Non-examination of Victim and Investigating Officer Vitiates Conviction in Kidnapping Cases Involving Consenting Majors

The informant alleged that on April 6, 2009, the appellant and co-accused Md. Salim kidnapped his grand-daughter on a motorcycle for human trafficking

The appellant was subsequently convicted by the Trial Court on December 4, 2015, under Sections 361 and 363 of the IPC and sentenced to seven years of imprisonment

However, during the investigation, the victim’s statement under Section 164 Cr.P.C. (Exhibit-A) revealed she was 23 years old, in love with the co-accused, and had left voluntarily

Notably, during the trial, the prosecution failed to examine both the victim and the Investigating Officer

1. Whether the conviction under Section 363 IPC can be sustained in the absence of testimony from the victim and the Investigating Officer?

2. Whether the victim was a minor at the time of the occurrence to satisfy the ingredients of "kidnapping from lawful guardianship" under Section 361 IPC?

Sections 361 and 363 of the Indian Penal Code (IPC) regarding kidnapping from lawful guardianship, which requires proof that the victim was a minor (under 18 for females) and was taken without consent

Section 164 of the Code of Criminal Procedure (Cr.P.C.) regarding statements made before a Magistrate

The principle of criminal jurisprudence that the prosecution must prove the locus delicti (place of occurrence) and manner of occurrence through objective evidence

The Court observed that the prosecution's case suffered from fatal evidentiary gaps. Although P.W. 1 through P.W. 9 were examined, the two most critical witnesses—the victim and the Investigating Officer—were never brought before the trial court

This omission left the court "bereft of all objective evidence" regarding the place and manner of the incident

the Court contrasted the prosecution's claims with Exhibit-A (the victim's Section 164 statement), where she declared she was a major (23 years old) and a consenting party in a romantic relationship with the co-accused

Under these circumstances, the Court found it "unsafe" to rely on hearsay or secondary witnesses to uphold a conviction

The High Court set aside the judgment of conviction dated December 4, 2015, and the order of sentence dated December 8, 2015

The appellant was acquitted of all charges and discharged from the liability of his bail bonds. The appeal was allowed