Voluntary accompaniment by minor without active inducement does not constitute kidnapping from lawful guardianship.

The State appealed against the judgment dated January 29, 2021, passed by the Additional Sessions Judge, Fast Track Special Court, Surajpur, which acquitted the respondents of charges under Sections 363 and 366-A of the Indian Penal Code (IPC), read with Section 12 of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

The prosecution alleged that on July 21, 2017, Respondent No. 1 allured the minor prosecutrix (D.O.B. 12/07/2001) from a bus stand and took her away in a car.

She was recovered two days later in the company of Respondents No. 1, 2, and 3.

During the trial, the prosecutrix’s statement under Section 164 of the Cr.P.C. (Ex.P-4) and her testimony (PW-1) were recorded.

The trial court acquitted the respondents, finding that the prosecutrix had accompanied them of her own volition.

1. Whether the act of the respondents constitutes "taking" or "enticing" a minor out of the keeping of a lawful guardian under Section 361 of the IPC when the minor joins the accused voluntarily.

2. Whether the trial court erred in its appreciation of evidence, specifically the testimony of the prosecutrix (PW-1) and her statement under Section 164 Cr.P.C.

The Court primarily applied Sections 361 (Kidnapping from lawful guardianship), 363, and 366-A of the IPC, alongside Section 12 of the POCSO Act.

It relied heavily on the landmark precedent of the Supreme Court in S. Varadarajan v. State of Madras (1964), which established that if a minor, capable of understanding the import of her actions, voluntarily abandons the guardianship of her parents to join an accused without any "persuasion, enticement, or inducement," the accused cannot be held guilty of "taking" her out of lawful guardianship.

The Court examined the prosecutrix's statement (Ex.P-4) recorded under Section 164 Cr.P.C., where she admitted to traveling with the respondents for "wandering" from Ambikapur to Bhilai by train without pressure or external force.

Although her trial testimony (PW-1) suggested Respondent No. 1 allured her with the pretext of marriage, her cross-examination revealed she had proactively informed Respondent No. 1 of her location and arrival via telephone.

The Court observed that the evidence lacked proof of "active participation" or "inducement" by the respondents in forming the minor's intention to leave her home.

Applying the S. Varadarajan principle, the Court reasoned that simply facilitating the girl's desire to accompany the accused, without force or blandishments, does not amount to the criminal act of kidnapping.

The Court found no illegality or impropriety in the trial court’s judgment of acquittal.

Consequently, the appeal filed by the State was dismissed for being devoid of merit.