IMPORTANT POINTS
(1) A minor girl’s infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for same would amount to surreptitiously undermining protective essence of offence of kidnapping.
(2) Young age of accused at the time of incident cannot be overlooked while imposing sentence.

Headnote:
(A) Indian Penal Code, 1860 – Sections 361 and 366 – Kidnapping from lawful guardianship – Consent of the minor is immaterial for purposes of Section 361 of IPC – Minors are deemed incapable of giving lawful consent – Section 361 IPC goes beyond this simple presumption – It bestows ability to make crucial decisions regarding a minor’s physical safety upon his/her guardians – A minor girl’s infatuation with her alleged kidnapper cannot by itself be allowed as a defence, for same would amount to surreptitiously undermining protective essence of offence of kidnapping – Similarly, Section 366 of IPC postulates that once prosecution leads evidence to show that kidnapping was with intention/knowledge to compel marriage of girl or to force/induce her to have illicit intercourse, enhanced punishment of 10 years as provided thereunder would stand attracted. (Paras 15 and 16)
(B) Indian Penal Code, 1860 – Sections 363 and 366 – Kidnapping of minor girl for purpose of marriage – Conviction and sentence – Mere recovery of a missing minor from custody of a stranger would not ipso facto establish offence of kidnapping – Where prosecution fails to prove that incident of removal was committed by or at instigation of accused, it would be nearly impossible to bring guilt home – Appellant has unintentionally admitted his culpability – Besides victim being recovered from his custody, appellant admits to having established sexual intercourse and of having an intention to marry her – Although victim’s deposition that she was forcefully removed from custody of her parents might possibly be a belated improvement but testimonies of numerous witnesses make out a clear case of enticement – Evidence on record further unequivocally suggests that appellant induced prosecutrix to reach at a designated place to accompany him – Behind all chaff of legalese, appellant has failed to propound how elements of kidnapping have not been made out – Appellant had drawn prosecutrix out of custody of her parents – There is little to suggest that she was aware of full purport of her actions or that she possessed mental acuities and maturity to take care of herself – Courts below were seemingly right in observing that consent of minor would be no defence to a charge of kidnapping – No fault can be found with conviction of appellant under Section 366 of IPC. (Paras 12, 13, 14, 18 and 19)
(C) Indian Penal Code, 1860 – Sections 363 and 366 – Kidnapping of minor girl for purpose of marriage – Quantum of sentence – No force had been used in act of kidnapping – There was no preplanning, use of any weapon or any vulgar motive – Quantum of sentence awarded to appellant deserves to be revisited – Although not a determinative factor, young age of accused at the time of incident cannot be overlooked – Appellant was at precipice of majority himself – He was no older than about eighteen or nineteen years at the time of offence and admittedly it was a case of a love affair – His actions at such a young and impressionable age ought to be treated with hope for reform and not punitively – Owing to a protracted trial and delays at different levels, more than twenty two years have passed since incident – Both victim and appellant are now in their forties; are productive members of society and have settled down in life with their respective spouses and families – It might not further ends of justice to relegate appellant back to jail at this stage – Present crime was one of passion – No other charges, antecedents, or crimes either before 1998 or since then, have been brought to notice of court – Appellant has been rehabilitated and is now leading a normal life – Possibility of recidivism is extremely low – Given these multiple unique circumstances, sentence of five years’ rigorous imprisonment awarded by Courts below, is disproportionate to facts of the this case – Concerns of both society and victim can be respected and twin principles of deterrence and correction would be served by reducing appellant’s sentence to period of incarceration already undergone by him – Quantum of sentence reduced to period of imprisonment already undergone. (Paras 21, 22, 23, 24, 25, 27 and 28)
Facts of the Case:
Appellant impugns judgment pronounced by High Court of Gujarat dated 28.07.2009 by which his conviction under Section 376 of the Indian Penal Code, 1860 was overturned, but charge of kidnapping under Sections 363 and 366 of IPC was upheld and consequential sentence of rigorous imprisonment of five years was maintained. High Court in its order under appeal observed that 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, appellant’s conviction under Sections 363 and 366 of IPC was sustained.
Findings of Court:
Instead of being a valid defence, appellant’s vociferous arguments are merely a justification which although evokes our sympathy, but can’t change the law. Since 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.
Result : Appeal Partly allowed.

JUDGMENT

Surya Kant, J:

This criminal appeal has been heard through video conferencing. The appellant-Anversinh 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 sixteen-year-old daughter (PW-3; hereinafter, “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 complainant-father 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 brother-in-law 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 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 auto-rickshaw 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 cross-examination 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 auto-rickshaw 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 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 cross-examination that there was no reference to Rekha’s statement in the FIR; that the prosecutrix had not