Introduction

Though, Indian laws prohibit abduction and kidnapping, since 2005, more than
100,000 kidnapping and abduction cases have come up in India. People have
continued to take advantage of the tender age of minors to kidnap them and exploit
and force them to perform horrendous acts. Such offences are an attack on the liberty
and freedom of citizens and must be prevented.

Section 359 to 374 of Indian Penal Code, 1860 provides for punishments for these
offences. In this article, we will discuss these provisions in detail, understand the
essentials of kidnapping and abduction, discuss the difference between kidnapping
and abduction and also discuss the provisions regarding forced slavery, labour and
sale and purchase of minors for illegal purposes.

Kidnapping
Kidnapping means taking away a person against his/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 of the Indian
Penal Code and defined in Section 360 and 361 of the Indian Penal Code. Let’s
understand these sections better.

As per Section 359 of the Indian Penal Code, Kidnapping is of two types:

1. Kidnapping from India,

2. Kidnapping from lawful guardianship.

These two types are explained in Section 360 and 361. Let’s look into them in detail.

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 guardian

Section 361 explains kidnapping from lawful guardianship. According to this section,
if a person takes away or entices a minor (i.e, a boy under the age of 16 years and a girl
under the age of 18 years) or 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.

Thus, the essentials of kidnapping from lawful guardianship are:

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.

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.

Ingredients. To constitutive an offence under this section, the following conditions must exist viz.,
1. There must be taking or enticing of a minor, or a person of unsound mind;
2. Such minor must be under 16 years of age, if a male, or under 18 years of age, if a female;

3. Taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound
mind; and
4. Taking or enticing must be without the consent of such guardian.
State of Haryana v. Raja Ram, AIR 1973 SC 819

To understand this better let’s look at the case of State of Haryana v. Raja Ram.

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:

• 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.
• 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.
• ‘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.
• 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.

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

The first case we will be looking into is Biswant Mallick v. State of Orissa
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.

• Thecourt 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.

(To understand this better let’s look at anillustration. If ‘A’ is taken away against her
own consent, it is taking)

• Enticing, on the other hand, is the act of the accused which induces the person
kidnapped to go to the kidnapper, by his/her own wish. It is 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.

R v. Prince
Facts: Henry Prince was accused of abducting a 14-year-old girl, Annie
Philips, having believed her to be 18 years old. Such an act was at that time
in violation of the article or section 55 of the relevant statute law, regarding
minors. Prince argued that he had made a reasonable mistake in regard to
Phillips’s age.

Decision: The Court held that this was a bad argument. Her real age must
be taken into consideration. The taking must be from the lawful guardian.
Moving with the girl is important and it completes the offence.

Thakori Lal: In Thakori Lal® the accused was charged for kidnapping a minor girl, Mohini, below 15 years of age
from the lawful guardianship of her father under section 361, IPC. It was established that the accused had at an
earlier stage solicited, or induced Mohini to leave her father's protection by conveying or indicating an
encouraging suggestion, that he would give her shelter. Holding the accused liable for kidnapping under section
363, IPC the Supreme Court said, that the mere circumstances that his act was not the immediate cause of her
leaving her parental home or guardian's custody would constitute no valid defence and would not absolve him
from the offence of kidnapping. The question truly falls for determination on the facts and circumstances of each
case.

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 :

• Imprisonment of either description which can extend up to seven years, and

• Fine.

Imprisonment of either term means either of the two imprisonments prescribed in the
Indian Penal Code:

• Simple Imprisonment: This means that during the imprisonment, the prisoner
is idle and is not required to do any hard labour.
• Rigorous Imprisonment: This means that during the imprisonment, the
prisoner must engage in hard labour.

Before we move forward, it is important to mention an exception laid down in the case
of Chadrakala Menon and another v. Vipin Menon. 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
Abduction –

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:

‘I’llustration: ‘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
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.

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.

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.

Let’s look at case law to understand how abductions happen through deceitful means.

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
Aggravated forms of Kidnapping or
Abduction
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:

• Ifa 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 363 A, itself, defines what begging constitutes as per this provision. It means:

• Asking or receiving alms (money was given to poor people) in a public place for
singing, dancing, fortune-telling, performing tricks, selling goods, etc.
• Entering someone’s private place to ask or receive alms.
• Exposing any wound, injury, deformity or disease of oneself, some other person
or some animal, for obtaining or extorting alms.
• 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 gu’a’rdianship 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.

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

• SanjayGhose 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.

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 either the government or some foreign state or any
other person to do or abstain from doing an act or pay a certain sum of money. The
punishment is death or imprisonment for life, and fine, as mentioned in Section 364A
IPC. The essentials of the offence under Section 364A are:

Netra Pal v. State (National Capital Territory of Delhi), 2001

The first case we will discuss is Netra Pal v. State (National Capital Territory of Delhi),
in which the court discusses one essential of the offence.

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)

The next case which we must discuss in this reference is Malleshi v. the State of
Karnataka.

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.

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.
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 to force her into a marriage or with the knowledge that she would
be forced into marriage. It also provides punishment for a person who kidnaps or
abducts a person to force her into illicit intercourse or has the knowledge that because
of such kidnap or abduction, she would be forced into illicit intercourse.

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.

Thakorlal D. Vadgama v. State of Gujarat, 1973

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.

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.

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.

Grievous hurt has been defined in section 320 of IPC. It includes:

• Emasculation (Removal of male reproductive organs),

• Permanently damaging eyesight in any eye,
• Permanently damaging hearing in any ear,
• Causing permanent loss of some joint,
• Permanent disfigurement of face or the head
• Fracture and dislocation of teeth or bone(s)
• Any hurt which endangers the life of a person and causing the sufferer to suffer
severe body pain within twenty days of the causation of hurt.
 Click Above

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.

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.