REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1919 of 2010
Anversinh @ Kiransinh Fatesinh Zala ..... Appellant(s)
VERSUS
State of Gujarat .....Respondent(s)
JUDGMENT
Surya Kant, J:
This criminal appeal has been heard through video conferencing.
The appellantAnversinh impugns the judgment pronounced by the
High Court of Gujarat dated 28.07.2009 by which his conviction
under Section 376 of the Indian Penal Code, 1860 (“IPC”) was
overturned, but the charge of kidnapping under Sections 363 and 366
of IPC was upheld and consequential sentence of rigorous
imprisonment of five years was maintained.
FACTS
2. 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 sixteenyearold daughter (PW3; hereinafter,
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“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 complainantfather 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 whereabouts. 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.
3. 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 noted above and
testified that his daughter who was aged around 15 years had been
taken from his custody without his consent. He additionally deposed
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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 crossexamination 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. PW4 and PW6 who were panch
witnesses to the recording of the FIR, physical condition of the
prosecutrix and seizure of the prosecutrix’s clothes, both turned
hostile and discarded the prosecution’s version. PW5, being a Doctor
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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.
4. It is pertinent to mention that the Investigating Officer (PW8)
admitted in his crossexamination that there was no reference to
Rekha’s statement in the FIR; that the prosecutrix had not stated that
the appellant caught her on way to work and that she had been
forcefully abducted, or that her modesty was outraged. Instead, PW8
disclosed that the prosecutrix in her statement under Section 161 of
the Code of Criminal Procedure, 1973 (“CrPC”) claimed to know the
appellant for a month prior to the occurrence, and of having a regular
physical relationship in a damaged bungalow near her place of work.
After they were caught by the guard while coming out of such
bungalow, they had run away to Surpur where they started labour
work on the farm of one Bhikabhai to earn a livelihood and cohabit as
husband and wife. Besides these oral depositions, the prosecution also
produced documents in the form of birth certificate, medical papers,
FSL report, police and other records.
5. At the stage of recording statement under Section 313 of the
CrPC on 01.11.2002, the appellant stated his age as 23 years and
claimed to be innocent. The legal aid counsel, engaged from the
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defence side, controverted the prosecution’s imputations and resultant
conclusions. A parallel version was projected wherein both appellant
and the prosecutrix were allegedly in love and had consensual
physical relations since long before the date of the incident. It was
claimed that the prosecutrix had run away solely and completely on
her own accord; and had wished to marry the appellant without any
enticement on his side. A catena of case laws was cited to show that
neither charges of kidnapping nor rape were made out in such cases
of love affairs.
6. The learned Additional Sessions Judge vide his order dated
16.12.2002 held that the testimony of the prosecutrix unequivocally
established that she had been raped three to four times by the
appellant, thus meriting his conviction under Section 376 of IPC. It
was further observed that although there was a love affair but
considering the fact that the 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. Considering the serious nature of the offence, the trial
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Court awarded sentence of oneyear rigorous imprisonment and fine of
Rs 1,000 (or simple imprisonment of two months in lieu thereof) for
offence under Section 363; five years rigorous imprisonment and fine
of Rs 5,000 (or simple imprisonment of three months in lieu thereof)
for offence under Section 366; and ten years rigorous imprisonment
and fine of Rs 10,000 (or simple imprisonment of six months in lieu
thereof) for offence under Section 376 of IPC.
7. The appellant assailed his conviction before the High Court
claiming that the parties were in love owing to which the prosecutrix
had left her parents’ home and gone with him at her own free will.
Additionally, she never raised any protest or alarm despite numerous
opportunities to do so and thus none of the constituents of
‘kidnapping’ or ‘rape’ was established.
8. The High Court in its order under appeal 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.
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CONTENTIONS OF PARTIES
9. The appellant being aggrieved by his conviction under the charge
of kidnapping has approached this Court reasserting his innocence.
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 canvassed as being mutually
contradictory. Reliance was placed on the judgment of this Court in S.
Varadarajan v. State of Madras,1
to drive home the point that
voluntary abandonment of home by a minor girl would not amount to
kidnapping, and that in the absence of some active involvement, the
appellant could not be said to have ‘taken’ or ‘enticed’ the prosecutrix.
10. In contrast, learned State Counsel supported the impugned
judgment of conviction. He emphasised on the concurrent findings of
the Courts below read with 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.
ANALYSIS
1
(1965) 1 SCR 243.
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I. Whether a consensual affair can be a defence against
the charge of kidnapping a minor?
11. Having given our thoughtful consideration to the rival
submissions, it appears to us that although worded succinctly, the
impugned judgment does not err in appreciating the law on
kidnapping. It would be beneficial to extract the relevant parts of
Sections 361 and 366 of IPC which define ‘Kidnapping from Lawful
Guardianship’ and consequential punishment. These provisions read
as follows:
“361. 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.
xxx
366. 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
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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].”
