Supreme Court Upholds Kidnapping Conviction in Love Affair Case, Reduces Sentence: Anversinh vs. State of Gujarat (2021)

Date of the Judgment: 12 January 2021

Citation: 2021 INSC 18

Judges: N.V. Ramana, J., S. Abdul Nazeer, J., and Surya Kant, J.

Can a minor’s consent in a love affair negate the charge of kidnapping? The Supreme Court of India recently addressed this complex question in a case where a man was accused of kidnapping a minor girl he was in a relationship with. This judgment clarifies the legal position on consent and minority in kidnapping cases, particularly when love and relationships are involved. The bench consisted of Justices N.V. Ramana, S. Abdul Nazeer, and Surya Kant, with the judgment authored by Justice Surya Kant.

Case Background

The case revolves around the events of May 14, 1998, when Kiransinh Jalamsinh (PW-1) returned home from work to find his 16-year-old daughter (PW-3), referred to as the “prosecutrix,” missing. The prosecutrix, who worked as a maid, was last seen leaving a vacant bungalow with the appellant, Anversinh. Inquiries revealed that Anversinh had taken her to his village in Surpur. The complainant, along with his uncle and brother-in-law, went to Anversinh’s home but could not find her. A police complaint was registered on May 16, 1998. The police located the appellant and the prosecutrix at a farm near Modasa on May 21, 1998, and brought them back to Ahmedabad. After a medical examination, the prosecutrix was reunited with her family.

The prosecution argued that the minor prosecutrix was forcibly taken by the appellant with the intention of marriage and was later subjected to sexual intercourse against her will. The prosecutrix’s father testified that his daughter was taken from his custody without his consent. The prosecutrix identified the appellant and stated that she was forcibly taken in an auto-rickshaw to a bus stand and then transported to the appellant’s village. She claimed to have been repeatedly raped and pressured into marrying the appellant. However, during cross-examination, she admitted to being in love with the appellant, having had consensual sexual intercourse with him previously, and meeting him outside her home on prior occasions. She also admitted to spending a week at the appellant’s village, living together akin to husband and wife.

Timeline:

Course of Proceedings

The Additional Sessions Judge, on December 16, 2002, convicted the appellant under Section 376 of the Indian Penal Code, 1860 (IPC) for rape, and Sections 363 and 366 of the IPC for kidnapping. The trial court found that the prosecutrix’s testimony established that she had been raped multiple times by the appellant. Despite the existence of a love affair, the court held that the prosecutrix’s minority made her consent irrelevant for the charge of kidnapping. The court also concluded that the appellant had enticed the minor girl with the intention of having intercourse and marriage, thus establishing the ingredients of Sections 363 and 366 of the IPC. The appellant was sentenced to one year of rigorous imprisonment for the offense under Section 363, five years for Section 366, and ten years for Section 376 of the IPC.

The appellant challenged his conviction before the High Court of Gujarat, arguing that the prosecutrix had left her parents’ home and gone with him of her own free will due to their love affair. The High Court, in its judgment dated July 28, 2009, acknowledged the love affair and frequent meetings between the parties, setting aside the conviction and sentence under Section 376 of the IPC. However, the High Court upheld the conviction under Sections 363 and 366 of the IPC, stating that there was no evidence that the prosecutrix had consented to being taken from her parents’ lawful custody, and given her minority, her consent was irrelevant. Aggrieved by the upholding of the kidnapping charge, the appellant approached the Supreme Court.

Legal Framework

The case primarily revolves around the interpretation and application of Sections 361 and 366 of the Indian Penal Code, 1860 (IPC). These sections define ‘Kidnapping from Lawful Guardianship’ and prescribe the consequential punishment.

Section 361 of the IPC states:

“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.”

This section defines kidnapping from lawful guardianship, specifying that taking or enticing a minor (under 16 for males and 18 for females) out of the care of their lawful guardian without the guardian’s consent constitutes kidnapping.

Section 366 of the IPC states:

“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 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].”

