Kalinga University

Department of Law

Course- BALLB/BBALLB Sem-IV

Subject- Law of Crimes II

Subject Code: BALLB/BBALLB403

UNIT 2
Offences against the Human Body II

What is Hurt and Grievous Hurt. Is there any difference between these two?

Hurt under IPC

Section 319 of the Indian Penal Code defines the offence of hurt. Causing Hurt is basically
causing bodily pain, disease or infirmity to any person. It covers only physical pain and not
mental pain. By infirmity, it means that the one or more of the organs is unable to carry out the
normal bodily function. Such infirmity could be temporary or permanent. Such hurt is punishable
under section 323 of the Indian Penal Code.

Section 321 of the Indian Penal Code is an extension of Section 319. It deals with the definition
of ‘Voluntarily causing hurt’. It defines it as “whoever does any act with the intention of thereby
causing harm to any person, or with the expertise that he’s likely thereby to reason hurt to any
individual, and does thereby motive harm to any person, is stated: ‘voluntarily to motive hurt’.
To prove the offence under section 321, the element of mens rea is to be necessarily proved.

Grievous Hurt
Section 320 of the IPC deals with the definition of Grevious hurt and Section 322 deals with the
offence of ‘voluntarily causing grievous hurt’. There are eight specific situations which are said
to be the essential element for causing grievous hurt to a person. These situations are

1. Emasculation.
2. Permanent privation of the sight of either eye.

3. Permanent privation of the hearing of either ear,

4. Privation of any member or joint.

5. Destruction or permanent impairing of the powers of any member or joint.

6. Permanent disfiguration of the head or face.

7. Fracture or dislocation of a bone or tooth.

8. Any hurt which endangers life or which causes the sufferer to be during the space of twenty
days in severe bodily pain, or unable to follow his ordinary pursuits.

Voluntarily causing grievous hurt is defined as “Whoever deliberately causes hurt, if the hurt
which he expects to cause or realizes that himself will generally be prone to cause is grievous
hurt, and if the hurt which he causes is grievous hurt, is said to have wilfully caused grievous
hurt.

Difference between Hurt and Grievous Hurt

The concept of hurt is different from grievous hurt in the following ways:

1. The injuries caused in grievous hurt are specific in nature like emasculation, loss of
sight, loss of limb, fracture, disfiguration etc. whereas the injuries caused in section
319 i.e. hurt are just covered by bodily pain, disease and infirmity.
2. The risk of life is much more grave in the case of grievous hurt than in the case of hurt.
3. Hurt is not punishable in itself. For hurt to b punishable, it must be accompanied by
other offences. But grievous hurt is punishable in itself.
4. The offence of hurt is non-cognizable, bailable and triable by any Magistrate. Whereas
the offence of grievous hurt is cognizable, bailable, compoundable with the permission
of the Court.
5. The punishment for Hurt is given under section 323 of the Indian Penal Code and the
punishment for grievous hurt is given under section 325 of the Indian Penal Code.
What are some new offences introduced by criminal law amendment act 2013 under this
chapter?
Section 326A:- Voluntarily causing grievous hurt by use of acid, etc.1

Whoever causes permanent or partial damage or deformity to, or bums or maims or disfigures or
disables, any part or parts of the body of a person or causes grievous hurt by throwing acid 1 on
or by administering acid to that person, or by using any other means with the intention of causing
or with the knowledge that he is likely to cause such injury or hurt, shall be punished with
imprisonment of either description for a term which shall not be less than ten years but which may
extend to imprisonment for life, and with fine;
Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment
of the victim;
Provided further that any fine imposed under this section shall be paid to the victim.

