.

Faculty of Law
Project On
Kidnapping or Abduction
For
Law Of Crimes ¡¡
Course – bcomllb 4th sem
Submitted By –
Akshita Tripathi
Submitted To
Mr. Gulab Rai
Asst. Proffesor
Faculty of law
Dsmnru
 Index
S.No Topic Pg.No. T.sign
1
1 Acknowledgement

2 Introduction 2

Kidnapping from India 3

3
Kidnapping from lawful 4
4 Guardianship
Meaning of Taking or 5-8
5 Enticing with cases
Abduction and other
6 related offences
9

Difference between 10
7 Abduction and kidnapping
Aggravated form of 11-12
8 Kidnapping or Abduction
Bibliography 13
9
.

Acknowledgement

I would like to express my special thanks of gratitude to my teacher Mr.

GULAB RAI sir who gave me the golden opportunity to do this
wonderful assignment on the topic ‘Kidnaping or Abduction' my teacher
have helped me in doing a lot of Research and i came to know about so
many new things I am really thankful to them.
Secondly i would also like to thank my parents and friends who helped
me a lot in finalizing this project within the limited time frame.

Akshita Tripathi

Introduction

Kidnapping and Abduction are important offences against the human

body and have been covered specifically from section 359 to 374 of the
Indian Penal Code. An analysis of these sections along with relevant
case studies has been covered in this module.

Kidnapping as a Specific Offence:

Section 359 states that under the Indian Penal Code, 1860 (IPC)
kidnapping is of two types: Kidnapping from India and Kidnapping from
Lawful Guardianship. Section 360 defines Kidnapping from India and
Section 361 defines Kidnapping from Lawful Guardianship.
Section 363 lays down imprisonment of either description for a term
which may extend to seven years and fine as punishment for the offence
of Kidnapping.

Kidnapping from India:

This section makes kidnapping from the territorial limits of India a

punishable offence under the Indian Penal Code. It makes use of the
word “convey” which literally means ‘to transport’, ‘carry’ or ‘take’
from one place to another.
So, the offence of kidnapping under this provision is complete when a
person is carried, taken or transported to a place which is outside the
geographical territory of India.Reaching the destination in a foreign
country is not relevant for the accomplishment of this crime. On similar
lines, it is important to note that when the accused is in the process of
conveying a person from the territory of India but his actions are
interjected before he can cross the Indian Territory, he may be liable for
attempt to kidnap under section 359 but will not be guilty of
commission of the actual offence.Absence of consent on the part of the
victim is also a necessary element of the offence. For deciding the
connotation of the term “India”, one has to rely on section 18 of the IPC
under which the term would mean the territory of India with the
exclusion of Jammu and Kashmir.

Kidnapping from Lawful Guardianship:

Section 361 of the IPC defines ‘Kidnapping from Lawful Guardianship’.

The section penalises kidnapping of minors or of persons of unsound
mind: in case of males, the offence is committed if a minor below
sixteen years of age is ‘taken’ or ‘enticed’ and in case of females, the
offence is accomplished if the same act is committed against a minor
below eighteen years of age. There is no age barrier for persons of
unsound mind under the section. The offence of Kidnapping under this
section can be fragmented into the following major components:
a. Taking or enticing of a minor or a person of unsound mind by a
person
b. The minor must be taken or enticed out of the keeping of lawful
guardian
c. The guardian’s consent must be absent

Section 361 intends to protect the interests of minors and at the same
time, shields the
custody rights of their lawful guardians.At this juncture, it is necessary
to discuss in detail
each of the above elements to have a clear picture of the offence of
Kidnapping.

Meaning of Taking or Enticing:

There has been a lot of deliberation in Indian Courts from time to time
on the connotation of the terms “taking” or “enticing” used in section
361. Although it is sufficient to show that there was either taking or
enticing for the offence to be committed, the terms vary a lot in their
literal and legal content. ‘Taking’ excludes the idea of force on the part
of the kidnapper and means “to cause to go” or “to escort”.
In fact, the kidnapper may take the minor’s (or the unsound person’s)
consent and still “take” him/her out of the keeping of his/her lawful
guardian. The connotation of the term “Taking” was discussed in an in-
depth manner in the case of S. Varadarajan v. State of Madras.

