Author: Mehrul Arora
Meaning
The Black’s Law Dictionary defines aggravation as, ‘Any circumstance attending the commission of a crime or tort which increases its guilt or enormity or adds to its injurious consequences, but which is above and beyond the essential constituents of the crime or tort itself.’ Thus, the conditions of aggravation of kidnapping or abduction are that they are accompanied by the administration of a threat of causing death or hurt on the one hand and the underlying purpose of the kidnapping or abduction on the other[1] and moreover it is a settled legal position that the punishment must fit the crime. Therefore, it is the duty of the court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime[2].
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 may 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 a minor, employs or uses such minor for the purposes 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 extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any 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.
Section 364 – Kidnapping or Abduction 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 withimprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
The ingredients of this section are as follows –
- Kidnapping by the accused must be proved;
- It must also be proved that the person in question was kidnapped in order,
- That he may be murdered, or
- That he might be disposed of in such manner as to be put in danger of being murdered. [3]
The intention for which a person is kidnapped must be gathered from the circumstances attending prior to, at the time of and subsequent to the commission of the offence. A kidnapping per se may not lead to any inference as to for what purpose or with what intent he has been kidnapped.[4] In the case of Murlidhar and Ors. v. State of Rajasthan[5], the Court proceeded on the basis that the prosecution while taking upon itself the burden of proving the murder of the abducted boy by introducing eye- witnesses, the provisions of Section 106 of the Indian Evidence Act would have no application. Several circumstances which were sought to be proved by the prosecution were held to have been not proved. It was in the aforementioned fact situation, Section 106 of the Evidence Act was held to have no application. However, in the case of Sucha Singh v. State of Punjab[6], Section 106 of the Evidence Act was held to be applicable to cases where the prosecution had succeeded in proving facts for which a reasonable inference can be drawn as regards existence of certain other facts unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference. Where the abduction of the victim is proved and the victim is found murdered soon after abduction, the Supreme Court said that it is for the accused to satisfy the Court as to how the abducted victim was dealt with. In the absence of any such explanation, the Court may draw the presumption that the abductor was a murderer also.[7]
Further, in the case of Ramjee Rai &Ors. v. State of Bihar[8], the court observed, “It is now a trite law that corpus delicti need not be proved. Discovery of the dead body is a rule of caution and not of law. In the event, there exists strong circumstantial evidence, a judgment of conviction can be recorded even in absence of the dead body.”
In the case of Vinod Hembrum v. State of Jharkhand[9], it was held that when it is not proved that kidnapping was with the intention to commit murder of victim, the conviction of appellant under section 363 of IPC is proper though charge against accused was framed u/s. 364 IPC.
Section 364-A: Kidnapping for ransom, etc.
Whoever kidnaps or abducts any person or keeps a person in detention after 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 be put to 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 organisation 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 Parliament was concerned in dealing with cases relating to kidnapping for ransom, a crime which called for a deterrent punishment, irrespective of the fact that kidnapping had not resulted in death of the victim and thus, due to the alarming rise in kidnapping young children for ransom, the legislature in its wisdom provided for stringent sentence[10] and the language employed in in the provision is wide enough to cover not only the situations in which ransom is demanded by the acts of terrorism directed against the Government or any foreign state or international inter – governmental organization but also to cover those cases where there is demand for ransom for a monetary gain by a private individual.[11]
To attract the provision of Section 364 – A what is required to be proved is –
- that the accused kidnapped or abducted the person; and
- kept him under detention after such kidnapping and abduction; and
- that the kidnapping or abduction was for ransom.[12]
If it is established that the offender after kidnapping a person keeps the said person in detention or threatens to cause death or hurt in order to pay ransom, undoubtedly, s. 364A is attracted.[13]In addition to the abductor, a person who acts as a go – between to collect the ransom is generally considered guilty of the crime.[14]“To pay” means to set in motion the demand for payment. Demand cannot be made by keeping the letter in one’s pocket. It has to be communicated to the person from whom the demand to pay is made.[15] The accused was caught red – handed when he was picking up the bag containing the money from the pre – arranged place. It was held that the demand for ransom became proved. The section became applicable.[16]
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.
Wrongful confinement has been defined in Section 340 of IPC as ‘whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said “wrongfully to confine” that person.’ and wrongful restrain has been defined in Section 339 of IPC as ‘ Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said to wrongfully restrain that person.’
Offence u/s. 365 IPC is lesser offence than the offence punishable u/s. 364A IPC. Hence, protection of accused and trial for lesser offence u/s. 365 IPC cannot be held to be without authority of law.[17] Where there was sufficient evidence to show that the victim woman was abducted from her house and then taken to different places which included confinement to one place till she was recovered by the police, it was held that the accused could be convicted under this section and s. 368 but not s. 366.[18]
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 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 that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.
