KIDNAPPING AND ABDUCTION

Sections 359-369

Chapter XVI (Sections 359-374) provides for the offences of:

1. Kidnapping
2. Abduction
3. Slavery
4. Forced labour

KIDNAPPING:
Kidnapping means taking away a person against his or her will by force, threat or deceit.
Usually, the purpose of kidnapping is to get a ransom, or for some political or other purposes
etc. Kidnapping is classified into two categories in Section 359 and defined under Sections 360
and 361 of the Indian Penal Code.

According to Section 359 of the IPC, Kidnapping is of two types:

1. Kidnapping from India (Section 360)
2. Kidnapping from lawful guardianship (Section 361).

Kidnapping from India: Section 360 explains kidnapping from India. According to Section
360, if any person takes a person beyond the limits of India against the consent of that person
or against the consent of someone who is legally entitled to give consent on that person’s
behalf, then the offence of kidnapping from India is committed.
Illustration: ‘A’ is a woman living in New Delhi. ‘B takes ‘A’ to Bangladesh without her
consent. ‘B’ committed the offence of kidnapping ‘A’ from India.

Kidnapping from lawful guardianship: Section 361 explains kidnapping from lawful
guardianship. According to this section, if a person takes away or entices:
1. a minor (i.e, a boy under the age of 16 years and a girl under the age of 18 years) or
2. a person of unsound mind,
Away from his/her lawful guardian without the guardian’s consent, then that person commits
the offence of kidnapping from lawful guardianship.
*Explanation to the Section provides that lawful guardian includes any person lawfully
entrusted with the care or custody of such minor or other person.
Illustration: ‘A’ is a boy of 13 years of age, living under the lawful guardianship of his mother,
‘Z’. ‘B’ ‘convinces him to accompany him to his house against the consent of his mother.
According to Section 361, ‘B’ has committed the offence of Kidnapping from lawful
guardianship. Here, the minor is ‘A’; the lawful guardian is his mother, ‘Z’ and the person who
is committing the offence is ‘B’ as he is taking A away from ‘Z’ against Z’s consent.
This section also mentions an exception. It says that it does not result in the crime of
kidnapping from lawful guardianship, if the person in good faith, i.e, honestly with reason,
believes that:
1. He is entitled to the lawful custody of the child; or
2. He is the father of an illegitimate child.
*However, the act must not have been committed for an immoral or unlawful purpose.
Hence, If in the above illustration, ‘B’ believes that ‘A’ is his illegitimate son, then his act of
convincing him to come to his house without his mother’s consent would not result in
kidnapping from lawful guardianship.
State of Haryana v. Raja Ram, AIR 1973 SC 819
Facts: ‘J’ had tried to seduce the prosecutrix, a girl of 14 years to come and live with him. The
girl’s father forbade ‘J’ from coming to their house and in response, ‘J’ started sending her
messages through the respondent. One day, the respondent went to the girl and asked him to
come to his house and later sent his daughter to bring her. At his house, the respondent told her
to come to his house at midnight so that she can be taken to ‘J’. That night when she went to
his house, the respondent took her to ‘J’.
Issue: Whether the respondent was guilty of the offence under section 361 of IPC?
Judgement: The trial court held him guilty, but the High court acquitted him. On appeal to the
Supreme court, it was held that:
1. Section 361 is to protect minor children from being seduced for improper purposes and
to protect the rights and privileges of guardians having their custody.
2. The consent of a child is completely immaterial and only the guardian’s consent is
relevant to decide whether the offence was committed or not.
3. ‘Taking’ as mentioned in the Section is not only through fraud or force but also through
persuasion by the accused which creates willingness on the part of minor to be taken
away from his/her lawful guardian.
4. In this case, the respondent was held guilty under section 361 as it was the respondent’s
action which persuaded the prosecutrix from going out of her father’s keeping, against
her father’s wishes.
Age of the Minor: Section 361 of the Indian Penal Code clearly states that minor is:
1. A male under the age of 16 years,
2. A female under the age of 18 years.
However, it must be highlighted here that in Manipur, the age of 18 years of females in section
361 is replaced with 15 years. Hence if a female of 16 years is taken from her lawful guardians
in Manipur, it would not result in kidnapping from lawful guardianship.
Moreover, the Allahabad High Court in Smt Suman and another vs. State of Uttar Pradesh
gave a peculiar judgement. It was held that if a minor girl, who is 17 years old and is mature
enough to understand the consequences and rationale behind her action, leaves the guardianship
of her parents to live with a boy who has in no way subjected her to any kind of pressure,
inducement etc, i.t cannot result in an offence under section 361 of IPC and is not punishable.

