Himachal Pradesh HC: Minor's Consent Is Legally Inconsequential In Kidnapping Cases

In a decisive reinforcement of child protection laws, the Himachal Pradesh High Court has ruled that a minor's willingness or infatuation is entirely immaterial in kidnapping prosecutions, as the offence is fundamentally committed against the lawful guardian's right of custody. The Court affirmed that even if a minor girl leaves her home voluntarily or enters into a marriage of her own accord, the act of taking or enticing her out of parental guardianship without consent constitutes a completed criminal offence.

A single-judge bench of Justice Rakesh Kainthla presided over the appeals challenging the conviction of multiple accused for the kidnapping and forced marriage of a 17-year-old girl. The bench meticulously examined the interplay between the protective intent of the Indian Penal Code, 1860 and the factual reality of a minor's incapacity to provide legal consent.

Court's Rationale on Minority and Legal Consent

The Court clarified that the primary objective of Section 361 of the Indian Penal Code, 1860 is to protect both minor children from being seduced and the sacred rights of guardians to their custody. The bench emphasized that the use of the word 'keeping' in the statute implies a state of charge, protection, and control that remains valid even when the minor is not in the physical presence of the guardian.

The Court, in its reasoning, observed: "On plain reading of this section, the consent of the minor who is taken or enticed is wholly immaterial; it is only the guardian's consent that takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person, which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian, would be sufficient to attract the section."

Addressing the medical evidence where the victim reportedly disclosed her age as 19, the Court dismissed its relevance by noting that a minor cannot have personal knowledge of their date of birth, rendering such statements hearsay and inadmissible compared to official records. Referencing CIDCO v. Vasudha Gorakhnath Mandevlekar ( "(2009) 7 SCC 283": 2009 CaseBase(SC) 291), the bench held that statutory birth registers carry a presumption of correctness that prevails over other records.

Application of Precedents on 'Enticement'

The Court relied on several landmark rulings to explain the threshold of 'taking.' Citing State of Haryana v. Raja Ram ( "(1973) 1 SCC 544": 1972 CaseBase(SC) 616) and Anversinh v. State of Gujarat, the Court noted that 'taking' does not necessarily require force but merely an escort or causing the minor to go. It further noted that 'enticement' could involve subtle winning over of affection.

Responding to discrepancies in the victim's testimony, the Court invoked State of Punjab versus Hari Singh ( "AIR 1974 SC 1168": 1974 CaseBase(SC) 82) and State of Andhra Pradesh Vs. Pullagunmi Kasireddy to reiterate that the principle of 'falsus in uno, falsus in omnibus' does not apply in India. The Court emphasized its duty to separate the 'grain from the chaff,' stating that minor exaggerations do not allow the entire prosecution case to be thrown overboard when the core truth of the kidnapping remains established.

The Court has following directions:

"the present appeals are partly allowed, and the sentence imposed by the learned Trial Court for the commission of an offence punishable under Section 363 of the IPC is set aside. Subject to this modification, the rest of the judgment and order passed by the learned Trial Court are upheld."

Background:

The dispute originated from an incident on December 24, 2007, when a 17-year-old victim was allegedly taken from her home on the pretext of visiting a temple. The prosecution's case was that the co-accused Satya Devi enticed the girl to leave, after which the main accused, Rakesh Kumar, took her in a van to Talwara. The victim was allegedly confined in a house belonging to accused Sureshta @ Situ and forced into a marriage with Rakesh Kumar.

The Trial Court had convicted the appellants under Sections 363, 366, 368, and 120-B of the Indian Penal Code, 1860. The appellants argued that the victim was a consenting party who was nearly a major and that she had disclosed her age as 19 to a medical officer. They further contended that the victim accompanied them voluntarily without raising any hue and cry in public places.

The High Court, however, maintained that since the victim was proved to be a minor (born on 20.01.1991), her consent was legally irrelevant. While upholding the convictions for the major offences, the Court set aside the sentence under Section 363, citing Section 71 of the Indian Penal Code, 1860, which prevents double punishment for minor offences when the major offence (Section 366) covers the same act.

Key Takeaways:

Primacy of Guardianship Rights

Kidnapping is an offence against the guardian's right of keeping; thus, a minor's voluntary departure or consent provides no legal defence to the accused.

Hearsay Nature of Self-Declared Age

A minor's own statement regarding their age to a medical officer is considered hearsay and cannot override statutory birth certificates issued by public officials.

Separation of Evidence

Indian courts do not discard a witness's entire testimony simply because parts of it are exaggerated or false; they must extract the 'hard core of truth' from the narrative.

Sentencing Under Major Offence

Under Section 71 of the IPC, where an act constitutes both a minor (Section 363) and an aggravated major offence (Section 366), the accused should not be separately sentenced for the lesser charge.

Ratio Decidendi:

The core legal principle established is that the offence of kidnapping from lawful guardianship under Section 361 of the IPC is complete the moment a minor is taken or enticed out of the keeping of the guardian without the guardian's consent. A minor's own consent, persuasion, or willingness is legally non-existent and does not mitigate the criminality of the act of removal.

Case Details:
Case No.: Cr. Appeal Nos. 296 and 394 of 2010
NeutralCitation: 2026:HHC:26637
Case Title: Sarishta @ Settu & Ors vs State of H.P. with Rakesh Kumar & Anr vs State of H.P.
Appearances:
For the Petitioner(s): Mr Anuj Nag and Mr Digvijay Singh, Advocates
For the Respondent(s): Mr Lokender Kutlehria, Additional Advocate General

Source: 2026 CaseBase(HP) 13