Allowed

Vikas Kumar v. State

Delhi HC18 May 2016CRL.A./1000/2013

Case brief

AI extract

What is this about?

Appeal against conviction for kidnapping from lawful guardianship and abduction of a minor. Held that prosecution failed to prove enticement or moral force inducing the minor to leave; the prosecutrix compelled the appellant to accompany her. Appeal allowed.

What did the court decide?

Impugned judgment of conviction and sentence set aside; Appellant to be released forthwith.

What the court decided

AI extract

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment Reserved on: May 17, 2016

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% Judgment Delivered on: May 18, 2016

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+ CRL.A.1000/2013

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VIKAS KUMAR ..... Appellant Represented by: Mr.Anwesh Madhukar, Adv. DHCLSC.

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versus

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STATE ..... Respondent Represented by: Mr.Ravi Nayak, APP for State.

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CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA

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MUKTA GUPTA, J.

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By the instant appeal the appellant Vikas Kumar challenges the impugned judgment dated 28^th February, 2013 whereby he has been convicted for the offences punishable under Sections 363/366 IPC and the order on sentence dated 8^th March, 2013 directing him to undergo Rigorous Imprisonment for a period of four years for the offence punishable under Section 363 IPC along with a fine of 3,000/-, and in default of payment of fine to undergo Simple Imprisonment for a period of three months and Rigorous Imprisonment for seven years for the offence punishable under Section 366 IPC with a fine of 5,000/- in default of which he shall undergo Simple Imprisonment for a period of six months.

Vikas Kumar Vs State — Delhi HC (2016) — LawSathi Research

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evidence of the girl leaves no doubt that the insistence of marriage came from her own side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was bad for her. She was no uneducated or unsophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing form a rural area. The learned Judge of the High Court has referred to the decision In re : Abdul Sathar 54 M.L.J. 456 in which it was held that where the evidence disclosed that, but for something which the accused consented to do and ultimately did, a minor girl would not have left her husband's house, or would not have been able to leave her husband's house, there was sufficient taking in law for the purpose of s. 363 and expressing agreement with this statement of the law observed : "In this case the minor, P.W. 4, would not have left the house but for the promise of the appellant that he would marry her." Quite apart from the question whether this amounts to blandishment we may point out that this is not based upon

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same seems to us to be the position under our law. The expression used in Section 361, I.P.C. is "whoever takes or entices any minor". The word "takes" does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, "to cause to go", "to escort" or "to get into possession". No doubt it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices", as used in Section 361, I.P.C. are, in our opinion, intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361, I.P.C. But if the guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her father's protection, by conveying or indicating an encouraging suggestion that he would give her shelter, then the mere circumstance that his act was not the immediate cause of her leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him. The question truly falls for determination on the facts and circumstances of each case. In the case before us, we cannot ignore the circumstances in which the appellant and

Vikas Kumar v. State

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