The essential elements of kidnapping under Section 363 I.P.C. are not established when the minor's departure is voluntary, lacking coercion or inducement from the accused.

JUDGMENT :

Vikram D. Chauhan, J.

1. Heard Sri Bhagwan Dutt Pandey, learned Counsel for Applicant and Sri O.P. Dwivedi, learned A.G.A. for the State-respondent.

2. This application is preferred by applicant for quashing the charge sheet dated 19.1.2021 as well as cognizance order dated 7.7.2023 and the entire proceeding of Case No. 9029 of 2023 ( State Vs. Himanshu Yadav ), arising out of Case Crime No.0382 of 2020, under Section 363 I.P.C., Police Station-Gauri Bazar, District Deoria pending in the court of Chief Judicial Magistrate, Court/Room No.17, Deoria.

3. Learned counsel for Applicant submits that as per version of first information report, the prosecution case is that on 24.12.2020 the Applicant had enticed away niece of first informant, who was aged about 16 years and thereafter, informant lodged first information report against the applicant under Section 363 I.P.C. at Police Station- Gauri Bazar, District Deoria on 25.12.2020 in Case Crime No.0382 of 2020. The alleged incident took place on 24.12.2020 at 7.30 p.m. while the first information report was registered belatedly on 25.12.2020 at 19.40 HRS. but there is no explanation of delay in the first information report, which itself show that the entire story is false, fabricated and concocted because of malafide intention to implicate the applicant in the aforesaid case.

4. Learned counsel for Applicant further submits that during investigation, statement of alleged victim was recorded under Section 161 Cr.P.C. on 26.12.2020 who has taken the name of applicant and only stated that her family members had beaten her and also given electric shock that is why on 23.12.2020 at 6.30 p.m. she left the house alone and went to Siwan by bus and remained there for two days and thereafter, she was carried to Police Station-Gauri Bazar on 26.12.2020. The statement of mother of victim under Section 161 Cr.P.C. was also recorded who has stated about the love affairs of victim and applicant. The Investigating Officer has also recorded the statement of first informant under Section 161 Cr.P.C. who has reiterated the version of first information report.

5. Learned counsel for applicant submits that victim was produced for medico legal examination on 28.12.2020 where she denied for her internal and external examination. For ascertaining the age of alleged victim she was referred for X-ray, which was conducted on 29.12.2020 and as per X-ray report the age of victim was determined about 18 years by Chief Medical Officer concerned.

6. It is further submitted that the statement of victim under Section 164 Cr.P.C. was recorded on 1.1.2021, in which she stated that she left the house and no one was with her and the name of Himanshu Dubey has been taken by her family members willingly. The victim came under custody of her family members and thereafter her medical was conducted on 28.12.2020 and X-ray was conducted on 29.12.2020 and thereafter, her restatement under Section 161 Cr.P.C. was recorded.

7. Learned counsel for Applicant urges that from perusal of statements under Sections 161 and 164 Cr.P.C. there is no involvement of applicant and the victim has not admitted the fact that she eloped with applicant, as such no offence under Section 363 I.P.C. is made out as there is no ingredient for constituting the offence under Section 363 I.P.C.

8. Learned counsel for Applicant further states that Investigating Officer without conducting the investigation properly and also against the evidence collected during investigation submitted charge sheet against applicant under Section 363 I.P.C. and the Magistrate took cogn