Judgment H.K.Chaudhuri, J. 1. The appellant has been convicted on a charge of kidnapping his sisters daughter, a minor girl aged about seventeen years, and also for abducting her with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry a person against her will. The learned Judge convicted him under Sections 363 and 366 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for one year under the latter section. No separate sentence was awarded under Sec.363. The girl, Jaimukhi by name, is the daughter of one Babuji Jha village Balian. According to the prosecution Babuji Jha-and his brothers son Markandey Jha (P. W- 1) were members of a joint family. Babuji Jha died a little over a year before the occurrence leaving two daughters Jaimukhi aged about seventeen years and, Panchmukhi aged about eleven or twelve years. Even after the death of their father the two sisters continued to live jointly with Markancley Jha (P. W. 1). It is said that on 4-6-59 Jaimukhi (P. W. 7) had gone to watch a mango tree in the orchard of Markandey Jha when the appellant, her maternal uncle, along with some other persons including Damodar Jha and Biseshwar Jha, who ate the first cousins of the appellant, came there and asked her to accompany him to his house in village Dahila, which was at a distance of two miles from Balain, The girl refused to go whereupon the appellant caught her hand and dragged her to-wards his village, the other persons following him. The party was seen just outside the orchard by Jainarainlal Das, (P. W. 3), a girhast sadhu at about-10 a. m. The latter found the appellant holding the hands of the girl. The girl was weeping. The-witness asked the appellant as to why they were taking her away. The appellant is alleged to have replied that the girl was not being looked after properly by Markendey Jha (P. W. 1), and hence the appellant was taking her away to his place. The same party was seen by two other witnesses Ramhit Chaudhary (P. W. 2) and his ploughman Ramji Yadav (P. W. 6) in the adjoining village of Ektara where they were working in their field, Ramhit asked Nageshwar as to why the girl was weeping. The same party was seen by two other witnesses Ramhit Chaudhary (P. W. 2) and his ploughman Ramji Yadav (P. W. 6) in the adjoining village of Ektara where they were working in their field, Ramhit asked Nageshwar as to why the girl was weeping. Nageshwar rudely retorted that that was no concern of his. Eventually the girl was taken to the house of the appellant and kept there Seven or eight days after the appellant brought one Lachhmikant to his house, who put vermilion on her forehead at the instance of the appellant. In the meantime, Markandey Jha was making a search for the missing girl. Two or three days later he went to the appellants house but was told that the girl had not gone there. The fact of the disappearance of the girl was reported at Benipatti thana on 7-6-59. About a month later, Markandey Jha came to know from Jainarain that it was the appellant who had taken away the girl to his house. The appellant (sic) (Markandey Jha?) then filed a regular complaint in court on 1-7-59. 2. The defence is that the charges were wholly unfounded. According to the appellant, the two girls were living with him since the death of their father. 3. The learned Judge, on a consideration of the evidence and the circumstances held that Markandey Jha was the lawful guardian of the girl within the meaning of Sec.361 of the Indian Penal Code. He further held that it was the appellant who had taken away the girl from the lawful guardianship of Markandey Jha (P. W. 1), with intent that she may be compelled to marry another person against her will. On these findings he convicted the appellant both under Sections 363 and 366 of the Indian Penal Code. 4. After discussing the evidence His Lordship found that the prosecution Case as laid in Court was substantially correct and continued. 5. On behalf of the appellant it has, however, been, contended that it was incumbent upon the prosecution to prove that the girl was taken away from the custody of a lawful guardian. Mr. D. K. Chaudhuri, who argued for the appellant, submitted that the evidence on the point was extremely meagre. He contended that it could not be said that Markandey Jha, the paternal cousin of Jai-mukh (P. W. 7), was the lawful guardian of the minor girl. Mr. D. K. Chaudhuri, who argued for the appellant, submitted that the evidence on the point was extremely meagre. He contended that it could not be said that Markandey Jha, the paternal cousin of Jai-mukh (P. W. 7), was the lawful guardian of the minor girl. On the contrary, he urged that as maternal uncle of the girl the appellant had absolute right to the custody of the minor girl in the absence of the father and the mother. That being so, it was submitted the charge of kidnapping was not sustainable against the appellant. In my opinion, the contention is not correct. The only persons having an absolute right to the custody of a Hindu minor are the father and the mother of the minor. No such right exists in the uncle on the mothers side of the minor. Such a relationship would not in law be a defence to a charge of kidnapping a minor from the custody of a de facto guardian. It was next urged that, at any rate, Markandey Jha could not claim to be a lawful guardian, The explanation to Sec.361 runs as follows: "The words lawful guardian in this section include any person lawfully entrusted with the care or custody of such minor or other person.... This explanation has been the subject of a large number of decisions. In Mt. Kesar V/s. Emperor, 4 Pat LJ 74 ; (AIR 1919 Pat 27) (EB), it was observed by Atkinson J. that the Explanation Contemplates a declaration of trust by a person competent to make such declaration, conveying, handing over and confiding a minor to the care and custody of another in whom confidence