Taking Or Enticing Minor Out Of Guardian's Keeping Without Their Consent Amounts To Kidnapping; Minor's Consent Immaterial: Jharkhand HC

The Jharkhand High Court has ruled that escorting a minor girl to different places constitutes enticing, thus resulting in a conviction for kidnapping under Section 363 of the Indian Penal Code. It held that regardless of the minor's consent, taking or enticing the minor without their guardians consent would tantamount to kidnapping.

Justice Gautam Kumar Choudhary, presiding over the bench, set aside the conviction under Section 366A for procuration, but instead convicted the appellants under Section 363 for kidnapping.

"In the present case, there was no evidence of any solicitation by the Appellants/accused persons in taking of the minor from the lawful guardianship, therefore, the offence of enticement will not be made out. However, the very act of escorting the minor girl to different places will bring their act within the meaning of enticing. Offence of kidnapping is therefore, complete against these appellants,” he held.

“It has come in evidence that the victim girl was below 18 years at the time of incidence and therefore, her consent shall be immaterial. A person who takes or entices any minor under 18 years of age if female, out of keeping of the lawful guardian of such minor, without the consent of such guardian, is said to kidnap that person,” the Court added.

The above ruling came in a criminal appeal challenging the lower court's verdict convicting the appellants under Section 366A of the IPC. The judgment underscores the legal ramifications of actions that may indirectly contribute to the abduction of a minor, expanding the scope of liability in such cases.

According to the First Information Report (FIR) filed by the mother of the victim, her 15-year-old daughter was enticed by their neighbour, Sakindar Baitha, and taken away by him on the morning of June 30, 2004, at 4 o'clock. Despite efforts, she couldn't be located until the following day, July 1, 2004, when she was returned, supposedly due to social pressure.

Allegedly, the victim revealed to her mother that Sakindar Baitha and accomplices played a role in orchestrating her abduction. Munna Sah drove the vehicle used in the abduction, Mukru Lohar was an associate, and Raj Kumar Baitha was Sakindar Baitha's cousin. Additionally, it's alleged that they collectively assaulted the victim's son when he objected.

Based on the written report, charges were filed under various sections of the Indian Penal Code, including 366A (kidnapping), 147 (rioting), 148 (rioting, armed with deadly weapon), 149 (unlawful assembly), 448 (house trespass), 341 (wrongful restraint), 323 (voluntarily causing hurt), 324 (voluntarily causing hurt by dangerous weapons), 307 (attempt to murder), and Section 376 (rape). However, Sakindar Baitha, the main accused, was a juvenile and thus his trial was separated after charges were framed against him under Section 376 of the IPC.

The Court found it difficult to believe that the victim was taken by force in the morning when she came out of the house voluntarily.

Highlighting the victim's account of being transported to different locations, sometimes by tempo and other times by motorcycle, the Court reasoned that it was improbable for her to have been taken to these places without any opportunity to resist or seek help.

The Court noted, “She was returned by the father of the main accused Sakindar, two days after the incidence. The picture that can be conjured, is that of elopement of the victim girl to join the main accused Sakindar Baitha, in which these Appellants had acted as facilitator. The matter for consideration is whether the charge of kidnapping or abduction is proved against them?”

Placing reliance on the judgement in the case of S. Vardarajan Vs State of Madras, AIR 1965 SC 942, the Court stressed that taking or enticing a minor away from the lawful guardian constitutes the crux of the offense.

The Court observed, “There is a distinction between 'taking' and 'enticing' a minor to accompany a person. The two expressions are not synonymous. In order to establish taking and enticing something more has to be shown and that is some kind of inducement held out by the accused person or an active participation by him in formation of the intention of the minor to leave the house of the guardian. There is essential distinction between taking and enticing. The word 'take' means to cause to go or to escort. When the accused took the minor with him, whether she is willing or not, the act of taking is complete and the condition is satisfied. The word 'entice' involves an idea of inducement by exciting hope or desired in the other.” the Court stated.

The Court further observed that the principal accused, Sakindar Baitha, had a prior relationship with the victim, and she was familiar with him. Moreover, she was returned by Sakindar's father.

Based on these findings, the Court concluded, “allegation of procuration of minor girl is not proved against the accused persons. In order to prove the charge under Section 366A of the IPC, it was necessary to establish that they had knowledge that she will be forced to illicit sexual intercourse with another person.”

The Court thus dismissed the appeal while directed, “On the point of sentence, considering the fact that it was a case of elopement where the Appellants had acted as facilitators, instead of sentencing them to any term of imprisonment, the Appellants are directed to be released on execution of a probation bond of Rs 25,000/- each with two sureties of like amount each for keeping good behaviour for a period of one year.”

Case Title: Munna Sao v. State of Jharkhand

LL Citation: 2024 LiveLaw (Jha) 66

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