Consent Of Minor Immaterial In Kidnapping Cases; Removal Without Guardians' Consent Attracts Offence: Calcutta High Court
The Calcutta High Court has held that the consent of a minor is legally irrelevant in offences of kidnapping and trafficking, observing that a 17-year-old girl remains under the lawful guardianship of her parents and her removal without their consent constitutes the offences of kidnapping and abduction. The Court further found that the accused exercised deceitful control over the victim...
The Calcutta High Court has held that the consent of a minor is legally irrelevant in offences of kidnapping and trafficking, observing that a 17-year-old girl remains under the lawful guardianship of her parents and her removal without their consent constitutes the offences of kidnapping and abduction. The Court further found that the accused exercised deceitful control over the victim by administering intoxicants during the journey before trafficking her for commercial sexual exploitation.
A Division Bench of Justice Rajasekhar Mantha and Justice Rai Chattopadhyay upheld the conviction of four accused for offences under Sections 363, 366A, 370 and 376D of the IPC and Sections 5, 6 and 9 of the Immoral Traffic (Prevention) Act. However, it reduced the effective sentence of one convict, Nazim Sk., to 15 years after finding that he had facilitated the victim's rescue by anonymously informing her family of her whereabouts.
Rejecting the defence that the victim had voluntarily accompanied the accused and had ample opportunity to seek help during the journey, the Bench held that such an argument could not absolve the accused because the victim was below 18 years of age.
"The very fact that she was a minor and was taken away... without the consent of her natural guardians... would attract the penalties under Sections 363 and 366 of the Indian Penal Code."
The Court noted that the victim was first given a cold drink and sweets at Diamond Harbour and later tea at Howrah railway station, after consuming which she lost consciousness and regained it only in Delhi. It held that the accused had used deceitful means to maintain complete control over the victim throughout the journey.
Relying on Kavita Chandrakant Lakhani v. State of Maharashtra, the Court observed that kidnapping and abduction under Section 366 IPC are established where a woman is induced or carried away through force or deceit with the intention of compelling or facilitating illicit sexual intercourse. On the facts of the case, it held that all the ingredients of the offences stood proved.
According to the prosecution, the victim left her village on March 25, 2013, to visit her brother at Kalyanpur. She was acquainted with one of the accused and met the others at Diamond Harbour. She was thereafter taken to Delhi, sold to a brothel in Jaipur where she was repeatedly sexually exploited for about a week, and later trafficked to a red-light area in Gandhidham, Gujarat.
The victim was eventually rescued after her father received an anonymous phone call purportedly from "Pintu" informing him of her location. Investigation later revealed that the call had actually originated from Gandhidham, enabling the police to trace and rescue the victim.
The appellants also argued that the victim's testimony was unreliable because her statements under Section 164 CrPC and during the two trials contained improvements and additions. The High Court rejected the submission, observing that survivors of trafficking and prolonged sexual abuse often disclose traumatic experiences gradually.
Placing reliance on State of Punjab v. Gurmit Singh, the Bench held that courts must evaluate the testimony of victims of sexual offences with sensitivity and should not reject otherwise credible evidence merely because of minor inconsistencies or subsequent elaboration arising from trauma.
The Court further upheld the conviction under Section 376D IPC, holding that the victim's testimony regarding repeated sexual assault by the accused inspired confidence and that a conviction for gang rape can be sustained solely on the testimony of the prosecutrix if found reliable.
While affirming the convictions, the Bench granted limited relief to Nazim Sk., observing that the evidence suggested he had made the anonymous phone call that ultimately led to the victim's rescue. Treating this as a mitigating circumstance, the Court directed that he would undergo a total sentence of 15 years, while affirming the convictions and sentences of the remaining appellants.
Case No: C.R.A. 353 of 2015
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