IMPORTANT POINT
If accused had played some role at any stage by which he either solicited or persuaded minor to abandon legal guardianship, it would be sufficient to hold such person guilty of kidnapping.

JUDGMENT

Santosh Hegde, J.-The appellant before us was charged of an offence punishable under Section 366 IPC before the Addl. Sessions Judge, Jorhat who after trial sentenced him for an offence punishable under the said section to undergo RI for three years and a fine of Rs. 300/- in default in payment of fine to undergo further RI for three months. An appeal filed against the said judgment and conviction before the High Court of Gauhati came to be dismissed by the impugned judgment and the appellant is now before us in this appeal.

2. Brief facts necessary for the disposal of this appeal are as follows:-

On 30.3.1990 at about 8.30 p.m., PW-1 Paresh Saikia lodged a complaint in Bebarapara police out post alleging that his younger sister Bibi. Saikia who was a minor had been kidnapped by the appellant herein who was also a resident of the same village. On the basis of the said complaint a case was registered and investigation was initiated. In the course of the investigation, the I.O. recorded the statement of as many as six witnesses and on completion of the investigation a chargesheet under Section 366 IPC was filed before the trial court. In the complaint filed by PW-1, as also in his evidence before the court, PW-1 stated that his sister (PW-2) was a student of VIII standard at that time and was a minor and at about 6.30 p.m. on 30.3.1990 he came to know from his brother that his sister was missing and he was also informed that she was seen in the company of the appellant in the locality. So suspecting the appellant of having kidnapped his sister, he went to the house of the appellant where he was not allowed to enter the house by the appellant and his brother. However, he noticed there that arrangements were made for performing a marriage ceremony. He also mentioned in his evidence as also in his complaint that his sister was a minor and in support of his case he had produced her date of birth as entered in school certificates. The victim was subjected to medical examination and PW-5 the doctor who examined the victim had opined after performing the necessary tests that she was below the age of 18 years. While the evidence of PW-4 the father of the victim as supported by the records of the school also showed that the girl was a minor on the date of the incident. Victim (PW-2) herself has stated in her evidence that on the relevant date when she had gone out to answer the call of nature the appellant by force took her to his house where his mother and sister-in-law were present who made her change her dress and put vermilion on her forehead and prepared her for the marriage with the appellant.

3. Thus on the basis of the above evidence the courts below came to the conclusion that on the date of the incident PW-2 was a minor and the act of the appellant in taking her with the object of getting her married to him amounted to an offence punishable under Section 366 IPC and hence found him guilty and sentenced him as stated above.

4. Shri Vijay Kumar learned counsel appearing for the appellant did not seriously controvert before us the fact that the victim was a minor on the date of the incident. However, his case was that both the appellant and victim (PW-2) were in love for number of years prior to the date of the incident and she voluntarily and willingly went with him, therefore even though she is a minor, since there was no enticement or taking away as contemplated under Section 361 of the Indian Penal Code appellant cannot be held guilty of kidnapping PW-2. It is his contention that even a minor has every right to abandon the house of the guardian and go to any place of his or her choice and there is no legal obligation on the person to whose place such minor goes to restore back the minor to the custody of the legal guardian. He contended from the evidence on record, it is clear that PW-2 accompanied him voluntarily to his house with a desire to marry him and therefore conviction under Section 366 IPC was not maintainable. T