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Showing contexts for: kidnapping case in Md. Allauddin vs State Of Bihar on 11 April, 2014Matching Fragments
9. While considering the evidence of P.W.3 I could not Patna High Court CR. APP (SJ) No.124 of 1996 dt.11-04-2014 find out that indeed the lady was really opposing the acts of being sexually exploited, rather appears moving with the appellant Md. Allauddin from one place to the other probably to evade being caught and recovered and further being restored to her parental custody. This element itself indicates that she was a consenting party and further that it might not be a case of kidnapping or abduction rather it might be a case of simple elopement of a girl with a man of her liking.
12. As may appear from the observations of the Supreme Court that even if a minor was eloping with a person irrespective of the age of the minor it could not be an offence of either of kidnapping or of abduction because the two important ingredients constituting the offence either of kidnapping or abduction are not available in such cases. „Taking away‟ presupposes removing a minor or a lady or any person by some use of force, whereas „enticing away‟ indicates as if the person kidnapped or abducted, had been tricked into going with a man who had either kidnapped or abducted the person. In such a situation, the prosecution is required to bring evidence on record which could establish the elements either of taking away or of enticing away. If the facts of the case indicated that P.W.3, the victim of the offence, was neither taken away nor was enticed away and in fact had, out of her own free will, moved out of the keeping of her lawful guardianship or from her parents‟ house, then no offence of kidnapping or abduction could be made out, even if the girl was below 18 years of age. But what I want to emphasize is that age is not material in such cases. What is the main Patna High Court CR. APP (SJ) No.124 of 1996 dt.11-04-2014 material ingredient of an offence of kidnapping or abduction is either of the two elements i.e. taking away or enticing away so as to removing the minor out of the keeping of her lawful guardianship. I have already noted, after having noticed the evidence of the victim, that it was not a case either of taking away or of enticing away; it rather appeared a case of willingly stepping out of the parental care and guardianship by P.W.3 so as to moving with appellant Md. Allauddin from one place to the other to many places and residing with him by her mind, soul and body. This could not, as such, be a case under Section 366 I.P.C. Accordingly, I find that the conviction of appellant Md. Allauddin for an offence under Section 366 I.P.C. also appears not justified under the facts of the case.
13. It was rightly pointed out that appellant Razi Ahmad, the appellant of the other appeal, was not named in the First Information Report. But that could not be the solitary ground for considering his case for acquittal. In a case of kidnapping or abduction, an accused may not be named in the First Information Report and it may be that on taking up the investigation, materials are collected so as to establishing or reasonably indicating the participation of one or many persons in commission of the offence. Viewing the facts from that angle it may be correct to rule out the argument that appellant Razi Ahmad was not named in the First Patna High Court CR. APP (SJ) No.124 of 1996 dt.11-04-2014 Information Report. However, he was definitely named by the victim in her 164 statement and what was stated by her was that when she had reached the bus stand by a rickshaw with appellant Md. Allauddin, he was found there and after appellant Md. Allauddin and the victim had boarded the bus, appellant Razi Ahmad came back from the bus stand. Thus, what appears is that Razi Ahmad did not even board the bus. On the very strength of the evidence of P.W.3, the victim, he had not gone either to the house of her parents to take her out or bring her out of her lawful guardianship or had given any blandishment-to borrow the word from Varadarajan (supra)-to the victim so as to bring her out of the precincts of her parents‟ house and, thus, to take her away from the keeping of her lawful guardianship. In that view of the state of evidence, it is very difficult to uphold and justify the conviction of appellant Razi Ahmad under Section 363 I.P.C. He does not appear to have contributed towards the commission of any offence.