The Supreme Court acknowledged that a ‘consensus affair’ is not a shield against the charge of kidnapping a minor.
The infatuation of a minor girl with her accused kidnapper cannot by itself be tolerated as a shield, for the same would amount to surreptitiously undermining the security nature of the kidnapping crime, the bench composed of Justices NV Ramana, S. Abdul Nazeer and Surya Kant said while disposing of an appeal filed by one Anversinh whose conviction under Sections 363 and 366 of the Indian Penal Code was held by High Court Gujarat.
Before the Supreme Court, it was argued that the parties (accused and the Prosecutrix) were in love owing to which the prosecutrix had fled her parents’ home and gone with him at her own free will. Thus, the bench found the question whether a consensual affair can be a defense against the charge of kidnapping a minor?
To address this point, the bench referred to IPC sections 361 to 366, which describe ‘Kidnapping from Lawful Guardianship’ and the court’s subsequent punishment.
“Perusal of Section 361 of the IPC reveals that, in addition to defining the minority of the girl, there must be an act of tempting or taking and care/keep of a legal guardian (being sixteen for boys and eighteen for girls) and care/keep of a legal guardian. Such ‘enticement’ does not need to be overt or instant in time and can even be by indirect acts such as winning over a minor girl’s love. Nevertheless, the simple retrieval of a lost minor from a stranger’s care does not ipso-facto establish the crime of abduction. Therefore, if the prosecution fails to show that the removal event was perpetrated on or at the instigation of the perpetrator, it would be virtually difficult to get the blame home.
It allows his/her guardians the power to make important decisions about a minor’s physical welfare. Hence, the infatuation of a minor girl with her supposed kidnapper should not be permitted as a security of its own, for the same would amount to unexpectedly dismantling the defensive nature of the kidnapping crime. Similarly, IPC Section 366 postulates that if the prosecutor leads evidence to establish that the abduction was with the intention/knowledge of the girl’s compel marriage or to force/induce her to have sexual intercourse, the 10-year additional sentence as provided for thereunder will be attracted.
The court noted that, in the present case, the facts on record strongly shows that the defendant forced the prosecutor to appear at a designated location to join him. His strongest point tends to be that the lawyer knowingly entered his business despite the consensual affair between them. In our view, such a plea cannot be embraced in view of the unambiguous wording of the law statute as the prosecutrix was admittedly below 18 years of age.”, the court added.
The appellant had relied on the decision in S. Varadarajan v. State of Madras (1965) 1 SCR 243, in which it was held that an accusation of abduction will not be rendered except in situations when a child knowingly abandons the treatment of her guardian, with the understanding and opportunity to know the full import of her conduct, without any help or inducement on the part of the accused. In this respect the bench held.
Accordingly, the decision quoted cannot be of any help without establishing: first, the experience and ability of the minor in her actions; second, the voluntary abandoning of the minor in her actions; and third, the absence of the accused’s inducement 18. Sadly, it was not the case of the appellant that he had no direct part to play in the incident. Rather, the eyewitnesses have testified to the opposite, explaining how the appellant extracted the prosecutor from her parent’s custody. More specifically, there is nothing to say that she was mindful of the full intent of her acts or that to take care of herself she lacked the emotional acuities and maturity. Besides being young, the prosecutor was not very educated. At the very least, her support for the prosecution version and her blank rejection of any voluntariness on the part of her, even if believed to be under the control of her parents as alleged by the appellant, reveals that she had not thoroughly contemplated the actions of her. The vociferous claims of the appellant, instead of being a legitimate defense, are merely a pretext that, while evoking our sympathetic support, the course, but the law cannot change. Although the applicable provisions of the IPC cannot be viewed in any other way, and the simple and literal interpretation of that meaning leaves the appellant with no escape path, in observing that the consent of the minor would not be a defense to a charge of abduction, the courts below were obviously correct. Therefore, no mistake can be found in the appellant’s conviction under IPC Section 366.
With respect to the sentence, the bench observed that 1) no coercion was used in the kidnapping act 2) no pre-planning, use of any weapon, or any vulgar intent was present. While there is no ingredient in the offence as described in IPC Sections 359 and 361 requiring the use of force or establishing any oblique motives, the mildness of the offense should still be considered at the point of the crime. The bench also took account of other considerations, limiting the length of the penalty to the duration of incarceration already endured by the convicted.