Offence Punishment
Voluntarily causing grievous hurt by use of acid, etc. 10 years to Life + Fine paid to the victim
Cognizance Bail Triable By
Cognizable Non-bailable Court of Session

Section 326B:- Voluntarily causing grievous hurt by use of acid, etc

Whoever throws or attempts to throw acid 1 on any person or attempts to administer acid to
any person, or attempts to use any other means, with the intention of causing permanent or partial
damage or deformity or bums or maiming or disfigurement or disability or grievous hurt to that
person, shall be punished with imprisonment of either description for a term which shall not be
less than five years but which may extend to seven years, and shall also be liable to fine.
Explanations
For the purposes of section
and this section, “acid” includes any substance which has acidic or corrosive character or burning
nature, that is capable of causing bodily injury leading to scars or disfigurement or temporary or
permanent disability.
For the purposes of section 326A and this section, permanent or partial damage or deformity shall not
be required to be irreversible.

Offence Punishment
Voluntarily throwing or attempting to throw acid 5 to 7 years + Fine
Cognizance Bail Triable By
Cognizable Non-bailable Court of Session
When a force can be converted into a criminal force? What is the liability in case of
criminal force?

FORCE (Section-349)
The term ‘force’ in IPC examines force used by a human being on another human being. It does
not contemplate force against inanimate objects. Force means efficacy and signifies strength,
vigour, might, energy, power, violence, armament, necessity.

A definition close to the exact meaning of ‘force’ is violence, the power exerted against will or
consent. It does not constitute any offence but section 349 of IPC merely explains what amounts
to force. It is necessary to understand what force is, to understand the definition of criminal
force.

Section 349 provides that “A person is said to use force to another if he causes motion, change of
motion, or cessation of motion to that other, or if he causes to any substance such motion, or
change of motion, or cessation of motion as brings that substance into contact with any part of
that other’s body, or with anything which that other is wearing or carrying, or with anything so
situated that such contact affects that others’ sense of feeling:

Provided that the person causing the motion, or change of motion, or cessation of motion, causes
that motion .change of motion or cessation of motion in one of three ways hereinafter describe:-

Firstly:– By his own bodily power.

Secondly:– By disposing of any substance in such a manner that the motion or change or
cessation of motion takes place without any further act on his part, or on the part of any other
person.

Thirdly:– By inducing any animal to move, to change its motion, or to cease to move.”

CRIMINAL FORCE (Section- 350)

The term criminal force is defined in section 350 of IPC. And criminal force uses the meaning of
force in section 349 as for more clarity to section 350. Section 350 of IPC provides what is
criminal force; as if someone intentionally uses force to any person, without that person’s
consent, in order to the committing of any offence, and the use of such force by intention to
cause, or knowing that such force will cause injury to that person whom the force is to be used,
or cause fear or annoyance, is said to use criminal force to that other.

Illustrations:
 1. A person X encourages a dog to jump upon Y without Y’s consent. Here, if X intends to
cause injury, fear or annoyance to Y, he uses criminal force to X.
2. A person A is bathing, B another one poured boiling water into the bathing water by
knowing it is boiling water. This shows the intention of A to bring that water in contact
with B which affects his sense of feeling A has, therefore, intentionally used force to B;
and if he has done this without B’s consent intending or knowing it to be likely that he
may thereby cause injury, A has used criminal force.
ESSENTIALS OF CRIMINAL FORCE

Criminal force constitutes the following essentials:

1. There must be use of force.

2. The force should be used intentionally.
3. The force must have been used;
a. For committing of an offence; or

b. With the intention to cause fear, injury or annoyance to the other with knowledge.

From this, we understood that the use of force is mandatory but mere force is not punishable
under law. Section 349 defines force but it is not treated as an offence. That can be used in a
positive sense also;

Eg: If someone uses force to protect someone from falling down, to protect from an injury. It is
not an offence. Hence, criminal force requires more than the use of force. They are:-

CONSENT

The meaning of consent is provided in section 90 of IPC. The act of using force must be without
the consent of the person to whom such force is being used. The terms “without consent” and “
against his will” are different. “Without consent” means there is a physical and active opposition
and “against his will” means there is a mental and active opposition. Thus, the law requires the
accused to be without consent.