Taking and Enticing: Section 361 mentions whoever ‘takes or entices’ a minor away from
his/her guardian against the guardian’s will, is punishable with the offence of kidnapping from
lawful guardianship.Let’s understand the meaning of taking and enticing by looking at a few
case laws.
Biswanath Mallick v. State of Orissa (1995) Cr LJ 1416
Facts: Kalyani, had been kidnapped by the accused/petitioner Biswant Mallick when she had
gone out around midnight. He first took her to Cuttack, then to Bhubaneshwar and finally to
Jeypore. Her father lodged a complaint at the police station. During the investigation, she was
found and rescued from the house of a relative of the accused. The petitioner was held guilty
and sentenced to two years rigorous imprisonment and a fine of Rs. 100. On the petition, the
counsel for the accused argued that the girl had attained the age of discretion (age to take
decisions for herself and understand the consequences of her act) as she was 17 years, 8 months
and 7 days old and thus kidnapping did not take place.
Issue:Clarity of Section 361 and explanation of taking and enticing as given in the section.
Judgement: Court clarified the difference between take and entice as given in section 361 of
the Indian Penal Code.The court said that the word ‘take’ means cause to go or to escort or to
get into possession. This means that in taking, the desire of the person being taken to be taken
is missing. It is the act of the accused which induces the person kidnapped to go to the
kidnapper, by his/her own wish. It is an exciting hope or desire in a person to be taken away.
Enticement is completely dependant upon the mental state of the person when the inducement
happens. It is not confined to a single form of allurement and any act which is enough to allure
a minor girl is enough to constitute allurement.
The court further clarified that mental attitude is immaterial (minor’s willingness or
unwillingness) is not relevant for taking. However, in enticement, the kidnapper convinces the
minor, through allurement, to do something he/she would otherwise not do. It was also held
that force or fraud is not necessary to constitute enticement or taking away.

S Varadarajan v. State of Madras, AIR 1965 SC 942

Facts: Varadarajan, the appellant was living next to Savitri’s (a minor girl) house. They talked
every day and became good friends. One day, Savitri’s sister, Rama caught them talking and
asked her about it. Savitri told her that she wanted to marry him. Rama told her father about
this who inquired Savitri. She started crying but didn’t reply to her father’s question.
Consequently, he decided to send her to a relative’s house, away from Varadarajan.
Next morning, Savitri called the appellant and told him to meet her on a certain road. They met
and she sat in his car. They both went to the house of P.T. Sami with a view to take him as a
witness to their marriage. They went to the Registrar’s office where they both got their marriage
registered. Thereafter, the went to Sattur, Sirkulam, Coimbatore, and Tanjore.
On the morning of the day she went away, her father, Natraj realised she was missing and tried
to find her around the area where they lived. However, all his attempts were futile and he filed
a complaint at the police station. The police took up the investigation and ultimately
apprehended the appellant at Tanjore.
Issue: Whether the essential of ‘taking’ of Savitri was fulfilled or not?

Judgement: The court held that where a minor girl leaves the protection of her father to join
the accused, knowing and completely understanding the consequences of her act, it cannot be
said that the accused has taken her away from the keeping of legal guardian.
In such case, for the accused to be held guilty, it must be established that the accused induced
the minor or actively participated in developing such intention in her mind, either immediately
prior or at some prior stage of her leaving her father’s protection.
The accused cannot be held guilty simply because after leaving her guardian’s house willingly
she joined the accused and the accused encouraged her to not return to her guardian’s house by
taking her to different places.
Punishment for Kidnapping Section 363 of the Indian Penal Code lays down the punishment
for both kinds of kidnapping (Kidnapping from India and Kidnapping from lawful
guardianship). The punishment prescribed in this section is :
1. Imprisonment of either description which can extend up to seven years, and
2. Fine.

