FACTS –
- 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 16 yrs old daughter (PW3; hereinafter, “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 presence . 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.
- 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 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.
- 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.
ISSUE –
The appellant ANVERSINH impugns the judgment pronounced by the High Court of Gujarat dated 28-7-2009 , by which his conviction under section 64 of BNS 2023 was overturned ,but the charge of kidnapping under section 137 & 87 of BNS 2023 Was upheld and consequential sentence of imprisonment of 5 years was maintained.
CONTENTION –
Contentions of the Appellant (Anversinh)
The appellant approached the Supreme Court challenging his conviction for kidnapping, raising the following key arguments:
- The defense highlighted a perceived contradiction in the High Court’s judgment. They argued that since the High Court acknowledged a long-standing love affair, frequent meetings, and a consensual relationship (which merited his acquittal for rape), it was contradictory to simultaneously hold that the prosecutrix did not willingly leave her parents’ custody.
- The appellant leaned heavily on case S. Varadarajan v. State of Madras (1965) to argue that the voluntary abandonment of a home by a minor girl does not amount to kidnapping. They contended that there was no active involvement, “taking,” or “enticing” on the part of the appellant, as the 16-year-old prosecutrix had run away entirely of her own accord to marry him.
- The defense asserted that the ingredients of Section 137 (Kidnapping from lawful guardianship) and Section 87 (Kidnapping to compel marriage) were not met because there was no force or deceit used to lure the minor away.
Contentions of the Respondent (State of Gujarat)
The State Counsel supported the conviction upheld by the lower courts, countering the appellant with the following arguments:
- The State emphasized the plain and literal language of Section 137 of the BNS,2023. They argued that the consent of a minor female (under 18 years of age) is legally immaterial. Because a minor lacks the capacity to give valid consent, her willingness to leave home or have a relationship cannot be used as an excuse or defense against a kidnapping charge.
- Unlike the S. Varadarajan case, the State argued that the appellant did not merely accompany a minor who had already abandoned her guardian. They relied on witness testimonies illustrating that the appellant had played an active role in drawing the prosecutrix out of her parents’ lawful custody and enticing her with the prospect of marriage.
- The prosecution pointed out that the minor, being young and uneducated, did not possess the mental acuity or maturity to understand the full purport of her actions or take care of herself, further nullifying any claim of “voluntary abandonment.”
DEFECTS OF LAW –
- SECTION 137 BNS, 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 minor or person from lawful guardianship.
- 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 offence as defined under SECTION 137 BNS , 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.
INFERENCE –
1. If a girl is under 18, her willingness to run away simply does not exist in the eyes of the law. Even if she was deeply in love, packed her own bags, and practically dragged the boy out the door, the court will still view the adult (or older) partner as the kidnapper. In legal terms, a minor cannot legally consent to giving up her parents’ guardianship.
2. The crime of kidnapping a minor isn’t about forcing the child against her will; it’s about taking the child against the parents’ will. The law fiercely protects the lawful guardian’s right to keep their child safe until they turn 18.
3. The “Active Role” Trap The case draws a very thin, very dangerous line for young couples. If a minor girl runs away entirely on her own, and a guy just happens to meet her later, he might be safe. But the moment the guy plays an active role—encouraging her, planning the route, waiting for her down the street, or buying the bus tickets—the law says he “enticed” or “took” her. Lending a helping hand to a runaway minor is legally treated as kidnapping.
4. You cannot use a teenager’s consent as a shield. Even if a minor insists she knows what she is doing and wants to leave home, the older partner will bear the entire legal burden of kidnapping.
CONCLUSION –
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 SECTION 138 and SECTION 87 of the BNS 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.
BY – ABHISHEK PRIYA
(CAMPUS LAW CENTRE,DU)