the railway quarters at the station. One Khalil, who was employed as a painter in the Loco Shed, occupied another quarter in the same neighbourhood. The appellant is the brother-in-law of Khalil and at the time of the occurrence which took place in the night of August 10-11-1949, was staying temporarily with Khalil. During that night Anwari disappeared from her fathers house. A search was made and ultimately a report was lodged at the police station on the following evening at 7. 10 Oclock. In the meanwhile the girl had been taken away by the appellant to Ghazipur and left at the house of oue Abdul Rahman. When Abdul Rahman came to know the facts from the girl, he put her in a lorry and sent her back to Mau. On arrival at Mau the girl went into the house of Khalil. She was seen going there by some neighbours and thereafter she was brought back from Khalils house by her father. It is unnecessary to recount the facts as stated by the girl. The learned sessions Judge has found that her statement is not quite reliable in certain particulars. But the appellant has admitted that while he was staying with Khalil, he contacted intimacy with the girl who told him that she was about to be taken away to her sasural and that he should take her somewhere and threatened to commit suicide if he did not. In the evening of August, 10 she came to Khalils quarters and asked the appellant to take her away by train. He then took her to ghazipur and left her at the house of Abdul Rahman. It will appear that Khalil and his wife nabuat were also sent up for trial under Section 366 read with Section 109, Penal Code, but the learned Sessions Judge acquitted them. On the facts admitted by the appellant and established by the prosecution evidence he convicted him under Section 366, Penal Code.

( 2 ) LEARNED counsel for the appellant argues that inasmuch as the girl was a willing party and had left her parents house of her own accord and come to the house of Khalil from where she was taken away by the appellant, no offence was committed by the latter. It will be noted that according to the medical and other evidence which has been believed by the Court below the age of the girl was about 15 or 16 years on the date of the occurrence. No doubt on the facts as found by the Court below there was no abduction. According to Section 362 a person is said to abduct another when he "by force compels, or by any deceitful means induces" that person to go from any place. In this case the girl was willing party and the facts do not constitute an offence of abduction.

( 3 ) THE question is whether the facts as found by the Court below would constitute an offence of kidnapping. According to Section 366 :

"whoever kidnaps or abducts any woman with intent or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished. . . . . "

Anwari was a married woman and if she wag kidnapped by the appellant with the object that she may marry him an offence under Section 366 must be deemed to have been committed. Kidnapping is of two kinds. But we are concerned only with kidnapping from lawful guardianship. Section 361 runs as follows :"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. "

The contention of learne