Before we move forward, it is important to mention an exception laid down in the case of
Chadrakala Menon and another v. Vipin Menon 1993(2)SCC. In this case, the appellant
Chandrakala was married to Vipin Menon. They both were settled in the United States and
were well employed. They had a child who was sent to India to live with her maternal
grandparents. Unfortunately, differences arose between them and they decided to get separated.
While Vipin Menon filed an application for his daughter’s custody, the child continued to live
with her maternal grandparents. One day, while the custody application was still to be decided
upon, Vipin Menon took his daughter away with him to a different state. The grandparents
lodged a complaint of kidnapping against him. However, the court held that Vipin Menon was
the natural guardian of the child and no case of kidnapping is made out.
ABDUCTION-

Section 362 of the Indian Penal Code defines abduction. It says that if a person compels
another person to go from one place, or induces some person to go from one place, then the
offence of abduction is committed. Thus, Abduction is an offence in which a person is moved
from one place, against his/her will by forceful compulsion or by use of deceitful means.
Clearly, the essentials of abduction are:
Illustration: ‘B’ slaps and hurts ‘A’ and tells her that if she would not leave with him, he would
kill her. In this case, ‘B’ commits the offence of abduction as he uses forceful means to take
‘A’ away from her house. Here, ‘A’ is the person abducted and ‘B’ is the criminal; threatening
‘A’ to kill her and slapping and hurting her amounts to use of force, and taking her away from
her house established the essentials of taking a person away from a particular place.

Ingredients Of Abduction:

1. By Force: Section 362 says that abduction can happen in two ways. One of these is
force. In abduction, a person is forced to go from one place to another, against his/her
will. The use of force, as mentioned in this section, must be actual, and not just a threat
of force to constitute abduction. In this reference, we can look at the case State of West
Bengal v. Mir Mohammad Omar (2000 SC)

Facts: The victim, Mahesh Kumar Aggarwal was doing small business in Calcutta. The
accused, Mir Mohammad Omar and Sajad Ali wanted him to pay them INR 50,000 for allowing
him to do his business without any hindrance or obstructions. But Mahesh did not agree to their
demands which led to a fight.A few nights later, when Mahesh returned to his house, his sister
told him that a few assailants had come before looking for him, and were threatening to hurt
him. Scared, Mahesh left to take asylum at his friend’s house for the night. Just an hour after
he had been at his friend’s place, a man came to tell Mahesh that Omar is waiting outside for
him. Mahesh went out and Omar asked him to accompany him, but Mahesh disagreed.
Thereafter, Omar forcibly took Mahesh to the Rickshaw, but Mahesh escaped and went to a
neighbour’s house where he took asylum. At around 2:30, the accused entered Mahesh’s room
and dragged him out. He resisted but was beaten by a lathi and taken away. His neighbour went
and lodged a police complaint that very night.

Judgement: The court held that there is enough evidence to show that Mahesh was abducted.
It was said that abduction takes place when a person is compelled by force to go from a place.
In this case, Mahesh was taken away from two places, first from his friends’ place, which he
escaped and second from the neighbour’s place. In both instances, force was used. Hence, the
accused were held liable.

2. Deceitful Means: According to Section 362, the other way abduction can take place is
by inducing someone to go from someplace by misleading him/her to do something
he/she would not normally do. The scope of inducement here is very wide.
Illustration: ‘A’ is a man who wears the uniform of a police officer to convince a girl, ‘B’ to
come to his house with him, and because of his misrepresentation she goes with him. In this
case, ‘A’ uses deceitful means to commit the offence of abduction.

3. To go from any place: For abduction to be completed, it is essential that the person is
compelled to go from one place to some other place, either forcefully or by using
deceitful means. It cannot be called abduction if the person is not taken to someplace.
Now let’s discuss an important judgement given in the case of Vishwanath v. State of
Uttar Pradesh AIR 1960 SC 67. It was held that mere abduction is no offence at all.
The guilty and wrongful intention must be present for the offence to be punishable. For
this very reason, IPC provides for different punishments for abduction with different
intentions. Like abduction for kidnapping is punishable in Section 363A with
imprisonment up to ten years, abduction with the intention of murder is punishable with
life imprisonment etc. Now let’s discuss these specific provisions in detail.

