Voluntary Departure of Minor Without Inducement Does Not Constitute Kidnapping Under Section 361 IPC

The State appealed against the trial court's judgment dated 28.11.2014, which acquitted the Respondent of charges under Sections 363, 366, 506 of the IPC and Section 12 of the POCSO Act

The prosecution alleged that on 31.07.2013, the Respondent kidnapped the victim (PW3), a minor aged 17, by threatening to upload her photographs to the internet, and subsequently sexually assaulted her

The victim initially supported these claims in her Section 164 Cr.P.C. statement

However, during trial, PW3 admitted that she traveled with the Respondent through crowded public terminals and buses without seeking help, despite the presence of police and the public

She further admitted the Respondent never physically harmed or sexually assaulted her and that she was unsure if he even possessed the alleged photographs

1. Whether there is any infirmity in the trial court's judgment acquitting the accused that warrants interference by the High Court

2. Whether the Respondent "took" or "enticed" the minor out of lawful guardianship under Section 363 IPC in light of her conduct and admissions

Section 361 of the IPC, which defines kidnapping from lawful guardianship as "taking" or "enticing" a minor without the guardian's consent

Section 366 IPC regarding the abduction of a woman to compel marriage or illicit intercourse through criminal intimidation

Sections 11 and 12 of the POCSO Act, which require proof of sexual harassment

S. Varadarajan v. State of Madras (1965), which establishes a distinction between "taking" a minor and a minor voluntarily accompanying an accused; if a minor of sufficient understanding joins the accused without active inducement, it does not constitute "taking"

The Court observed that while the victim was a minor, her testimony during cross-examination severely undermined the prosecution's case. The Court found that the alleged "taking" by force or threat was unsubstantiated because PW3 admitted the accused never slapped her and she was unaware if he had the photographs used for the alleged blackmail

The Court emphasized the victim's conduct: she traveled via public transport (autorickshaws and buses) and frequented busy terminals (Anand Vihar and Haridwar) where police were present, yet she never raised an alarm or sought assistance

Following the ratio in S. Varadarajan, the Court reasoned that the Respondent did not "take" the victim, as her voluntary accompaniment through public spaces suggested a lack of coercion

Regarding POCSO, the Court noted the victim's own admission that no sexual assault or inappropriate touching occurred, thereby failing to meet the requirements of sexual harassment under Section 11

The High Court dismissed the appeal and upheld the acquittal of the Respondent