INTENTIONAL USE OF FORCE

The word intentional excludes all voluntary, accidental or even negligent acts from the ambit of
criminal force.
Eg: when a person negligently or carelessly pulls the veil of a woman, even though without
consent as it was not an intentional act of force, neither I sit for committing an offence nor it is
caused by an intention or knowledge to cause injury or fear or annoyance.

Thus the act cannot be considered as a criminal force.

PRESENCE OF PERSON

To prove that there was the use of criminal force, the presence of the person against whom the
force is to be alleged to be used is mandatory. Thus, the law does not consider the act as a force
when a thief broke into a house whose owner is not present there. There is no external force used
upon the person. It is not done without any use of force.

If the force does not cause any injury; it is constituted as a criminal force as it is executed with a
mental element, and is externally acted to achieve the results. And the mere fact that the result
was somehow escaped by some act will be immaterial.

Eg:- the accused tried to beat a person with a stick and raise it with force against the victim, but
the victim escaped and frustrated the achievement of the intended result. It will not be called a
mere force.

Thus, the cause of injury or hurt is immaterial when other essentials of section 350 satisfy, ie; the
intention or knowledge is enough.

Define assault as described in Indian penal code with relevant case laws.

ASSAULT (Section- 351)

According to Tomlins Law Dictionary, assault is “ an attempt with force and violence, to do
corporate hurt to another as by sticking at him with or without a weapon. But no words
whatsoever, be they even so provoking can amount to an assault, notwithstanding the many
ancient opinions to contrary”

Section 351 provides that: If a person makes any gesture, or any preparation by knowing and
with the intention that it will cause apprehension in the mind of the person present there. It is the
use of criminal force to that person. It is said to commit an assault.

Explanation:– Mere words do not amount to an assault. But the words which a person uses may
give to his gestures or preparations amount to an assault.”
Illustrations:

 A person A untied the wrap of a vicious dog by knowing it will cause harm on B. So A
has committed an assault upon B.
 X shows clenched fist at Y which causes an apprehension in the mind of Y that X is
about to strike Y. X has committed an assault.
ESSENTIALS OF ASSAULT

1. Gestures or preparation:- that the accused should make a gesture or preparation to use
criminal force.
2. Such gestures or preparation should be made in the presence of the person in respect of
whom it is made.
3. The act was with an intention to cause an apprehension of harm or injury;
4. The act caused apprehension in the eyes of the victim that he would be harmed by
another person’s action.
Assault is a non-cognizable offence, bailable and compoundable. It is triable by any Magistrate.

Following are some instances of assault:

1. Throwing brick into another’s house.

2. Advancing with a threatening attitude to strike.
3. Pointing of a gun on someone at a short distance. If it is loaded or unloaded is immaterial.
4. Lifting one’s lathi.
PUNISHMENT FOR ASSAULT OR CRIMINAL FORCE

Section 352 of IPC provides punishment for assault or use of criminal force when there are no
aggravating circumstances provided in sections 353 to 358.

When someone assaults or uses criminal force on another by the grave and sudden provocation
by another person, he may be sentenced to imprisonment which may extend to three months, or
fine up to INR 500, or both. It is defined under section 352.

CASE LAWS

Ramakant Rajaram v. Manuel Fernandes

Here court observed that when the motion is caused or change in motion caused, or cessation of
motion is caused to the external object or substance or thing which is in possession or in contact,
it does not affect that person, then it cannot be considered as force, it will not be the use of force.
Chandrika Sao v. State of Bihar

In this case, the lower court rejected the argument that merely snatching the book away from the
hands of the official, which he was in the official’s possession at that time, was not a use of
force. The Supreme court observed otherwise, saying that the snatching of the book was capable
of fulfilling the essence of section 349. The book which was in possession of the official was
caused to have a motion or change in motion by mere snatching it; this affects a sensation of
feeling to the official’s hands. Therefore it is the use of force by the accused.

Nani Gopal Das v. Bhima charan Rakshit

The court stated that the presence of the person whom the force is alleged to be used is
mandatory to prove that there was the use of force or criminal force.

