[Kidnapping] Accused Cannot Be Held Guilty If Minor Girl Voluntarily Leaves Her Guardian: Punjab & Haryana High Court

The Punjab and Haryana High Court has made it clear that merely accompanying the minor after her departure or passive association is not sufficient to constitute the offence of kidnapping a minor from their lawful guardian.The Court upheld the acquittal of the accused in the case of kidnapping a minor girl, observing that it was a case of "consensual elopement, rather than kidnapping as alleged by the prosecution."Referring to the Supreme Court's decision in S Varadarajan v/s State of Madras (1965), Justice Sumeet Goel said, "it can be safely deduced that in cases where a minor girl voluntarily leaves her lawful guardianship without any evidence of active enticement or taking by the accused, the accused cannot be held liable under Section 363 IPC. The law requires the prosecution to establish a direct act by the accused that prompted the minor's departure from lawful custody. If there is no material on record demonstrating that the accused actively influenced, persuaded, or physically removed the minor, the essential ingredients of the offense remain unfulfilled."The Court clarified that "merely accompanying the minor after her departure or passive association does not suffice to constitute kidnapping under this provision."These observations were made while hearing the appeal against the Trial Court's acquittal order from the charges under Sections 363 (Kidnapping) and 366-A (Procuration of minor girl) of the IPC by granting him the benefit of doubt.A complaint was filed by the father of the minor girl that she was kidnapped on her way to school by the accused man. After examining the submissions, the Court noted that the offence of kidnapping of a minor girl under Section 363 of the Indian Penal Code (IPC), the prosecution must demonstrate specific elements, supported by evidence, as prescribed under the law. The crux of the offence lies in the act of "taking" or "enticement" by the accused. Justice Goel explained that the act must be intentional and direct, resulting in the minor girl being removed from the lawful guardianship of her custodian, typically her parents or legal guardian. The term “taking” implies a deliberate act of physically moving or transporting the minor out of lawful custody.Connection Between Accused Person's Action And Minor's Removal- An Essential IngredientThe Court elucidated that the prosecution must prove that the accused person's conduct directly caused the minor to step outside the control or protection of her lawful guardian. Furthermore, the law does not require coercion or force; mere enticement suffices, provided it is shown that the accused person's actions influenced the minor's departure.It also highlighted that the consent of the minor girl under eighteen is immaterial, as the law presumes that a minor lacks the capacity to consent independently in such cases.The Court concluded that in cases where a minor girl voluntarily leaves her lawful guardianship without any evidence of active enticement or taking by the accused, the accused cannot be held liable under Section 363 IPC.For Sec 366-A IPC Necessary To Prove Intention Of Inducement Is Illicit Intercourse Examining the offence of "Procuration of minor girl", under Section 366-A IPC the Court said that, to establish the offence, the prosecution must prove a direct causal connection between the accused person's act of inducement and the intended outcome of illicit intercourse.The Court added that inducement is a pivotal element of the offence and involves persuading, enticing, or influencing a minor girl to leave her place or perform a specific act. However, the act of inducement alone is insufficient to constitute an offence under Section 366-A."It must be demonstrated that this inducement was aimed at achieving a particular outcome: the minor girl being forced or seduced into illicit intercourse with another person," said the judge.In the present case the Court found that prosecution has failed to satisfactorily discharge its burden of proof by presenting credible and reliable evidence or witnesses.Stating that in cases involving offences under Section 363 and Section 366- A IPC, the testimony of the prosecutrix holds paramount importance in determining the culpability of the accused, the Court noted inconsistencies in her testimony.In light of the prosecutrix's age, her willingness to accompany the accused, and the absence of any credible evidence of coercion or inducement, the Court opined that the elements necessary to establish offence under Sections 363 and 366-A of IPC have not been met and victim had made a conscious decision to join accused's company.Consequently, the acquittal was upheld.Mr. Sunny K. Singla, Advocate for the appellant. Mr. Anup Singh AAG Punjab.Title: XXXX v. State of Punjab

[Kidnapping] Accused Cannot Be Held Guilty If Minor Girl Voluntarily Leaves Her Guardian: Punjab & Haryana High Court

Aiman J. Chishti

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