Kidnapping and Abduction 3
Kidnapping and Abduction 3
Kidnapping and Abduction 3
Kidnapping
Section 359 of the Indian Penal Code lays down that the Kidnapping is classified into two
categories i.e. Kidnapping from India and Kidnapping from lawful Guardian.
Illustration: Afisha takes Ashu from India to SriLanka without the consent. This is a case of
Kidnapping from India.
Illustration: Arun is a boy who is 11 years old and under the legal guardianship of his father.
Anil, the neighbour takes Arun to the waterpark on the outskirts of the city without the consent
of Arun’s father. This is a case of Kidnapping from lawful Guardianship.
There are two exceptions to Section 361 and they are as follows:
1
https://lawctopus.com/clatalogue/understanding-the-difference-between-kidnapping-and-abduction/
CASE NAME:
Facts
The accused had kidnapped the minor male child of Smt. Gomti Devi, who was just
born a few hours ago. She took him away by saying that the staff nurse wanted to do
the cord dressing of the child.
When the child was not returned to the ward, even after an hour, Smt. Gomti Devi told
the sister-in-charge. She searched the premises for the accused and the child. When she
failed to find them the doctor and superintendent of the hospital was informed and they
further told the police.
On investigation, police found the child at the house of Ram Das, who was the tenant
of the appellant. At the time of the seizure of child, appellant was lying next to the
child and the accused kidnapper was sitting in the same room. The appellant was
charged with a punishment of rigorous imprisonment for 5 years under Section 368 of
IPC and the accused was charged under Section 363 (kidnapping for murder).
Issue
Judgement
The court dismissed the appeal petition. It explained that to constitute an offence under
Section 368 of IPC, three essential must be fulfilled. These are: (1) The person in
question must be kidnapped; (2) The accused must know that the person has been
kidnapped (3) The accused having such knowledge wrongfully conceals or confines
the person.
In the present case, the first essential was fulfilled when the accused took the 15 hours
old child away from his mother, the lawful guardian. The second essential was an
inference drawn from the facts of the case and the third essential was evidenced as the
appellant made it appear that the child was hers.
2
Smt. Saroj Kumari v. The State Of U.P. [1973] SC 201, (1973) 3 SCC 669.
IPC Section 362. Abduction
Whoever by force compels, or by any deceitful means induces, any person to go from any place,
is said to abduct that person.3
When a person compels a person or induces a person to move from one place using deceitful
means or force, it is a case of Abduction. Section 362 of the Indian Penal Code deals with the
offence of Abduction. It is not mandatory that physical force has to be actually used, even the
threat of using force is enough.
Illustration: If Anita puts a gun on Alisha’s head and asks him to go to her house with her. She
threatens Alisha that if she didn’t go with him, he will shoot her. She goes to her house because
of the threat. This is a simple case of Abduction.4
Ingredients of Abduction:
3
https://www.latestlaws.com/bare-acts/central-acts-rules/ipc-section-362-abduction/
4
https://lawctopus.com/clatalogue/understanding-the-difference-between-kidnapping-and-abduction/
5
https://lawtimesjournal.in/abduction/
Role of Consent
Consent of the person who is moved or taken away is of vital importance in abduction. Unlike
kidnapping where consent of the person who is taken away is immaterial, in abduction consent
given by the person moved will not amount to an act of abduction.
Illustrations
A is a minor daughter of B. A voluntarily goes away with C and indulges in sexual relations with
him. C cannot be held liable for abduction because A wilfully consented to go with him, there
was no use of force or inducement.6
CASE LAW:
6
https://lawtimesjournal.in/abduction/
7
Vinod Chaturvedi Etc v. State Of Madhya Pradesh [1984] SCR (3) 93.
Kidnapping or Abducting to Murder. – Section 364
Abducting or Kidnapping with intent to secret and wrongful confinement. – Section 365
Kidnapping or Abduction a woman to compel her for marriage, etc. – Section 366
Abducting or Kidnapping a child under ten years with the intent to steal any movable property
from him or her. – Section 369
Abducting or Kidnapping for the purpose of Slavery and Trafficking – Section 370
Kidnapping for sale and purchase of minor for immoral purposes. – Section 372
As per section 360 and 361, the There is no provision which puts a
female kidnapped should be under bar on the age of the person
Age of the
18 years of age and male abducted, since being a minor is
victim
kidnapped should be under 16 not essential to constitute this
years of age. offence.