12. A 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.2
However, mere recovery of a
missing minor from the custody of a stranger would not ipsofacto
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 as happened in the cases of King Emperor v. Gokaran3
and Emperor v. Abdur Rahman4
.
13. Adverting to the facts of the present case, the appellant has
unintentionally admitted his culpability. Besides the victim being
recovered from his custody, the appellant admits to having established
2 Thakorlal D Vadgama v. State of Gujarat, (1973) 2 SCC 413, ¶ 10.
3 AIR 1921 Oudh 226.
4 AIR 1916 All 210.
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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.
14. 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.
15. A bare perusal of the relevant legal provisions, as extracted
above, show 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
5 Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359, ¶ 15.
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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.
16. 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.
17. The ratio of S. Varadarajan (supra), although attractive at first
glance, does little to aid the appellant’s case. On facts, the case is
distinguishable as it was restricted to an instance of “taking” and not
“enticement”. Further, this Court in S. Varadarajan (supra) explicitly
held 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
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.
18. Unfortunately, it has not been the appellant’s case that he had
no active role to play in the occurrence. Rather the eyewitnesses have
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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.
19. 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.
II. Whether the punishment awarded is just, and ought
there be leniency given the unique circumstances?
20. Having held so, we feel that there are many factors which may
not be relevant to determine the guilt but must be seen with a
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humane approach at the stage of sentencing. The opinion of this Court
in State of Madhya Pradesh v. Surendra Singh6
on the need for
proportionality during sentencing must be reemphasised. This Court
viewed that:
“13. We again reiterate in this case that undue sympathy to impose
inadequate sentence would do more harm to the justice system to
undermine the public confidence in the efficacy of law. It is the
duty of every court to award proper sentence having regard
to the nature of the offence and the manner in which it was
executed or committed. The sentencing courts are expected to
consider all relevant facts and circumstances bearing on the
question of sentence and proceed to impose a sentence
commensurate with the gravity of the offence. The court must
not only keep in view the rights of the victim of the crime but also the
society at large while considering the imposition of appropriate
punishment. Meagre sentence imposed solely on account of lapse of
time without considering the degree of the offence will be
counterproductive in the long run and against the interest of the
society.”
[emphasis supplied]
21. True it is that there cannot be any mechanical reduction of
sentence unless all relevant factors have been weighed and whereupon
the Court finds it to be a case of gross injustice, hardship, or palpably
capricious award of an unreasonable sentence. It would thus depend
upon the facts and circumstances of each case whether a superior
Court should interfere with, and resultantly enhance or reduce the
6
(2015) 1 SCC 222.
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sentence. Applying such considerations to the peculiar facts and
findings returned in the case in hand, we are of the considered opinion
that the quantum of sentence awarded to the appellant deserves to be
revisited.
22. We say so for the following reasons: first, it is apparent that no
force had been used in the act of kidnapping. 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.
23. Second, although not a determinative factor, the young age of the
accused at the time of the incident cannot be overlooked. As
mentioned earlier, the appellant was at the precipice of majority
himself. He was no older than about eighteen or nineteen years at the
time of the offence and admittedly it was a case of a love affair. His
actions at such a young and impressionable age, therefore, ought to
be treated with hope for reform, and not punitively.
24. Third, owing to a protracted trial and delays at different levels,
more than twentytwo years have passed since the incident. Both the
victim and the appellant are now in their forties; are productive
members of society and have settled down in life with their respective
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spouses and families. It, therefore, might not further the ends of
justice to relegate the appellant back to jail at this stage.
25. Fourth, the present crime was one of passion. No other charges,
antecedents, or crimes either before 1998 or since then, have been
brought to our notice. The appellant has been rehabilitated and is now
leading a normal life. The possibility of recidivism is therefore
extremely low.
26. Fifth, unlike in the cases of State of Haryana v. Raja Ram7 and
Thakorlal D. Vadgama v. State of Gujarat8
, there is no grotesque
misuse of power, wealth, status or age which needs to be guarded
against. Both the prosecutrix and the appellant belonged to a similar
social class and lived in geographical and cultural vicinity to each
other. Far from there being an imbalance of power; if not for the age of
the prosecutrix, the two could have been happily married and
cohabiting today. Indeed, the present instance is an offence: mala
prohibita, and not mala in se. Accordingly, a more equitable sentence
ought to be awarded.
27. Given these multiple unique circumstances, we are of the
opinion that the sentence of five years’ rigorous imprisonment
awarded by the Courts below, is disproportionate to the facts of the
this case. The concerns of both the society and the victim can be
7
(1973) 1 SCC 544.
8
(1973) 2 SCC 413.
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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.
CONCLUSION
28. 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 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 in the above terms and the appellant is consequently
set free. The bail bonds are discharged.
…………………………….. J.
(N.V. RAMANA)
.…………………………… J.
(S. ABDUL NAZEER)
..…………………………...J.
(SURYA KANT)
NEW DELHI
DATED : 12.01.2021
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