JUDGMENT : SANJAY S. AGRAWAL, J. 1. This appeal has been preferred by the Appellant/State under Section 378 of the Code of Criminal Procedure, 1973, questioning the legality and propriety of the judgment dated 30.12.2017 passed by the Special Judge (POCSO Act)/Additional Sessions Judge, Bemetara, District Bemetara (C.G.) in Special Case No. 60/2016, whereby, the respondent No.1-Maniram Verma has been acquitted for the offence punishable under Sections 363, 366-A and 376 of IPC read with Section 6 of the Protection of Children from Sexual Offences Act, 2012 (In short “POCSO Act”), while respondent No.2-Parmeshwar Yadav has been acquitted for the offences under Sections 366 and 368-A of IPC read with Section 21 of the POCSO Act. 2. Briefly stated the facts of the case are that a written report (Ex.P-6) was lodged by one Dinanath Sahu, who was husband of the prosecutrix, the minor, on 24.05.2016 before the Police Station Nandghat, District Bemetara, alleging inter alia, that his minor wife was alone at home on 22.05.2016 and has gone somewhere else without intimating to anyone else and it was revealed to him from his in-laws’ that the respondent No.1-Maniram, while alluring her, has took her along with him to somewhere else. An enquiry was, thereafter, conducted, wherein, it was revealed that on the pretext of marriage, he took her away from the lawful guardianship of her husband and based upon which, an FIR (Ex.P-21) was registered against him on 24.05.2016 for the offence punishable under Sections 363 and 366 of IPC in connection with Crime No.179 of 2016 and, during the course of enquiry, she was recovered from his possession on 24.05.2016 at Nagdha Chowk of Police Station Nandghat, as revealed from the Recovery Panchnama (Ex.P-1), who upon her recovery, narrated that the respondent No.1- Maniram, while alluring her on the pretext of marriage, took her to his aunt’s (Buwa’s) house at Village Nagdha and committed sexual intercourse with her forcefully. The said respondent was then arrested on 24.05.2016 and stated that he took her away from the lawful guardianship of her husband, with the help of respondent No.2- Parmeshwar Yadav and after completion of the due investigation, the charge-sheet was submitted before the trial Court against them for the offences punishable under Sections 363, 366, 368 and 376 of IPC read with Section 5(l)/6 of the POCSO Act and based upon the materials available on record, the respondents have been charge-sheeted for the offences mentioned herein-above, which were denied by them and claimed to be tried. 3. The trial Court, after considering the evidence led by the prosecution, particularly the entries made in the Dakhil Kharij Register (Ex.P-20) held that the prosecutrix was minor on the date of occurrence of the incident. It held further upon considering her testimony that the respondent No.1-Maniram has neither abducted her, nor had made physical relations with her, nor the respondent No.2-Parmeshwar Yadav has assisted him for his alleged act and accordingly, they have been acquitted from the alleged offence and, being aggrieved, the instant appeal has been preferred. 4. Learned counsel appearing for the appellant/State submits that the findings recorded by the trial Court holding that the prosecutrix was not abducted by the respondent No.1-Maniram, nor was he assisted by respondent No.2-Parmeshwar Yadav for his alleged act, is apparently contrary to the materials available on record, inasmuch as, the evidence led by the prosecution, particularly the statement of the prosecurtrix has not been scanned in its proper manner and thereby erred in acquitting them as such. 5. On the other hand, learned counsel appearing for the respondents has supported the impugned judgment of acquittal as passed by the trial Court. 6. We have heard learned counsel appearing for the parties and perused the entire record. 7. According to the prosecution, the respondent No.1-Maniram on 22.05.2016 at 5 P.M., while alluring the prosecutrix, who is a minor wife of the complainant-Deenanath Sahu, took her away from her lawful guardianship to his aunt’s house at Village Nagdha and committed sexual intercourse with her forcefully and, the respondent No.2-Parmeshwar Yadav has assisted him for his alleged act. 8. 7. According to the prosecution, the respondent No.1-Maniram on 22.05.2016 at 5 P.M., while alluring the prosecutrix, who is a minor wife of the complainant-Deenanath Sahu, took her away from her lawful guardianship to his aunt’s house at Village Nagdha and committed sexual intercourse with her forcefully and, the respondent No.2-Parmeshwar Yadav has assisted him for his alleged act. 8. In order to establish the alleged allegations, the prosecurtrix was examined as PW-12 and deposed that she has love relation with the said respondent-Maniram and, it was revealed further from her testimony that she wanted to go along with him, who, however, told her that she is not matured enough, but due to her insistence and persuasion, he came on the next day around 5 P.M. and informed her about his arrival. Upon receiving the said information, she came out from her in-laws’ house and went along with him to his house at Dayalpur, where, after staying for about 2 hours, they went to his aunt’s (Buwa) house at Village Nagdha. Further of her testimony would reveal that they stayed at night there at the said village, but, he did not make any relation with her and, it appears further from her testimony that since she went as such along with him on her own, her parents have, therefore, refused to keep her. It appears further that during the said period, when she was with Maniram, she has not seen the respondent No.2-Parmeshwar Yadav and his name has, however, been impleaded at the instance of her grandfather. Further of her testimony would show that she was neither allured by the respondent-Maniram on the pretext of marriage for going along with him and, rather has gone with