Judgment Indu Prabha Singh, J. 1. All the appellants have been convicted under Sec. 366 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for seven years. 2. The prosecution case, in short, is that an application was filed by the informant, Uma Shankar Sah stating therein that when on 22-6-1984 he came back from U.P. his wife informed him that on last Saturday while his daughter was working on machine, at noon the appellants along with Toofani Ram, Baldan, Dukhbhajan Ram, Keshwar Ram enticed her daughter and took her to Ramgarh Bazar and from there it was alleged that they took her to somewhere else by Bus. It was further alleged that his father, Narayan Sah saw them taking Prabha Kumari with them. It was further alleged that his father thought that Prabha was going for marketing with the culprits. Other co-villagers, namely, Ram Surat Singh and Tribent also saw them taking the victim girl with them. Further case of informant was that when he asked from Bachu Ram and his wife they did not give any information about whereabout of his daughter. On the written information of the informant, Uma Shankar Sah, the Police registered a case. After completion of the investigation, charge-sheet was submitted against all the appellants. Cognizance was taken and the case was committed to the Court of Session where the trial concluded with the result as indicated above. 3. The appellants pleaded not guilty and have been falsely implicated in this case. 4. The prosecution, in support of its case, examined altogether five witnesses. Out of them PW 5 is Ram Rati Devi, mother of Prabha Kumari, the victim girl. PW 4 is Uma Sharvkar Sah, the informant, who is the father of the victim girl. PW 1 is Sheo Bachan Ram. PW 2 is Mangal Singh and PW 3 is Basgit Singh. PW 5 (Ram Rati Devi), mother of the victim girl has stated that on the date of occurrence, all the three accused persons came to her house and her daughter told her that she has to purchase Chappal from Ramgarh Bazar. Accordingly, her mother gave Rs. 13.00 for purchasing Chappal. Her daughter, accompanied with appellants went to Ramgarh Bazar. PW 5 (Ram Rati Devi), mother of the victim girl has stated that on the date of occurrence, all the three accused persons came to her house and her daughter told her that she has to purchase Chappal from Ramgarh Bazar. Accordingly, her mother gave Rs. 13.00 for purchasing Chappal. Her daughter, accompanied with appellants went to Ramgarh Bazar. She has further stated that when she did not return, she went to enquire from the appellants, they flatly refused and stated that they did not know anything about her. She has also stated that when her husband return from Sitapur, she narrated the whole story to him about the occurrence. PW 4 the informant (Uma Shankar Sah). He has stated that he had gone to Sitapur, prior to the occurrence when he returned to his house, he was informed from his wife PW 5 (Ram Rati Devi) that the apellants had kidnapped her daughter. He has stated that he gave written report about the occurrence in the police station, which was marked as Exhibit 1. On the basis of the written report, an FIR was registered. PW 1 (Sheo Bachan Ram) PW 2 (Mangal Singh) and PW 3 (Basgit Singh) have not supported the case of the prosecution and they have been declared hostile by the prosecution. 5. In this case, PW 1 (Sheo Bachan Ram), PW 2 (Mangal Singh) and PW 3 (Bagit Singh) grandfather of the victim girl. Prabha Kumari did not support the case of the prosecution PW 4 not the eye-witness of the occurrence. He has stated that when be came back, PW4 his wife informed him that appellants had kidnapped her daughter. PW 5 (Ram Rati Devi) is the only relevant witness, who has stated that on that day of occurrence all the three accused-persons (apllants) came at her house along with her daughter, Prabha Kumari. She told her that she wanted to purchase Chappal from Ramgarh Bazar and she gave Rs. 13.00 to her daughter and net daughter did not return. She had stated that her other two daughters are married and she (PW 5) had no good relations with her son-in-laws and also with her father-in-law (PW 3). 6. Statement of PW 5 shows that her daughter, Prabha Kumari left for Ramgarh Bazar with the consent of her mother, who was guardian. She had stated that her other two daughters are married and she (PW 5) had no good relations with her son-in-laws and also with her father-in-law (PW 3). 6. Statement of PW 5 shows that her daughter, Prabha Kumari left for Ramgarh Bazar with the consent of her mother, who was guardian. Charge of kidnapping not established against the accused-appellants even it has been established that she left her house in company of appellants. It is only on presumption that she was taken away by these appellants and this presumption was on the basis of the fact that her daughter along with appellants came to her and asked her that she had to purchase Chappal from Ramgarh Bazar. No other witness was examined, who have seen the victim girl going with the appellants towards Ramgarh Bazar, even if it is considered that she actually was taken from her house by the appellants, it was with the consent of her mother, who was certainly a legal guardian of her daughter. According to the provision of Sec. 361 of IPC which reads as follows: 361. Kidnapping from lawful guardianship.-Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. 7. From the bare reading of this section, it is evidently clear that if a girl under 18 years of age has gone with someone with the consent of her lawful guardian then it will not be termed as kidnapping within the meaning of this section and the person, with whom she has accompanied, cannot be punished. 8. In this particular case, the girl left her house with the consent of her mother and if it is not established without doubt that she went with these appellants from her house, it could only prove that she left her house and she did not return her house as such charge levelled against the appellants could not be proved. As such, the judgment and order, passed by the Court below is not sustainable and accordingly, the conviction and sentence, passed by the Court below is set aside. 9. As such, the judgment and order, passed by the Court below is not sustainable and accordingly, the conviction and sentence, passed by the Court below is set aside. 9. It appears that the appellants are on bail. They are discharged from the liabilities of their bail bonds. This appeal is allowed.