Case Note & Summary
The appellants, Ashit s/o Adil Biswas, Madhav s/o Balram Gharami, and Suresh s/o Ramdas Bawankar (since abated), were convicted under Section 363 of the Indian Penal Code for kidnapping a minor girl. They appealed against the judgment dated 11.2.2002 passed by the 1st Adhoc Additional Sessions Judge, Gadchiroli in Sessions Case No. 11/2001. The prosecution alleged that the appellants took the minor girl out of the lawful guardianship of her father. However, the evidence showed that the girl voluntarily accompanied the appellants without any force or inducement. The High Court, relying on the Supreme Court's decision in S. Varadarajan v. State of Madras, AIR 1965 SC 942, held that the offence of kidnapping under Section 361 IPC requires the accused to 'take' or 'entice' the minor out of the keeping of the lawful guardian. Since the girl acted of her own free will and there was no evidence of any active participation by the appellants in taking her away, the conviction could not be sustained. The court allowed the appeal, set aside the conviction, and acquitted the appellants.
Headnote
A) Criminal Law - Kidnapping from Lawful Guardianship - Section 361, 363 Indian Penal Code, 1860 - Voluntary Accompaniment - The issue was whether a minor girl who voluntarily left her father's house and accompanied the accused can be said to have been 'taken' out of lawful guardianship. The court held that the prosecution must prove that the accused took or enticed the minor out of the keeping of the lawful guardian; voluntary accompaniment without any inducement by the accused does not satisfy the requirement of 'taking' under Section 361 IPC. The conviction under Section 363 IPC was set aside. (Paras 2-3)
Issue of Consideration
Whether the appellants can be convicted under Section 363 IPC for kidnapping a minor girl who voluntarily accompanied them, without any evidence of 'taking' or 'enticing' by the accused.
Final Decision
Appeal allowed. Conviction under Section 363 IPC set aside. Appellants acquitted.
Law Points
- Kidnapping from lawful guardianship requires active 'taking' or 'enticing' by accused
- voluntary accompaniment by minor does not constitute taking
- burden on prosecution to prove taking out of lawful keeping
