Minor’s consent is immaterial in kidnapping; public records for age determination prevail over radiological opinions.

The informant (PW1) reported his minor daughter missing on 19.08.2008.

Earlier, the victim (PW4) received calls from the accused regarding a marriage proposal to Sanjeev Kumar and threats against her father.

The victim left her home after Sanjeev Kumar (Accused) allegedly instigated her to run away and provided ₹800/-.

Accused Kanchan Kumar facilitated her travel to Jukhala, slapped her when she expressed a desire to return, and helped her board a bus to Shimla with a juvenile, ‘P’.

The police recovered the victim from an HRTC bus at Brahmpukhar.

Medical examination suggested the possibility of sexual intercourse despite the victim’s congenital vaginal malformation.

The Trial Court convicted all four appellants under Sections 363 and 366 read with 120-B of the IPC, and additionally convicted Sanjeev Kumar under Section 506 IPC.

1. Whether the victim was a minor on the date of the incident based on conflicting documentary and radiological evidence.

2. Whether the acts of the accused constituted "taking or enticing" under Section 361 IPC, given the victim’s alleged voluntary departure.

3. Whether the evidence was sufficient to sustain a conviction for conspiracy against all appellants.

4. Whether an accused can be punished separately under both Sections 363 and 366 IPC for the same act.

The court applied Section 35 of the Indian Evidence Act regarding the relevancy of entries in public records, specifically the Pariwar Register and school certificates.

It relied on the principle from Bhoop Ram v. State of U.P. that entries in school registers prevail over radiological age estimates.

Regarding kidnapping, the court applied Section 361 IPC, noting that the consent of a minor is immaterial and "persuasion which creates willingness" constitutes enticement, as held in Prakash v. State of Haryana and Anversinha v. State of Gujarat.

Furthermore, Section 71 of the IPC was applied to prevent double punishment for a minor offence (Section 363) when an aggravated form (Section 366) is proved.

The High Court affirmed the victim’s minority, holding that the birth certificate and school records (Date of Birth: 02.08.1992) carried more evidentiary weight than the radiologist's estimate of 16–18 years.

On the merits, the court found that Sanjeev Kumar instigated the victim to flee and Kanchan Kumar facilitated her journey through Khad and Jukhala, satisfying the "taking or enticing" requirement of kidnapping from lawful guardianship.

However, the court found the evidence against Pawan Kumar and Brij Lal insufficient, as the victim’s grandfather (PW9) testified to only a single phone call, failing to prove a repeated pattern of threats or active participation in the conspiracy.

Regarding the charges, the court noted that Section 366 IPC is an aggravated form of Section 363; thus, under Section 71 IPC and the precedent in Emperor v. Mahmud Ali Khan, separate convictions for both sections for the same transaction were legally unsustainable.

It upheld the conviction of Sanjeev Kumar and Kanchan Kumar under Section 366 read with 120-B IPC and Sanjeev’s conviction under Section 506 IPC.

However, it set aside their convictions under Section 363 IPC, holding that punishment for the aggravated offence (Section 366) subsumes the minor offence.

The sentence of five years' rigorous imprisonment for Section 366 was maintained as appropriate given the victim’s age and the nature of the intimidation.