Case Note & Summary
The High Court of Bombay, Nagpur Bench, heard a criminal appeal against the conviction of the accused for kidnapping from lawful guardianship under Section 363 of the Indian Penal Code. The accused had been convicted by the Additional Sessions Judge, Chandrapur, and sentenced to three years of rigorous imprisonment based on allegations that he had taken a minor girl, Rekha, from the custody of her lawful guardian. During the appeal, the girl Rekha filed an affidavit stating that she had voluntarily left her parents' house and later married the accused on 14 January 2014, and that they were living happily as husband and wife. She urged the court to exonerate the accused. However, the court proceeded to examine the case on its merits. The factual background revealed that the girl, who was on the verge of attaining majority, had left her parental home on her own accord without any persuasion, inducement, or blandishment from the accused. She had decided to marry the accused and, thereafter, both had traveled together and eventually married. The prosecution’s case rested on the claim that the accused had 'taken' her from lawful guardianship. The core legal issue was whether the prosecution had proved the ingredient of 'taking' under Section 361 IPC, which defines kidnapping from lawful guardianship. The appellant argued that the evidence showed the minor left voluntarily and that her subsequent marriage and settlement should be considered, while the State supported the conviction. The court analyzed the evidence in light of the Supreme Court’s decision in S. Varadarajan v. State of Madras, AIR 1965 SC 942, which elaborately explained the distinction between 'taking' a minor and merely allowing a minor to accompany. The court noted that 'taking' implies an active role by the accused in persuading or inducing the minor to leave the guardian’s custody. Where the minor, being of an age of discretion and understanding, voluntarily decides to leave and joins the accused without any prior solicitation, it does not amount to 'taking'. The court found no evidence that the accused had played any active part in the formation of the girl’s intention to leave her parents’ house. Consequently, the prosecution had failed to prove the essential element of the offence under Section 363 IPC. The appeal was allowed, the conviction and sentence were set aside, and the accused was acquitted. The court’s decision rested solely on the merits and the interpretation of the statutory provisions, giving due weight to the settled legal principles on kidnapping of a minor.
Headnote
A) Criminal Law - Kidnapping from Lawful Guardianship - 'Taking' under Section 361 IPC - Indian Penal Code, 1860, Sections 361, 363 - The minor girl, on the verge of majority, voluntarily left her father's house and later married the accused. The prosecution failed to prove any persuasion or inducement by the accused. Held, following S. Varadarajan v. State of Madras, that mere passive accompaniment without active participation in the formation of the minor's intention to leave does not constitute 'taking'. Conviction set aside. (Paras 4-5)
Issue of Consideration
Whether the prosecution established the offence under Section 363 IPC when the minor girl voluntarily left her guardian's house to marry the accused, without any inducement by him
Final Decision
The High Court allowed the appeal, set aside the conviction and sentence, and acquitted the accused. The court held that the prosecution failed to prove 'taking' as the minor girl voluntarily left her guardian's house without any persuasion by the accused, following S. Varadarajan v. State of Madras
Law Points
- For kidnapping from lawful guardianship under Section 363 IPC
- the prosecution must prove taking or enticing of minor from lawful guardianship
- voluntary departure by minor without persuasion does not amount to taking
- especially when minor is on verge of majority and capable of understanding consequences
