JUDGMENT Dalal, J.
1. Sital Prasad, Ram Sawarath and Ram Tawakkal, Brahmans by caste, have appealed from their conviction of an offence under Section 366, Indian Penal Code. The charge against them was one of kidnapping a minor girl, Musammat Rajpatia, eight years of age, from the custody of her lawful guardian, Musammat Chanderkali, in order to compel her to marry a person against her will. The willingness or otherwise of a minor Hindu girl to marry a particular person is not a matter for consideration at the time of her marriage, so it will be difficult to make a distinction between a marriage by the agency of a kidnapper and a marriage with the help of her relations so far as her own personal desire and consent are concerned. This, however, is a point of small significance, because in the event of the taking away of the girl being proved the persons found guilty of kidnapping her would be guilty of an offence under Section 363, Indian Penal Code, which provides for a substantial punishment. Musammat Rajpatia is a sister of Musammat Chanderkali's deceased husband Bikarmajit, and her father and the father of Ram Tawakkal, appellant, were own brothers. The fathers of both Musammat Rajpatia and Ram Tawakkal are dead. There are two minor brothers of Musammat Rajpatia alive. The case for the prosecution was that the three appellants went to the apartment of Musammat Chanderkali on the night of the 28th of April last, picked up the minor girl Musammat Rajpatia who was sleeping by her aunt's side and ran away, that the appellants were pursued by the villagers, who caught the appellants Sital Prasad and Ram Sawarath, and that these two appellants were promptly taken to the Police Station Bamniaon, where a report was made by Musammat Chanderkali at 7 a.m. on the 29th of April. It was said that Ram Tawakkal made good his escape and that the appellants put down or let go the hold of the minor girl when they were pursued and before they were caught at a short distance from the girl's house. Ram Tawakkal surrendered himself in the Magistrate's Court on the 14th of May, when he presented to the Court a written statement charging the other appellants with the crime of kidnapping. This defence he subsequently abandoned for one in line with that of the other appellants. The other appellants, who are brothers and residents of Sirauli, a village at some distance from Pariat where Ram Tawakkal, the minor girl and Musammat Chanderkali lived, have throughout the proceedings put forward a consistent story. They stated that the girl's marriage was settled to take place with their younger brother, Ram Prasad : that the agreement was entered into with Ram Tawakkal, who acted on behalf of Musammat Chanderkali, on a consideration of Rs. 200 to be paid to Musammat Chanderkali by these two appellants : that Rs. 100 had been previously-paid to Musammat Chanderkali by the hand of Ram Tawakkal, and that on the 28th of April in the afternoon these appellants went to the village of Pariat to the house of Musammat Chanderkali and Ram Tawakkal with the balance of the money to fetch the minor girl by way of a dola ceremony of marriage. They added that at the house further negotiations took place between them and Musammat Chanderkali, on whose behalf the prosecution witness Ram Das was the spokesman at the time: that she demanded payment of an additional sum of Rs. 100 over and above the amount agreed upon between the parties and that on their refusal to submit to this exaction, a false charge of kidnapping was got up against them. I have read the evidence on the record and considered the circumstances of the alleged arrest of the appellants Sital Prasad and Ram Sawarath. I am satisfied that the prosecution story of the taking away of the girl is false. If the appellants had Laid a plan for the carrying away of the girl, it is not likely that they would have been caught so easily after a short pursuit on a dark night. To all accounts the appellants had a good start, because the villagers first went to the house of Musammat Chanderkali, discovered from her in which direction the kidnappers had gone and then started in pursuit. The prosecution witness Jagerdeo made in the Committing Magistrate's Court an incredible statement that Sital Prasad appellant dragged the girl along as he ran, as if a small child of six could not be carried by the appellants. It must be remembered that the appellants are all men of under thirty-five years of age. The prosecution witness Sukhnandan deposed in the Court of the Committing Magistrate that Sital Prasad and Ram Sawarath appellants were caught with the girl. Obviously when the enquiry prior to commitment was proceeding, all the details of an imaginary occurrence were not settled and this conflict of testimony, subsequently removed in the Sessions Court, confirms me in my distrust of the prosecution story based on its improbability. It is probable that Ram Tawakkal may himself . have desired a share in the money which was to be extorted from the other appellants. I am not concerned with that aspect of the case. What I believe is that the appellants Sital Prasad and Ram Sawarath have in the main told the truth. Musammat Chanderkali is not without friends to help her. The prosecution witness Ram Das is a partisan of hers and the girl, Musammat Rajpatia, has deposed that on the way to the Police Station they stopped at the house of a presumably influential man of the locality, Munshi Adya Saran. I hold that there was no