Professional Documents
Culture Documents
• Formina Sebastio Azardeo v State of Goa, 1992 Cr LJ 107 SC; Dau Dayal v
State of Rajasthan, 1991 Cr LJ 2321
• The line between culpable homicide not amounting to murder and grievous hurt is a
very thin line. In the one case the injuries must be such as are likely to cause death;
in the other, the injuries must be such as to endanger life.
• Example - The two accused persons tied their victim to an electric pole and
assaulted him only to teach him a lesson for spreading scandalous information
about the alleged love affair of the accused. Their victim died. There was no
evidence to attribute any particular overt act to any of them, nor of the intention of
any of them to cause death or that any of them was armed with a deadly weapon. It
was held that their offence fell within this clause because they endangered the life of
their victim and not under section 300 (murder).
Important for prelims
• 319. Hurt. 320. Grievous hurt.
• 321. Voluntarily causing hurt. 322. Voluntarily causing grievous hurt.
• 323. Punishment for voluntarily causing hurt 325. Punishment for voluntarily causing grievous hurt
• 324. Voluntarily causing hurt by dangerous weapons or means - 326. Voluntarily causing grievous hurt
by dangerous weapons or means
• 328. Causing hurt by means of poison, etc. with intent to commit an offence -
Zaherkhuraani
339. Wrongful restraint .-
• ‘Wrongful restraint’ means the keeping of a man but of a place where
he wishes to be and has a right to be.
• The essential ingredients of 'wrongful restraint' are:
• (i) voluntary ob-struction of a person, and
• (ii) the obstruction must be such as to prevent that person from
proceeding in any direction in which he has a right to proceed.
• Physical obstruction by mere verbal prohibition constitutes wrongful
restraint.
• In wrongful restraint, physical presence of accused is not always
necessary.
• Example - where A builds a well across a path along which B has a
right to pass.
• Example - Where, therefore, the complainant and his wife and daughter occupied a
house and during their temporary absence, the accused put a lock on the outer door
and thereby obstructed them from getting into the house, it was held that the accused
was guilty of wrongful restraint.[ Arumuga Nadar v Emperor (1910) 11 Cr LJ 708]
• The term used in the IPC is 'lawful guardian' and not 'legal
guardian'.
• The expression 'lawful guardian' is a much more wider and
general term than the expression 'legal guardian'. '
• Legal guardian' would be parents or guardians appointed by
courts.
• 'Lawful guardian' would include within its meaning not only legal
guardians, but also such persons like a teacher, relatives etc,
who are lawfully entrusted with the care and custody of a minor.
Age of the Minor
• should be less than 16 in respect of a male, and
• less than 18 in respect of a female.
• Consent of the guardian and not of the minor is relevant as the essence of the
offence of kidnapping is taking away a minor out of the keeping of the lawful
guardian without his consent.
• or any person of unsound mind - A person of unsound mind is different from an
unconscious (because of poisoning or anesthetic drug) per-son. 'Taking away' the
latter does not amount to kidnapping. - The unsoundness of mind should be
permanent and not temporary insanity.
• Section 363. Punishment for kidnapping.--Whoever kidnaps any person from
India or from lawful guard-ianship, shall be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to
fine.
Suggestive Readings
1. Kishore Bhadke v State of Maharashtra, AIR 2017 SC 279
2. Charandas Swami v State of Gujarat, AIR 2017 SC 1761
3. State of Haryana v Raja Ram, 1973 Cr LJ 651 (SC); - Persuasion by the accused is
sufficient to constitute 'taking' within the meaning of this section. Consent of the
minor is wholly immaterial. It is only the guardian's consent that takes the case out of
the purview of this section.
4. [Reg v Roff (1864) 176 ER 466J - a forwardness on the part of the girl would not
avail the person taking her away from being guilty of the offence and that if by moral
force a willingness is created in the girl to go away with the former, the offence would
be committed unless her going away is entirely voluntary.
SC Guidelines under State of Haryana v Raja Ram
(i) In the case of minor girls this section is attracted irrespective of
the question whether she is married or unmarried.
(ii) The consent of the minor is immaterial.
