In the judgment of the case- Anversinh alias Kiransinh Fatesinh Zala v. State of Gujarat, delivered on January 12, 2021, a 3-judge bench of the Supreme Court, consisting of Justices N.V.Ramana, S. Abdul Nazeer and Suryakant, has underlined that section 366 of IPC relating to offence of Kidnapping 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.
The Supreme Court has pointed out that the ratio of its decision in the case – S.Varadarajan v. State of Madras – (1965) 1 SCR 243, although attractive at first glance, does little to aid the appellant-kidnapper of a minor’s case. On facts, the case is distinguishable as it was restricted to an instance of “taking” and not “enticement”. Further, this Court has explicitly held in the Varadarajan’s case, 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, voluntary 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 proving : 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.
Unfortunately for the appellant, 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 full purport of her actions or that she possessed the mental acuities or 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 about her actions fully.
It is apparent that instead of being a valid defence, the appellant’s vociferous arguments are merely a justification which although evokes our sympathy, but cannot change the law. Since the relevant provisions of the IPC cannot be construed in any other manner and a plain and literal meaning thereof leaves no escape route for the appellant, 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 thus can be found with the conviction of the appellant under section 366 of IPC.
According to the Court there are many factors which may not be relevant to determine the guilt but must be seen with a humane approach at the stage of sentencing.
In this case, the appellant has impugned the judgment of Gujarat High Court delivered on July 28, 2009 by which his conviction under section 376 of the IPC was reversed but the charge of kidnapping under sections 363 and 366 of the IPC was upheld and consequential sentence of RI for 5 years was maintained.
Aspect of reducing sentence: The Apex-Court has conceded that there cannot be any mechanical reduction of sentence unless all relevant factors have been weighed and whereupon the Court finds it to be 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. Applying such considerations to the peculiar facts and findings returned in the case in hand, the SC has been of the ”considered opinion” that the quantum of sentence awarded to the appellant deserves to be revisited.
In support of its “considered opinion”, the Court has cited factors as under: first, 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 and 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. He was no older than about 18 or 19 years at the time of the offence and admittedly it was a case of love affair His actions at a such young and impressionable age, therefore, ought to be treated with hope for reform and not by sending him to jail.
Third, owing to a protracted trial, and delays at different levels, more than 22 years have passed since the incident. Both the victim and the appellant are 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 the Court’s notice. The appellant has been rehabilitated and is now leading a normal life.
Fifth, unlike in the cases of State of Haryana v. Rajaram-(1973) 1 SCC 544 and Thakorlal D. Vadgama v. State of Gujarat-(1973) 2 SCC 413, there is no grotesque misuse of power, wealth, status or age, which needs to be guarded against. Hence, there is need to award more equitable sentence. In view of these multiple unique circumstances, the SC’s opinion has been that the sentence of RI for five years is disproportionate to the facts of 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 sentence to the appellant to the period of imprisonment already undergone by him.
In conclusion, the finding of the SC is that the prosecution has established the appellant’s guilt beyond reasonable doubt and no case of acquittal under sections 363 and 366 of the IPC is made out. However, the Court has partly allowed the appeal reducing the sentence to the appellant to the period already undergone.
