Minor girl's infatuation with kidnapper can't be allowed as defence, says SC

New Delhi: A minor girinfatuation with her alleged kidnapper cannot by itself be allowed as a defence as it would amount to surreptitiously undermining the protective essence of offence of kidnapping, the Supreme Court has said.

The apex court, which upheld the conviction of a man for kidnapping a minor girl in 1998, said his contention of consensual affair and that she had joined his company voluntarily cannot be acceded to given the unambiguous language of the statute as the girl was below 18 years of age. A bench headed by Justice N V Ramana, while referring to the relevant legal provisions, said it showed that consent of minor is immaterial for the purposes of section 361 of the Indian Penal Code (IPC) which deals with the offence of kidnapping from lawful guardianship.

It is apparent that instead of being a valid defence, the appellant's (man) vociferous arguments are merely a justification which although evokes our sympathy, but can't change the law, said the bench, also comprising Justices S A Nazeer and Surya Kant. 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, it said.

The apex court delivered its judgement on the man's plea challenging the July 2009 verdict of the Gujarat High Court which had set aside his conviction under section 376 (rape) of the IPC but had upheld his conviction for offence of kidnapping. He was sentenced to five-year jail.

The top court, which upheld his conviction for the offence of kidnapping, abducting or inducing woman to compel her marriage, reduced the quantum of sentence to the period of imprisonment already undergone by him. 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, the bench said in its 16-page verdict.