Mutual relationship between the parties a defence under section 376

It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. (Para 13 of State of Madhya Pradesh v. Surendra Singh)

Anversinh V. State of Gujarat

Criminal Appeal No. 1919 of 2010

12th January, 2021

The Hon’ble Supreme Court Justices N.V. Ramana, S. Abdul Nazeer, Surya Kant decided the current criminal appeal.

The PW – 1 (Kiransinh Jalamsinh), Daughter (PW – 3) had not returned home. After inquiry it has been found that the prosecutrix have left with the appellant to his village. The prosecutrix have stated that the appellant had caught her on the 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 being in love with the appellant had consensual sexual intercourse with him on a prior date and also having met him outside her home on previous occasions. Further it have been found that during her alleged kidnapping, she was seated with other passengers on the back seat of 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.

The learned Additional Sessions Judge vide his order held that the testimony of the prosecutrix unequivocally established that she had been raped three to four times by the appellant, thus meriting his conviction under section 376 of Indian Penal Code. At the time of the occurrence of incident she was minor; her consent was totally irrelevant for the charge of kidnapping. It was also held that the appellant had enticed and lured the minor girl with the intention to have intercourse and marriage, and thus all the ingredients of sections 363 and 366 of Indian Penal Code were well established. (Para 6)

Learned counsel for the appellant highlighted that the High Court has acknowledged that there was a love affair, frequent meetings, and consensual relationship between the parties, which merited the appellant’s acquittal under Section 376 Indian Penal Code. But in the very same breath, the High Court has also held that the prosecutrix did not willingly leave her parents’ custody and had not consented to be taken for marriage. (Para 9)

Section 361 of Indian Penal Code, 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. Section 366 of Indian Penal Code postulates that once the prosecution leads evidence to show that the kidnapping was with the intention to compel marriage of the girl or to force her to have illicit intercourse, the enhanced punishment of 10 years as provided there under would stand attracted.

The court in Varadarajan (supra) explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused.

The court referred to the following Para from Madhya Pradesh v. Surendra Singh, which is as follows:

It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the gravity of the offence. (Para 13 of State of Madhya Pradesh v. Surendra Singh)

There is no case of acquittal under Sections 363 and 366 of the Indian Penal Code are made out. However, the quantum of sentence is reduced to the period of imprisonment already undergone. The appeal is partly allowed and the appellant is consequently set free.

View or download Judgment: Anversinh V. State of Gujarat

Shantha Gopika R