A minor’s consent is immaterial where inducement takes her from lawful guardianship, constituting kidnapping.

The appellant challenged his conviction by the Additional Sessions Judge, Delhi, in Sessions Case No. 103/2008 arising from FIR No. 176/2007, Police Station Hauz Qazi, originally registered under Sections 342, 376 and 506 IPC. Although charged under Sections 363, 368, 376 and 506 IPC, the appellant was convicted under Sections 363 and 368 IPC and acquitted of the offences under Sections 376 and 506 IPC. He was sentenced to three years’ rigorous imprisonment under Section 363 IPC and four years’ rigorous imprisonment under Section 368 IPC, with the sentences to run concurrently.

The prosecutrix, who had previously met the appellant while visiting her aunt in Delhi, travelled from Sultanpur, Uttar Pradesh, to Delhi after a quarrel with her mother. The appellant met her near New Delhi Railway Station, represented that he would take her to her aunt’s house, but instead took her to a room in Sapna Building, Ballimaran, and locked her inside while he left for work. She was rescued from the room by the police on the intervening night of 6/7 May 2007.

The prosecutrix initially supported the allegations of kidnapping, confinement and rape in her police and Section 164 Cr.P.C. statements, but turned hostile during trial regarding the allegations of sexual assault and stated that her earlier statements had been made under police pressure. The prosecution nevertheless relied on the testimony of the police officials involved in the rescue, the landlord of Sapna Building, and the medical and age-estimation evidence.

The ossification examination assessed the prosecutrix’s age as between 15 and 16 years. The High Court held that, even allowing a margin of error, she was below 18 years at the relevant time.

The medical examination disclosed no external injury, hymenal tear, abrasion, bleeding or signs of forcible sexual intercourse, resulting in the appellant’s acquittal under Section 376 IPC.

1. Whether the appellant committed kidnapping under Sections 361 and 363 IPC by inducing and taking the minor prosecutrix away from the keeping of her lawful guardian, notwithstanding that she accompanied him voluntarily?

2. Whether the appellant was liable under Section 368 IPC for knowingly concealing or confining a kidnapped person?

3. Whether, in view of the appellant’s age, absence of force or sexual assault, clean antecedents and the prolonged passage of time, the custodial sentence should be modified and the appellant granted probation?

The Court applied Section 361 IPC, which defines kidnapping from lawful guardianship as taking or enticing a minor female below 18 years out of the keeping of her lawful guardian without the guardian’s consent; the minor’s own consent is immaterial where the statutory ingredients are established. Section 363 IPC prescribes punishment for kidnapping from lawful guardianship.

Relying on Rakesh Sona v. State of Chhattisgarh, the Court identified the essential ingredients as the minor’s age below 18 years, her being in the keeping of a lawful guardian, and the accused’s taking or inducing her to leave that keeping without the guardian’s consent.

For Section 368 IPC, the Court relied on State v. Tapan Kumar Mandal and Saroj Kumari v. State of U.P., holding that the prosecution must prove that the person was kidnapped, that the accused knew of the kidnapping, and that the accused thereafter wrongfully concealed or confined the person.

The Court also relied on Puran Singh v. State of Bihar for the principle that knowledge of the kidnapping is the sine qua non of liability under Section 368 IPC.

On sentencing, the Court applied the proportionality principle stated in State of Madhya Pradesh v. Surendra Singh, requiring the sentence to reflect the gravity of the offence while considering the rights of the victim, the interests of society, and all relevant mitigating circumstances.

The Court found that the prosecutrix was below 18 years of age on the basis of the ossification report and supporting evidence, and that her lawful guardianship remained constructively with her parents.

Although she had accompanied the appellant, the Court held that her movement was procured through his false representation that he would take her to her aunt’s house. Instead, he took her to Sapna Building, confined her in a locked room and made no genuine effort to take her to the aunt’s residence.

The rescue evidence of the police officials and the testimony of the building owner corroborated the appellant’s presence with the prosecutrix in the room.

Since the appellant himself had induced and taken the minor away and then confined her, the Court held that he necessarily had knowledge of the kidnapping, satisfying the requirements of Section 368 IPC.

The absence of proof of rape or physical force did not negate the offences under Sections 363 and 368 IPC, though it was relevant to sentencing.

Considering the appellant’s young age, absence of weapon or force, provision of food to the prosecutrix, lack of sexual assault, clean antecedents, and the lapse of more than nineteen years, the Court concluded that the custodial sentence warranted modification.

However, the Court modified the sentence and granted the appellant the benefit of probation.

He was directed to furnish a bond of good conduct for two years in the sum of Rs. 25,000 before the Trial Court.

He was further directed to deposit Rs. 30,000 as costs of proceedings, to be treated as a fine if unpaid and, upon deposit, paid to the prosecutrix as compensation; any fine already deposited was to be adjusted against that amount.

The appeal was disposed of accordingly.