Section 363 IPC- Escorting Minor To Different Places Will Be Enticing: Jharkhand High Court

The Court was hearing a criminal appeal where the decision of the lower Court convicting the appellants under Section 366A of IPC was challenged. It was the case of the Appellants that they merely acted as facilitators for the principal accused who was in a love affair with the victim girl.

The bench of Justice Gautam Kumar Choudhary held, “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.”

Advocate Nitin Kumar Pasari appeared for the Appellant and APP Santosh Kumar Shukla appeared for the Respondent.

Brief Facts-

The mother of the victim girl lodged an FIR that her minor daughter was enticed by her neighbour, Sakindar Baitha. She could not be traced thereafter and later on, under social pressure, she was returned the next day. The victim girl disclosed to the informant that Sakindar Baitha and the appellants Munna Sao, Mukru Lohar and Raj Kumar Baitha in this case were involved in facilitating the escape of the girl. It is also alleged that they had conjointly assaulted her son on an objection being raised by him.

The case was registered under Sections 366A, 147, 148, 149, 448, 341, 323, 324, 307 and Section 376 of the Indian Penal Code. However, The principal accused Sakindar Baitha was a juvenile and his trial was separated after the framing of a charge 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 to attend to her natural call. The Court noted that it is not feasible and logically probable that she had no opportunity to resist or get the help of anyone when she was taken to different places, at times by tempo or motorcycle as stated by her.

The Court mentioned the decision of the Supreme Court in S. Vardarajan Vs State of Madras, AIR 1965 SC 942 where it was held that taking or enticing away a minor out of keeping a lawful guardian, is an essential ingredient for the offence of kidnapping.

The Court stated, “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 noted that the principal accused, Sakindar Baitha, was on a visiting term with the victim girl. She was well acquainted with him and the girl was returned by the father of Sakindar Baitha. The Court found that on this evidence, the allegation of procuration of a minor girl was not proved against the accused persons.

As per the Court, to prove the charge under Section 366A of the IPC, it was necessary to establish that they knew that she would be forced to illicit sexual intercourse with another person.

The Court set aside the conviction by the Court below under Section 366A of the IPC and convicted the appellants for the offence of kidnapping under Section 363 of the IPC.

The Court dismissed the appeal with modification.

Cause Title: Munna Sao v. State of Jharkhand

Appearance:

Appellant: Adv. Nitin Kumar Pasari, Adv. Gaurav Kaushalesh, Adv. Sidhi Jalan

Respondent: APP Santosh Kumar Shukla

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