|2021 SCC Online 19
|Criminal Appeal 1919 of 2010
|12th January, 2021
|N.V. Ramana, Surya Kant, Aniruddha Bose
Brief Facts of the Case:
Facts of the case:
- On 14/05/1998, the father of the victim, Kiransinh Jalamsinh when came back from work got to know from his wife that their eldest daughter, victim in this case had not returned home.
- The victim worked as a maid in the noon and evening, after the father made enquiries got to learn that his daughter hadn’t come for her shift in the evening that day and was last seen with the accused, Anversinh coming out of a vacant Bungalow near her working site.
- On enquiry it was found that the accused left for his home in Surpur along with the victim. Upon learning this the father rushed to the accused’s home along with his uncle and brother-in-law but couldn’t trace neither the accused nor the victim’s whereabouts.
- After returning to Ahmedabad, the father of the victim registered a complaint on 16/05/1998. The police were able to locate both the accused and the victim at a farm near Modasa, they were brought back to Ahmedabad on 21/05/1998.
- After a medical examination and seizure of clothes, the victim was sent back to her family.
- An FIR was filed against the accused, Anversinh and he was charged under section 363, Section 366 and section 376 of the Indian Penal Code, 1860.
- The Sessions Court vide their order on 16/12/2002 held the testimony of the victim established that she had been raped 3 to 4 times by the accused, thus convicting the accused under Section 376 of IPC for rape.
- The Court also took into consideration that the victim was 16 years old at the time of the incident and was thus minor leading to her consent being irrelevant for the charge of kidnapping, the Court also held that the accused had lured the victim with the intention to engage sexually with her and marriage thus satisfying the requites for Section 363 and 366 of IPC.
- The Sessions Court thus convicted the accused of all the three charged framed against hi which include Section 363, 366 and 376 of IPC.
- The accused filed an appeal in order to challenge the conviction order passed by the Trial Court before the High Court.
- The High Court in its order under the appeal observed that the victim was in love with the accused and they would meet frequently, thus the accused could not be held liable for rape. The High Court hence set aside the conviction of the accused under Section 376 of IPC as awarded by the Trial Court.
- However, his conviction under Section 363 and 366 of IPC were sustained by the Court due to the minority of the victim.
The accused approached the Supreme Court of India with an appeal to set aside the order of the High Court of Gujarat.
- 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?
The appellant approached the court in order to re-assert his innocence. During the arguments it was highlighted that the High Court acknowledged the presence of a love affair between the appellant and the victim along with a consensual relationship between them and that both of them would frequently meet which lead to the appellant’s acquittal for the charge of 376 IPC since there was consent involved in the relation and the victim didn’t raise any alarm during their relation. But at the same time the High Court held that the victim didn’t leave the house of her parents with her own will and also that the victim did not consent to the marriage. The appellant heavily relied on the case of S. Varadarajan Vs State of Madras to prove the contradictions made in the order of the High Court and make the point that the victim although a minor willingly left her home which would not constitute to kidnapping.
The Respondent laid a great emphasis on the fact that the victim was proved to be a minor and that her consent cannot be taken as relevant and thus would be of no excuse for kidnapping within the ambit of section 361 of IPC. The Respondent were of the view that the there is no evidence whatsoever from the accused that would suggest that the victim consented to be taken away from her parents’ custody and her undeniable minority at the time of the incident eradicates the relevance of her consent towards leaving the custody of her parents. The enticement of the accused by subtle actions of making promise of marrying the victim and the apparent fact that the victim was in love with the accused and were last seen together by several eye-witnesses unequivocally suggested that the accused induced the victim.
Since the accused was acquitted of the charge of Section 376 of IPC by the High Court, the Appeal of the accused before the Supreme Court only dealt with his conviction under Section 363 and 366 of IPC which were sustained by the High Court.
The Apex Court while addressing the case stated that the charge of Section 366 of IPC was made out against the accused and found no fault with the conviction under the said section, since the accused/ appellant unintentionally admitted his liability to the charge, he admitted to being involved with the victim sexually and had an intention to marry her. Along with this the testimonies of the witnesses proved the case of enticement and the accused also induced the victim by asking her meet him at Sardarnagar. The eye-witnesses to the case also testified the active role of the accused from drawing the victim out of the custody of her parents.
While addressing the charge of Section 361 of IPC, the Supreme Court was of the view that the responsibility to make crucial decisions with respect to the physical safety of the minor lies upon their guardians, and hence although the victim was in a love with the accused but her infatuation cannot be a used as a defence, the act would still fall under the offence of kidnapping although the accused was in a relation with the victim since her consent as a minor is immaterial.
The Supreme Court considered the punishment of the accused and in order to understand how just was the gravity of the punishment in this case, relied heavily on the case of State of Madhya Pradesh Vs. Surendra Singh and upon the perusal of the case and running it parallel to the facts of the case in hand decided to revisit the quantum of punishment awarded to the accused. The Court was of the view that in the act of kidnapping there was neither any force or pre-planning or use of any weapon nor any ulterior motive involved hence the mildness of the crime should be considered, it also considered that the accused was young at the time of the offence and admittedly it was a case of a love affair and hence should be treated with a hope. The court considered this case as an instance of mala prohibita and not mala in se. Although no case acquittal was made for section 363 and 366 of the IPC, butThe Court disapproved the sentence of 5 years of rigorous punishment awarded to the accused.
The Supreme Court upon the perusal of the all facts and by relying on the twin principle of deterrence and correction decided to reduce the quantum of the sentence to the period of the imprisonment already undergone by the accused. And settled the accused, Anversinh free, by partly allowing his appeal.
Defects of Law:
With interpreting the statues and taking all the possible events into consideration and by relying on various judgments the court gave justice in delivering the verdict.
This case gave a principle that although the accused and the victim are in a consensual relation the accused cannot take that as an defence against the offence of kidnapping especially if the victim is a minor. This principle comes to the rescue in the cases where the minor under the influence of the accused and under infatuation leave the parents’ house without thinking through the decision thus hampering with her safety. It Court while deciding the also took the constructive route by revisiting the punishment awarded to the accused and considered the fact that the kidnapping was done without any physical threat on the victim and the same was reflected while the court revised the punishment of the accused.
The victim although alleged of being raped by the accused before the Session Court admitted later that she was in love with the accused and was involved with him sexual on various events before as well, and have met him frequently outside her house. The claims made by the victims contradicted with her allegation of rape, the victim also had opportunities to raise alarm prior to the incident which she didn’t raise.
Although the dispute of whether the accused was involved with the kidnapping or not was still up for question and the fact that both the accused and the victim accepted the love affair and their involvement with each other raised question on the fact that there were chances and probability that the victim could have voluntarily left her house to accompany the accused but the accused was unable to prove that he had no active role in drawing her out from the custody of her parents.
The case was a well-balanced case with a satisfactory verdict since the Apex Court considered the probability and the charges were taken on their face value and the consent of the minor was put into a perspective, the court also addressed the probability of recidivism by the accused and eventually leading to reducing his sentence which was indeed in the favour of the circumstances of the facts of the case.
Thakur Ramnarayan College of Law, Mumbai
 Punishment for Kidnapping., Setion 361 of IPC deals with kidnapping from lawful guardianship.
 Kidnapping, abducting or inducing woman to compel her marriage, etc.
 Punishment for Rape.
 (1965) 1 SCR 243.
 The friend of the victim, Rekha relied the message from the accused to the victim asking her to meet him at ‘Sardarnagar’.
 (2015) 1 SCC 222.