The word “forced” in section 366 of the Indian Penal Code, 1860, isused in its ordinary dictionary sense and includes force by stress ofcircumstances. “Seduction” in the section is not used in the narrowsense of inducing a girl to part with her virtue for the first time butincludes subsequent seduction for further acts of illicit intercourse.[19]
In order to establish an offence u/s. 366 IPC, it must first be established that the offence of kidnapping u/s. 361 has been proved.[20]So far as charge under Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the woman with the intent that she may be compelled or knowing it to be likely that shewill be compelled to marry any person or 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. 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 Section 366 IPC.[21] 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.[22]
If the girl was 18 years old 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.[23] Doubts about age, if not resolved satisfactorily, would go in favour of the accused.[24]
Section 366-A – Prosecution 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.
The applicability of Section 366A of the Indian Penal Code requires, firstly, that the accused must induce a girl; secondly, that the person induced was a girl under the age of 18 years; thirdly, that the accused has induced the victim knowing that it is likely that she will be forced or seduced to an illicit sexual intercourse; fourthly, that such intercourse must be with that person other than the accused; fifthly, that the inducement caused the girl to go there in the place or to do any act.[25]
‘Seduced to illicit intercourse’ means ‘induced to surrender or abandon a condition of purity from unlawful sexual intercourse’. Therefore, an accused cannot be convicted of an offence unless it is proved that the girl was leading a life pure from unlawful sexual intercourse at the time when the kidnapping took place. This does not mean that it is necessary to prove that the girl has never at any time surrendered her condition of purity from unlawful sexual intercourse. She may have surrendered it in the past and thereafter have resumed a life of purity. On the other hand, if she is already leading a life of indulgence in unlawful sexual intercourse, it cannot be said that she was kidnapped so that she might be seduced to illicit intercourse.[26] It is also 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. About the medical certificate, the Court said that it is based on estimate and, therefore, the possibility of error could not be ruled out.[27]
Section 366-B Importation of girl from foreign country
Whoever imports into Indiafrom any country outside India or from the State of Jammu and Kashmirany 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.
It was observed by the Select Committee in its report that in order to address the case of girls being imported from a foreign country as well as to fulfil the requirements of International Convention for Suppression of Traffic in Women and Children, a new section, that is, Section 366B has been inserted in the Code wherein, importation of girls from a foreign country has been penalised.
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 the 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 had 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.
To constitute an offence under Section 368, it is necessary that the prosecution must establish the following ingredients:
(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[28].
This section does not apply to the principal offender but to those persons who assist him in concealing a kidnapped or abducted person. It refers to some other party who assists in concealing any person who has been kidnapped. A kidnapper cannot be convicted under this section.[29] Furthermore, whether there has been wrongful concealment or confinement under Section 368, is a matter to be considered from the facts and circumstances of a particular case.[30]
Section 369 – kidnapping or abducting child under ten years with intent to steal from its persons.
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.
[1]Philips Fadrick D’ Souza v. The State of Maharashtra, 2009 CRLJ 89.
[2] Mulla and Another v. State of Uttar Pradesh, (2010) 3 SCC 508.
[3] Badshah v. State of U.P., (2008) 3 SCC 681 : 2008 CrLJ 1950.
[4] Supra 3.
[5] (2005) 11 SCC 133.
[6] (2001) 4 SCC 375.
[7] State of M.P. v. Lattora, (2003) 11 SCC 761: 2004 SCC Cri 1195.
[8] 2006 (8) SCALE 440.
[9] 2011 CrLJ 2763 (Jha).
[10]Akram Khan v. State of W.B., AIR 2012 SC 308.
[11]Vikram Singh v. Union of India (UOI), 2015 CriLJ 4500.
[12]Malleshi v. State of Karnataka, AIR 2004 SC 4865.
[13] Supra 10.
[14] Suman Sood v. State of Rajasthan, (2007) 5 SCC 634.
[15] Netra Pal vs The State (Nct Of Delhi), 2001 CrLJ 1669 (Del).
[16] P. Liaquat Ali Khan v. State of A.P., AIR 2009 SC 2597.
[17] Supra 14.
[18]Fiyaz Ahmed v. State of Bihar, AIR 1990 SC 2147.
[19]PrafullakumarBasu v. The Emperor, (1929) 57 Cal 1074.
[20]Shajahan v. State, 2011 CrLJ 573.
[21] Kavita Chandrakant Lakhani v. State of Maharashtra &Anr., Criminal Appeal No. 459 of 2016, Supreme Court of India.
[22] Khalil- Ur-Rahman v. King-Emperor, (1993) 11 Ran 213 (FB).
[23]Supra 19.
[24] Satish Kumar v. State, 198 CrLJ 565 (Del).
[25] Ganesh Mallik v. State of Jharkhand, 2011 CrLJ 562 (Jha).
[26] State vs Gopichand Fattumal And Ors., (1960) 63 Bom LR 408.
[27] Dev Kishan v. State of Rajasthan, 2003 CrLJ 1118.
[28] Smt. Saroj Kumari v. The State of U.P., AIR 1973 SC 201.
[29]Bannu Mal, (1926) 2 Luck 249.
[30] Supra 28.
About the Author: Mehrul is a fourth-year law student at Law College Dehradun, Uttranchal University.
Criminal Law Research & Review 