Sunday, 17 January 2021

Whether a consensual affair can be a defence against the charge of kidnapping a minor?

A perusal of Section 361 of IPC shows that it is necessary that

there be an act of enticing or taking, in addition to establishing the child’s minority (being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such ‘enticement’ need not be direct or immediate in time and can also be through subtle actions likewinning over the affection of a minor girl. Thakorlal D Vadgama v. State of Gujarat, (1973) 2 SCC 413, ¶ 10. 

13. Adverting to the facts of the present case, the appellant has

unintentionally admitted his culpability. Besides the victim being

recovered from his custody, the appellant admits to having established  sexual intercourse and of having an intention to marry her. Although the victim’s deposition that she was forcefully removed from the custody of her parents might possibly be a belated improvement but the testimonies of numerous witnesses make out a clear case of

enticement. The evidence on record further unequivocally suggests that the appellant induced the prosecutrix to reach at a designated place to accompany him.

14. Behind all the chaff of legalese, the appellant has failed to

propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age.

15. A bare perusal of the relevant legal provisions, as extracted

above, show that consent of the minor is immaterial for purposes of

Section 361 of IPC. Indeed, as borne out through various other

provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent.Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359, ¶ 15.Section 361 IPC, particularly, goes beyond this simple presumption. It bestows the ability to make crucial decisions regarding a minor’s physical safety upon his/her guardians. Therefore, a minor girl’s infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping.


17. The ratio of S. Varadarajan (supra), although attractive at first

glance, does little to aid the appellant’s case. On facts, the case is

distinguishable as it was restricted to an instance of “taking” and not “enticement”. Further, this Court in S. Varadarajan (supra) explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused.

18. Unfortunately, it has not been the appellant’s case that he had

no active role to play in the occurrence. Rather the eyewitnesses

have testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of heractions or that she possessed the mental acuities and maturity to take  care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully.

19. It is apparent that instead of being a valid defence, the

appellant’s vociferous arguments are merely a justification which although evokes our sympathy, but can’t change the law. Since the relevant provisions of the IPC cannot be construed in any other

manner and a plain and literal meaning thereof leaves no escape route for the appellant, the Courts below were seemingly right in observing that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the appellant under Section 366 of IPC.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1919 of 2010

Anversinh @ Kiransinh Fatesinh Zala Vs State of Gujarat 

Dated:  12.01.2021

Author: Surya Kant, J:

This criminal appeal has been heard through video conferencing.

The appellantAnversinh

impugns the judgment pronounced by the

High Court of Gujarat dated 28.07.2009 by which his conviction

under Section 376 of the Indian Penal Code, 1860 (“IPC”) was

overturned, but the charge of kidnapping under Sections 363 and 366

of IPC was upheld and consequential sentence of rigorous

imprisonment of five years was maintained.

FACTS

2. The complainant Kiransinh

Jalamsinh (PW1)

when came back

from work on the night of 14.05.1998, he was informed by his wife

that their eldest sixteenyearold daughter (PW3; “prosecutrix”) had not returned home. Educated till Class VII, the

prosecutrix worked as a maid; sweeping and mopping a few hours

every noon and evening. The complainant father made enquiries at

her workplace where he learnt from a watchman that his daughter

hadn’t come for her second shift and that she was last seen coming

out of the vacant Bungalow No. 4 of the Ramjani Society with the

appellant. It was learnt upon enquiry that the appellant had left for

his home in Surpur with the prosecutrix. The complainant rushed to

the appellant’s home with his uncle and brotherinlaw

but could not  trace the prosecutrix’s whereabouts. After returning to Ahmedabad, a police complaint was registered on 16.05.1998. The police were able to locate both the appellant and the prosecutrix to a farm near Modasa, from where they were brought back to Ahmedabad on 21.05.1998. After medical examination and seizure of her clothes, the prosecutrix

was reunited with her family.

3. The prosecution examined eight witnesses and adduced twelve

documents in order to prove their case that the minor prosecutrix was

forcibly taken by the appellant with the intention of marriage and later subjected to sexual intercourse against her will. The prosecutrix’s father (PW1) corroborated the version of events noted above and testified that his daughter who was aged around 15 years had been taken from his custody without his consent. He additionally deposed that he was informed by the prosecutrix’s friend, Rekha, that she had communicated a message from a boy to the prosecutrix asking her to come to ‘Sardarnagar’. PW2, an assistant teacher at the prosecutrix’s

primary school, brought the school records and testified that her date

of birth at the time of admission was recorded as 08.02.1982. The

prosecutrix (PW3) identified the appellant and deposed that she had

been caught by him on her way to work and was forcibly taken in an

autorickshaw

to a nearby bus stand from where she was transported

by bus to the appellant’s village. She further claimed to have

repeatedly been raped and pressurised into performing marriage with

the appellant. The prosecutrix nevertheless admitted during cross examination to being in love with the appellant, having had

