Offences Against

Human Body
Presentation by : Dr. Bhavana Sharma

Kidnapping and Abduction

Section 359 to 369 of the Code have made
kidnapping and abduction punishable with
different imprisonment acc. To the nature and
gravity of the offence.
Object: 1) Secure the personal liberty of citizens
2) to give legal protection to children
3) to preserve the right of parents and
guardians over their wards

Kidnapping : Child Stealing

(sec 359)
Sec 359 classifies kidnapping under two
categories:
a) Kidnapping from India (sec 360)
b) Kidnapping from Lawful Guardianship (sec
361)
In certain cases two forms of kidnapping may
overlap each other ex. A minor kidnapped
from India will be same time be kidnapped
from lawful guardianship also

Kidnapping from India

(Sec 360)
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 elements
To attract sec. 360 there must be
a) Conveying of any person beyond the limits of India
b) Without the consent of that person , or of some
one legally authorized to consent on behalf of that
person
if a person has attained the majority (16/18) and has
given his consent to his being conveyed , no offence is
committed.
The offence under this section may be committed in
respect of ANY PERSON, MALE/FEMALE , MAJOR/ MINOR

Kidnapping from Lawful

Guardianship ( Sec 361)
Whoever takes or entices
Any minor under 16 years of age (if Male) or under 18

years of age ( if 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 unsound mind person
from Lawful Guardianship
Explanation: the words lawful guardian means any
person lawfully entrusted with the care or custody of
such minor or other person

Exception : this sec does not extend to the act

of any person who in good faith believes
himself to be father of an illegitimate child or
who in good faith believes himself to be
entitled to the lawful custody of such child ,
unless such act is committed for an immoral
or unlawful purposes

Object : section 359, 360 & 361 designated to

protect minors and persons of unsound
mind from exploitation and to protect the
rights and privileges of guardian on their
wards.
Thus the consent of the guardian would alone
take the case out of the preview of the
section.

 The offence of kidnapping is complete when

the minor is actually taken from Lawful

Guardianship
Kidnapping from guardianship is not a

continuing offence
It is no defence that the accused did not know

that the person kidnapped was under 18 or

believed that she / he had no guardian

Ingredients of sec 361

1) there must be taking or enticing away a
minor or a person of unsound mind
2) Such minor must be under 16(male) /18
(female)
3) Taking or enticing must be out of keeping
of the lawful guardianship of such minor or
person of unsound mind
4) Taking or enticing must be without the
consent of such guardian

Takes or entices Away

Minor
Takes means causes to go, to get in

possession .
Under this section it must be proved that the
accused took some active part in the girls
leaving her lawful guardians custody.

 Merely allowing minor to accompany a person may

not ordinarily amount to taking by that person but

In certain cases it may amount to taking
The factor which should be taken into consideration
in deciding whether there has been taking are :
the conduct of the parties mainly of accused at the
time and before their going away together
The maturity of girl and her intellectual capacity to
think for herself and
The circumstances under which she felt it
necessary to leave her guardians protection

Varadrajan vs State of Madras AIR

1965 SC
Fact : a minor girl who had left the protection of
her father knowing and having capacity to
know that what she was doing voluntarily
joined the accused .

Held : there is difference between taking away

and allowing a minor to accompany a person.
In the present case the accused was held not to
have taken her away from the keeping of her
lawful guardian

Enticing : is an act of the accused by which the

person kidnapped is induced of his own
accord to go to the kidnapper
It involves an idea of inducement by exciting
hope or desire in the other
It is not necessary that taking or enticing should
be by means of force or fraud

T.D Vadgama vs State of Gujrat AIR

1973 SC 2313
The accused was charged for kidnapping a
minor girl mohini below 15 years of age from
the lawful guardianship of her father under
sec 361
It was proved that the accused had at an earlier
stage solicited or induced mohini to leave her
fathers protection by encouraging suggestion
that he would give her shelter
Held : accused is liable under sec 361

A Hindu girl aged 17 years studying in B.A was

living under the care and protection of her
parents. She was in criminal intimacy with the
shopkeeper running a shop near her house.
One day the girl left her house and went to
the shopkeeper and asked him to take her
away permanently
The shopkeeper took her away to several places
. Later on he was arrested u/s 363 IPC

Held :
there was no prior inducement or encouragement
from shopkeeper so as to abet the girl to leave
her parental guardianship.
The girl was of 17 years and BA student and thus
mature enough to think about her future
She left her fathers of her own without any
inducement from the shopkeeper
No active part was played by the shopkeeper in
causing the girl to leave her guardianship
therefore the shopkeeper is not liable u/s 363

Out of the keeping of Lawful

Guardian
Keeping means within the protection or care of
the guardian.
It is not necessary that the minor should be in
the physical possession of the guardian
If a minor boy / girl goes out into the street / on
the playground / market/ school by himself
with or without the knowledge of the guardian
, he is still said to be in the legal keeping of
her parents

X meets a girl aged 15 years in a park . She

tells him that her age is 19 years and that she
is ill-treated in her house by her father and
that she would be happy to be taken away
from home
Thereafter X takes the girl to his house and
allows her to remain there

In this case X will not be liable for kidnapping

because there is no inducement on the part of
accused to be cause of the girl coming out of
her fathers house

Lawful guardian
Lawful guardian is one to whom the care and
custody of a child is lawfully entrusted.
Ex: when a father of a girl sends her to school
with his servant , the servant is lawful
guardian and her father will be legal guardian

