The judgment emphasizes the importance of establishing the essential elements of the alleged offences and the requirement of evidence to prove abetment, highlighting the principles of criminal liability and the need for a prima facie case.

Mukta Gupta, J.

1. By the present revision petition, the Petitioner seeks setting aside of the order dated 1st March, 2016 passed by the learned Additional Sessions Judge framing charge against the Petitioner under Sections 363/366A IPC, Section 109 IPC read with Section 376D IPC and Section 17 read with Section 6 of Protection of Children against Sexual Offences Act, 2012 (in short 'POCSO Act'). The prosecution case springs out of FIR No. 78/2015 registered at PS Uttam Nagar under Section 363 IPC lodged by the mother of the prosecutrix.

2. After the prosecutrix was recovered, her statement was recorded under Section 164 Cr.P.C. wherein she stated:-

"I like a boy named Shyam Kumar who has a fracture on his right leg and cannot walk properly. Earlier also, I had gone to his house four times but there was no physical relation between us.

Yesterday, on 17th January, 2015 at 7:30 A.M., I bunked my school and went to Shyam's house. When I told Shyam that I do not want to stay in my house, he said that I can stay in his house. Shyam's mother also admires me. Shyam called up Guddu, who is his friend, and told him that they need a place to stay at night. Till 7:30 P.M., we stayed at Shyam's house. After 7:30 P.M., we took an auto from Shyam's house and reached Nand Nagari. Thereafter, Shyam rang up his friend Guddu and called him there. But Guddu asked them to reach Bank Colony stand. Guddu came to Bank Colony stand and took us to the house of Sushil who was his friend. There Guddu told us to go upstairs. The entire night Shyam and I kept awake in the room upstairs as Sushil and Guddu were also present in that room and we did not trust them. In morning at 5:00 A.M., Guddu took the phone of Shyam and was not returning him in fun which annoyed Shyam but still the phone was not returned. Then Guddu and Shyam went to take the auto. Shyam repeatedly requested to take me along but Guddu did not agree and took Shyam along with him on bike. After 10 minutes, Guddu returned and told that after pushing Shyam he has returned. Then Sushil and Guddu, one by one, did wrong act with me. Wrong act means rape. Though I cried still they did not leave me. Then Guddu took me to Bank Colony stand on bike where Shyam Ji was sitting and waiting for me. There we took auto and after Guddu left and when Shyam inquired I told everything to Shyam. I also told him that I was bleeding and was having a lot of pain. Then we went to the house of Shyam. There my relatives were present and my mother started beating Shyam and blaming him even though he did not do anything with me. Wrong act with me was done by Sushil and Guddu. Guddu previously also raped a minor girl."

3. The ingredients of the offence of kidnapping punishable under Section 363 IPC were discussed by Supreme Court in the decision reported as AIR 1965 SC 942 S. Varadarajan v. State of Madras and the relevant extract of the report are:-

"9. It must, however, be borne in mind that there is a distinction between “taking” and allowing a minor to accompany a person.

The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian."

4. The prosecutrix in her statement recorded under Section 164 Cr.P.C. stated that she voluntaril