Whether a Consensual Affair can be a Defence Against the Charge of Kidnapping a Minor?

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

A ‘consensual affair’ is not a defence against the charge of kidnapping a minor, observed the Apex Court while disposing an appeal filed by one Anversinh whose conviction under Sections 363 and 366 of the Indian Penal Code was made by the Gujarat High Court.

  1. Whether a consensual affair can be a defence against the charge of kidnapping a minor?
  • The Court ruled that, “Perusal of 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 (being sixteen for boys and eighteen for girls) 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. However, mere recovery of a missing minor from the custody of a stranger would not ipso­ facto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home.”
  • A bare perusal of the relevant legal provisions shows that consent of the minor is immaterial for purposes of Section 361 of IPC. Indeed, as borne out through various other provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent.5 Section 361 IPC, particularly, goes beyond this simple presumption. It bestows the ability to make crucial decisions regarding a minor’s physical safety upon his/her guardians. Therefore, 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” the bench noted.
  • Similarly, Section 366 of IPC postulates that once the prosecution leads evidence to show that the kidnapping was with the intention/knowledge 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, it added.
  • The court said that, in the present case, the appellant has unintentionally admitted his culpability. Besides the victim being recovered from his custody, the appellant admits to having established sexual intercourse and of having an intention to marry her. Although the victim’s deposition that she was forcefully removed from the custody of her parents might possibly be a belated improvement but the testimonies of numerous witnesses make out a clear case of enticement. The evidence on record further unequivocally suggests that the appellant induced the prosecutrix to reach at a designated place to accompany him.
  • Behind all the chaff of legalese, the appellant has failed to propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age, added the Court.
  • Reference was placed by the accused on the ruling in S. Varadarajan v. State of Madras (1965) 1 SCR 243 wherein it was observed that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The bench in this regard noted that,
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“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. Unfortunately, it has not been the appellant’s case that he had no active role to play in the occurrence. Rather the eye­witnesses have testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully. It is apparent that instead of being a valid defence, the appellant’s vociferous arguments are merely a justification which although evokes our sympathy, but can’t change the law. Since the relevant provisions of the IPC cannot be construed in any other manner and a plain and literal meaning thereof leaves no escape route for the appellant, the Courts below were seemingly right in observing that the consent of the minor would be no defence to a charge of kidnapping. No fault can thus be found with the conviction of the appellant under Section 366 of IPC.”

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

As regards the sentence, the bench ruled that 1) no force had been used in the act of kidnapping, 2) there was no preplanning, use of any weapon or any vulgar motive. Although the offence as defined under Section 359 and 361 of IPC 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, the court said. Also taking note of other factors, the bench reduced the quantum of sentence to the period of imprisonment already undergone by the accused.

Case name: Anversinh @ Kiransinh Fatesinh Zala Vs. State of Gujarat

Citation: CRIMINAL APPEAL NO. 1919 of 2010

Coram: Justices NV Ramana, S. Abdul Nazeer and Surya Kant

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

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