Kidnapping from lawful guardianship – Ingredients

Ingredients of Section 361 Indian Penal Code cannot be satisfied in a case where the minor having attained the age of discretion, alleged to have been taken by the accused person, left her guardian’s protection knowingly (having capacity to know the full import of what she was doing) and voluntarily joins the accused person. In such a case, it cannot be said that the victim has been taken away from the keeping of her lawful guardian.

So as to show an act of criminality on the part of the accused, some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian, is required to be shown. Conclusion might be different in case evidence is collected by the investigating agency to establish that though immediately prior to the minor leaving the guardian’s protection, no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. Vishal Jaiswal v. State of U.P., 2016 (96) ACC 802.

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