For kidnapping from lawful guardianship under Section 361 IPC, prosecution must prove accused actively 'took' or 'enticed' minor from guardian's custody; minor's voluntary self-initiated departure without inducement does not constitute offence despite consent irrelevance. (32 words)

ORDER

This Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been preferred against the judgment and order dated 20.08.2013 passed by the 2nd Additional District Judge, Maihar, District Satna in Sessions Trial No. 134/2013, whereby the appellant was convicted for the offence punishable under Section 363 of the Indian Penal Code, 1860 and sentenced to undergo three years' Rigorous Imprisonment with a fine of Rs. 1,000/- with default stipulation.

2. The prosecution case, in brief, is as follows: On 15.03.2013, the prosecutrix (PW-5) was found missing from her house. A missing person report (No. 05/2013) was registered at Police Station Badera, Maihar. During investigation, it transpired that the appellant was also missing from the same date. Consequently, on the basis of suspicion, an FIR bearing Crime No. 42/2013 was registered against the appellant under Sections 363 and 366 IPC.

3. The prosecutrix returned home on her own on 20.03.2013. She was subjected to medical examination. After completion of investigation, charge-sheet was filed and the case was committed to the Sessions Court. The learned 2nd Additional Sessions Judge, Maihar framed charges against the appellant under Sections 363 and 366 IPC. The appellant denied his guilt and took the defence that the prosecutrix was a consenting party and that he had been falsely implicated.

4. The learned Trial Court, upon appreciation of evidence, acquitted the appellant of the charge under Section 366 IPC, holding that the prosecution had failed to establish the essential ingredients of abduction for the purposes mentioned therein. However, the Trial Court convicted the appellant under Section 363 on the ground that at the time of the incident, the prosecutrix was approximately 15 years and 6 months of age, and hence her consent was legally irrelevant for the purposes of the offence of 'kidnapping from lawful guardianship' under Section 361 .

5. PW-5 (the prosecutrix) deposed before the Trial Court that on the date of the incident, i.e., 15.03.2013 at 4:00 AM, she left her house on her own and went to the field of Ravidas. Therefrom, she proceeded to Badera, then to Maihar, then to Jabalpur, and finally to Bombay (Mumbai) all in the company of the appellant. She further stated that the appellant had told her that he would marry her. She also stated that the appellant did not commit any wrongful act against her.

6. In her cross-examination, PW-5 categorically stated that:

(a) The appellant did not use any force against her;

(b) She had gone with the appellant of her own free will after informing her mother;

(c) The appellant did not take her away by enticement or allurement;

(d) The appellant did not mislead her regarding marriage;

(e) It was her own wish to marry the appellant, but her parents had refused the proposal;

(f) She stayed with the appellant for five to six days of her own free will.

7. The mother of the prosecutrix in her statement has not made any allegation against the appellant.

8. The Trial Court, on appreciation of the aforesaid evidence, expressly recorded the following findings of fact: (i) the prosecutrix went to Bombay with the appellant entirely of her own will and consent; (ii) the appellant did not commit any wron