DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW

2019-2020

INDIAN PENAL CODE - II

TITLE OF THE PROJECT:

KIDNAPPING AND ABDUCTION

SUBMIITED BY: UNDER THE GUIDANCE OF:

AMAR SINGH Dr. VIPUL VINOD

Enrolment No. 170101022 Assistant Professor (Law)

B.A.L.L.B. (Hons.) SEMESTER V Dr. Ram Manohar Lohiya National

Law University, Lucknow

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 ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me
during the writing of this project.

Words are inadequate in offering my deep sense of gratitude to my Professor for

his precious guidance.

With his enthusiasm, his inspiration and his great efforts to explain things clearly
and simply, he helped throughout my analysis of work with lots of
encouragement, sound advice, and good innovation.

I would also like to thank the librarians of Dr. Madhu Limaye Library who
extended their assistance to me by helping me out consult the relevant books.

I know that despite my best efforts some discrepancies might have crept in which
I believe my humble Professor would forgive.

Thanking You All

AMAR SINGH

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 TABLE OF CONTENTS

INTRODUCTION .......................................................................................................................... 4

KIDNAPPING ................................................................................................................................ 5

ABDUCTION ................................................................................................................................. 8

DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION ............................................. 9

AGGRAVATED FORMS OF KIDNAPPING AND ABDUCTION ....................................... 10

CONCLUSION ............................................................................................................................. 17

BIBLIOGRAPHY......................................................................................................................... 18

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 INTRODUCTION

In the terminology of the common law in many jurisdictions, the crime of kidnapping is labeled
abduction when the victim is a woman. In modern usage, kidnapping or abduction of a child is
often called child stealing, particularly when done not to collect a ransom, but rather with the
intention of keeping the child permanently (often in a case where the child’s parents are
divorced or legally separated, whereupon the parent who does not have legal custody will
commit the act; then also known as “child napping”). The word “kidnapping” was originally
“kid nabbing”, in other words slang for “child stealing”, but is no longer restricted to the case
of a child victim.

Child abduction can refer to children being taken away without their parents’ consent, but with
the child’s consent. Kidnapping, according to Walker, is the common name for the common
law offence of carrying away, or secreting, of any person against his will, or against the will of
his lawful guardians. It may be constituted by false imprisonment, which is total restraint of a
person and his confinement without lawful authority or justification.

India has comprehensive legislation to counter kidnapping, with the Indian Penal Code
outlining few specific offences related to the purpose of the kidnapping. These are-

 Kidnapping a minor for purposes of begging;

 Kidnapping in order to murder;

 Kidnapping for ransom;

 Kidnapping with the intent to secretly and wrongfully confine a person;

 Kidnapping a woman to compel her into marriage;

 Procuration of a minor girl;

 The importation of a girl from a foreign country;

 Kidnapping in order to subject a person to grievous harm, including slavery kidnapping a

child under 10 years old;

 Stealing or buying a minor for the purpose of prostitution.

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 KIDNAPPING

Meaning of kidnapping in the local language include the abduction as synonym but the real
difference in the understanding is following:

Section 359: Kidnapping: Kidnapping is of two kinds: kidnapping from India, and kidnapping
from lawful guardianship.

The literal meaning of kidnapping is child stealing.

Section 360: Kidnapping from India: Whoever conveys any person beyond the limits of India
without the consent of that person, or of some person legally authorized to consent on behalf
of that person, is said to kidnap that person from India.

Essential ingredients: The following are the essential ingredients of the offence under this
section:

1) Conveyance of a person: To convey means to carry from one place to another. The
conveyance or carrying is a continuous process until the destination is reached. In the case
of any offence under this section, the destination must be some foreign territory.

2) Beyond the limits of India: these words in the section indicate that for an offence under it
must be to some foreign territory.

3) Without the consent of that person or of some person legally authorized to consent on behalf
of that person: A consent given under a misapprehension of fact, is not true consent.

