Supreme Court

Anversinh Vs. State of Gujarat

MANU/SC/0018/2021

12.01.2021

Criminal

Consent of minor is of no defence to charge of kidnapping

The Appellant impugns the judgment pronounced by the High Court 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.

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. However, mere recovery of a missing minor from the custody of a stranger would not ipso-facto establish the offence of kidnapping.

Consent of the minor is immaterial for purposes of Section 361 of IPC. Indeed, as borne out through various other provisions in the Indian Penal Code and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent. Section 361 of 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.

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 has not been the Appellant's case that, he had no active role to play in the occurrence. Rather the eye-witnesses 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.

The Courts below were 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.

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 sentence. The quantum of sentence awarded to the Appellant deserves to be revisited.

In view of multiple unique circumstances, the sentence of five years' rigorous imprisonment awarded by the Courts below, is disproportionate to the facts of the present 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.

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.

Tags : Conviction Sentence Legality

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