Bihari Lal v. Emperor

In this case, the court observed that in criminal force the physical presence of a person, against
whom the criminal force is alleged to be used is required.

What is the distinction between Criminal force and Assault?

FORCE / CRIMINAL FORCE ASSAULT

It denotes the preparatory acts which cause

1. It is the use of intentional force
apprehension of use of criminal force against
on any person to cause any injury
or harm or fear of injury. the person.

2. Even use of criminal force includes an There is an apprehension of use of force

assault. only and no use of real force.

3. Physical contact exists. There is no physical contact.

4. The action of the wrongdoer is

It is an attempt to commit criminal force.
completed.
5. In criminal force, assault is In assault, the accused must be having
consummated by means and ability of enough means and ability to carry his threat
that person. into the intended result.

It is necessary that the person assaulted

6. No belief of ability is needed. The
believes that the assaulting person has the
application of force is actionable even
ability to apply the force so attempted by
though it is the slightest amount of force.
him, on reasonable grounds.

7. It has something more in it as the It is an overt act indicating sudden intention

intentional application of force to the to commit criminal force coupled with the
person of another without lawful capacity of carrying out the intention into
justification is necessary. effect.

8. As soon as the thrown falls on the

Throwing water upon a person is an assault.
person, it becomes a criminal force.

9. More serious form of offence when A less serious form offenece compared to
compared to assault. criminal force.

10. Force is defined under section 349

and criminal force under section 350 of Defined under section 351 of IPC.
IPC.

Define wrongful restraint as prescribed in Indian Penal Code. How is it different from
wrongful confinement?

Definition

According to Section 339 of the Indian Penal Code;

“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 wrongfully to restrain that person.”
Further, the section also lays down an exception, which is that if a person in good faith believes
himself to have a lawful right to obstruct and so obstruct a private way over land or water, then it
does not amount to wrongful restraint.

To understand this, let us look at the following illustration-

Chitra is walking on a public road on which she has a right to pass. Rajesh obstructs this path
despite knowing that he had no right to stop the path. As Chitra was prevented from passing,
Rajesh can be said to have wrongfully restrained Chitra.

Ingredients

To establish the offence of wrongful restraint the complainant must prove all the following
essential:

1. That there was an obstruction;

2. That the obstruction prevented the complainant from proceeding in any direction;

3. That the person/complainant so proceeding must have a right to proceed in the direction
concerned.

The objective of this section is to ensure that the freedom of a person is protected. When a
person has a right to proceed in a particular direction then the law must ensure that such right is
available to the person. Even if there is a slight unlawful obstruction, it is deemed to be wrongful
restraint.

It is neither necessary that the obstruction caused must be physical nor is the presence of the
accused essential for the restraint to be wrongful under this section.

The presence of assault is not required for the act to amount as wrongful restraint. Even use of
mere words to cause obstruction to the path of a person may constitute as an offence under this
section.

When a person obstructs another by-

1. Causing it to appear to that other person that to proceed would be;

1. impossible

2. difficult

3. dangerous

2. Or by actually causing it to be impossible, difficult or dangerous for that other person to

proceed
Lastly, it must be noted that in order to invoke this section and to prove the offence under this
section, it is essential for the complainant to prove his right of way over the land.

Punishment

Section 341 of the Indian Penal Code imposes punishment against the wrongdoer under Section
339 with simple imprisonment for a term which may extend to one month or with fine which
may extend to five hundred rupees, or with both.

The classification of the offence under this section is that the offence is Cognizable, Bailable and
Triable by any Magistrate, it is also compoundable by the person restrained or confined.

Cases

In the case of Madala Perayya vs. Varugunti Chendrayya (1954 CrLJ 283 Mad), the facts were
that, the accused and the complainant jointly owner a well and so both of them were entitled to
use the water for agricultural purposes. The accused stopped the complainant from using the
water and also stopped the bullocks of the complainant from moving. The Court held that the
accused had committed eh offence of wrongful restraint under Section 339.

