Judgment

VAIDIALINGAM, J. - The short question that arises in this appeal, by special leave, is whether the judgment and order of the Patna High Court dated May 10, 1968, dismissing the Criminal Appeal No. 453 of 1966, are in conformity with Section 423 of the Code of Criminal Procedure (hereinafter to be referred as the Code).

2. The appellants, who are accused Nos. 2 to 5, along with the first accused Sia Devi (wife of 5th accused) were tried by the learned First Assistant Sessions Judge, Biharsharif, for an offence under Section 363 of the Indian Penal Code. The case of the prosecution was as follows:

3. One Kanta Kumari, an orphan minor, and niece of the complainant (P. W. 1) Parmeshwar Pandey was under the lawful guardianship and protection of the latter and residing with him, since the death other parents. At about 8 P. M. on February 14, 1965, the fifth accused and his wife, the first accused, came to the house of the complainant and called Kanta Kumari. Kanta Kumari responded to the call by coming out. When she was questioned by her uncle as to where she was going out with the two accused, Kanta Kumari replied that she was going out for singing marriage songs. Kanta Kumari went away with the two accused and returned home by about midnight. In the morning of February 15, 1965, the complainant found that Kanta Kumari was missing from his house. On a search made by him, he came to know that Kanta Kumari was seen early that morning at about 3 A. M. going in the company of all the five accused persons for Ganga Ashnan. He was expecting Kanta Kumari to return. But on the evening of February 17, 1965, when he met the first and the fifth accused in the village, he was informed by the fifth accused that his paternal cousins, accused Nos. 2 and 3, had taken away Kanta Kumari with them. On receiving this information. Parmeshwar Pandey lost all hope of his niece Kanta Kumari coming back and on February 18, 1965 he filed a complaint before the police alleging that his niece Kanta Kumari a minor, has been kidnapped from his lawful guardianship by the five accused.

4. All the five accused were charged under Section 363, I. P. C. for kidnapping the minor girl Kanta Kumari on February 15, 1965 from the lawful guardianship of her uncle Parmeshwar Pandey without his consent. All the accused pleaded not guilty before, the trial Court and stated that they were falsely implicated by Panneshwar Pandey on account of long standing enmity. In particular they pleaded:

(a) that Parmeshwar Pandey had no niece called Kanta Kumari,

(b) they have not kidnapped Kanta Kumari; and

(c) in any case Kanta Kulnari was not a minor as alleged but was a major above 18 years of age.

5. The learned Assistant Sessions Judge by his judgment and order dated August 31, 1966 substantially rejected all the pleas of the accused. The learned Judge held that the complainant Parmeshwar Pandey, who had given evidence as P. W. I had a niece by name Kanta Kumari who was living with him under his guardianship as she had lost her parents. Though Kanta Kumari was not traced and as such she was pot before the Court, the learned Judge held that Kanta Kumari at the time of the occurrence must have been only 9 or 10 years old. The learned Judge further held that accused Nos. 2 to 5 (appellants herein) have kidnapued Kanta Kumari, a minor girl, on February 15, 1965 from the lawful guardianship of her uncle Parmeshwar pandey without his consent and as such they were guilty of the offence under Section 363. I. P. C, Accordingly he convicted the appellants of the said offence and sentenced them to undergo rigorous imprisonment for five years. Each of them was also fined a sum of Rs. 500/- and in default of payment of fine to undergo further rigorous imprisonment for six months. The learned Judge, however, held that the case against accused No.1, Sia Devi has not been proved beyond reasonable doubt and as such acquitted her.

6. The appellants filed Criminal Appeal No. 453 of 1966 in the Patna Hi