Brief facts of the case
This case arose out of an incident that took place in the year 1998, when the prosecutrix, a sixteen-year-old girl did not return home. She worked as a maid for a few hours in noon and evening.
The Complainant, i.e., the father, made inquiries about her at her workplace and he came to know that she was last seen with the appellant – Anversinh. The Complainant after returning to Ahmedabad, registered a police complaint. The Police were able to locate both the appellant and the prosecutrix at a farm near Modasa from where they were brought back to Ahmedabad.
In the lights of pieces of evidence found and witnesses examined, the Additional Sessions Judge held the appellant guilty of rape under Section 376, IPC. The prosecutrix being a minority of around 16 years, was convicted for the charges of kidnapping as well under Section 363 and 366, IPC.
The appellant challenged his conviction in the High Court. The High Court overturned his conviction under Section 376, IPC, but the charges of kidnapping under section 363 and 366, IPC, were upheld. Thus, this appeal was filed by the appellant.
The High Court had acquitted the appellant of charges of rape because it acknowledged the fact that there was a love affair, frequent meeting and consensual relationship between the parties. However, the High Court held prosecutrix had not left her parents’ custody willingly and had not consented to be taken for marriage. These findings are contradictory.
In the case of S. Varadarajan vs. the State of Madras, the Court pointed out that the voluntary abandonment of home by a minor girl would not amount to kidnapping, and in the absence of active involvement, the appellant could not be said to have ‘taken’ or ‘enticed’ the prosecutrix.
The State Counsel supported the impugned judgment of conviction. He relied on the concurrent findings of the Courts below read with the statute (IPC) and reiterated that the Consent of a girl below 18 years could be no excuse in case of ‘kidnapping’ within the meaning of Section 361 IPC.
Observations by the Court
A perusal of Section 361 of IPC, it is necessary that the be an act of enticing or taking, in addition to establishing a minority of a child 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.
The mere recovery of a missing minor from the custody of a stranger would not ipso-facto establish the offence of kidnapping. Thus, if the prosecution fails to establish that the removal was committed by or at the instigation of the accused, then the guilt cannot be proved as happened in the case of King-Emperor Gokaran and Emperor vs. Abdul Rahman.
The appellant had unintentionally admitted his culpability. Besides the victim being recovered from his custody, the appellant admitted to having sexual intercourse and having an intention to marry her. The evidence on record, unequivocally suggests that the appellant induced the prosecutrix to reach a designated place to accompany him.
The appellant’s contention that this was a consensual affair, was not acceded by the Court, given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age.
The consent of the is immaterial for section 361 IPC. Various laws like IPC and Indian Contract Act, 1872, deem minors incapable of giving lawful consent as held in the case of Satish Kumar Jayanti Lal Dabgar vs. the State of Gujarat. Section 361, IPC even goes beyond this simple presumption. It bestows the ability to make crucial decisions of minor’s physical safely upon his guardians. Thus, 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.
As per Section 366, IPC. Once it is established that kidnapping was intending to compel the marriage of the girl or to force her to have illicit intercourse, the enhanced punishment of 10 years would stand attracted.
The enhancement of punishment
In the case of State of Madhya Pradesh vs. Surendra Singh, the Supreme Court viewed that every Court has to award proper sentence having regard to the nature of the offence and how it was executed or committed. All the facts and circumstances should be taken into due consideration.
The Court observed that the appellant did not use any weapons or any vulgar motive. The accused was also not more than eighteen or nineteen at the of the offence and admittedly it was a case of a love affair. Owing to delays in the case, both the appellant and the victim are in their forties living as productive members of society, so relegating him back to jail will not meet the ends of justice.
The present crime was one of passion, no other crime was reported before or after 1998. The appellant has been rehabilitated is now living a normal life. The possibility of recidivism is extremely low.
Unlike in the case of State of Haryana vs. Raja Ram and Thakorlal D. Vadgama vs. the State of Gujarat, there was no misuse of power, wealth, status, or age which needed to be guarded against. They belonged to the same social class and lived in geographical and cultural vicinity to each other. They could have been happily married as there was no imbalance of power, if not the age of the prosecutrix. Indeed, the present instance was an offence of mala prohibita, and not mala in se.
Given the unique circumstances, the sentence of five years’ rigorous imprisonment awarded by the below is disproportionate to the facts of this case. Thus, respecting the twin principles of deterrence and correction, the appellant’s sentence was reduced to the period of incarceration already undergone by him.
The appellant was held guilty under section 363 and 366, IPC beyond a reasonable doubt. The quantum of punishment was, although, reduced to the period already undergone.
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