consensual sexual intercourse with him on a prior date and also

having met him outside her home on previous occasions. It further

emerged that during her alleged kidnapping, she was seated with

other passengers on the back seat of the autorickshaw whereas the

appellant was on the front seat. She admitted to spending a week at

the appellant’s village where both went to work together and were

living akin to husband and wife. PW4 and PW6 who were panch

witnesses to the recording of the FIR, physical condition of the

prosecutrix and seizure of the prosecutrix’s clothes, both turned

hostile and discarded the prosecution’s version. PW5,

being a Doctor at the Civil Hospital, proved the medical record and injury certificates showing that the prosecutrix had indeed been subjected to sexual intercourse. Finally, PW7, was the police officer who registered the FIR and PW8

deposed being the Investigating Officer of the case.

4. It is pertinent to mention that the Investigating Officer (PW8)

admitted in his crossexamination that there was no reference to

Rekha’s statement in the FIR; that the prosecutrix had not stated that

the appellant caught her on way to work and that she had been

forcefully abducted, or that her modesty was outraged. Instead, PW8

disclosed that the prosecutrix in her statement under Section 161 of

the Code of Criminal Procedure, 1973 (“CrPC”) claimed to know the

appellant for a month prior to the occurrence, and of having a regular

physical relationship in a damaged bungalow near her place of work.

After they were caught by the guard while coming out of such

bungalow, they had run away to Surpur where they started labour

work on the farm of one Bhikabhai to earn a livelihood and cohabit

as husband and wife. Besides these oral depositions, the prosecution also produced documents in the form of birth certificate, medical papers, FSL report, police and other records.

5. At the stage of recording statement under Section 313 of the

CrPC on 01.11.2002, the appellant stated his age as 23 years and

claimed to be innocent. The legal aid counsel, engaged from the

defence side, controverted the prosecution’s imputations and resultant

conclusions. A parallel version was projected wherein both appellant

and the prosecutrix were allegedly in love and had consensual

physical relations since long before the date of the incident. It was

claimed that the prosecutrix had run away solely and completely on

her own accord; and had wished to marry the appellant without any

enticement on his side. A catena of case laws was cited to show that

neither charges of kidnapping nor rape were made out in such cases

of love affairs.

6. The learned Additional Sessions Judge vide his order dated

16.12.2002 held that the testimony of the prosecutrix unequivocally

established that she had been raped three to four times by the

appellant, thus meriting his conviction under Section 376 of IPC. It

was further observed that although there was a love affair but

considering the fact that the prosecutrix was 16 years, 3 months and

6 days old at the time of occurrence and was thus minor, her consent

was wholly irrelevant for the charge of kidnapping. In light of the

prosecutrix’s claim of forcible abduction and discovery along with the

appellant, it was also held that the appellant had enticed and lured

the minor girl with the intention to have intercourse and marriage,

and thus all the ingredients of Sections 363 and 366 of IPC were well

established. Considering the serious nature of the offence, the trial

Court awarded sentence of oneyear

rigorous imprisonment and fine of Rs 1,000 (or simple imprisonment of two months in lieu thereof) for offence under Section 363; five years rigorous imprisonment and fine

of Rs 5,000 (or simple imprisonment of three months in lieu thereof)

for offence under Section 366; and ten years rigorous imprisonment

and fine of Rs 10,000 (or simple imprisonment of six months in lieu

thereof) for offence under Section 376 of IPC.

7. The appellant assailed his conviction before the High Court

claiming that the parties were in love owing to which the prosecutrix

had left her parents’ home and gone with him at her own free will.

Additionally, she never raised any protest or alarm despite numerous

opportunities to do so and thus none of the constituents of

‘kidnapping’ or ‘rape’ was established.

8. The High Court in its order under appeal observed that the

factum of the prosecutrix being in love with the accused having been

established beyond any doubt coupled with the fact that they used to

meet frequently, the appellant could not be held guilty of committing

‘rape’ and his consequential conviction and sentence under Section

376 IPC was set aside. However, there being no evidence suggesting

that the prosecutrix had consented to be taken from her parents’

lawful custody and given her undisputable minority, the appellant’s

conviction under Sections 363 and 366 of IPC was sustained.


CONTENTIONS OF PARTIES

9. The appellant being aggrieved by his conviction under the charge

of kidnapping has approached this Court reasserting

his innocence.