Section 361: Kidnapping from lawful guardianship: Whoever takes or entices any minor
under sixteen years of age if a male, or under eighteen years of age if a female, or any person
of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound
mind, without the consent of such guardian, is said to kidnap such minor or person from lawful
guardianship

The offence under this section may be committed in respect of either a minor or a person of
unsound mind. To kidnap a grown-up person, therefore would not amount to an offence under
it.1

1
Ratanlal DhirajLal, ‘Indian Penal Code’ (34th edn, LexisNexis, 2015) 823.

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The object of this section is at least as much to protect children of tender age from being
abducted or seduced for improper purposes, as for the protection of the rights of parents and
guardians having the lawful charge or custody of minors or insane persons.

Ingredients: This section has four main essentials 2:

1. Taking or enticing away a minor person or a person of unsound mind.

2. Such minor must be under the age of sixteen years, if male, or under the age of eighteen
years, if a female.

3. The taking away or enticing must be out of the keeping of the lawful guardian of such
minor or person of unsound mind.

4. Such enticing away must be without the consent of the lawful guardian.

The taking need not be by force, actual or constructive, and it is immaterial whether the girl
consents or not. There must be a taking of the child out of the possession of the parent. If a
child leaves its parent’s house for a particular purpose with their consent, it cannot be said to
be out of the parent’s keeping. 3

The offence of kidnapping from lawful guardianship is complete when the minor is actually
taken from lawful guardianship; it is not an offence continuing so long as the minor is kept out
of such guardianship. In determining whether a person takes a minor out of the lawful guardian,
the distance to which the minor is taken away is immaterial. The act of taking is not, in the
proper sense of the term, a continuous act: when once the boy or girl has been actually taken
out of the keeping, the act is a completed one. If continuous, it would be difficult to say when
the continuous taking ceased; it could only be when the boy or girl was actually restored to the
keeping of the guardian.

Enticing is an act of the accused by which the person kidnapped is induced of his own accord
to go to the kidnapper. The word ‘entice’ involves an idea of inducement or allurement by
exciting hope or desire in the other. It may take many forms difficult to visualize.

The word “keeping’ implies neither apprehension nor detention but rather maintenance,
protection and control, manifested not by continual action but as available on necessity arising

2
Biswanath Mallick v. State of Orissa, 1995 CrLj 1416 (Ori).
3
Ratanlal DhirajLal, ‘Indian Penal Code’ (34th edn, LexisNexis, 2015) 825.

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and this relation between the minor and the guardian is certainly not dissolved so long as the
minor can at will take advantage of it and place herself within the sphere of its operation.

The word ‘takes’ does not necessarily connote taking by force, and it is not confined only to
use of force, actual or constructive. It merely means to cause to go, or to escort or to get into
possession. The mental attitude of the minor is not relevant in the course of taking. 4 Persuasion
by the accused person which creates willingness on part of the minor to be taken out of the
keeping of lawful guardian would be sufficient to attract this section. 5

The guardianship of the mother does not cease while a minor is in the possession of another
person who has been lawfully entrusted with the care and custody of such minor by the mother.
If the minor is not in the custody of a lawful guardian, the offence cannot be committed,
whatever the belief of the taker may be. The taking or enticing of the minor out of the keeping
of the legal guardian must be without his consent. The consent of the minor is immaterial. If a
man by false and fraudulent representation induce the parents of a girl to allow him to take her
away, such taking will amount to kidnapping.

In case of Parkash v. State of Haryana,6 it was said that the two words ‘takes’ and ‘entices’ as
used in Section 361, IPC are intended to be read together so that each takes to some extent its
colour and content from the other. If the minor leaves her paternal home completely
uninfluenced by any promise, offer or inducement emanating from the guilty party, then the
latter cannot be considered to have committed the offence as defined in Section 361, IPC.
Consent given by the guardian after the commission of the offence would not cure it.

The word ‘lawful’ must be literally construed so as to distinguish it from “legal guardian” as a
guardian maybe lawful without being legal. The expression “lawfully entrusted” signifies that
the care and custody of a minor. Entrustment means the giving, handing over, or confiding of
something by one person to another.

