SUPREME COURT LAW INSIDER IN

SC: ‘Consensual Affair’ no defence against kidnapping a minor

Umamageswari Maruthappan

The Supreme Court of India observed that ‘consensual affair’ is no defence against a charge of kidnapping a minor.

The said observation was made by the three-judge bench comprising Justices NV Ramana, S. Abdul Nazeer and Surya Kant while disposing of an appeal by Anversinh against the judgement of the Gujarat High Court dated 28 July 2009. [Anversinh @ Kiransinh Fatesinh Zala vs. State of Gujarat (Criminal Appeal No. 1919 of 2010)].

Nonetheless, the Apex Court revised the quantum of sentence considering the nature of the offence and ordered the appellant to be set free.

Facts

A minor girl, aged 15, who was working as a maid, went missing on 14th May 1995.

After some inquiries, it was revealed that she had left with the appellant to his home in Surpur.

Her father registered a police complaint on 16th May 1998 and on 21st May 1998, both the appellant and the prosecutrix were brought back to Ahmedabad.

While the complainant alleged that his daughter was kidnapped by the appellant and subjected to sexual intercourse against her will, the minor girl nevertheless refused his contentions and admitted that she was in love with the appellant and had consensual sexual intercourse with him.

The trial Court, on 16th December 2002, held the appellant guilty of rape under Section 376 and kidnapping under Sections 363 and 366 of the Indian Penal Code (45 of 1860).

The order was appealed to the Gujarat High Court which, though dismissing the conviction of rape under Section 376 of IPC, sustained convictions under Sections 363 and 366 of IPC.

The case further reached the ambit of the Apex Court challenging the Gujarat High Court’s judgement. The appellant alleged that he is not guilty of kidnapping and that the High Court’s order is contradictory.

The appeal cited the judgement in S. Varadarajan v. State of Madras [(1965) 1 SCR 243] wherein it was held that “voluntary abandonment of home by a minor would not amount to kidnapping”.

However, the Supreme Court held that neither the minor’s consent nor her infatuation can be allowed as a defence against the offence of kidnapping.

Further, while interpreting the case in light of the S. Varadarajan Case Judgement, the Apex court stated that for the application of this case, the abandonment of the minor must be voluntary and without any aid or assistance of the accused.

Whereas in the concerned case, there is no established evidence that the appellant had no role in assisting the prosecutrix.

Moreover, “there is little to suggest that she was aware of the full purport of her actions or that she possessed 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 paresnts as claimed by the appellant, at the very least indicates that she had not thought her actions through fully”, the Apex Court observed.

Accordingly, the Supreme Court held the conviction of the High Court to be valid.

However, it considered revising the quantum of sentence owing to the nature of the offence. Since there was no use of force, no violence, or weapons, the case was interpreted to be a milder one.

The Court said that “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 Court also discharged the bail bond.