S. Varadarajan v. State of Madras: An Analysis

The case had an interesting factual matrix that revolved around a minor girl named
Savitri who was on the threshold of attaining majority and the man she eloped
with, S. Varadarajan.Savitri was the daughter of S.Natarajan and had secretly
developed friendship with their neighbour, S. Varadarajan. When reprimanded by
her sister, she confessed that she intended to marry the boy next door
(Varadarajan). A furious Natarajan packed his daughter off to Kodambakkam with
the belief that Savitri would get over her infatuation after a few days of distance.
This incident happened on 30th September, 1960 and the very next day, i.e. on 1st
of October, 1960, Savitri contacted Varadarajan over the phone and asked him to
meet her on a certain road at a certain time. Varadarajan co-operated with Savitri
and came to the venue by car. Savitri stepped into the car and both of them went to
a friend’s place from where they went on to purchase some sarees and jewellery.
Thereafter they got married at the Registrar’s office. The couple stayed at a hotel
after their marriage, went around a few places and were finally apprehended by the
police at Tanjore, following a complaint filed by Savitri’s father.
The case which had a typical cinematic setting of the sixties was decided by a
three-judge bench comprising of Justice R. Mudholkar, Justice K. Subbarao and
Justice M. Hidayatullah. Very fine and interesting questions of law were raised and
argued upon leading to the delivery of a unique judgment, which was very ahead of
its times.
The primary issue which was raised in this case was whether the acts of the
appellant,Varadarajan could cumulatively amount to the offence of Kidnapping. In
order to establish the offence of kidnapping, the court said, it is necessary to
establish whether the minor had been taken or enticed out of the keeping of the
lawful guardian. It said that while enticement was not in the picture, the court had
to find out whether the appellants act could constitute “taking”. In order to
constitute “taking” one of the essential requirements was the nature of participation
of the accused in leading the minor ‘out of the keeping of the lawful guardian’.
The court looked into the facts of the case and rightfully pointed out that there was
nothing in the facts to suggest that Varadarajan had caused the minor to elope with
him. Rather, Savitri’s deposition made it evident that she had the desire and
therefore, clearly intended to marry Varadarajan. Varadarajan only co-operated
with her in accomplishing her desire. In other words, he facilitated the fulfilment of
Savitri’s intention.
The court further observed that Varadarajan’s participation in the whole act was
passive- it was in the nature of providing a support-system in giving shape to the
desire of Savitri. The inference was drawn from the fact that it was Savitri who
called Varadarajan up, asked him to meet her at a certain place and time and
expressed her willingness to marry the appellant.
That being the case, it cannot be said that Varadarajan actively induced Savitri to
elope with him. At this point, the court also remarked that for the establishment of
the factor of ‘taking’ under the Indian Penal Code, it is necessary that the accused
participates in an ‘active’manner to walk out of the custody of his/her lawful
guardianship.The Court also pointed out that the socio-economic background of
Savitri must be taken into consideration before convicting Varadarajan. She was an
educated girl who was fully capable of understanding the nature and consequences
of her actions. In the words of the court, Savitri was not a ‘child of tender years’.
Although a minor, she was on the verge of attaining her majority and was capable
of taking rational decisions. The court finally acquitted Varadarajan on the ground
that a case under section 361 was not made out against him as the required
parameters for the offence were not fulfilled.
The case of Varadarajan has discussed in great detail the connotation of the term
“taking”. Taking also varies from “enticing” in a very significant way. While the
element of force may not be present in either taking or enticing, the element of
‘temptation’ is present in the latter although it is absent in the former.When X
“entices” Y, he goads Y to commit an act or tempts him to do so. The trick of
tracing an element of temptation is to find out whether or not the minor would have
abandoned lawful guardianship, had the accused not tempted him to do so.
Enticing is said to be there when the accused does something which generates the
desire in the minor to abandon his/her lawful guardianship.

R v. Prince- Taking, Consent and a Reasonable Mistake

of Fact
The case of R. v. Prince1is a nineteenth century English case which has generated
a lot of debate on the relevance of mens rea in certain offences. In this case, Henry
Prince was charged under section 55 of the Offences against the Person Act, 1861
for taking Annie Phillips a fourteen year old girl. The section penalised unlawful
taking of an unmarried girl below sixteen years of age out of the possession of her
lawful guardians including her father and mother. The most interesting facet of this
case is that the girl looked much older than sixteen and stated to Prince that she
was eighteen years old. Under the mistaken belief that Annie was eighteen years
old, Prince had ‘taken’ her out of her father’s custody. The jury also found that
Prince had acted under a reasonable belief and that the girl did look a lot older than
16. However, Prince was convicted of the offence on the ground that his intention
did not really matter in an offence which did not require the mens rea element to be
proved as per the statute. In other words, the offence made provision for strict
liability. The dissenting opinion in this case was based on the premise that the
defence of a reasonable mistake of fact should have been made available to Prince
as it is a fundamental premise of Criminal Law that there cannot be a crime
without a guilty mind. Unfortunately, the defence was not made available to Prince
and he was convicted of the offence under section 55 of the Offences against the
Person Act, 1861

Understanding ‘Out of the Keeping of Lawful Guardian’

and Minor’s Consent:
State of Haryana v. Raja Ram and Thakorlal D Vadgama v. State of
Gujarat Another important factor under section 361 is the fact that the
person ‘taken’ or ‘enticed’ should be out of the keeping of lawful
guardian. The significance of “keeping” was discussed in Raja Ram’s
case where the court held that the term connotes the idea of ‘charge,
maintenance, protection and control’. Not only that the court also held
that although independence of the movement of the minor is respected,
his/her consent is wholly immaterial in diffusing the element of
enticement under section 361. The term ‘lawful guardian also has a very
wide ambit and is different from the idea of a ‘legal guardian.’‘Lawful
guardian’ denotes any person, who is lawfully entrusted with the care
and protectionof the minor.Likewise, in the case of Thakorlal D
Vadgama v. State of Gujarat, the scope of the terms “entice” and “taken”
were discussed. The Supreme Court upheld the conviction of the
accused since he had induced a minor immature girl of impressionable
age to have illicit sexual intercourse with him by alluring her and
presenting her with gifts.

