NATABAR RAUTRAY Vs. STATE

JUDGEMENT

(1.) THE Honourable Mr. Justice A. Misra. These two revisions are taken up together for the sake of convenience Petitioner in Criminal Revision No. 126/1967 and the two Petitioners in Criminal Revision No. 151 of 1967 along with four others were tried for offences under Sections 341 and 366, Indian Penal Code for alleged kidnapping of Sushama (p.w. 7), a minor girl aged about 16 from the lawful guardianship of her mother Mali Bewa (p.w. 1) on 2 -2 -1965. One of the accused was acquitted by the trial Court, while the remaining six were convicted for the offences charged with and each of them was sentenced to rigorous imprisonment for three years under Section 366, Indian Penal Code, but no separate sentence was awarded under Section 341, Indian Penal Code. Against this conviction, two separate appeals were preferred to the learned Sessions Judge one by the Petitioner in Criminal Revision No. 126 of 1967, and the other by the remaining five accused persons. The learned Sessions Judge acquitted three of the Appellants in the latter appeal, while he altered the conviction to one under Section 363, Indian Penal Code in respect of the remaining Appellants in both the appeals and modified the sentence of each to rigorous imprisonment for one year and a fine of Rs. 109/ -. Against this decision of the learned Sessions Judge, two separate revisions have been filed, -one by Natabar, Petitioner in Criminal Revision No. 126 of 1967, and the other, by Magu Rautray and Debendra Rautray Petitioners in Criminal Revision No. 151 of 1967.

(2.) THE prosecution case, in brief, is that on 2 -2 -1965, Petitioners in both the revisions along with the accused who were acquitted by the Courts below, kidnapped p.w. 7 from the lawful guardianship of p.w. 1. because p.w. 1 had arranged the marriage of p.w. 7 with one Dayanidhi which was not approved by her deceased husband's brother, Petitioner in Criminal Revision No. 126 of 1967 and other agnates and relations including the two Petitioner in Criminal Revision No. 151 of 1967. The defence, plea was a complete denial of the occurrence, and it is alleged that they were implicated in a false case at the instigation of their entypies. They also, pleaded that Natabar, Petitioner in Criminal Revision No. 126 of 1967, being the Karta of the joint family of which p.ws. 1 and 7 are members, was the lawful guardian, and as such, even if the prosecution case is believed there is no removal from the, lawful guardianship to constitute the offence of kidnapping.

(3.) TO constitute the offence of kidnapping under Section 363, Indian Penal Code, the prosecution has to prove the taking or enticing away of a minor aged under 18 if a girl, or under 16 if male, and such taking should be from the lawful guardianship. That p.w. 7, the victim in this incident is under 1a years of age and is the daughter of p.w. 1 is not disputed.