Court: Supreme Court of India
Criminal Appeal No. 1919 of 2010
Appellant – Anversinh @ Kiransinh Fatesinh Zala
Respondent – State of Gujarat
Bench: N.V. Ramana, Surya Kant, Aniruddha Bose
Decided on – 12 January, 2021
- The complainant Kiransinh (PW1) when came back from work on the night of 14 May, 1998, he was informed by his wife that their eldest 16 year old daughter (prosecutrix) had not returned home. She was educated till Class VII; she worked as a maid for few hours every noon and evening. The complainant father made enquiries where he learnt that his daughter was last seen with the appellant. It was learnt upon enquiry that the appellant had left for his home in Surpur with the prosecutrix. Police complaint was registered on 16 May, 1998. The police were able to locate both the appellant and the prosecutrix to a farm near Modasa on 21 May, 1998. After medical examination and seizure of her clothes, the prosecutrix was reunited with her family.
- 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 identified the appellant and deposed that she had been caught by and was forcibly taken to the appellant’s village. She further claimed to have repeatedly been raped and pressurized to perform 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. She admitted to spending a week at the appellant’s village where both went to work together and was living like husband and wife.
- The learned Additional Sessions Judge held that the testimony of the prosecutrix unequivocally established that she had been raped by the appellant, thus meriting his conviction under Section 376 of IPC. It was further observed that 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.
- The appellant assailed his conviction before the High Court. The High Court 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.
- Whether a consensual affair can be a defence against the charge of kidnapping a minor?
- 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 being mutually contradictory. Reliance was placed on the judgment of this Court in S. Varadarajan vs. State of Madras thatvoluntary abandonment of home by a minor girl would not amount tokidnapping, and that in the absence of some active involvement, theappellant could not be said to have ‘taken’ or ‘enticed’ the prosecutrix.
- Learned State Counsel supported the impugned judgment of conviction. He highlighted 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.
- The court considered that the high court does not err in appreciating the law on kidnapping which are given in Sections 361 and 366 of IPC which define ‘Kidnapping from Lawful Guardianship’ and consequential punishment.
- 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. Mere recovery of a missing minor from the custody of a stranger would not ipsofacto establish the offence of kidnapping.
- The consent of the minor is immaterial for purposes of Section 361 of IPC. According to the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent. Consent of minor is no defence.
- Section 366 of IPC states that once the prosecution leads evidence to show that the kidnapping was with the intention 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.
- This Court in S. Varadarajan held that a charge of kidnapping cannot be framed out only in a case where a minor, with the knowledge and capacity to know the full result of her actions, voluntarily abandons her guardian without any inducement. 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. The prosecutrix being young and was not much educated she was unable to thought about her actions fully.
- The court considered that the quantum of sentence awarded to the appellant deserves to be revisited because it is apparent that no force had been used in the act of kidnapping. The young age of the accused at the time of the incident cannot be overlooked. Trial lasted for long time and delay at different levels, more than 22 years have passed since the incident. No other charges, or crimes either before 1998 or since then, have been brought to court’s notice. The appellant has been rehabilitated and is now leading a normal life.
Defects of Law:
- In this court, the interpretation of section 361 and 366 of IPC had to be done
- There is a conflict in judgment while interpreting section 361 and 366. In S. Varadarajan case the prosecutrix was minor, and voluntarily left her father’s house. It was held in this case that no offence was done under these sections by accused.
- In State of Haryana vs. Raja Ram, it was held that it is not necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by accused, which creates willingness to the minor to be taken out of the lawful guardian, would be sufficient to attract the section.
The court held 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.
The court held that the sentence of five years rigorous imprisonment awarded by the Courts below is disproportionate to the facts of the 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 incarceration already undergone by him.
2nd Semester, LL.B
Faculty of Law
University of Delhi
 Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, (2015)