him on her own, nor was she sexually exploited by him. 9. In view of the aforesaid evidence of the prosecutrix (PW-12), it is, thus, apparent that the respondent No.1-Maniram has neither made physical relations with her, nor enticed her for going along with him on the said fateful day. No active participation has, thus, been played by him, when prosecutrix has left her in-laws’ house and rather, it appears that because of her own insistence and persuasion, he (Maniram) took her. 10. No active participation has, thus, been played by him, when prosecutrix has left her in-laws’ house and rather, it appears that because of her own insistence and persuasion, he (Maniram) took her. 10. What is, therefore, revealed from her testimony that the prosecurtrix has, in fact, abandoned the guardianship of her in-laws’ on her own and the respondent-Maniram had done what she wished and, did not took her away from her lawful guardianship forcefully, or was assisted by said Parmeshwar Yadav, the respondent No.2 herein, for his alleged act. 11. In view thereof, it cannot be said that he (Maniram) took her illegally from her lawful guardianship and/or, the ingredients provided under Section 363 of IPC would get attracted, attributing him for the commission of the alleged offence. 12. In some what the similar question was considered by Hon’ble the Supreme Court in the matter of S. Varadarajan vs. State of Madras , 1964 SCC OnLine SC 36 , wherein a minor girl, namely, Savitri had abandoned the guardianship of her parents without the persuasion, enticement or any kind of inducement by the appellant (accused), namely, S. Varadarajan and, therefore, under such circumstances, he was held to be innocent for the commission of the offence under Section 363 IPC. The relevant observations made therein to this effect at paragraphs-7, 9, 10, 16 and 18 read as under:- “7. …. ….. …. ….. …..The offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of Section 361 of the Indian Penal Code: "Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen 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." It will thus be seen that taking or enticing away a minor put of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to "taking" out of the keeping of the lawful guardian of Savitri. Here, we are not concerned with enticement but what we have to find out is whether the part played by the appellant amounts to "taking" out of the keeping of the lawful guardian of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Nataranjan she still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub-Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her 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. 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 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.…. ….. …. ….. …..” 9. …. ….. …. ….. …..“We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is 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. 10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion, if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”. 16. The other case is Rex v. James Jarvis. There Jelf, J. has stated the law thus to the Jury: "Although there must be a taking, yet it is quite clear that an actual physical taking away of the girl is not necessary to render the prisoner liable to convictions; it is sufficient if he persuaded her to leave her home ?? go away with him by persuasion or blandishments. The question for you is whether the active part in the going away together was the act of the prisoner or of the girl; unless it was that the prisoner, he is entitled to your verdict. And, even if you do not believe that he did what he was morally bound to do-itself namely, tell her to return home-that fact is not by-- itself sufficient to warrant a conviction: for if she was determined to leave her home, and showed prisoner that that was her determination, and insisted on leaving with him - or even if she was so forward as to write and suggest to the prisoner that he should go away with her and he yielded to her suggestion, taking no active part in the matter, you must acquit him. If, however, prisoner's conduct was such as to persuade the girl, by blandishments or otherwise, to leave her home either then or some future time, he ought to be found guilty of the offence of abduction." In this case there was no evidence of any solicitation by the accused at any time and the jury returned a verdict of "not guilty". Further, there was no suggestion that the girl was incapable of thinking for herself and making up her own mind. 18. Relying upon both these decisions and two other decisions, the law in England is stated thus in Halsbury's Laws of England, 3rd Edn.,Vol. 10, at p. 758: "The defendant may be convicted, although he took no part in the actual removal of the girl, if he previously solicited her to leave her father, and afterwards received and harboured her when she did so. 10, at p. 758: "The defendant may be convicted, although he took no part in the actual removal of the girl, if he previously solicited her to leave her father, and afterwards received and harboured her when she did so. If a girl leaves her father of her own accord, the defendant taking no active part in the matter and not persuading or advising her to leave, he cannot be convicted of this offence, even though he failed to advise her not to come, or to return, and afterwards harboured her.…. ….. …. ….. …..” 13. Applying the aforesaid principles to the case in hand, where, the prosecutrix, as observed herein-above based upon her testimony, herself had abandoned the guardianship of her husband without the active participation of the respondent No.1-Maniram, nor was found to be assisted by respondent No.2-Parmeshwar Yadav, we are, therefore, satisfied that no offence, as alleged is made out, so as to call for any interference in this appeal. 14. Consequently, the appeal, being devoid of merit, is dismissed.