Without the consent of such

guardian
Consent of minor or a person of unsound mind

is immaterial ( it is not valid consent)

Therefore taking or enticing of the minor must
be without the consent of guardian
Consent must be valid or free consent in
nature

Where a minor girl was in custody of her mother

, under the order of court when the mother
had obtained divorce from her husband and
the father forcibly removed the daughter from
a school
Father was held guilty of kidnapping under this
section

 A minor girl until she attain puberty continues

to be under the guardianship of father (if

legitimate) and of her mother ( if illegitimate)
In a case of minor married girl (if she attained
the age of puberty) her husband will be lawful
guardian

Sec 363 Punishment

Whoever kidnap any person from India or from
Lawful Guardianship , shall be punished with
imprisonment of either description for a term
which may extend to Seven Years and shall
also be liable to fine

Problems
1) A , a Hindu husband and wife B are living separately as a

result of a decree of judicial separation granted by a

family court . The custody of minor legitimate daughter
( 6 year) of A & B has been given to B by the family court.
One day A takes away his minor daughter while B is not
present there
B prosecutes A for kidnapping of her daughter from Lawful
Guardianship.
The Arguments advanced on behalf of A is that under Hindu
Law father is the guardian of his legitimate child , so he is
not liable for kidnapping of his daughter.
Is A guilty of Kidnapping of his own daughter? Explain with
the help of case laws and provisions of IPC.

2) A, a Hindu woman takes away her minor

legitimate daughter B without the consent of
her husband C (father of B)
A is prosecuted for kidnapping her minor
daughter B
During trial A takes the defence that she is the
Guardian of B . So the question of kidnapping
from lawful guardianship does not arise.
Decide and refer the case laws and provision
of IPC

3) A , a Hindu minor girl goes to Mumbai from

Chennai with her mother B to appear at
certain examination. X takes away the minor
girl from the custody of B
X is prosecuted by B for kidnapping the minor
girl
X takes the defence that C (father of minor girl )
is the natural guardian and not the mother so
he did not remove the girl from lawful
guardianship
Is the defence of X sustainable at law ?

4) P entices a girl of 17 years to Delhi without

consent of Qs father
What offence has been committed by P ?

5) P entices Q ( a boy ) of 17 years and takes

away to him to Delhi without the consent of
Qs Father. Has P committed offence of
kidnapping from lawful guardianship?

Abduction (sec 362)

whoever
By force compels or
By deceitful means induces
Any person to go from any place
Is said to abduct that person

Abduction in common language means the

carrying away of a person by fraud or force

simply Abduction is not an offence. It is an

auxiliary act not punishable in itself but when
it is accompanied by a certain intention to
commit another offence it per se becomes
punishable as an offence

Ex : 1) if the intention is that the person abducted

may be murdered sec. 364 applies
2) If the intention is to cause secret and wrongful
confinement sec 365 applies
3) If the abducted person is a woman and the
intention is that she may be compelled to marry
any person against her will, sec 366 applies
4) If the intention is to cause grievous hurt sec 367
applies
Note : when no force/ deceit practiced on the person
abducted there can be no offence of abduction

Ingredients
Forcible compulsion or inducement by

deceitful means: in abduction a person is

compelled either by use of force or is induced
by practicing deceit to move from one place
to another.
When force , fraud or deceitful means are used
so as to compel or induce a man to move from
one place to another the offence under this
section is constituted.

 The object of such compulsion or inducement

must be the going of a person from any place

Abduction is a continuing offence and a person

is liable not only when a person is first time
moved from one place to another but all those
who are involved in subsequent moving that
person to other places are also liable

Mahbub (1907)
An orphan girl aged about 17 years was brought
up by M as his own daughter . Ms neighbour
A induced her to leave home on the assurance
that either he himself would marry her or get
her married
He did neither, instead debauched her himself
and handed over to one of his friend who also
proceeded to have connection with her
A was held guilty of this offence.

A is a minor wife of B. C takes her forcibly and

without the consent of B and keeps her in his
house for two months. There she develops
intimacy with X a neighbour of C and runs
away with X to Agra, where both of them are
arrested

In this case C is liable for the offence of

kidnapping under sec 363
X is not liable for kidnapping because C was not
lawful guardian of A at that time

Difference

kidnapping(from
lawful guardianship)

abduction

Defined in sec 361 is

abduction may take place

against a person of any age

committed in respect of
minors (16/18) or unsound
mind person
In abduction force/
Kidnapping is simply
compulsion or deceitful
taking away from lawful
means are used
guardianship . The Means
used are not relevant
If there is consent of person
Consent of the person
abducted there will be no
kidnapped is immaterial
offence

 Kidnapping in itself is

punishable ( substantive
offence)

Abduction will only be

punishable when done with the

intention as given in Sec 364369 (not substantive offence)

Taking / enticing from lawful

guardianship is essential
It is not required
It is not a continuing offence.
It is complete as soon as the Abduction is a continuing
minor / unsound mind is
offence and continues so long as
removed from lawful
the abducted person is removed
guardianship
from one place to another

Kidnapping from India

abduction

It can be committed in

It can be committed in

respect of any person

irrespective of his age
The place to which the
victim is taken must be
outside the limits of India
Continuous offence

Continuous offence

respect of any person

irrespective of his age
the place is not important