1 2026:CGHC:16756 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 264 of 2021 State Of Chhattisgarh Through Police Station Surajpur, District Surajpur (C.G.) ... Appellant versus 1 - Kuldeep Sahu S/o Shri Ashok Sahu Aged About 19 Years Resident Of Nagar Purana Bazarpara Surajpur , District Surajpur (C.G.) 2 - Vishal Gupta S/o Sunil Gupta Aged About 18 Years Resident Of Nagar Purana Bazarpara Surajpur, District Surajpur (C.G.) 3 - Rijwan S/o Munna Ansari Aged About 18 Years Resident Of Nagar Purana Bazarpara Surajpur, District Surajpur (C.G.) 4 - Vijay Kasera S/o Late Vishwanath Kasera Aged About 19 Years Resident Of Nagar Purana Bazarpara Surajpur , District Surajpur (C.G.) ... Respondent(s) For Appellant : Shri Sachhidanand Yadav, Panel Lawyer For Respondent No.1 : Ms. Gunja Taram, Advocate For Respondents No.2 to 4 : Shri Sajal Kumar Gupta, Advocate Single Bench: Hon'ble Shri Justice Sanjay S. Agrawal Judgment on board 10/04/2026 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 29/01/2021 passed by the learned Additional Sessions Judge, Fast Track Special Court, Surajpur, District Surgajpur (C.G.) in Special Sessions Trial SATISH TUMANE Digitally signed by SATISH TUMANE Date: 2026.04.13 17:25:30 +0530 2 No.58/2017 (Crime No.285/2017), whereby, the respondents have been acquitted with regard to the offence punishable under Sections 363 and 366-A of IPC, read with Section 12 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the Act, 2012”). 2. Briefly stated the facts of the case are that a written report (Ex.P-5) was lodged by the prosecutrix’s father before the Police Station-Surajpur, alleging inter alia, that on 21/07/2017, when his daughter was coming from Ambikapur to Surajpur and when she reached the Bus Stand at Surajpur, she was taken away by Respondent No.1-Kuldeep Sahu at 08.30 PM by his car, while alluring her. Based upon the alleged report, an FIR (Ex.P-6) was registered on 21/07/2017 against the said Respondent under Sections 363 and 366 of IPC and during investigation, she recovered from the Village Kanchanpur of District Baikunthpur on 23/07/2017 in possession of Respondent No.1-Kuldeep Sahu, Respondent No.2-Vishal Gupta and Respondent No.3-Rizwan and, after her recovery as such, her statement (Ex.P-4) was recorded under Section 164 Cr.P.C. and Dakhil Kharij Register (Ex.P-2) was recovered vide Ex.P-1 from the Principal of Global Public School, Surajpur, showing her date of birth to be 12/07/2001 and, after completion of due investigation, the charge-sheet was submitted before the Chief Judicial Magistrate, Surajpur, where the matter was committed to the concerned trial Court and based upon the materials available on record, the respondents have been charge-sheeted with regard to the offence mentioned herein-above, which was denied by them and claimed to be tried. 3 3. 3 3. The trial Court, after considering the evidence led by the prosecution, particularly the statement of the prosecutrix, her father and also of her maternal uncle (PW-3), arrived at a conclusion that since she went along with the respondents on her own wish, therefore, it cannot be said that she was kidnapped or abducted as such by the respondents from the lawful custody of her parents and, accordingly, they have been acquitted with regard to the alleged offence and being aggrieved, the instant appeal has been preferred. 4. Learned Counsel appearing for the appellant/State submits that the finding recorded by the trial Court holding the respondents were not involved for the commission of the alleged crime, is apparently contrary to the materials available on record, inasmuch as, the evidence led by the prosecution, particularly the statement of the prosecutrix (PW-1), 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 while referring to the statement of the prosecutrix (PW-1), vis-a-vis her statement (Ex.P-4) recorded under Section 164 Cr.P.C., submits that since the prosecutrix on her own wish, had gone along with the respondents, therefore, the trial Court, after considering her statement, has not committed any illegality in acquitting them as such. 6. I have heard learned counsel appearing for the parties and perused the entire papers. 7. From perusal of the record, it appears that the respondents have been charge-sheeted with regard to the offence punishable under Sections 363 and 366-A of IPC read with Section 12 of the Act, 2012, based 4 upon the written complaint (Ex.P-5) lodged by the prosecutrix’s father on 21/07/2017, wherein it was alleged that on 21/07/2017, her daughter was allured by the respondent No.1 on one or the other pretext when she was coming from Ambikapur to Surajpur by bus and took her by his car from the Bus Stand of Surajpur. Although, it was alleged as such, but from perusal of the statement (Ex.P-4) of the prosecutrix recorded under Section 164 Cr.P.C, it appears that she went along with the respondents for wandering from Ambikapur to Bhilai by train, without intimating to anyone of her house and, it appears further that she has not gone with them under any kind of pressure. The said statement (Ex.P-4) so recorded before the Judicial Magistrate First Class, Surajpur was duly admitted by her, as revealed from paragraph 5 of her testimony. It appears further from her (PW-1) testimony that though it was stated at paragraph 3 that when she was coming from Ambikapur to Surajpur, the respondents were aware of the said fact and before reaching of her father at Bus Stand, Surajpur, the respondents came and respondent No.1-Kuldeep Sahu, while alluring her on the pretext of marriage, wanted to took her for wandering, but when she wanted to inform this fact to her parents, she was restrained by him (Respondent No.1-Kuldeep Sahu) and thereafter, he and others have took her by a car to Katora Railway Station, where, the respondent No.4-Vijay Kasera has left them and returned to Surajpur. Though, it was stated by her as such, but from her statement (Ex.P-4) recorded under Section 164 CrPC, it is evident that she went along with them on her own wish and at that particular time, she was not taken by them forcefully. Even in her testimony, it was admitted specifically at paragraph 9 in her cross-examination that she not only 5 informed the respondent No.1-Kuldeep Sahu regarding her reaching to Ambikapur, but also informed him further on telephone for her coming to Surajpur. Further of her testimony would reveal the fact that she went along with the respondents on her own wish. 8. In some what the similar question was considered by Hon’ble the Supreme Court in the matter of ‘S. Varadarajan vs. State of Madras’ reported in 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. We have no doubt that though Savitri had been left by S. 6 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. The fact of 7 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 8 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 ог 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. 9 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. 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.…. ….. …. ….. …..” 9. Having considered the facts and circumstances of the case, considering further the admission of the prosecutrix, as observed hereinabove, in the light of the principles laid down by the Supreme Court in the above referred matter i.e. S. Varadarajan (supra), it is, thus, evident that she was not taken by the respondents forcefully from the lawful guardianship of her parents, as I find nothing on record to this effect that the respondents have forcefully took her away from the lawful guardianship of her parents without her consent or have wrongfully confined her, so as to hold them, in any manner, guilty for the commission of the alleged offence. The trial Court, after taking note of those materials, particularly the statement of the prosecutrix as also her statement (Ex.P-4) recorded under Section 164 Cr.P.C.,has, therefore, not committed any illegality in acquitting the respondents from the commission of the alleged crime. 10. Consequently, the appeal being devoid of merit, is dismissed. SD/- (Sanjay S. Agrawal) Judge Tumane