This section deals with kidnapping or abducting a woman with the intent to compel her marriage against her will or to force or seduce her into illicit intercourse. It prescribes a punishment of imprisonment up to ten years and a fine.

Arguments

Appellant’s Arguments:

• The appellant argued that the High Court’s findings of a love affair, frequent meetings, and a consensual relationship between the parties should have led to his acquittal under Section 376 of the IPC.
• The appellant contended that the High Court’s contradictory findings—acknowledging the consensual relationship while also holding that the prosecutrix did not willingly leave her parents’ custody—were inconsistent.
• The appellant relied on the Supreme Court’s judgment in S. Varadarajan v. State of Madras to argue that the voluntary abandonment of home by a minor girl does not amount to kidnapping. He argued that, in the absence of active involvement, he could not be said to have ‘taken’ or ‘enticed’ the prosecutrix.

State’s Arguments:

• The State Counsel supported the High Court’s judgment of conviction, emphasizing the concurrent findings of the lower courts.
• The State argued that the plain language of the statute (IPC) states that the consent of a girl below 18 years is not a valid defense in a case of kidnapping under Section 361 of the IPC.

Issues Framed by the Supreme Court

The Supreme Court framed the following issue:

1. Whether a consensual affair can be a defense against the charge of kidnapping a minor?
2. Whether the punishment awarded is just, and ought there be leniency given the unique circumstances?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Supreme Court distinguished *S. Varadarajan v. State of Madras [1965 AIR 942]*, stating that it was restricted to “taking” and not “enticement,” and that the facts of the present case showed enticement.
• The Supreme Court referred to *Thakorlal D. Vadgama v. State of Gujarat [(1973) 2 SCC 413]* to support the view that enticement need not be direct or immediate.
• The Supreme Court referred to *King Emperor v. Gokaran [AIR 1921 Oudh 226]* and *Emperor v. Abdur Rahman [AIR 1916 All 210]* to emphasize that the prosecution must prove that the removal was committed by or at the instigation of the accused.
• The Supreme Court referred to *Satish Kumar Jayanti Lal Dabgar v. State of Gujarat [(2015) 7 SCC 359]* to support the view that minors are deemed incapable of giving lawful consent.
• The Supreme Court referred to *State of Madhya Pradesh v. Surendra Singh [(2015) 1 SCC 222]* to emphasize the need for proportionality during sentencing.
• The Supreme Court referred to *State of Haryana v. Raja Ram [(1973) 1 SCC 544]* to highlight that cases of misuse of power, wealth, status or age need to be guarded against.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by a combination of legal principles and a humane approach to sentencing. While the Court upheld the conviction for kidnapping, it also considered several mitigating factors to reduce the sentence. The Court emphasized that the consent of a minor is immaterial for the purposes of Section 361 of the IPC, underscoring the protective nature of the law regarding minors. However, at the sentencing stage, the Court took into account the lack of force in the kidnapping, the young age of the accused at the time of the incident, the passage of time, and the fact that the crime was one of passion. The Court also noted that the accused and the victim belonged to similar social classes and that there was no misuse of power or status. These factors weighed heavily in the Court’s decision to reduce the sentence to the period already undergone.

Fact:Law Ratio

The Court’s reasoning process can be summarized as follows:

The court considered alternative interpretations, such as the argument that the prosecutrix voluntarily left her home, but rejected them due to the clear language of Section 361 of the IPC, which states that the consent of a minor is immaterial in cases of kidnapping. The Court also emphasized the protective essence of the offense of kidnapping, which is designed to safeguard minors from exploitation and harm.

The court’s decision was based on the following reasons:

• The plain language of Section 361 of the IPC makes the consent of a minor irrelevant in kidnapping cases.
• Minors are deemed incapable of giving lawful consent.
• The law bestows the ability to make crucial decisions regarding a minor’s physical safety upon his/her guardians.
• The appellant’s actions constituted “enticement,” which is sufficient for a kidnapping charge.
• The Court considered mitigating factors such as the lack of force, the young age of the accused, the passage of time, and the nature of the crime as a “crime of passion.”