Section 363: Punishment for Kidnapping: Whoever kidnaps any person from India or from
lawful guardianship shall be punished with imprisonment of either description for a term which
may extent to seven years, and shall also be liable to fine.

4
KD Gaur, ‘Textbook on Indian Penal Code’ (6th edn, LexisNexis, 2018) 851.
5
State of Haryana v. Raja Ram, AIR 1973 SC 819.
6
Parkash v. State of Haryana, 2004 CrLJ 595 SC.

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This section must be read with Section 361. The offence of kidnapping from lawful
guardianship penalized by this section is the offence which is defined by Section 361. 7 The
person against whom the offence is committed must be under the age of sixteen, if a male, and
under the age of eighteen years if a female. Where a girl of 23 years of age left her parents of
her own will and married a man, section 363 or 366 was not attracted. 8 Where in a case of
kidnapping the girl deposed that she had gone with the accused voluntarily, his conviction u/s
363 was set aside. 9

ABDUCTION

As expand kidnapping, abduction is also a crime under Indian Penal Code it is mentioned in
following sections.

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”

This section merely gives a definition of the word “abduction” which occurs in some of the
penal provisions which follow. There is no such offence as abduction under the Code, but
abduction with certain intent is an offence. Force or fraud is essential.

Ingredients- this section requires two things10:

1) Forceful compulsion or inducement by deceitful means.

2) The object of such compulsion or inducement must be the going of a person from any place.

Force in Section 362 means actual force and not merely a show or threat of force. Deceitful
means signifies anything intended to mislead another. It includes inducement and its scope is
very wide. The intention of the accused, one may say, is a gravamen of the charge. The case of
Rabinarayan Das11 is a pointer in this regard. Here the prosecutrix was blind. She wanted to
go to her school. However, the petitioner took her to secretariat premises. Evidence of
inducement is not forthcoming and yet there was nothing to prove that the woman had gone
there out of her volition or free will. 12

7
Ratanlal DhirajLal, ‘Indian Penal Code’ (34th edn, LexisNexis, 2015) 832.
8
Oroos Fatima v. Sr. Supdt of Police, Aligarh, 1993 CrLJ 1 (All).
9
Bhajan Lal v. State of UP, 1996 CrLJ 460 (All).
10
Ratanlal DhirajLal, ‘Indian Penal Code’ (34th edn, LexisNexis, 2015) 830.
11
Rabinarayan Das v. State of Orissa, 1992 Cri LJ 269.
12
BM Gandhi, ‘Indian Penal Code’ (3rd edn, EBC, 2014) 495.

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Abduction is a continuing offence. The abduction of a married woman comes under section
366 and the actual validity or otherwise of the marriage is immaterial. Mere abduction without
a criminal intent of one of the kinds specified in the section is not recognized as an offence.

DIFFERENCE BETWEEN KIDNAPPING AND ABDUCTION

1. ‘Kidnapping’ is committed only in respect of a minor under sixteen years of age if male
and under eighteen years if a male or a person of unsound; ‘abduction’, in respect of a
person of any age.
2. In ‘Kidnapping’, the person kidnapped is removed out of lawful guardianship. A child
without a guardian cannot be kidnapped. ‘Abduction’ has reference exclusively to the
person abducted.
3. In Kidnapping, the minor is simply taken away. The means used may be innocent. In
‘Abduction’, force, compulsion, or deceitful means are used.
4. In kidnapping, consent of the person taken or enticed is immaterial; in abduction, consent
of the person moved, if freely and voluntarily given, condones abduction.
5. In ‘kidnapping’ the intent of the offender is a wholly irrelevant consideration: in abduction,
it is the important factor.
6. Kidnapping from guardianship is a substantive offence under the Code; but abduction is an
auxiliary offence, not punishable by itself, but made criminal only when it is done with one
or other of the intents specified in S.364.13
7. Kidnapping is not a continuing offense. It is completed as soon as the minor or person of
unsound mind is removed from lawful guardianship. Abduction is a continuing offense and
continues so long as the abducted person is removed from one place to another. 14

13
Ratanlal DhirajLal, ‘Indian Penal Code’ (34th edn, LexisNexis, 2015) 831.
14
KD Gaur, ‘Textbook on Indian Penal Code’ (6th edn, LexisNexis, 2018) 857.

