| CITATION | AIR 2021 SC 477 |
| DATE OF JUDGEMENT | 12th January 2021 |
| COURT | Supreme Court of India |
| APPELLANT | Anversinh @ Kiransinhn Fatesinh Zala |
| RESPONDENT | State of Gujarat |
| BENCH | N.V. Ramana, Surya Kant, S. Abdul Nazeer, JJ |
INTRODUCTION
This case of Anversinh @ Kirasinh Fatesinh Zala vs. State of Gujarat highlights that the consent of a minor is no defence. Two major sections of the Indian Penal Code, 1860 have been discussed in this case law in reference to which judgments have also been given. Section 366 of IPC relating to the offence of kidnapping postulates that whoever kidnaps or abducts or induces a woman with the intention or motive to force her into a marriage against her will or for illicit intercourse shall be punished with imprisonment of ten years and liable to pay fine. Also, Section 376 of IPC postulates that one who commits rape repeatedly on the same woman shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and also shall be liable for fine.
FACTS OF THE CASE
- The complainant Kiransinh after returning from work on the night of 14.05.1998 was informed by his wife about their missing 16-year-old elder daughter (prosecutrix). Educated only till class VII, she worked as a maid during the noon and evening hours. Kiransinh enquired at her workplace from where he learned that his daughter did not come for her second shift and was last seen coming out of a vacant bungalow of Ramjani Society. The father registered a police complaint on 16.05.1998 after failing to learn about his daughter’s whereabouts.
- The police were able to track down both the appellant and prosecutrix in a farm near Modasa, from where they were brought back to Ahmedabad on 21.05.1998. A medical examination was held on the prosecutrix after which she reunited with her family.
- The minor prosecutrix identified the appellant and testified that she had been caught by him on her way to work and forcibly taken in an auto-rickshaw to a nearby bus stand from where the appellant took her to his village. She further claimed to have been repeatedly raper and pressurized into performing marriage with the appellant.
- Nevertheless, the prosecutrix admitted during cross-examination, to being in love with the appellant and having had consensual sexual intercourse with him on prior dates. She admitted to having spent a week at the appellant’s village where both went to work together and were living like husband and wife.
- The learned Additional Sessions Judge held that the testimony of the prosecutrix unequivocally established that she had been raped by the appellant meriting his conviction under Section 376 of IPC. Additionally, although it was a love affair, the age of the prosecutrix was 16 years 3 months 6 days old at the time of such incident and thus her consent is irrelevant to the charge of kidnaping. He was thus also convicted under Sections 363 and 366 of IPC.
- The appellant condemned his conviction before the High Court claiming that the prosecutrix left her parents’ home willingly owing to the love affair between them and she did not protest having sexual intercourse with the appellant which proved that it was a consensual sexual intercourse. The High Court held that though the appellant could not be convicted of having committed rape but there was no hard evidence suggesting the prosecutrix of leaving her parents’ home with free consent and thus the conviction under Sections 363 and 366 of IPC was sustained.
ISSUES RAISED
- Whether a consensual affair can be a defence against the charge of kidnapping a minor?
- Whether the punishment awarded is fair and equitable and must there be leniency given the unique circumstances?
CONTENTIONS OF APPELLANT
- The appellant approached the Supreme Court of India reasserting his innocence. He held that he was wrongfully convicted under the charge of kidnapping.
- The Learned Counsel for the appellant highlighted that the High Court had acknowledged that there was a love affair, frequent meetings, and consensual relationship between the parties which acquitted the appellant under Section 376 of IPC but on the other hand the High Court also held that there was no evidence that the prosecutrix who was a minor of 16 years consented on leaving her parents’ lawful custody as a result of which the conviction of the appellant under Section 363 and Section 366 of IPC was sustained. Hence, both these decisions given by the High Court seemed mutually contradictory.
CONTENTIONS OF RESPONDENT
- The learned State Counsel supported the impugned judgment of conviction.
- The concurrent findings of the Courts were emphasized by him considering the statute’s plain language (IPC). Also, he reiterated that the consent of a girl below 18 years could be no excuse in a case of ‘kidnapping’ within the meaning of Section 361 IPC.