taking away of the minor girl from the custody of Musammat Chanderkali. The charge, therefore, fails and the appellants are entitled to an acquittal. A learned Judge of this Court referred this case to a Bench on a point of law raised by the appellants' learned Counsel during argument. It was argued that Ram Tawakkal was the guardian of the girl under the law applicable to Hindus in this Province, and that, therefore, the taking away of the girl by him and his associates from the custody of Musammat Chanderkali did not amount to kidnapping as defined in Section 361, Indian Penal Code. I would accept the inference of law under the Indian Penal Code, if Ram Tawakkal were proved to be the girl's guardian under the Hindu Law. The First Explanation to Section 361, Indian Penal Code, which defines lawful guardian, extends the accepted definition of these words under the civil law governing the minor. The definition does not exclude the person who would be the minor's guardian under the civil law applicable to the minor. This precaution of extending the meaning of the words lawful guardian under the criminal law was taken to prelude persons other than the civil law guardian from raising the technical plea that the legal relation of ward and guardian did not exist between the minor and the person from whose actual custody the minor may happen to be taken away. The person in temporary charge of the minor cannot, however, take advantage of this definition given in the First Explanation to Section 361, Indian Penal Code, as against the guardian at civil law. If I had been satisfied that Ram Tawakkal was the guardian of the minor girl Musammat Rajpatia at civil law, I would not have enquired further into this case. Subh a relationship would have saved him and the other appellants from prosecution under Section 363, Indian Penal Code, even in the case of the taking away of the girl being proved. I am of opinion that Ram Tawakkal is not the guardian of Musammat Rajpatia under the Hindu Law. "There was not, even before the passing of Act VIII of 1890 : any one other than the father or mother who had an absolute right to the custody of a Hindu minor. This was decided in the case of Kristo Kissor Neoghy v. Kadermoye Dossee 2 C.L.R. 583" Trevelyan and Stevens, JJ.; Musammat Bhikuo Koer v. Musammat Chamela Koer 2 C.W.S. 191 at p. 192. Under the Hindu Law Ram Tawakkal has not an absolute right to the custody of Musammat Rajpatia on the sole ground that he happens to be the nearest major male relation of the girl. It was open to the defence to prove that Ram Tawakkal was appointed a guardian either by a Court of law or by the brotherhood or that he had actually assumed such responsibility without any objection being raised by the blood relations or by the brotherhood. If such proof had been forthcoming, it could have been presumed that Musammat Chanderkali had custody of the girl Rajpatia in the capacity of an agent of Ram Tawakkal. There is no such proof on the record. At the trial it was abundantly proved that Musammat Chandurkali acted and was acknowledged as the guardian of the minor girl, and not Ram Tawakkal. Ram Tawakkal is separate from the minor children of his uncle and the guardianship of the children has been undertaken by Musammat Chanderkali the eldest and only major member of the divided family, using the word family in its general sense and not in the restricted sense of a collection of males under the Hindu Law. That such is the fact is indicated even by the nature of the defense set up by the appellants. The defence of the appellants Sital Prasad and Ram Sawarath was that the marriage negotiations were carried on between them and Musammat Chanderkali who acted through her agent Ram Tawakkal, It was never suggested that Ram Tawakkal had consented to the marriage and that such consent was sufficient for the performance of the marriage contract. Ram Tawakkal himself, when he surrendered in the Court of the Committing Magistrate, tried to save himself by taking the part of Musammat Chanderkali. On the facts, therefore, I would set aside the conviction and sentence passed on the three appellants.
Piggott, J.
2. I concur generally, and more particularly with regard to the facts. The appellants were in this difficulty, that Ram Tawakkal was never frank with the Court and that Counsel on his behalf eventually took up a position, at least by way of an alternative defence in this Court, which had never been suggested in the curt below, as regards the two appellants other than Ram Tawakkal, I have no doubt that, whatever they did (and I do not believe they did precisely what the prosecution witnesses have stated), was done in the bona fide belief that the consent of Musammat Chanderkali had been obtained to the proposed marriage of the minor girl.
3. Ram Tawakkal's plea that, even on the findings of fact recorded by the learned Sessions Judge, he was entitled to an acquittal, labours under this difficulty, that his own defence in the trial Court involved a virtual admission of Musammat Chanderkali's position as the de facto guardian of the minor. I am, however, satisfied that, on the existing state of the record, it is impossible to feel sufficient confidence in the prosecution evidence to find any of the appellants guilty.
4. We accept the appeals of all three appellants, set aside the conviction and sentence against them, and acquit them of the offence. As they have been released on bail, their security bonds will be discharged.