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AGGRAVATED FORMS OF KIDNAPPING AND ABDUCTION

Sections 363A to 369 are aggravated form of kidnapping and abduction. Kidnapping is an
offence in itself but abduction is not so the aggravated form not only offence but they are only
liability clause in the statute.

Section 363A. Kidnapping or maiming a minor for purposes of begging: (1) Whoever kidnaps
any minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in
order that such minor may be employed or used for the purpose of begging shall be punishable
with imprisonment of either description for a term which may extend to ten years, and shall
also be liable to fine.

(2) Whoever maims any minor in order that such minor can be employed or used for the
purposes of begging shall be punishable with imprisonment for life, and shall also be liable to
fine.

(3) Where any person, not being the lawful guardian of minor, employs or uses such minor for
the purpose of begging, it shall be presumed, unless the contrary is proved, that he kidnapped
or otherwise obtained the custody of that minor in order that the minor might be employed or
used for the purposes of begging.

(4) In this section –

(a) “Begging” means;

(i) Soliciting or receiving alms in a public place, whether under the pretence of singing,
dancing, fortune-telling, performing tricks or selling articles or otherwise;

(ii) Entering on any private premises for the purpose of soliciting or receiving alms;

(iii) Exposing or exhibiting, with the object of obtaining or e extorting alms, any sore, wound,
injury, deformity or disease, whether of himself or of nay other person or of an animal;

(iv) Using a minor as an exhibit for the purpose of soliciting or receiving alms;

(b) “Minor” means-

(i) In the case of a male, a person under sixteen years of age; and

(ii) In the case of a female, a person under eighteen years of age.

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This Section was inserted in 1959 to put down effectively the evil of kidnapping children for
exploiting them for begging. There are cases wherein minors are kidnapped are kidnapped and
castrated with a view to make them eunuchs who could be useful as professional beggars. The
offence under Section 363-A is triable by a Magistrate of the first class while under 363 –A(2)
is triable by a Court of Sessions. Barring this the offence under 363-A is cognizable, not
bailable and not compoundable. 15

Section 364: Kidnapping or abducting in order to murder: Whoever kidnaps or abducts any
person in order that such person may be murdered or may be so disposed of as to be put in
danger of being murdered, shall be punished with imprisonment for life or rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine.

To establish an offence under this section it must be proved that the person charged with the
offence had the intention at the time of the kidnapping or abduction that the person will be
murdered or so disposed of as to be put in danger of being murdered. 16 If no evidence is
available on the score, the accused cannot be convicted under this section. Where the witnesses
saw the party of the accused persons forcibly taking away a woman, who was found dead a
week later, and though there was nothing to connect them with the murder, there was evidence
of the body being destroyed by them, they were convicted not of murder but only under this
section and s. 201 for destroying evidence. 17 In another case the two accused and the third
person were seen disappearing together. They had drinks and moved away. The one who did
not return home, his moustache, torn kurta and a few drops of blood were found by the side of
a swollen river. Whether he was pushed, or he slipped could not be known. His companions
were not convicted under this section. 18 Where the accused persons, on false pretext of
repaying the money to the deceased, induced him to accompany them to a distant place and
after killing him, threw the body in a private ravine, their conviction under s. 364 along with
sections 300 and 201 was upheld. 19

Section 364-A. Kidnapping for ransom, etc: Whoever kidnaps or abducts any person or keeps
a person in detention of the such kidnapping or abduction and threatens to cause death or hurt
to such person, or by his conduct gives rise to a reasonable apprehension that such person may

15
BM Gandhi, ‘Indian Penal Code’ (3rd edn, EBC, 2014) 497.
16
Ratanlal DhirajLal, ‘Indian Penal Code’ (34th edn, LexisNexis, 2015) 836.
17
Pati Ram v. State of U.P., 1990 Cr LJ 447 (All.).
18
Mahavir v. State of U.P, 1990 Cr LJ 1605 (All).
19
Valiyaveetil Ashraf v. State, 1994 Cr LJ 555 (Ker).