Aggravated forms of Kidnapping or Abduction

1. Kidnapping or Maiming for Begging: Section 363A of the Indian Penal Code talks
about the offence of kidnapping or maiming a minor for begging. It states that:
“If a person kidnaps a minor or obtains custody of a minor, even though he is not his/her
lawful guardian, so as to employ the minor in begging, he/she would be liable for this
offence.”
 The punishment prescribed in Section 363A of the Indian Penal Code for this is
imprisonment up to 10 years and fine.
• Maim means to wound or injure a part of the body so that it is permanently damaged.
As per this section, If a person maims a minor so that the minor can be employed in
begging, he/she is liable for imprisonment for life and fine.
• The section also states that if a person, not being the minor’s lawful guardian, employs
a minor in begging, it will be assumed by the court that such person kidnapped the
minor. The person would have the burden of proof to prove that he is innocent.
• Section 363A(4), itself, defines what begging constitutes as per this provision. It means:
i. Asking or receiving alms (money was given to poor people) in a public place for
singing, dancing, fortune-telling, performing tricks, selling goods, etc.
ii. Entering someone’s private place to ask or receive alms.
iii. Exposing any wound, injury, deformity or disease of oneself, some other person or
some animal, for obtaining or extorting alms.
iv. Using a minor as an exhibit to receive or solicit alms.
Illustration: ‘A’ took away ‘B’, a 12-year-old boy, from his father, without his consent, so as
to make him beg on the streets of Delhi. In this case, ‘A’ completed the kidnapping from lawful
guardianship as soon as he took ‘B’ away from his father. And because it was for the purpose
of making him beg on the streets of Delhi, ‘A’ is guilty of the offence under section 363 A of
IPC.

2. Abducting or Kidnapping to Murder: As per Section 364 of Indian Penal Code, if a

person is kidnapped or abducted by a person with the intention or knowledge that the
person is going to be murdered or is going to be put in danger of being murder, such
person is punishable with imprisonment for life or rigorous imprisonment for a term up
to 10 years and a fine.
Illustration: ‘A’ takes away ‘B’ from his house to a forest, against B’s consent with the
knowledge that ‘B’ would be sacrificed to a deity. ‘A’ is guilty of abduction for murder.
To understand this section better, let’s look at the case of Shri Moni Neog and others
v. the State of Assam.
Facts: Sanjay Ghose was the General Secretary of an NGO, working for the welfare of people
at Maijuli. As their work started to spread, the members of a banned militant group, United
Liberated Front of Assam (ULFA), started to feel unhappy and scared of people losing faith in
them, because of their growing dedication for Sanjay Ghose’s NGO. They suspected Sanjay
Ghose to be a RAW Agent and developed hostility towards him.
One afternoon, he was stopped by two of the accused and taken to a house despite his protest.
He was taken to a house where some more militants joined him. He was then taken on a boat
to another house, along with more militants, all of whom were armed. At night, some people
near that house heard gunshots. When he didn’t return home for a couple of days, his wife filed
a police report. Upon investigation, it was found that he is dead. It was accused that these
militants had murdered him.
Judgement: The court held that the abductors of Sanjay Ghose had abducted him with the
intention to murder him, or at least had the knowledge that he may be murdered or had put him
in danger of being murdered, It further said whether he was murdered or not is immaterial.
What is important is that the abductors did not at any stage gave an indication that they would
spare his life. As a result, the court convicted the accused and awarded them life imprisonment
and a fine of Rs. 2000 each.

3. Kidnapping for Ransom: Section 364A of IPC provides for punishment to the
whoever threatens to hurt or cause death to that person who he has kidnapped or
abducted or detained after kidnapping or abducting in order to compel:
a. either the government or some foreign state or any other person to do or abstain
from doing an act or,
b. pay a certain sum of money.
The punishment is death or imprisonment for life, and fine, as mentioned in Section 364A IPC.
Netra Pal v. State (National Capital Territory of Delhi), 2001
Facts: The appellant Netra Pal was known to Master Tanu Johia, a 6-year-old boy. One day he
had taken the boy along with other boys on a joy ride in a Rickshaw. While he dropped the
other boys, he did not drop off Tanu. His mother had thought that Netra Pal would come back
with her son in a while. When he didn’t come back, she told his father. He tried to find him
around the area where they live, but failed to locate them and filed a police report.
The police went to the appellant’s village and found him there along with the child. He was
apprehended and a letter asking for Rs. 50,000 in ransom was found in his possession.
Issue : What do the words “To pay ransom” stand for – is it enough to show that kidnapping
or abduction was done with an intention to extract ransom or is it necessary that such demand
must be communicated?
Whether the letter recovered from the appellant would constitute as demand for ransom?
Judgement: The court held that mere recovery of the letter assumed to have been written by
the appellant demanding Rs. 50000 for the safety and return of the child is not enough to cover
“ to pay the ransom” by itself. Demand by a kidnapper is an essential ingredient of the offence
because, for the purpose of getting paid ransom, demand must be communicated.

