The Apex Court has observed that ‘consensual affair’ is not a defence against a charge of kidnapping a minor.
A minor’s love with her kidnapper cannot be used as a defence as the same would amount to undermining the protective essence of the offence of Kidnapping the Bench remarked and proceeded to dispose of an appeal filed by one Anvesinh who was convicted for offence u/s 366 and 363 od IPC.
The appellant contended that the prosecutrix was in love with him and had left her parents house at her own accord.
Before the Court, the main issue was whether a consensual affair could be a valid defence against charges of Kidnapping?
To answer this issue, the Bench referred to Section 361 to 366, which contains the definition of Kidnapping from lawful; Guardianship and its punishment. The Court stated that as per Section 361, there should be an act of enticing or taking a minor boy/ girl from a lawful guardian’s custody. Such action need not be immediate but can also be through subtle actions.
However, just because a minor has been recovered from the custody of a stranger, the prosecution has to prove that the removal was done through enticement.
While referring to the instant case, the Bench remarked that the evidence suggests that the appellant suggested the girl meet him at a place and accompany him. The appellant’s contention that the girl had an affair with him and came out of her free will is not a valid contention as the girl was a minor, observed the Bench.
Counsel for the appellant relied on S Varadarajan vs State of Madras where the COurt held that charges of kidnapping a minor could not be made out if the minor had full knowledge of his/her action and voluntarily left the care of the guardian.
The Court opined that the appellant could not take the assistance of the cited judgement as in the instant case there are eyewitnesses who have stated that the appellant drew out the prosecutrix from her guardians care and there was little to suggest that the minor knew consequences of her actions.
Regarding the sentencing, the Bench noted the following:-
- No force was used in the Kidnapping, and there was no planning either.
- There was no use of weapons or improper motive.
Considering the mildness of the crime, the Bench reduced the punishment to time already served.
Title: Anversinh vs the State of Gujarat
Case No.: Crl. Appeal No.: 1919 of 2020
Date of Order: 12.01.2021
Coram: Hon’ble Justice NV Ramana, Hon’ble Justice S Abdul Nazeer and Hon’ble Justice Surya Kant