Learned counsel for the appellant highlighted that the High Court has

acknowledged that there was a love affair, frequent meetings, and

consensual relationship between the parties, which merited the

appellant’s acquittal under Section 376 IPC. But in the very same

breath, the High Court has also held that the prosecutrix did not

willingly leave her parents’ custody and had not consented to be taken for marriage. These two findings were canvassed as being mutually contradictory. Reliance was placed on the judgment of this Court in S. Varadarajan v. State of Madras,(1965) 1 SCR 243. to drive home the point that voluntary abandonment of home by a minor girl would not amount to kidnapping, and that in the absence of some active involvement, the appellant could not be said to have ‘taken’ or ‘enticed’ the prosecutrix.

10. In contrast, learned State Counsel supported the impugned

judgment of conviction. He emphasised on the concurrent findings of

the Courts below read with the plain language of the Statute (IPC) and reiterated that consent of a girl below 18 years could be no excuse in a case of ‘kidnapping’ within the meaning of Section 361 IPC.

ANALYSIS


I. Whether a consensual affair can be a defence against

the charge of kidnapping a minor?

11. Having given our thoughtful consideration to the rival

submissions, it appears to us that although worded succinctly, the

impugned judgment does not err in appreciating the law on

kidnapping. It would be beneficial to extract the relevant parts of

Sections 361 and 366 of IPC which define ‘Kidnapping from Lawful

Guardianship’ and consequential punishment. These provisions read

as follows:

“361. Kidnapping from lawful guardianship.—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.

Explanation.—The words “lawful guardian” in this section include

any person lawfully entrusted with the care or custody of such

minor or other person.

xxx

366. Kidnapping, abducting or inducing woman to compel

her marriage, etc.—Whoever kidnaps or abducts any woman with

intent that she may be compelled, or knowing it to be likely that she

will be compelled, to marry any person against her will, or in order

that she may be forced or seduced to illicit intercourse, or knowing it

to be likely that she will be forced or seduced to illicit intercourse,

shall be punished with imprisonment of either description for a term

which may extend to ten years, and shall also be liable to fine; [and

whoever, by means of criminal intimidation as defined in this Code

or of abuse of authority or any other method of compulsion, induces

any woman to go from any place with intent that she may be, or

knowing that it is likely that she will be, forced or seduced to illicit

intercourse with another person shall also be punishable as

aforesaid].”

12. A perusal of Section 361 of IPC shows that it is necessary that

there be an act of enticing or taking, in addition to establishing the

child’s minority (being sixteen for boys and eighteen for girls) and

care/keep of a lawful guardian. Such ‘enticement’ need not be direct

or immediate in time and can also be through subtle actions like

winning over the affection of a minor girl. Thakorlal D Vadgama v. State of Gujarat, (1973) 2 SCC 413, ¶ 10. However, mere recovery of a missing minor from the custody of a stranger would not ipsofacto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home as happened in the cases of King Emperor v. Gokaran AIR 1921 Oudh 226.

and Emperor v. Abdur Rahman AIR 1916 All 210.

13. Adverting to the facts of the present case, the appellant has

unintentionally admitted his culpability. Besides the victim being

recovered from his custody, the appellant admits to having established  sexual intercourse and of having an intention to marry her. Although

the victim’s deposition that she was forcefully removed from the

custody of her parents might possibly be a belated improvement but

the testimonies of numerous witnesses make out a clear case of

enticement. The evidence on record further unequivocally suggests

that the appellant induced the prosecutrix to reach at a designated

place to accompany him.

14. Behind all the chaff of legalese, the appellant has failed to

propound how the elements of kidnapping have not been made out.

His core contention appears to be that in view of consensual affair

between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous

language of the statute as the prosecutrix was admittedly below 18

years of age.

15. A bare perusal of the relevant legal provisions, as extracted

above, show that consent of the minor is immaterial for purposes of

Section 361 of IPC. Indeed, as borne out through various other

provisions in the IPC and other laws like the Indian Contract Act,

1872, minors are deemed incapable of giving lawful consent.Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359, ¶ 15.Section 361 IPC, particularly, goes beyond this simple presumption. It bestows the ability to make crucial decisions regarding a minor’s physical safety upon his/her guardians. Therefore, a minor girl’s infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping.

16. Similarly, Section 366 of IPC postulates that once the

prosecution leads evidence to show that the kidnapping was with the

intention/knowledge to compel marriage of the girl or to force/induce

her to have illicit intercourse, the enhanced punishment of 10 years as provided thereunder would stand attracted.

17. The ratio of S. Varadarajan (supra), although attractive at first

glance, does little to aid the appellant’s case. On facts, the case is

distinguishable as it was restricted to an instance of “taking” and not

“enticement”. Further, this Court in S. Varadarajan (supra) explicitly

held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused.

18. Unfortunately, it has not been the appellant’s case that he had

no active role to play in the occurrence. Rather the eyewitnesses

have testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of heractions or that she possessed the mental acuities and maturity to take  care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully.

