A.H. Khan, J.
1. This appeal has been filed under Section 417(3) of the Criminal Procedure Code by a complainant Sultankhan after obtaining leave of the Court, against an order of acquittal passed by the learned Additional Sessions Judge, Shajapur, in Criminal Appeal No. 84 of 1956.
2. Sultan Khan filed a complaint before the First Class Magistrate, Shujalpur, against two respondents, Gullu aged 18 years and Noorkhan aged 20 years, under Sections 363, 461 and 379 I. P. C. on the allegation that on 14-12-55, the complainant had gone out of his village to attend a local Hat (Bazar), leaving behind his daughter Banno aged 4 years in the custody of his sister; that in his absence the two respondents went to his house and took away the minor girl with them to their mother.
The appellant in his memo of appeal did not give the facts of the case correctly. The two accused are his brothers-in-law and the girl whom they took away is their niece. They took away the girl to their mother namely, maternal-grand mother of the minor girl. These facts were suppressed at the time of moving the application for admission, but from the perusal of the record, they have now become evident.
3. The prosecution story goes on to say that when the complainant returned from the 'Hat,' he filed a report against the two accused. The defence was that they had taken the girl with the consent of the complainant. The trial Court acquitted the respondents of all charges except one trader Section 363 I. P. C. and convicting both the accused under. Section 363, the Court directed them to enter into a bond with surety on probation of good conduct, for a period of three years.
Against their conviction, the respondents filed an appeal before the Additional Sessions Judge, Shajapur, who acquitted the appellant of the offence under Section 363 I. P. C. It is against this order of acquittal that the present appeal has been filed.
4. The offence of kidnapping consist in takingaway a minor girl under 18 years of age out ofthe keeping of the lawful guardian of such minor.In the present case, the mother of the minor girlis dead. The question is that after the death ofmother, is it the father of the girl who is the lawful guardian of the girl? I would refer to Section 353of the Principles of Mohammadan Law by Sir D.F. Mulla which says that failing mother (i. e. whenthe mother is dead) the custody of the girl whohas not attained puberty belongs to mother'smother how highsoever.
In other words the lawful guardian of a minor girl on the death of her mother is mother's mother i. e., maternal grand-mother, and, not the father. The minor girl was taken away from the father to her maternal Grand-mother and because father was not the proper guardian of the minor girl, therefore, it cannot be said that the girl was taken away out of the keening of the lawful guardian. In fact she was taken away from the possession of the father, who was not a lawful guardian to the maternal grand-mother of the girl, who was the lawful guardian. In this view, of the matter the offence of kidnapping cannot be said to have been committed. On this short ground I would reject the appeal.
5. For reasons stated above the appeal is dismissed.
H.R. Krishnan, J.
6. I agree.