The conviction under Section 366-A was set aside for insufficient intent, affirming that taking a minor from guardianship constitutes kidnapping under Section 363 irrespective of consent.

JUDGMENT :

(Pradeep Kumar Srivastava, J.)

Heard learned counsel for the parties.

2. The present appeal is directed against the judgment of conviction dated 20.01.2006 and order of sentence dated 21.01.2006 passed by learned Additional Sessions Judge-VIII, Palamau at Daltonganj in Sessions Trial No. 194 of 2003, whereby and where under, the appellant has been held guilty for the offence punishable under Sections 363 and 366-A of the I.P.C. and sentence to undergo R.I. for three years under Section 363 of the I.P.C. and R.I. for five years under Section 366 -A of the I.P.C. Both sentences were directed to run concurrently.

FACTUAL MATRIX

3. The factual matrix giving rise to this appeal in a narrow compass is that on 28.05.2002, informant’s minor daughter was missing from the house. He tried to search out his daughter and got the information, the appellant has taken his daughter earlier also. The appellant took her daughter on 16.05.2002 and brought her at Calcutta. But that time on pressure, he produced her daughter in her house. On 29.05.2002, a village Panchayati was called and one of the accused accepted in the Panchayat them that daughter of the informant was with his brother (Sarwar Mian) at Calcutta. Informant tried to call his daughter, but she did not response.

4. On the basis of fardbeyan of the informant, Hariharganj P.S. Case No. 19 of 2002, G.R. No. 705 of 2002 was registered for the offences under Sections 366 /34 of the I.P.C.

5. After completion of investigation, the Investigating Officer of the case has submitted charge sheet against appellant, brother and other family members of the appellant for the offences under Sections 363 /366-A/366/34 of the I.P.C. After taking cognizance of the offences, the case was committed for the trial thereafter, the charges were framed for the offences under Sections 363 /366-A/34 of the I.P.C., which they denied the charge and claimed to be tried.

6. After conclusion of trial, the other co-accused persons were acquitted, but the appellant was held guilty for the offences under Section 363 and 366-A of the I.P.C. and directed to undergo R.I. for three years and five years respectively for the aforesaid offences.

7. Learned counsel for the appellant submits that there was love affair between the victim girl and the appellant. Although, victim was minor and the appellant was also teen ager at that time. Both proceeded from the house with their own sweet will. The offence under Section 366 -A is not attracted in this case which requires following ingredients are :-

(1) that the accused induced a girl; (2) that the person induced was a girl under the age of eighteen years; (3) that the accused has induced her with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse; (4) such intercourse must be with a person other than the accused; (5) that the inducement caused the girl to go from any place or to do any act.

So far as Section 366 -A is concerned, in such an offence what is required to be proved by the prosecution is that there is cogent and reliable evidence to prove and establish that a minor girl under the age of 18 years was induced to come from one place to other with the intention that such girl may be forced to have illicit intercourse with another person. Therefore, in such offence, the chief ingredient is that the girl is made to go from one place to the other w