‘Consensual Affair’ not a defence against charge of kidnapping a minor: Supreme Court of India

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 was of IPC was upheld and consequential sentence of rigorous that their eldest sixteen­year­old daughter 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 complainant­father made enquiries at her workplace where he learnt from a watchman that his daughter out of the vacant Bungalow No. 4 of the Ramjani Society with the from where they were brought back to Ahmedabad on 21.05.1998 subjected to sexual intercourse against her will. The prosecutrix’s father corroborated the version of events noted above and that he was informed by the prosecutrix’s friend Rekha that she had of birth at the time of admission was recorded as 08.02.1982. The by bus to the appellant’s village. She further claimed to have 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 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 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 It is pertinent to mention that the Investigating Officer 1 SCR 243 Whether a consensual affair can be a defence against 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 “361. Kidnapping from lawful guardianship.—Whoever takes eighteen] years of age if a female or any person of unsound mind unsound mind without the consent of such guardian is said to any person lawfully entrusted with the care or custody of such 366. Kidnapping abducting or inducing woman to compel will be compelled to marry any person against her will or in order which may extend to ten years and shall also be liable to fine and or immediate in time and can also be through subtle actions like missing minor from the custody of a stranger would not ipso­facto to prove that the incident of removal was committed by or at the 13. Adverting to the facts of the present case the appellant has unintentionally admitted his culpability. Besides the victim being 2 Thakorlal D Vadgama v. State of Gujarat 2 SCC 413 ¶ 10 the victim’s deposition that she was forcefully removed from the the testimonies of numerous witnesses make out a clear case of enticement. The evidence on record further unequivocally suggests 14. Behind all the chaff of legalese the appellant has failed to His core contention appears to be that in view of consensual affair plea in our opinion cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 15. A bare perusal of the relevant legal provisions as extracted Section 361 of IPC. Indeed as borne out through various other provisions in the IPC and other laws like the Indian Contract Act 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 5 Satish Kumar Jayanti Lal Dabgar v. State of Gujarat 7 SCC 359 ¶ 15 with her alleged kidnapper cannot by itself be allowed as a defence for 16. Similarly Section 366 of IPC postulates that once the 17. The ratio of S. Varadarajanalthough attractive at first glance does little to aid the appellant’s case. On facts the case is where a minor with the knowledge and capacity to know the full 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 18. Unfortunately it has not been the appellant’s case that he had care of herself. In addition to being young the prosecutrix was not It is apparent that instead of being a valid defence the appellant’s vociferous arguments are merely a justification which relevant provisions of the IPC cannot be construed in any other 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 II. Whether the punishment awarded is just and ought 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 in State of Madhya Pradesh v. Surendra Singh6 on the need for undermine the public confidence in the efficacy of law. It is the question of sentence and proceed to impose a sentence society at large while considering the imposition of appropriate time without considering the degree of the offence will be counterproductive in the long run and against the interest of the 21. True it is that there cannot be any mechanical reduction of the Court finds it to be a case of gross injustice hardship or palpably upon the facts and circumstances of each case whether a superior Court should interfere with and resultantly enhance or reduce the sentence. Applying such considerations to the peculiar facts and 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 pre­ planning use of any weapon or any vulgar motive. Although the 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 actions at such a young and impressionable age therefore ought to Third owing to a protracted trial and delays at different levels victim and the appellant are now in their forties are productive spouses and families. It therefore might not further the ends of 25. Fourth the present crime was one of passion. No other charges antecedents or crimes either before 1998 or since then have been leading a normal life. The possibility of recidivism is therefore 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 social class and lived in geographical and cultural vicinity to each 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 27. Given these multiple unique circumstances we are of the opinion that the sentence of five years’ rigorous imprisonment this case. The concerns of both the society and the victim can be respected and the twin principles of deterrence and correction would be served by reducing the appellant’s sentence to the period of In light of the above discussion we are of the view that the prosecution has established the appellant’s guilt beyond reasonable period of imprisonment already undergone. The appeal is therefore 

Summary: “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.” The court held that a ‘consensual affair’ is not a defence against the charge of kidnapping. The Supreme Court of India presided over by J. N.V. Ramana, J. S.A. Nazeer &amp; J. S. Kant laid down this ratio in the case of Anversinh Vs. State of Gujarat, [Criminal Appeal No. 1919 of 2010].   The brief facts of the case are that the Appellant and prosecutrix were in love with each other. The prosecutrix left her home and went away with the Appellant to his village. After a Police Complaint by the family of the prosecutrix the were able to locate both of them and after a medical examination of the prosecutrix an FIR was filed against the Appellant. The trial court held the Appellant guilty for rape and kidnapping of the prosecutrix under Section 376, 363 &amp; 366 of IPC. The High Court set aside the charge for rape as there was clear evidence that the relationship between the Appellant and the Prosecutrix was consensual and therefore the Appellant was charged for the offence of kidnapping under IPC. The main question before the Supreme Court was whether a consensual affair can be a defence against the charge of kidnapping a minor? The Apex court stated that the evidence on record clearly states that the accused had induced the prosecutrix to reach at a designated place to accompany him, it observed that, “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.” The Court observed that, “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. 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.”