Voluntary accompaniment without inducement or active participation does not constitute kidnapping under Section 363 IPC.

The appellant challenged the judgment dated 4 June 2012, by which the Additional Sessions Judge, Barabanki convicted him under Section 363 IPC and sentenced him to three years’ imprisonment and a fine of ₹1,000, while acquitting him of offences under Sections 366, 368 and 376 IPC.

His brother, tried under Section 368 IPC, was also acquitted.

The prosecution case was that the complainant’s approximately 14-year-old sister went missing after leaving home for her High School examination on 31 March 2009, and that the appellant had kidnapped her.

The prosecutrix was recovered after approximately four months.

Her medical examination disclosed no bodily injuries; pathological examination was negative for spermatozoa and gonococci, and the radiological assessment indicated that she was above 18 years, though her High School marks-sheet recorded her date of birth as 5 February 1993.

In her Section 164 Cr.P.C. statement, she stated that she had voluntarily left home with the appellant, married him at a temple, and resided with him as his wife without force.

Her testimony also indicated that she travelled with the appellant to Lucknow on several occasions, visited crowded public places, and made no attempt to raise an alarm or escape.

Although the trial court found that she had voluntarily gone with the appellant and that he had not enticed her, it nevertheless convicted him under Section 363 IPC on the basis that she was below 18 years of age according to the marks-sheet.

During the pendency of the appeal, the appellant’s counsel did not appear on several dates.

After the appellant appeared in person, the Court proceeded to decide the appeal on merits instead of deciding his application for recall of the warrant order.

Whether the prosecution established that the appellant “took” or “enticed” the prosecutrix out of the keeping of her lawful guardian, so as to constitute kidnapping under Sections 361 and 363 IPC?

Whether the appellant’s conviction under Section 363 IPC could be sustained merely on proof that the prosecutrix was below 18 years of age, when the evidence showed that she voluntarily left her guardian and accompanied the appellant?

The Court applied Section 361 IPC, which defines kidnapping from lawful guardianship as taking or enticing a female minor below 18 years out of the keeping of her lawful guardian without the guardian’s consent, and Section 363 IPC, which prescribes punishment for kidnapping.

Relying on S. Varadarajan v. State of Madras, AIR 1965 SC 942, the Court held that “taking” is distinct from merely allowing a minor to accompany the accused; where the minor voluntarily leaves the guardian with knowledge of the consequences, the prosecution must establish some inducement, persuasion, or active participation by the accused in forming the minor’s intention to leave.

Mere facilitation of the minor’s decision after she has voluntarily left does not amount to “taking”.

Although the marks-sheet indicated that the prosecutrix was below 18 years, age alone was insufficient to establish kidnapping under Section 363 IPC.

The trial court had itself found that she voluntarily left home, accompanied the appellant, and that the appellant had neither forcibly taken nor enticed her, resulting in his acquittal under Sections 366 and 376 IPC.

Her Section 164 statement, conduct during the four-month period, repeated travel to Lucknow through crowded public places, visits to public attractions, and failure to raise an alarm or attempt escape supported the finding that she had voluntarily accompanied the appellant.

Applying Varadarajan, the Court held that there was no evidence of inducement, persuasion, or active participation sufficient to constitute “taking” from lawful guardianship.

The appellant’s conduct, at most, facilitated the prosecutrix’s pre-existing intention to leave and therefore fell short of the statutory requirement.

Consequently, the conviction and sentence under Section 363 IPC were set aside, and the appellant was acquitted of all charges.

He was directed to furnish a personal bond and two sureties under Section 437-A Cr.P.C. for his appearance before the Supreme Court, if required, with the bonds remaining effective for six months.

The application seeking recall of the warrant order was dismissed as infructuous because the appeal itself had been allowed.