ANVERSINH @ KIRANSINH FATESINH ZALA versus STATE OF GUJARAT

Citation: [2021] 1 S.C.R. 249 · Decided: 12-01-2021 · Supreme Court of India · Bench: N.V. RAMANA · Disposal: Case Partly allowed

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Judgment (excerpt)

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ANVERSINH @ KIRANSINH FATESINH ZALA
v.
STATE OF GUJARAT
(Criminal Appeal No. 1919 of 2010)
JANUARY 12, 2021
[N. V. RAMANA, CJI, S. ABDUL NAZEER AND
SURYA KANT, JJ.]
Penal Code, 1860: ss.361 and 366 – Kidnapping – Victim-
minor 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
   [2021] 1 S.C.R. 249
249
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SUPREME COURT REPORTS
[2021] 1 S.C.R.
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
incarcer

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