Section 361 - IPC
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IPC - Indian Penal Code Section 361
IPC , Section 361 - Whether a consensual affair can be a defence against the charge of kidnapping a minor? - Consent of the minor - Is immaterial for purposes of Section 361 of IPC - As borne out through various other provisions in the IPC and other laws like the Indian Contract Act, 1872, minors are deemed incapable of giving lawful consent - Section 361 IPC, particularly, goes beyond this simple presumption - It bestows 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 - Varadarajan v. State of Madras, (1965) 1 SCR 243, distinguished.
Held, Behind all the chaff of legalese, the appellant has failed to propound how the elements of kidnapping have not been made out. His core contention appears to be that in view of consensual affair between them, the prosecutrix joined his company voluntarily. Such a plea, in our opinion, cannot be acceded to given the unambiguous language of the statute as the prosecutrix was admittedly below 18 years of age.
Sentence – 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 - IPC , Section 361 - IPC , Section 366.
IPC , Section 361 - IPC , Section 366 - 'Kidnapping from Lawful Guardianship' - Perusal of Section 361 of IPC shows that it is necessary that there 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 - However, mere recovery of a missing minor from the custody of a stranger would not ipsofacto establish the offence of kidnapping - Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home.
Sentence – Whether the punishment awarded is just, and ought there be leniency given the unique circumstances? - Reduced – Factors taken into consideration - IPC , Section 361 - IPC , Section 366.
First, it is apparent that no force had been used in the act of kidnapping. There was no preplanning, use of any weapon or any vulgar motive. Second, although not a determinative factor, the young age of the accused at the time of the incident cannot be overlooked. Third, owing to a protracted trial and delays at different levels, more than twenty-two years have passed since the incident. 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. Fourth, the crime was one of passion. No other charges, antecedents, or crimes either before 1998 or since then, have been brought to our notice. The appellant has been rehabilitated and is now leading a normal life. The possibility of recidivism is therefore extremely low. Fifth, there is no grotesque misuse of power, wealth, status or age which needs to be guarded against. Both the prosecutrix and the appellant belonged to a similar social class and lived in geographical and cultural vicinity to each other. Far from there being an imbalance of power; if not for the age of the prosecutrix, the two could have been happily married and cohabiting today. Indeed, the present instance is an offence: mala prohibita, and not mala in se. Accordingly, a more equitable sentence ought to be awarded. Sentence of five years' rigorous imprisonment awarded - Reduced to the period of incarceration already undergone.
IPC , Section 359 and 361 – Sentencing - Although the offence as defined under Section 359 and 361 of IPC has no ingredient necessitating any use of force or establishing any oblique intentions, nevertheless the mildness of the crime ought to be taken into account at the stage of sentencing.