In the case of Shoba Rani vs. The King (1950-51 CrLJ 668 Cal.), the landlord was accused of
preventing his tenant who was the tenant from using the bathroom. By stopping the tenant from
using something that he had the right to use, the landlord was had committed wrongful restraint
under Section 339.

Further, in the case of Souri Prasad Patniak vs. State of Orissa (1989 CrLJ 169 Ori), the
accused was a veterinary surgeon who did not receive payments for several months. When his
superior officer visited the office and started back to go, the accused stood in front of the jeep
and raised protest for non-payment of his salary. However, after his protest, he had given the
way to jeep. The Orissa High Court held that the accused was not guilty of the offence of
wrongful restraint.

Wrongful Confinement

Definition

According to Section 340 of the Indian Penal Code;

“Whoever wrongfully restrains any person in such a manner as to prevent that person from
proceeding beyond certain circumscribing limits is said to have committed the offence of
wrongful confinement.”

Illustrations:
 1. Radhika causes Anamika to go within a walled space and locks Anamika in. Anamika is
thus prevented from proceeding in any direction beyond the circumscribing line of the
walls and so Radhika has wrongfully confined Anamika.

2. Ram places men with firearms at the outlets of a building and tells Shyam that they will
fire at him if he attempts to leave the building. Here, Ram has wrongfully confined
Veeru.

Ingredients

The essential ingredients of the offence of wrongful confinement are:

1. The accused should have wrongfully restrained the complainant (i.e. all ingredients of
wrongful restraint must be present)

2. Such wrongful restraint was to prevent the complainant from proceeding beyond certain
circumscribing limits beyond which he or she has the right to proceed.

Punishment

Section 342 of the Indian Penal Code states that whoever wrongfully confines any person shall
be punished with imprisonment of either description for a term which may extend to one year,
or with fine which may extend to one thousand rupees, or with both The classification of this
offence is that it is cognizable, Bailable and Triable by any Magistrate. Further, it is
Compoundable by the person confined with the permission of the court.

Cases

In the case of State of Gujarat vs. Keshav Lai Maganbhai Gujoyan (1993 CrLJ 248 Guj), it was
discussed by the court that “For a charge of wrongful confinement, proof of actual physical
restriction is not essential. It is sufficient if the evidence shows that such an impression was
produced in the mind of the victim, a reasonable apprehension in his mind that he was not free to
depart. If the impression creates that the complainant would be forthwith seized or restrained if
he attempts to escape, a reasonable apprehension of the use of the force rather than its actual
use is sufficient and important.”

State vs. Balakrishnan (1992 CrLJ 1872 Mad), the complainant was detained in the police
station when this was brought to court, the accused claimed that complainant was at liberty to go
away from the police station at any time. The Court remarked that when a citizen enters into a
police station, the police officers’ authority prevails in that jurisdiction and they entertain it with
a ruddy manner. Court held that the accused committed the offence of wrongful confinement.
What are the different types of Wrongful Confinement under the Indian penal code.

1. Wrongful confinement for three or more days ( Section 343)

“Whoever wrongfully confines any person for three days, or more, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both.” The classification of this offence is that it is Cognizable, Bailable and Triable by any
Magistrate, further, it is also Compoundable by the person confined with the permission of the
court.

2. Wrongful confinement for ten or more days (Section 344)

“Whoever wrongfully confines any person for ten days, or more, shall be punished with
imprisonment of either description for a term which may extend to three years, and shall also be
liable to fine.” The classification of this offence is that it is Cognizable, Bailable and Triable by
any Magistrate, further, it is also Compoundable by the person confined with the permission of
the court.

3. Wrongful confinement of person for whose liberation writ has been issued (Section 345)

“Whoever keeps any person in wrongful confinement, knowing that a writ for the liberation of
that person has been duly issued, shall be punished with imprisonment of either description for
a term which may extend to two years in addition to any term of imprisonment to which he may
be liable under any other section of this Chapter.” The classification of this offence is that it is
Cognizable, Bailable and Triable by Magistrate of the first class. Further, this offence is Non-
compoundable.