Abduction and other related Offences:

Section 362 defines Abduction and points out that there are two essential
elements necessary to complete Abduction, i.e.(a)Compelling an
individual by force or inducing by deceitful means and (b) thereby
causing such person to go from any place. Abduction is not an offence
per se but becomes punishable when it is done with an intention to
commit another offence.Abduction is an offence if it is done with the
intention to commit murder, wrongfully confine a person, induce a
woman to compel her marriage, subject a person to grievous hurt,
slavery, etc, steal from a person below 10 years. The term ‘by force’
suggests that there should be actual use of force and not a mere
show/threat of force.
The term ‘deceitful’ suggests means and methods by which a person is
misled or led to believe in something false.The offence of abduction is
committed as many times as the person is moved from one place to
another. So, for instance A is taken from her house and then sent to city
X, from where she is moved to city Y. In this case, abduction is
committed twice-once, when she was moved from her house and then
again when she was moved from city X to city Y
Difference between Kidnapping and Abduction:
There are some vital differences between Kidnapping and Abduction.
The primary differences between the two offences are as follows:
 In Kidnapping, the offence is committed against a minor only.
However, for abduction to happen there is no prescription of age
limit.
 Secondly, a minor’s consent is not relevant for exonerating the
accused from liability for Kidnapping. But in case of abduction,
the victim’s consent will negate liability.
 Thirdly, kidnapping is committed when a person is taken out of the
keeping of a lawful guardian. However, for the offence of
abduction to be committed, any person may be moved from one
place to another by using deceitful means or force and only then,
the offence will be said to be committed.

Aggravated forms of Kidnapping or Abduction

Sections 363A, 364, 364A, 365, 366, 366A, 366B, 368 and 369 deal with
aggravated forms of Kidnapping or Abduction. In each of these sections,
kidnapping and abduction are linked up with one or more offences. So, kidnapping
or abduction is done with the intention of committing offences like murder,
wrongful confinement, so on and so forth. A brief discussion of each of these
sections is pertinent at this juncture.
Section 363A talks about kidnapping or maiming a minor for the purpose of
begging and makes it a punishable offence. The punishment may extend to ten
years and shall also include fine. This section was inserted by an amendment in
1959. The terms “begging” and “minor” have been defined under the section.
Section 364 makes abduction or kidnapping for the purpose of committing murder
a penal offence. Under this section it is sufficient to show that
abduction/kidnapping was done with the intention to commit murder. Actual
commission of murder is not necessary. Punishment prescribed under this section
may extend to ten years along with fine.
Section 364 A penalises kidnapping for the purpose of ransom with death or life
imprisonment and fine. It was inserted into the IPC by an amendment in 1993.
Section 365 prescribes punishment for up to seven years for the offence of
kidnapping or abduction with intent to secretly and wrongfully confine a person.
Section 366 distinctly deals with the offence of kidnapping, abducting or inducing
a woman to compel her marriage and prescribes imprisonment of either description
that may extend to ten years and fine.
Section 366A penalises procuring a girl below eighteen years of age with the
knowledge that she will be either forced or seduced to illicit intercourse with
another person. Imprisonment may extend to ten years along with fine.
Section 366B penalises import of a girl from foreign country with imprisonment
extending up to ten years and fine.

Section 367 makes it an offence to kidnap or abduct a person with the object of
subjecting him/her to grievous hurt, slavery etc. The penalty prescribed under this
section is imprisonment of either description for a term that may extend to ten
years and fine.
Section 368 penalises a person who wrongfully conceals or confines a kidnapped
or abducted person, knowing that such person has been kidnapped. It is to be noted
that this section penalises an aide/accomplice and not the perpetrator.
Section 369 penalises kidnapping or abduction of a child below ten years of age if
such kidnapping/abduction is with the intention of stealing movable property from
the person of the child. Punishment under this section may extend to seven years
along with fine.

Sections 370 to 374 penalise buying or disposing of any person as slave, habitual
dealing in slaves and unlawful compulsory labour. Likewise, sections 372 and 373
penalise selling and buying of minors for the purpose of prostitution.The content of
sections 370 to 374 has also been reflected in anti-trafficking laws of India. The
Immoral Traffic (Prevention) Act, 1956 makes a provision for stringent
punishment if kidnapping of a minor or child takes place for the purpose of
prostitution. Under section 13, the Act also makes provision for a special Police
Officer and advisory body to deal with offences related to immoral trafficking.
 Bibliography

Books:

The law of crimes by Dhiraj Lal Keshavlal Thakore

The indian penal code Surya Narayan Misra

Websites:

www.legalbites.in
www.srdlawnotes.com