Malleshi v. State of Karnataka (2004)-

Facts: Vijaybhaskar was studying in college and living at his uncle’s place. He used to go to
Chitradurga, where his college was, through a bus, along with another friend. One day when
he was waiting to board the bus to go back to his house, he was called by a man who told him
he knew his father. He further inquired about the college’s fees saying he wanted to enrol his
son here. He then led Vijaybhasker to a jeep informing him that his son is there and made him
sit in the jeep. Then two other men joined him and treated him well till they crossed
Chitradurga. Once they did, they enquired about his father’s phone number and told him that
they want a ransom of Rs. 4,00,000. On the way, they stopped to buy cigarettes. The driver of
the jeep told him to run off. He listened to his advice and found out he was in Byrapur village.
He informed the villagers who caught hold of the abductors and handed them over to the police.
Issue: Whether the alleged demand for ransom was established or not?
Judgement: The court held that Vijaybhasker has been abducted through deceitful means.
They further referred to the case of Netra Pal v. State and said that the difference of fact that
the abducted person, in that case, was a child and in the present case is an adult who can look
after himself must be mentioned. It was held that in this case, the demand for ransom had been
conveyed to the victim and the offence was completed. The court further said that it cannot be
a straight jacket rule that the demand for abduction must always be made to the person who is
required to ultimately pay it.

Vikram Singh v. Union of India, (2015): The next case, we will be looking at is Vikram Singh
v. Union of India, in which the punishment prescribed in Section 354A IPC was evaluated.
Facts and Issue: The appellant had kidnapped a 16-year-old boy and asked for Rs. 50 lacs in
ransom. They had then killed this boy. In this case, the appellants filed a writ petition in the
Supreme Court to declare Section 364A inserted in the Indian Penal Code as ultra vires (beyond
the legal power) of the Constitution to the extent that the same prescribes death sentence for
anyone found guilty. He also said that section 364 A was added only to deal with terrorist-
related ransom since kidnapping/ abduction has already been dealt with in the previous section.
He further prayed for quashing death sentence given to him under this section.
Judgement: The court held that section 364A is very wide. There is nothing which suggests
that this section is limited to offences against a foreign state or international governmental
organisation, and covers all the “any other person” as well.
Court also emphasised upon various Indian and foreign judgements to highlight the importance
of proportionality of punishment. It held that the job of giving punishment is the job of the
legislature, and the court can only intervene when it feels that the punishment is outrageously
disproportionate. In section 364A however, when death is concerned the courts do reserve the
right to give death penalty or if not required, a lesser punishment of life imprisonment. Hence,
it is not ultra vires with the constitution.

4. Kidnapping or abduction with intent to secret and wrongful confinement: Section

365 of IPC provides for punishing a person who kidnaps or abducts someone with the
intention of wrongfully and secretly confining them with imprisonment up to 7 years
and fine.
Illustration: ‘A’ takes ‘B’ away from her legal guardian, against the consent of such
guardian, with the intention of hiding her in his house. Here ‘A’ has kidnapped ‘B’ with
the intent of secret confinement, and thus, he is punishable under section 365 of IPC.

5. Kidnapping or Abduction a woman to compel her for marriage, etc: Section 366
of Indian Penal Code punishes a person who kidnaps or abducts a woman with the
intention:
i. to force her into a marriage against her will or, with the knowledge that she
would be forced into marriage, or
ii. to force or seduce her into illicit intercourse or has the knowledge that because
of such kidnap or abduction, she would be forced into illicit intercourse, or
iii. to induce any woman by means of criminal intimidation or abuse of authority
or any other method of compulsion to force or seduce her to have illicit
intercourse with another person.
The punishment prescribed in this section is imprisonment for up to 10 years and fine.

