Offence against Human Body

Whether girl or boy voluntarily leaving their parents is kidnapping?


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Adv Nishant Rai, Delhi

The gravamen of an offence under section 366 IPC, 1860 is abduction or kidnapping. Abduction defined in section 362 IPC, 1860 postulates force or deceitful means by which a minor is induced to go from a place. Kidnapping presupposes as provided in section 361 IPC taking or enticing a minor (under 16 years, if male and under 18 years if female) from lawful guardianship. Even when a minor in induced to go with the accused allured by offer of sweetmeat, it is taking or enticing.[1]

Girl of 16 years of age on her own travelled with the accused to meet her boy friend. As per available evidence it cannot amount to taking her out of the keeping of her lawful guardian. Kidnapping could be said to have taken place only when she was detained against her will by her boy friend for the purpose of pressuring her to agree to his proposal but for this purpose no pressure was exerted by the accused to marry her boy friend. The accused had no knowledge about other design or motive of her boy friend who had forcefully detained her. The accused was not held guilty of kidnapping.[2] In another case girl of 18 years of age left home and wandered from place to place with the accused and as per evidence she made no efforts to either run away or raise cries for help. So it was clear that she went out with the accused willingly. Belated assertions of the victim before the police to the effect that accused forcibly had sexual intercourse with her was not reliable. Guilt of the accused was not proved and acquittal was held proper.[3]

In Prem Chand c. State (Delhi Administration),[4] the age of the prosecutrix was not proved to be under 18 and further there was no evidence that the accused invited her to come to a place. Disappearance of the prosecutrix from her father’s house and subsequent recovery of the girl from a place, it was held, does not inculpate the accused merely because he had some infatuation for the prosecutrix. The accused abducted the girl in order to compel her to illicit intercourse and evidence showed that she had purchased her like a cattle and had control and domain over her. The accused was present physically when victim was recovered by the police. The conviction of accused was held proper but keeping in view that the accused was 76 years of age instead of sending her jail only fine of Rs 10,000 /- was imposed.[5]

In a Delhi Case, a minor girl of approx 4 years consented herself to be taken and to have sexual intercourse, it was held her consent in immaterial and offence of kidnapping is proved.[6]

[1] Dalchand v. State of U.P., AIR 1969 All 216

[2] Mihir Das v. State, 2006 CrLJ 1500 (Gau)

[3] State v. Mintu Paul, 2006 CrLJ (NOC) 494 (AP)

[4] 1987 CrLJ 910 (Del)

[5] Shamshad v. State, 2003 CrLJ 1322 (All): 2003 All LJ 518

[6] Shabir Rasheed v. State (Delhi Administration), 1969 CrLJ 1282 (Del)


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