“…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 consent of the minor would be no defence to a charge of kidnapping.”

“…the mildness of the crime ought to be taken into account at the stage of sentencing.”

Key Takeaways

• The consent of a minor is not a valid defense against charges of kidnapping under Section 361 of the IPC.
• Enticement, even without direct force, can constitute kidnapping.
• Courts must consider mitigating factors such as the age of the accused, the passage of time, and the nature of the crime when determining sentences.
• The protective nature of the law regarding minors is paramount.

This judgment reinforces the legal principle that minors are not capable of giving valid consent in matters of their safety and well-being, and that the law prioritizes the protection of minors. It also highlights the importance of considering mitigating factors in sentencing, particularly in cases involving young offenders and crimes of passion. This decision may influence future cases involving similar circumstances, emphasizing the need to balance the protection of minors with the principles of justice and rehabilitation.

Directions

The Supreme Court reduced the appellant’s sentence to the period of imprisonment already undergone and ordered his release. The bail bonds were discharged.

Development of Law

The ratio decidendi of this case is that the consent of a minor is not a valid defense against the charge of kidnapping under Section 361 of the Indian Penal Code, 1860. This judgment reinforces the principle that minors are legally incapable of giving valid consent, particularly in matters concerning their safety and well-being. The Court clarified that the term ‘enticement’ under Section 361 does not require direct force or coercion but can include subtle actions that influence a minor to leave the custody of their lawful guardian. While the Court acknowledged the existence of a love affair and consensual relationship, it held that these factors are irrelevant when determining guilt under Section 361 of the IPC due to the prosecutrix’s minority. This judgment does not introduce any new legal principles but rather reaffirms and clarifies existing ones, ensuring that the protective essence of the offense of kidnapping is upheld. The Court also emphasized that mitigating factors, such as the young age of the accused, the passage of time, and the nature of the crime as a “crime of passion,” should be considered during sentencing, leading to a reduction in the sentence to the period already served.

Conclusion

In summary, the Supreme Court upheld the conviction of the appellant for kidnapping under Sections 363 and 366 of the Indian Penal Code, 1860, emphasizing that a minor’s consent is not a valid defense against such charges. The Court found that the appellant had enticed the minor prosecutrix out of her lawful guardian’s custody, thus satisfying the elements of kidnapping. However, considering the unique circumstances of the case—including the lack of force, the young age of the accused, the passage of time, and the nature of the crime—the Court reduced the sentence to the period of imprisonment already undergone. The appeal was partly allowed, and the appellant was set free, with bail bonds discharged. This judgment underscores the protective nature of the law regarding minors and the importance of considering mitigating factors in sentencing.

Category

Parent Category: Criminal Law

Child Categories:

• Kidnapping
• Section 361, Indian Penal Code, 1860
• Section 366, Indian Penal Code, 1860
• Consent of Minor
• Sentencing

Parent Category: Indian Penal Code, 1860

Child Categories:

• Section 361, Indian Penal Code, 1860
• Section 366, Indian Penal Code, 1860

FAQ

Q: Can a minor’s consent make a relationship legal?

A: No, under Indian law, a minor’s consent is not considered valid, especially in cases of kidnapping or sexual relations. The law protects minors from exploitation, and their consent is not recognized as a defense.

Q: What does ‘enticement’ mean in kidnapping cases?

A: Enticement means influencing or persuading someone, especially a minor, to leave their lawful guardian’s custody. It doesn’t necessarily involve force or physical coercion but can include subtle actions that lure the minor away.

Q: If a minor willingly leaves home with someone, is it still kidnapping?

A: Yes, if the minor is under 18 (for girls) and leaves the custody of their lawful guardian without the guardian’s consent, it can be considered kidnapping, even if the minor appears to go willingly. The law emphasizes the protection of minors and their inability to make informed decisions.

Q: What factors do courts consider when deciding a sentence in kidnapping cases involving minors?