and trust, is reposed. He added that neither the declaration of trust nor its acceptance need be necessarily in writing, and that it was sufficient if the declaration is verbally made and given, or if it arises, from a course of conduct consistent only with the existence of such antecedent declaration, and accepted verbally of by necessary implication arising from the conduct of the person so entrusted with the duty imposed. Referring to this case, Fazl Ali J. (as he then was) in Samarendra Kumar V/s. Emperor, ILR 15 Pat 817 : (AIR 1937 Pat 263), made the following observation : "Now, with great respect to the learned Judges who decided that case I would venture to say that in my opinion they have taken a much more rigid view of the section than what the words of the section warrant. I think that a person should be regarded in the eyes of law as having been lawfully entrusted with the care and custody of a minor, if ho has acquired control over the minor lawfully and in such circumstances as would imply trust even though he may not have been formally entrusted with the care and custody of the minor by a third person". His Lordship then referred to a hypothetical case of a person finding an unclaimed child wandering about and out of humanitarian motive taking charge of the child and bringing him up, and the case of unclaimed young orphans and illegitimate infants abandoned by their mother. Then follow the following observation :- "We doubt whether the law could have ever contemplated that if such children are kidnapped from the custody of the person with whom they have been living and who has brought them up the offence of kidnapping would not be committed". 6 In Banamali V/s. Emperor; ILR 22 Pat 263 : (AIR 1943 Pat 212), another Division Bench case of this Court, their Lordships laid down that "lawful guardian" in Sec.361 include a de facto guardian. All these authorities were considered in State V/s. Harbansingh Kisansingh, AIR 1954 Bom 339 . On a consideration of all these cases their Lordships observed that in considering the provisions of Sec.361 and the other cognate sections of the Indian Penal Code, it was necessary to bear in mind that these provisions were intended more for the pretection of the minors and persons of unsound mind themselves than for the rights of the guardians of such persons. Stress was laid on the words "Lawful guardian", and it was pointed out that this expression was not the same as "Legal guardian". They expressed the view that there could be no doubt that the expression "Lawful guardian" would include a person who voluntarily undertook the care and custody of the minor in a lawful manner. Stress was laid on the words "Lawful guardian", and it was pointed out that this expression was not the same as "Legal guardian". They expressed the view that there could be no doubt that the expression "Lawful guardian" would include a person who voluntarily undertook the care and custody of the minor in a lawful manner. It was pointed out that a strict and narrow construction of the words "lawful guardian" used in section 381 would expose a large class of minors and lunatics to the danger of kidnapping, which could not have been intended by the Legislature when Section 361 was enacted. There is no doubt that the view expressed in this case is not in consonance with the Full Bench decision reported in 4 Pat LJ 74 : (AIR 1919 Pat 27). That decision, however, will not affect the decision of the present case. The circumstances of this case clearly indicate a trust in favour of Markandey Jha (P. W. 1), created by implication by the late father of the girls and the acceptance of the trust by necessary implication by Markandey Jha. As has been pointed out in the Full Bench case, entrustment, such as the section requires may be inferred from a well defined and consistent course of conduct governing the relations of the lawful guardian alleged in the indictment and of the minor. In other words, entrustment may be proved, not only by oral evidence but also by surrounding circumstances and the conduct of the parties concerned. Let us examine the surrounding circumstances and the conduct of the parties in this case. There is positive evidence to show that Babuji Jha and Markandey Jha were members of a joint Family. They lived in the same house. The two daughters of Babuji Jha lived with him. The mother of the girls died more than seven or eight years before the occurrence. Babuji Jha himself died a little over a year before this occurrence. Markandey Jha, the surviving male member of the joint family, being a close relation naturally took over charge of the minors and began to bring them up. There is no evidence to show that anybody from the mothers side of the girls ever expressed a desire to maintain and bring up the two minor girls. Markandey Jha, the surviving male member of the joint family, being a close relation naturally took over charge of the minors and began to bring them up. There is no evidence to show that anybody from the mothers side of the girls ever expressed a desire to maintain and bring up the two minor girls. The statement of the appellant that the two girls had been entrusted to his care by Babuji Jha at the time of his death is not supported by any evidence whatsoever. If there was an express entrustment at all it must have been in favour of Markandey Jha (P. W. 1). The fact that for more than one year after the death of Babuji Jha the girls continued to live with their cousin peacefully indicates that he was taken as the guardian of the minors and he had actually assumed such responsibility without any objection from any relation on the mothers side of the girls. In these circumstances. I have no doubt that Markandey Jha was the lawful guardian of the girl when the kidnaping took place. The appellant was, therefore, rightly convicted under this section by the learn ed Judge.