Indian Kanoon - Search engine for Indian Law

17. So for the culpability for the offence u/s 366 IPC, it is necessary for the prosecution to prove that Zainab was either kidnapped or abducted by accused Amzad. As per the prosecution case victim Zainab was below FIR No.608/2006 State Vs Amzad page 7 of 11 18 years of age when she was taken away from her lawful guardian by accused Amzad. Offence of kidnapping from lawful guardianship has been defined in sec 361 IPC.

Sec. 361 IPC says:- Kidnapping from lawful guardianship- whoever takes or entices any minor under 16 years of age if a male, or under 18 years of age if a female or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

18. So for the offence of kidnapping from the lawful guardianship it was necessary for prosecution to prove that Zainab was either taken or enticed away from the keeping of her lawful guardian i.e. her parents. The term "taken or enticed away" has been discussed by Hon'ble Supreme Court in the judgment titled as "Varadarajan vs State of Madras" 1965 AIR 942, 1965 SCR(1) 243, wherein, Hon,ble Supreme Court has held that:-

"......... where a minor girl, alleged to be taken away by the accused person, had left her father's protection knowing and having capacity to know the full import of what she was doing and voluntarily joined the accused, it could not be said that the accused had taken her away from the keeping, of her lawful guardian within the meaning of Sec.361 of the Indian Penal Code (Act XLV of 1860). Something more had to be done in case of that kind, such as an inducement held out by the accused person or an active participation by him in the formation of the intention, either immediately prior to the minor leaving her father's protection or at some earlier stage. If the evidence failed to establish one of these merely because after she had actually left her guardian's house or a house where her guardian had kept her she joined the accused, and the accused helper her in her design not to return to her guardian's house by taking her alongwith him from place to place...."