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be put death or hurt, or causes hurt or death to such person in order to compel the Government
or any foreign State or international inter-governmental organization or any other person to
do or abstain from doing any act or to pay a ransom, shall be punishable with death, or
imprisonment for life, and shall also be liable to fine.

The kidnapped child was recovered from the custody of the accused by the raiding party. The
letter demanding ransom was recovered from the pocket of the accused. He had neither posted
it nor contacted anybody for the purpose for three days till his arrest. The court said that there
was no demand for ransom. An offence under this section was not made out. Conviction under
section 363 and 365 was held proper. 20

Hence the ingredients of this section are:

1. Kidnapping or abducting any person

2. Threatens to cause death or hurt to such person

3. Compelling the Government or any person to pay ransom.

Section 365: Kidnapping or abducting with intent secretly and wrongfully to confine person:
Whoever kidnaps or abducts any person with intent to cause that person to be secretly and
wrongfully confined, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine.

Section 365 requires an intention to confine a person secretly and wrongfully. Holding a person
to ransom by his abductors is an offence under this section. 21

Where there was sufficient evidence to show that the victim woman abducted from her house
and then taken to different places which included confinement to one place until she was
recovered by the police, it was held that the accused could be convicted under this section and
S. 368 but not section 366.22

Section 366: Kidnapping, abducting or inducing woman to compel her marriage, etc:
Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it
to be likely that she will be compelled, to marry any person against her will, or in order that
she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be

20
Netra Pal v. State (NCT) of Delhi, 2001 Cr LJ 1669 (Del).
21
BM Gandhi, ‘Indian Penal Code’ (3rd edn, EBC, 2014) 498.
22
Fiyaz Ahmed v. State of Bihar, 1990 Cr LJ 2241.

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forced or seduced to illicit intercourse shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to fine; and
whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or
any other method of compulsion, induces any woman to go from any place with intent that she
may be, or knowing that it is likely she will be, forced or seduced to illicit intercourse with
another person shall be punished as aforesaid.

Where a woman has no intention of marriage or lawful intercourse when kidnapped, this
section applies.23

Ingredients: this section requires:

1. Kidnapping or abducting of any woman

2. Such Kidnapping or abducting must be-

i) with intent that she may be compelled or knowing it to be likely that she will be
compelled to marry any person against her will or

ii) in order that she may be forced or seduced to illicit intercourse, or knowing it to be
likely that she will be forced or seduced to illicit intercourse; or

iii) by means of criminal intimidation or otherwise by inducing any woman to go from

place with the intent that she may be, or knowing that she will be, forced or seduced
to illicit intercourse.

It is immaterial whether the woman kidnapped is a married woman or not.

Kidnaps or abducts any woman: If the girl was eighteen or over, she could only be abducted
and not kidnapped, but if she was under eighteen she could be kidnapped as well as abducted
if the taking was by force or the taking or enticing was by deceitful means. 24 Voluntarily going
away for marriage is not an offence under this section. Doubts about age, if not resolved
satisfactorily, would go in favor of the accused. 25

With the intent that she may be compelled to marry any person against her will: The intention
of the accused is the basis and the gravamen of the offence under this section. The volition, the

23
Ratanlal DhirajLal, ‘Indian Penal Code’ (34th edn, LexisNexis, 2015) 844.
24
Nawabkhan v. State, 1990 Cr LJ 1179 (MP).
25
Satish Kumar v. State, 1988 Cr LJ 565 (Del).

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intention and the conduct of the woman do not determine the offence; they can only bear upon
the intent with which the accused kidnapped or abducted the woman. 26 Where only
confinement was established, the Supreme Court held that the conviction was possible under
S. 365 and 368 and not 366.27 Once the necessary intent of the accused is established the
offence is complete, whether or not the accused succeeded in effecting his purpose, and
whether or not in the event the woman consented to the marriage or the illicit intercourse.