Illustration: ‘A’ and ‘B’ are brothers. ‘A’ wanted to marry ‘C’, but she did not want to.
‘A’ asked ‘B’ to abduct ‘C’ so that he can marry her. ‘B’ did as was asked from him
 and took ‘A’ from her house to ‘A’. Here ‘B’ is guilty of the offence under section 366
as he abducted a woman, ‘C’ with the knowledge that would be compelled into
marriage.

*Minor’s consent to marry her Kidnapper: Is it valid? - To look at if minor’s consent to marry
her kidnapper or engage in sexual intercourse with him is enough or not, let’s look at the case
of Thakorlal D. Vadgama v. State of Gujarat.
Facts: Mohini’s parents got to know that she had been having sexual intercourse with the
appellant and reprimanded her. They also sent a letter to him telling him to stay away from
Mohini. She, however, met him again when she had gone to Ahmedabad on a school trip and
for two months after that, they kept sending each other letters in which Mohini had complained
about her parents ill-treating her and expressed her desire to leave her house.
Next month, the appellant asked her to meet him at his house and she met him there. He made
her write three letters to her father, the appellant and the police superintendent. These letters
contained complaints of ill-treatment by her parents and also said that she had taken Rs. 250
from the appellant and was leaving to Bombay..
He then made her sit in a cars’ dicky and took her away to someplace. Then he had sexual
intercourse with her against her wishes. Meanwhile, her father filed a case. Next morning,
while investigating police came to his house to search it for Mohini. The appellant hid Mohini
in his garage and later told her to run out in the street, where the police found him. On medical
examination, no evidence of forced intercourse was found.
Issue: Whether or not consent from Mohini absolves the appellant from his crime?
Judgement: The court held that in the present case, the appellant got close to the minor girl in
the manner of making promises and giving her gifts, like new clothes, etc. He took advantage
of this closeness to entice her out of her parent’s guardianship and thus kidnapped her.
The court further, clarified the legal position with respect to an offence under section 366 of
IPC and said that law seeks to protect the minor children from being seduced into illicit
activities and also the rights of the guardians towards their children. It clarified that kidnapping
can be done by enticing or inducing minor out of the keeping of their guardians. Hence, it was
held that Mohini’s acceptance to go with him and have intercourse with him is not enough to
absolve him from the offence.

6. Procuration of Minor Girl: Section 366A of the Indian Penal Code prescribes
punishment for any person who induces a girl under the age of 18, to go from someplace
 or to do some act, such that she will be forced or seduced to engage in illicit intercourse
with some person. Such inducement must be done intentionally or with the knowledge
that she will be forced to engage in such acts.The punishment prescribed for the same
is imprisonment for up to ten years and fine.

7. Importation of girl from foreign country: Section 366B provides that whoever
imports into India from any country outside India or from the State of Jammu and
Kashmir any girl under the age of 21 years with an intent to force or seduce her to
have illicit Intercourse with another person.

8. Kidnapping or Abducting to subject a person to Grievous Hurt: Section 367 of the

Indian Penal Code states that if a person kidnaps or abducts a person so that such person
is subjected to or is put in danger of grievous hurt, slavery or unnatural lust of any
person, must be punished with either rigorous or simple imprisonment up to 10 years
and fine.

9. Wrongfully Concealing or Keeping in Confinement a kidnapped or abducted

person: Section 368 of the Indian Penal Code provides that if a person knows that a
person has been kidnapped or abducted, and wrongfully confides such kidnapped
person, would be punished as if he had kidnapped or abducted the person with the
intention to keep or confide in him/her.This section can be better understood by looking
at the following case:

Smt. Saroj Kumari v. State of Uttar Pradesh, AIR 1973 SC 201

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: Is the appellant guilty under section 368 of IPC?
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.
10. Kidnapping or Abducting Child under ten years with the intent to steal from its
person: According to Section 369 of Indian Penal Code a person who kidnaps a child
under 10 years of age to steal any movable property from him/her, will be punished
with imprisonment up to 7 years and also fine.
Illustration: A kidnaps B, an 8 years old girl using her mother’s mobile phone, to steal
that phone. Here, A is guilty under section 369 of IPC.