Minor Accompanying Person Of Her Free Will Without Being Induced Does Not Constitute Offence Of Kidnapping: Chhattisgarh High Court

The Court set aside a twenty-year sentence, observing that if a minor decided to leave her guardian's protection without being solicited or persuaded by the accused, the act does not amount to "taking" out of lawful guardianship.

The Court emphasized that mere companionship, absent force or enticement, fails to meet the essential statutory ingredients for these offences, even if the victim is a minor.

​The Division Bench of Chief Justice Ramesh Sinha and Justice Ravindra Kumar Agrawal observed, “By perusal of the evidence of the victim girl, it appears that victim girl was simply accompanied the accused without being enticed or influenced. Mere accompanying a person without being induced does not constitute an offence under Section 366 of the IPC. Though, the learned State counsel vehemently contended that age of the victim girl has proved by the prosecution that she is minor as on the date of incident, nevertheless, in order to convict the accused for the offence under Section 366 of the IPC, other two essential ingredients i.e. the victim girl must be induced by the accused and she must be induced by the accused person to go from a place or to do any act with an intent that such girl may be knowing that it is likely that she will be forced or seduced to illicit intercourse by another person. As such, the prosecution has failed to prove the ingredients of offence under Section 366 of the IPC.”

Advocate Syed Majid Ali appeared for the Appellant, while Dy. Govt. Advocate Nitansh Jaiswal appeared for the Respondents.

Factual Background

A criminal appeal under Section 374(2) of the Code of Criminal Procedure was filed assailing the judgment and order of conviction passed by the Special Judge. The trial court found the Appellant guilty of kidnapping and aggravated penetrative sexual assault, sentencing him to twenty years of rigorous imprisonment under Section 6 of the POCSO Act, along with five-year terms for offences under Sections 363 and 366 of the Indian Penal Code.

The case began when the victim’s father reported that his minor daughter had not returned from school the previous day. After learning she never arrived at school and failing to find her through relatives, he filed an FIR for kidnapping. Subsequent investigations led to the victim's recovery and the recording of her statement under Section 164 Cr.P.C., where she detailed the offences committed against her.

Contention of the Parties

The Appellant contended that the prosecution's narrative is fundamentally undermined by the victim's own testimony, which suggests a relationship characterized by mutual consent rather than coercion. It was pointed out that the victim admitted to being in regular telephonic contact with the Appellant using an unknown number prior to the incident.

Furthermore, she testified to accompanying the Appellant voluntarily on a journey that spanned multiple locations, including Mungeli, Raipur, Hyderabad, and Vijayawada. The Appellant said that the two eventually settled in a room in Agrapalli, where they resided together for approximately one month. According to the Appellant, this continuous and voluntary companionship demonstrates that he did not employ any coercion, thereby making the convictions under Sections 363 and 366 of the IPC, as well as Section 6 of the POCSO Act, legally unsustainable.

Per Contra, the State argued that the findings are legally sustainable and do not require any judicial interference. It was submitted that because the victim was a minor at the time of the incident, any claim of her "consent" is legally irrelevant and entirely immaterial under the stringent framework of the POCSO Act. The State pointed out that the victim’s own testimony confirmed that physical relations occurred during the period they spent together. Given her status as a minor, the State argued that such relations automatically fall within the definition of penetrative sexual assault under the POCSO Act.

Observations of the Court

The Court analysed whether the Appellant's actions constituted "taking" the minor out of lawful guardianship as defined under Section 361 of the IPC. It said that it is evident that the victim was in regular telephonic contact with the Appellant through an unknown number, and she had voluntarily accompanied the Appellant and travelled with him by bus up to Mungeli, and thereafter proceeded along with him to Raipur.

“As such, there is no inducement to the victim by the appellant to leave the lawful guardianship. Therefore, in the considered opinion of this Court, the act/omission of the appellant, if any, would not tantamount to “taking” within the meaning of Section 361 of the IPC in light of judgment of the Supreme Court in S.Varadarajan (supra). Similarly, there is no evidence of enticing the minor victim by the appellant. As such, the trial Court is absolutely unjustified in convicting the appellant for offence under Section 363 of the IPC”, it observed.

The Court found the prosecution's case for Section 366 IPC lacked corroborative evidence. Medical testimony from the doctor revealed no internal or external injuries, and the Forensic Science Laboratory (FSL) report was negative. The Court observed that the victim accompanied the accused of her own free will and was not "induced" or "influenced" to move from place to place. Since inducement is a mandatory ingredient for this offence, the conviction could not be sustained.

The Court held that the scrutiny of the entire evidence goes to show that there is no evidence on record that at any point in time the appellant solicited or persuaded the victim to leave her home forcefully. It said that the continuous and voluntary companionship, as borne out from the victim’s own version, clearly indicates the absence of force, inducement, or coercion on the part of the Appellant.

Accordingly, the Court allowed the appeal, and the impugned judgment of conviction and order of sentence were set aside; the Appellant was acquitted.

Cause Title: Deepak Vaishnav v. State of Chhattisgarh [Neutral Citation: 2026:CGHC:16334-DB]

Appearances:

Appellant: Advocate Syed Majid Ali

Respondent: Dy. Govt. Advocate Nitansh Jaiswal

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