Forced or seduced to illicit intercourse: The word ‘forced’ is used in its ordinary dictionary
sense and includes force by stress of circumstances. The expression ‘seduced’, used in this
section and section 366-A, means inducing a woman to submit to illicit intercourse at any time.
Where a girl under eighteen years of age is taken away from the keeping of her father by the
accused with the object of marriage and section, he is guilty of an offence under this section,
notwithstanding the fact that the girl accompanied him if her own accord and not as a result of
force or misrepresentation. Mere abduction does not bring an accused under the ambit of
Section 366 of the Indian Penal Code.

Unless the prosecution proves that the abduction is for the purposes mentioned in Section 366,
IPC, the Court cannot hold the accused guilty and punish him under the section.

Section 366 A: Procuration of minor girl: Whoever, by any means whatsoever, induces any
minor girl under the age of eighteen years to go from any place or to do any act with intent
that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit
intercourse with another person shall be punishable with imprisonment which may extend to
ten years, and shall also be liable to fine.

Sections 366 and 366 B are intended to punish the export and import of girls for prostitution.
Section 366 A deals with procuration of minor girls from one part of India to another part.
Section 366B makes it an offence to import into India from any country outside India below
the age of twenty one years for the purpose of prostitution. 28

Ingredients:

This section requires two things:

1. Inducing a girl under eighteen years to go from any place to do an act,

26
Ratanlal DhirajLal, ‘Indian Penal Code’ (34th edn, LexisNexis, 2015) 845.
27
Fiyaz Ahmad v. State of Bihar, 1990 Cr LJ 2241.
28
Ratanlal DhirajLal, ‘Indian Penal Code’ (34th edn, LexisNexis, 2015) 851.

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2. Intention or knowledge that such girl will be forced or seduced to illicit intercourse with a
person.

An offence under this section is one of inducement with a particular object, and when after the
inducement the offenders offer the girl to several persons a fresh offence is not committed at
every fresh offer for sale.

Seduced: The word ‘seduced’ is used in the ordinary sense of enticing or tempting irrespective
of whether the minor girl has been previously compelled or has submitted to illicit intercourse.

Age: It is necessary to prove the age of the prosecutrix to be below 18 years. In this case, the
school certificate was considered to be the best evidence.

Predominantly, women and children are trafficked in for the “sexual trade”. For women and
girls additional protection is provided in the Immoral Traffic Prevention Act. This act was
amended in 1956 to provide for more severe penalties for offences involving children and
minors. Under this act anyone who detains a woman or girl in a brothel or on any other premise
with the intent that the female person shall have sexual intercourse with other persons is liable
to punishment.

5.7. Section 366B: Importation of girl from foreign country:Whoever imports into India from
any country outside India 3or from the State of Jammu and Kashmir any girl under the age of
twenty-one years with intent that she may be, or knowing it to be likely that she will be, forced
or seduced to illicit intercourse with another person, shall be punishable with imprisonment
which may extend to ten years and shall also be liable to fine.

The Select Committee in their Report observed: the case of girls imported from a foreign
country we propose to deal with by the insertion of a new section 366 B in the Code. We are
unanimously of opinion that the requirements of the Convention will be substantially met by
penalizing the importation of girls from a foreign country. At the same time we have so worded
the clause as to prevent its being made a dead-letter by the adoption of the course of importing
the girl first into an Indian State. After the coming into force of the Constitution of India this
section was amended to bring it in accord with the changed circumstances.

Section 367: Kidnapping or abducting in order to subject person to grievous hurt, slavery,
etc: Whoever kidnaps or abducts any person in order that such person may be subjected, or
may be so disposed of as to be put in danger of being subject to grievous hurt, or slavery, or to

15
unnatural lust of any person, or knowing it to be likely that such person will be so subjected or
disposed of, shall be punished with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.