JUDGEMENT
According to the Court, under Section 361 of IPC, there must be an act of enticing or taking, in addition to establishing the child’s minority which is 16 years for female and care of a lawful guardian. However, mere recovery of a missing minor from the custody of a stranger would not ipso facto establish the offence of kidnapping and it also needs to be proved that such an incident of removal was committed by or at the instigation of the accused. Discussing the case of Varadarajan v. State of Madras, (1965) 1 SCR 243, wherein it was held that in order to acquit an accused under S.366 of IPC the following are required to be proved-
1. Actions performed by the minor were within her knowledge and capacity.
2. Voluntary abandonment on the part of the minor.
3. Lack of inducement by the accused.
In the present case, the Court observed that there is ample evidence including the testification of the eyewitnesses to suggest that the appellant had lured the prosecutrix out of the lawful custody of her parents. Further, it was also a matter of fact that her minor age did not provide her with enough maturity and mental acuity to carry out such an action all by herself. In addition to being young, she was not much educated to think her actions through. Hence, the conviction of the accused S. 366 of IPC was sustained.
Also, the Court considered the following factors concerning the punishment awarded to the accused: –
1. No force had been used during the kidnapping. There was no pre-planning, use of weapons, or any vulgar motive. Therefore, the Court took into account the mildness of the crime.
2. The accused himself was of the young age of 18-19 years at the time of the commission of the crime. So, such actions ought to be treated with hope for reform, and not punitively.
3. The Trial has been protracted and delayed at different levels before the matter came up for hearing before the Supreme Court. Both the accused and the victim are productive members of the society and have settled down with their lives and so no purpose would be served by relegating the accused back to jail now.
4. The present crime was one of passion and the accused had no further criminal charges or antecedents. Therefore, the accused was supposed to be rehabilitated by now and leading a normal life.
5. There is no grotesque misuse of power, wealth, or status in the present case. The prosecutrix and the accused lived in the same geographical and cultural vicinity and were socially at par. Accordingly, a more equitable sentence ought to be rewarded.
The Supreme Court of India found the five-year sentence of rigorous imprisonment presented to the accused to be inappropriate to the facts of the case. So, keeping in mind the twin principles of deterrence and correction, punishment would be served by reducing the accused/appellant’s sentence to the period of impoundment already undergone by him.
ANALYSIS
This is a very important case because it has taken into account the important status of the consent of a minor and the effect it can bring into the life of another person. The parties were evidently involved in a love affair but the age factor is crucial when taking into account any case. The victim girl was a 16-year-old with less sense of maturity to make the right decisions for herself on the other hand the boy who was an adult ought to have thought it through before taking any action that could impact his own life. As we can see in the Indian Contract Act 1872, the contract with a minor is null and void so is it in general terms of life. The prime importance lies in the fact that the accused was acquitted under Section 376 of IPC from the charges of committing rape only because the girl accepted the fact that it was consensual sexual intercourse and the accused had intentions of marrying her although things didn’t go the same for the charges of kidnapping since the boy indirectly induced her to leave her parent’s lawful custody promising her of marriage. The responsibility to make crucial decisions for the physical safety of the minor lies entirely upon her legal guardians and the infatuation between them is no justification to such an act. Her consent in this situation was immaterial. The Apex Court interpreted the decisions wisely and took a rational decision. The verdict given is well-satisfactory because it served the principles of deterrence and correction. The equitable decision given by the court helped both the victim and the accused receive their fair share of justice.
CONCLUSION
The court ruled that a consensual relationship between an accused and a minor cannot be used as a defence against kidnapping charges which undoubtedly constituted an important judgment in the leading case. The court revisited the punishment awarded to the accused and considered the fact that the kidnapping was done without any physical threat to the victim. The Apex Court maintained a phenomenal balance to give its verdict which was well-justified and satisfactory. The case set a good precedent for future cases.
REFERENCES
- https://www.livelaw.in/pdf_upload/anversinh-kiransinh-fatesinh-zala-vs-state-of-gujarat-ll-2021-sc-16-387410.pdf
- https://www.desikanoon.co.in/2021/01/supreme-court-consensual-affair-kidnapping-rape-abduction-anversinh-zala-gujarat.html
This article is written by Zeenat Tasnim student of Department of Law, Calcutta University; an intern at Legal Vidhya.
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