Penal Code, 1860: ss.361 and 366 – Kidnapping – Victimminor girl aged 16 years recovered from custody of appellant – Appellant admited to having established sexual intercourse and of having an intention to marry the victim – Conviction under ss.361 and 366 – Held: For establishing offence of kidnapping, there should 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 – In the instant case, besides the fact that the victim was recovered from custody of appellant, he also admitted to having established sexual intercourse and of having an intention to marry the prosecutrix – The testimonies of witnesses made out a clear case of enticement – The evidence further unequivocally suggested that the appellant induced the prosecutrix to reach at a designated place to accompany him – Appellant failed to propound how the elements of kidnapping were not made out – His core contention that in view of consensual affair between them and the prosecutrix joined his company voluntarily cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age – A bare perusal of the relevant legal provisions, show that consent of the minor is immaterial for purposes of s.361 – 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 – Similarly, s.366 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 was not the appellant’s case that he had no active role to play in the occurrence – Rather, the eye-witnesses testified to the contrary which illustrated how appellant had drawn the prosecutrix out of the custody of her parents – 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, she was not much educated – 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 ss.361 and 366 of IPC.
Sentence/Sentencing: 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 – In the instant case, it is apparent that no force was used in the act of kidnapping – There was no pre-planning, use of any weapon or any vulgar motive – Although not a determinative factor, the young age of the accused at the time of the incident cannot be overlooked – He was no older than about 18 or 19 years at the time of the offence and admittedly it was a case of a love affair – His actions at such a young and impressionable age, therefore, ought to be treated with hope for reform, and not punitively – Both the victim and the appellant are now in their forties; are productive members of society and have settled down in life with their respective spouses and families – It, therefore, might not further the ends of justice to relegate the appellant back to jail at this stage –Given these multiple unique circumstances, the sentence of five years’ rigorous imprisonment awarded by the courts below, is disproportionate to the facts of the this 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.
Partly allowing the appeal, the Court
HELD : 1. 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. In the instant case, the appellant has unintentionally admitted his culpability. Besides the victim being recovered from his custody, the appellant admits to having established sexual intercourse and of having an intention to marry her. The testimonies of numerous witnesses make out a clear case of enticement. The evidence on record further unequivocally suggests that the appellant induced the prosecutrix to reach at a designated place to accompany him. [Paras 12, 13][259-D-H; 260-A]
King Emperor v. Gokaran AIR 1921 Oudh 226 ;
Emperor v. Abdur ahman AIR 1916 All 210
– approved.
1.2 The appellant failed to propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age. A bare perusal of the relevant legal provisions, show that consent of the minor is immaterial for purposes of Section 361 of IPC. Indeed, as borne out through various other provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent. Section 361 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, for the same would amount to surreptitiously undermining the protective essence of the offence of kidnapping. 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. [Paras 14, 15, 16][260-B-E] S.Varadarajan v. State of Madras [1965] 1 SCR 243 – distinguished.
Satish Kumar Jayanti Lal Dabgar v. State of Gujarat (2015) 7 SCC 359 : [2015] 2 SCR 751 – referred to.
2. 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. It is apparent that instead of being a valid defence, the appellant’s vociferous arguments are merely a justification which although evokes sympathy, but can’t change the law. The Courts below were seemingly 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. [Paras 18, 19][261-A-D]
State of Madhya Pradesh v. Surendra Singh (2015) 1 SCC 222 : [2014] 13 SCR 554 – relied on.
3.1 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 is apparent that no force had been used in the act of kidnapping. There was no pre-planning, use of any weapon or any vulgar motive. Although the offence as defined under Section 359 and
361 of IPC has no ingredient necessitating any use of force or establishing any oblique intentions, nevertheless the mildness of the crime ought to be taken into account at the stage of sentencing. Second, although not a determinative factor, the young age of the accused at the time of the incident cannot be overlooked. The appellant was at the precipice of majority himself. He was no older than about eighteen or nineteen years at the time of the offence and admittedly it was a case of a love affair. His actions at such a young and impressionable age, therefore, ought to be treated with hope for reform, and not punitively. Third, owing to a protracted trial and delays at different levels, more than twentytwo years have passed since the incident. Both the victim and the appellant are now in their forties; are productive members of society and have settled down in life with their respective spouses and families. It, therefore, might not further the ends of justice to relegate the appellant back to jail at this stage. Fourth, the present crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to notice. The appellant has been rehabilitated and is now leading a normal life. The possibility of recidivism is therefore extremely low. [Paras 21-25][262-C-; 262-E-H; 263-A-B]
State of Haryana v. Raja Ram (1973) 1 SCC 544 : [1973]
2 SCR 728 ; Thakorlal D. Vadgama vs. State of Gujarat (1973) 2 SCC 413 : [1974] 1 SCR 178
– referred to.
3.2 There is no grotesque misuse of power, wealth, status or age which needs to be guarded against. Both the prosecutrix and the appellant belonged to a similar social class and lived in geographical and cultural vicinity to each other. Far from there being an imbalance of power; if not for the age of the prosecutrix, the two could have been happily married and cohabiting today. Indeed, the present instance is an offence: mala prohibita, and not mala in se. Accordingly, a more equitable sentence ought to be awarded. Given these multiple unique circumstances, the sentence of five years’ rigorous imprisonment awarded by the Courts below, is disproportionate to the facts of the this 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. [Paras 26-28] [263-B-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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