Section 368: Wrongfully concealing or keeping in confinement, kidnapped or abducted

person: Whoever, knowing that any person has been kidnapped or has been abducted,
wrongfully conceals or confines such person, shall be punished in the same manner as if he
dad kidnapped or abducted such person with the same intention or knowledge, or for the same
purpose as that with or for which he conceals or detains such person in confinement.

This section does not apply to the principal offender but to those persons who assist him in
concealing any person who has been kidnapped. A kidnapper cannot be convicted under this
section.29

Ingredients of this section:

1. The person in question has been kidnapped

2. The accused knew that the said person had been kidnapped.
3. The accused having such knowledge wrongfully conceals or confines the person concerned.

Apart from direct evidence these ingredients can be proved by facts and circumstances of a
particular case. In Saroj Kumari case30 the appellant was found in possession of a newborn
child. On asking, no explanation was given by her. She pretended to conceal the child and claim
it to be hers. It was a fact that she had not delivered in the recent past. Since all the ingredients
were established she was held to be guilty of the offence. Knowledge of the assailant is the
most important factor here. For all practical and legal purposes, knowledge means the state of
mind entertained by a person with regard to existing facts which he has himself observed, or
the existence of which has been communicated to him by a person he has no reason to doubt. 31

Section 369: Kidnapping or abducting child less than ten years with intent to steal from its
person: Whoever kidnaps or abducts any child under the age of ten years with the intention of
taking dishonestly any movable property from the person of such child, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also
be liable to fine.

29
Fiyaz Ahmed v. State of Bihar, 1990 Cr LJ 2241.
30
Saroj Kumari v. State of UP, 1973 Cr LJ 267.
31
BM Gandhi, ‘Indian Penal Code’ (3rd edn, EBC, 2014) 503.

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This section is intended to protect enticing away of children from their parents in order to steal
ornaments from the children. The offence being a serious one, punishment is 7 years
imprisonment and fine. It may however be noted that the offence under 363 is included in this
section.32 The offence is cognizable, non bailable, not compoundable and triable by a first class
Magistrate.

CONCLUSION

It is reasoned that the IPC has made kidnapping culpable with changing level of seriousness as
indicated by the nature and gravity of the offense. The hidden question of establishing these
arrangements is to secure the individual freedom of subjects, to give lawful insurance to
offspring of youthful age from being captured for despicable purposes and to protect the
privileges of guardians and gatekeepers over their wards for custody or upbringing.

The Fifth Law Commission has suggested some reforms in the law relating to kidnapping like
that the existing punishment provided for kidnapping should be scaled down, and sections
dealing with definition of kidnapping from lawful guardianship should be revised. After a
careful reading of section 361, the Commission failed to see any convincing reasons for having
separate ages for boys and girls for bringing their kidnapping within its definition as well as
for insisting ‘lawful entrustment’ of a minor for a person to be ‘lawful guardian’ of the minor.
It also expressed some reservations about the two exemptions indicated in Exception to section
361, as they, in its opinion, do not cover the taking away of legitimate minor by either of the
parents. It also highlighted two defects in definition of abduction. It is not clear whether the act
of bodily lifting and carrying away a person when he is unconscious or asleep falls within
abduction as there is no compelling by force or deceitful means. Also, the term ‘force’ used in
the section refers to ‘force used’ and not the ‘show of force’ in abducting a person.

The clauses given by the Law Commission should be taken into consideration as it will make
the existing law for the offense of kidnapping more accurate and without any ambiguity. Along
with the recommendations given by the Law Commission, the obscurities which are present in
the current law of kidnapping and discussed above should also be considered as it is making
the interpretation of the offense difficult and full of ambiguity.

32
BM Gandhi, ‘Indian Penal Code’ (3rd edn, EBC, 2014) 504.

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 BIBLIOGRAPHY

 BM Gandhi, ‘Indian Penal Code’ (3rd edn, EBC, 2014).

 KD Gaur, ‘Textbook on Indian Penal Code’ (6th edn, LexisNexis, 2018).
 Ratanlal DhirajLal, ‘Indian Penal Code’ (34th edn, LexisNexis, 2015).

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