(iii) The motive or intention of the kidnapper is also immaterial.
(iv) If the kidnapped girl turns out be under 18 years of age, the
kidnapper must take the consequences, even though he bona fide
believed and had reasonable ground for believing that she was
over eighteen.
(v) The defence that the girl was of easy virtue would not be
sufficient to make accused not liable.
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.
• It must be noted that abduction per se as defined under s 362 is not an offence, and
hence is not punishable.
• It is an offence when it is accompanied by certain intent to commit another offence.
Force or fraud is essential to make abduction punishable.
• There should be an assault which is an offence against the human body and that
assault should be with the intention of abducting.16 Only if the abduction falls in the
categories provided under ss 364, 365, 366, 367 and 369, will it amount to an
offence.
• abduction is an offence only if it is done with intent to: (a) murder (s 364); (b)
secretly and wrongfully confining a person (s 365); (c) induce woman to compel her
mar-riage (s 366), and (d) subject person to grievous hurt, slavery, etc, (s 367), and
(e) steal from a person under ten years (369).
• The essential ingredients of this section are:
• (i) forcible compulsion or inducement by deceitful means, and
• (ii) the objects of such compulsion or inducement must be the going of
a person from any place.
• The term 'force', as embodied in s 362, IPC, means the use of actual
force and not merely show of force or threat of force.
• The expression ‘deceitful means’ includes a misleading statement.
• “Deceitful means” is used as an alternative to 'use of force'. Thus, a
person can use force to compel, or in the alternative, deceive a person
to leave a place.
• An essential element of abduction is compelling or inducing a
person to go from any place. It need not be only from the
custody of lawful guardian as in the case of kidnapping.
• unlike kidnapping, abduction is a continuing offence. The
offence of kidnapping is complete, the moment a person is
removed from India or from the keeping of lawful custody of
guardian.
• But, in the case of abduction, a person is being abducted not
only when he is first taken away from any place, but also when
he is subsequently removed from one place to another.
Example
• A kidnapped girl managed to escape from the kidnappers
when she met the accused, who misrepresented to her that he
was a police constable and would take her to the police
station. But instead, he took her to his house, kept her there,
demanded and took a ransom of Rs 600 from her mother,
before he handed her back. It was held that his act amounted
to abduction. - [Bahadur Ali v King Emperor AIR 1923 Lah
158.]
Distinction Between Kidnapping and Abduction
(1) Kidnapping from guardianship is committed only in respect of a minor (of the age
specified in s 361) or a person of unsound mind.
Abduction may be in respect of a person of any age..
(2) Person kidnapped is removed out of lawful guardianship.
No such thing necessary. It has reference exclu-sively to the person abducted.
(3) Taken away or enticed to go away with the kid-napper. The means used are
irrelevant.
Force, compulsion and deceitful means are used in abduction.
(4) Consent of the person kidnapped is immaterial.
Consent of the person condones the offence in abduction.
(5) Intent of the kidnapper is irrelevant.
Intent of the abductor is the all important factor.
Leading Cases
• Biswanath Mallick v State of Orissa, 1995 Cr LJ 1416
• Sonu v State of Haryana, AIR 2017 SC 3441
• Birbal Choudhary alias Mukhiya Jee v State of Bihar, 2018 Cr LJ 954
• Vinod Kumar v State of Haryana, AIR 2015 SC 1032
• Abdul Karim v State of Karnataka
• Vinod v State of Haryana
• Akram Khan v State of WB, AIR 2012 SC 308.
Facts and sections to be remembered
• Sections 363A to 369 of IPC, 1860 deal with aggravated forms of kidnapping
and abduction.
• 363A. Kidnapping or maiming a minor for purposes of begging.-added
through act of 1959 (15-1-1960)]
• 364. Kidnapping or abducting in order to murder.
• 364A. Kidnapping for ransom, etc - Inserted by Act of 1993
• 365. Kidnapping or abducting with intent secretly and wrongfully to confine
person
• 366. Kidnapping, abducting or inducing woman to compel her marriage, etc
• 366A. Procuration of minor girl. - Inserted by Act of 1923
• 366 B. Importation of girl from foreign country. - Inserted by Act of 1923