Supreme Court of India on Consensual Affairs and Kidnapping

Facts in Brief

 

Today we will discuss the case of Anversinh alias Kiransinh Fatesinh Zala v. State of Gujarat, 2021 SCC OnLine SC 19, wherein the victim/prosecutrix who was a sixteen (16) year old girl did not return to her home on 14.05.1998. The father of the Prosecutrix made efforts to trace her but no avail leading to lodging of Police Complaint on 16.05.1998 whereafter the Police located the Prosecutrix and the Accused (18-19 years old) from a Farmhouse.

 

Charges under Section 363 (Punishment for Kidnapping), 366 (Kidnapping, abducting or inducing woman to compel her marriage, etc.)  and 376 (Punishment for Rape) of the Indian Penal Code, 1860 (in short, “IPC”) were framed against the Accused/Appellant.

 

The Prosecution attempted to establish that the Accused had repeatedly raped the Prosecutrix and was forcibly taken away to perform marriage with the Accused.

 

The defence of the Accused was that both the Accused and the Prosecutrix were allegedly in love and had consensual physical relations since long before the date of the incident. It was further contended that the Prosecutrix ran away on her own without any enticement being on the side of the Accused. Thus, no charges relating to kidnapping and rape are made out in such cases of love affairs.

 

The Trial Court convicted the Accused under all the afore-stated provisions of law whereas during the Appellate Stage, the High Court observed that since the factum of love affair has been established beyond any doubt, the Appellant was not held guilty of Rape under S. 375 of IPC; however, since the Prosecutrix being a minor was taken away from her parents’ lawful custody, the Appellant’s conviction under S. 363 and 366 was sustained.

 

The important questions before the Hon’ble Supreme Court of India were that: -

 

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

 

Whether the punishment awarded is just, and ought there be leniency given the unique circumstances?”

 

Important Legal Provisions

 

Section 361 of the IPC – 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.

 

Section 366 of the IPC - 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.

 

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

 

According to the Court, under S.361 of IPC, it is necessary that there be an act of enticing or taking, in addition to establishing the child’s minority (16- Boys, 18 – Girls) and care of a lawful guardian. However, mere recovery of a missing minor from the custody of a stranger would not ipso facto establish the offence of kidnapping and it also needs to be proved that such incident of removal was committed by or at the instigation of the accused.

 

The Court also discussed the case of Varadarajan v. State of Madras, (1965) 1 SCR 243, wherein it was held that the following needs to be established to acquit an accused under S.366 of IPC: -

 

1. Knowledge and capacity with the minor of her actions.

2. Voluntary abandonment on part of the minor.

3. Lack of inducement by the accused.

 

In the present case, the Court observed that there is ample evidence to suggest that the Appellant/Accused had drawn the Prosecutrix out of the custody of her parents. Further, the material available on record suggests that the minor had not thought her actions through fully. Hence, the conviction of the accused S. 366 of IPC was sustained.

 

Whether the punishment awarded is just, and ought there be leniency given the unique circumstances?

 

The Court considered the following factors in relation to the punishment awarded to the accused: -

 

1. The Court considered the case of State of Madhya Pradesh v. Surendra Singh, (2015) 1 SCC 222, and observed that there cannot be any mechanical reduction of sentences unless all relevant factors have been weighed. There was no force used in the present case.

 

2. Accused himself was young, around 18-19 years, at the time of commission of crime. Such actions ought to be treated with hope for reform, and not punitively.

 

3. The Trial has been protracted and delayed at different levels, and more than 22 years elapsed before the matter came up for hearing before the Supreme Court. Both the accused and the victim have their respective families now and no purpose would be served by relegating the accused back to jail now.

 

4. The present crime was one of passion and the accused had no criminal antecedents. Therefore, the possibility of recidivism is quite low now.

 

5. There is no grotesque misuse of power, wealth or status in the present case. The Prosecutrix and the accused lived in the same vicinity and were socially at par. The present offence is mala prohibita and not mala in se.

 

Thus, the Court was of the view that though the conviction under S. 363 and 366 is sustained yet a more equitable sentence ought to be awarded to the accused. The sentence of five years’ rigorous imprisonment awarded to the accused was found to be disproportionate and it was reduced to the period of sentence already undergone by him.

 

Concluding Remarks

 

I find it to be a well-reasoned judgment as the Court after looking into the conspectus of facts interpreted S. 361 of IPC in a way that is required in criminal jurisprudence. If a provision of law provides for a definition that convicts a person no matter how much sympathy is evoked, then it is best to subscribe to the plain meaning of the legal provision only. But sentencing is something that definitely required a revisit in the present case and the Court succinctly laid down strong grounds to reduce the quantum of punishment awarded to the accused.