19. It is apparent that instead of being a valid defence, the

appellant’s vociferous arguments are merely a justification which although evokes our sympathy, but can’t change the law. Since the relevant provisions of the IPC cannot be construed in any other

manner and a plain and literal meaning thereof leaves no escape route for the appellant, the Courts below were seemingly right in observing that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the appellant under Section 366 of IPC.

II. Whether the punishment awarded is just, and ought

there be leniency given the unique circumstances?

20. Having held so, we feel that there are many factors which may

not be relevant to determine the guilt but must be seen with a

humane approach at the stage of sentencing. The opinion of this Court in State of Madhya Pradesh v. Surendra Singh6 on the need for

proportionality during sentencing must be reemphasised.

This Court viewed that:

“13. We again reiterate in this case that undue sympathy to impose

inadequate sentence would do more harm to the justice system to

undermine the public confidence in the efficacy of law. It is the

duty of every court to award proper sentence having regard

to the nature of the offence and the manner in which it was

executed or committed. The sentencing courts are expected to

consider all relevant facts and circumstances bearing on the

question of sentence and proceed to impose a sentence

commensurate with the gravity of the offence. The court must

not only keep in view the rights of the victim of the crime but also the

society at large while considering the imposition of appropriate

punishment. Meagre sentence imposed solely on account of lapse of

time without considering the degree of the offence will be

counterproductive in the long run and against the interest of the

society.”

[emphasis supplied]

21. True it is that there cannot be any mechanical reduction of

sentence unless all relevant factors have been weighed and whereupon the Court finds it to be a case of gross injustice, hardship, or palpably

capricious award of an unreasonable sentence. It would thus depend

upon the facts and circumstances of each case whether a superior

Court should interfere with, and resultantly enhance or reduce the

6 (2015) 1 SCC 222.


sentence. Applying such considerations to the peculiar facts and

findings returned in the case in hand, we are of the considered opinion

that the quantum of sentence awarded to the appellant deserves to be

revisited.

22. We say so for the following reasons: first, it is apparent that no

force had been used in the act of kidnapping. There was no preplanning, use of any weapon or any vulgar motive. Although the

offence as defined under Section 359 and 361 of IPC has no ingredient necessitating any use of force or establishing any oblique intentions, nevertheless the mildness of the crime ought to be taken into account at the stage of sentencing.

23. Second, although not a determinative factor, the young age of the

accused at the time of the incident cannot be overlooked. As

mentioned earlier, the appellant was at the precipice of majority

himself. He was no older than about eighteen or nineteen years at the

time of the offence and admittedly it was a case of a love affair. His

actions at such a young and impressionable age, therefore, ought to

be treated with hope for reform, and not punitively.

24. Third, owing to a protracted trial and delays at different levels,

more than twentytwo years have passed since the incident. Both the

victim and the appellant are now in their forties; are productive

members of society and have settled down in life with their respective spouses and families. It, therefore, might not further the ends of justice to relegate the appellant back to jail at this stage.

25. Fourth, the present crime was one of passion. No other charges,

antecedents, or crimes either before 1998 or since then, have been

brought to our notice. The appellant has been rehabilitated and is now leading a normal life. The possibility of recidivism is therefore

extremely low.

26. Fifth, unlike in the cases of State of Haryana v. Raja Ram7 and

Thakorlal D. Vadgama v. State of Gujarat8, there is no grotesque

misuse of power, wealth, status or age which needs to be guarded

against. Both the prosecutrix and the appellant belonged to a similar

social class and lived in geographical and cultural vicinity to each

other. Far from there being an imbalance of power; if not for the age of the prosecutrix, the two could have been happily married and

cohabiting today. Indeed, the present instance is an offence: mala

prohibita, and not mala in se. Accordingly, a more equitable sentence

ought to be awarded.

27. Given these multiple unique circumstances, we are of the

opinion that the sentence of five years’ rigorous imprisonment

awarded by the Courts below, is disproportionate to the facts of the

this case. The concerns of both the society and the victim can be

7 (1973) 1 SCC 544.

8 (1973) 2 SCC 413.

respected, and the twin principles of deterrence and correction would

be served by reducing the appellant’s sentence to the period of

incarceration already undergone by him.

CONCLUSION

28. In light of the above discussion, we are of the view that the

prosecution has established the appellant’s guilt beyond reasonable

doubt and that no case of acquittal under Sections 363 and 366 of the

IPC is made out. However, the quantum of sentence is reduced to the

period of imprisonment already undergone. The appeal is, therefore,

partly allowed in the above terms and the appellant is consequently

set free. The bail bonds are discharged.

…………………………….. J.

(N.V. RAMANA)

.…………………………… J.

(S. ABDUL NAZEER)

..…………………………...J.

(SURYA KANT)

NEW DELHI

DATED : 12.01.2021


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