The importance of proving inducement and the minor's willingness to accompany the accused in the context of kidnapping a minor under Sections 363 and 366A, I.P.C.

Appeal against acquittal. State is the appellant.

2. Respondents were charged by C.I. of Police. Thampanoor for offences punishable under Sections 363 and 366A read with Section 34, I.P.C. The prosecution case is that the accused in furtherance of their common intention kidnapped P.W. 3, a minor girl aged 17 years and 10 months. She was taken in a taxi driven by P.W. 6. The 1st accused is alleged to have enticed P.W. 3 and she was forcibly taken in the taxi with the object of engaging in sexual intercourse with her. Accused 2 to 4 are alleged to have aided the 1st accused in the commission of the offence.

3. The Court below after trial found the accused not guilty of the offences charged against them and in consequence acquitted them. Hence this appeal by the State after obtaining leave.

4. Heard Public Prosecutor and counsel for respondents.

5. The Court below acquitted the accused holding that there was no threat or inducement on the part of the accused and that P.W. 3 had willingly accompanied the 1st accused and the other accused. While holding so, the learned Assistant Sessions Judge has followed the decision of the Supreme Court in Varadarajan v. State of Madras (AIR 1965 SC 942 : 1965-2 Cri LJ 33). On hearing Public Prosecutor and counsel for respondents and on a perusal of the records, I see no reason to interfere in appeal.

6. It is settled law that this Court should deal with each one of the reasons which persuaded the trial Court to record the acquittal and should point out how the reasons are either wrong or incorrect. According to Public Prosecutor. P.W. 3 has been proved to be a minor and inducing a minor is punishable under Section 366A, I.P.C. It is therefore sufficient according to him to bring home the guilt of the accused if the prosecution is able to show that the girl was a minor. But in order to find the accused guilty of the offence under Section 366A, the prosecution has to show that the minor girl was induced to go from any place or to do any act with intent that such girl may be, knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. In order to attract Section 361, taking or enticement of any minor girl under eighteen years of age out of the keeping of the lawful guardian without the consent of such guardian has to be established. It is only then the accused can be said to have kidnapped such minor or person from lawful guardianship. As observed by the Court below, there was no inducement on the part of accused nor was PW 3 enticed away from the custody of the lawful guardianship.

7. While examined as P.W. 3, the girl denied having been kidnapped by the accused and forcibly married on 24-4-1990. Her version is that she had gone to the Sub-Registry Officer for getting the marriage registered. No threat or inducement has been attributed by the prosecution. In view of the categoric denial of any kidnapping on the part of the accused, neither the ingredients of Section 361 nor the ingredients of Section 366A are present in this case.

8. The Supreme Court had occasion to consider an identical case in Varadarajan's case (AIR 1965 SC 942 : 1965-2 Cri LJ 33). There also the complaint was that a minor girl was taken out of lawful guardianship. She was a college going girl on the verge of majority. She telephoned the accused and met him and thereafter went to the Sub-Registrar's Office for registering the marriage agreement. There was no threat or inducement on the part of the accused. In the circumstances, the Supreme Court held that the fact of her accompanying the accused is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances, no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. The Supreme Court observed that she has willingly accompanied him and the law does not cast