4. Wrongful confinement in secret (Section 346)

“Whoever wrongfully confines any person in such manner as to indicate an intention that the
confinement of such person may not be known to any person interested in the person so confined,
or to any public servant, or that the place of such confinement may not be known to or
discovered by any such person or public servant as hereinbefore mentioned, shall be punished
with imprisonment of either description for a term which may extend to two years in addition to
any other punishment to which he may be liable for such wrongful confinement.” The
classification of this offence is that it is Cognizable, Bailable and Triable by Magistrate of the
first class, further, it is also Compoundable by the person confined with the permission of the
court.

5. Wrongful confinement to extort property, or constrain to illegal act (Section 347)

“Whoever wrongfully confines any person for the purpose of extorting from the person confined,
or from any person interested in the person confined, any property or valuable security or of
constraining the person confined or any person interested in such person to do anything illegal
or to give any information which may facilitate the commission of an offence, shall be punished
with imprisonment of either description for a term which may extend to three years, and shall
also be liable to fine.” The Classification of this offence is that it is Cognizable, Bailable and
Triable by any Magistrate. Further, it is Non-compoundable.

6. Wrongful confinement to extort confession, or compel restoration of property (Section

348)

“Whoever wrongfully confines any person for the purpose of extorting from the person confined
or any person interested in the person confined any confession or any information which may
lead to the detection of an offence or misconduct, or for the purpose of constraining the person
confined or any person interested in the person confined to restore or to cause the restoration of
any property or valuable security or to satisfy any claim or demand, or to give information
which may lead to the restoration of any property or valuable security, shall be punished with
imprisonment of either description for a term which may extend to three years, and shall also be
liable to fine.” The classification of this offence is that it is Cognizable, Bailable and Triable by
any Magistrate and it is Non-compoundable.

What is the difference between Wrongful Restraint and Wrongful Confinement?

Wrongful Restraint Wrongful Confinement

It is the genus, i.e. it is a wider term

It is a species of wrongful restraint i.e. a
and includes several types of restraints
type of wrongful restraint.
under it.

It prevents a person from proceeding in

It keeps a person within certain
a direction in which that person has a
circumscribing limits.
right to proceed.

It is a more serious offence and is

It is not a very serious offence and is
punishable with a more severe punishment
punishable with lesser punishment.
than wrongful restraint.

There is only a partial suspension of There is total suspension of liberty beyond

one’s liberty. certain circumscribing limits.

Punishment: Sec. 341. Imprisonment to

Punishment: Sec. 342. Imprisonment to
one month, or fine Rs. 500/-, or with
one year, or fine Rs. 1000/-, or with both.
both.
Define Kidnapping and Abduction and also differentiate between these

two. Section 359: Kidnapping

Kidnapping is of two kinds: Kidnapping from India, and kidnapping from lawful guardianship.
But these both types can overlap each other. For example ‘A’ minor boy was kidnapped by ‘B’
from the lawful guardianship of ‘C’(without his consent) and taken ‘A’ to beyond the limit of
India. Hence, this act will attract the provisions of sec. 360 & 361 of IPC.

Section 360: Kidnapping from India Whoever conveys any person beyond the limits of India
without the consent of that person, or of some person legally authorised to consent on behalf of
that person, is said to kidnap that person from India.

Essentials of sec. 360 are: -

1. Conveying any person beyond the limit of India:- The person who is kidnapped can be a
major or a minor to attract the provision of this section. In the case of minor, age limit is 16 for
boy and 18 for girl. Further India means the territory of India excluding the state of Jammu and
Kashmir as per sec. 18 IPC.

2. Such Conveying must be without the consent of that person: - Age of a person is deciding
factor to determine the offence, but consent is also relevant in case of major person. For
example, if a person has attained the age of majority and has given his free consent to his being
conveyed, no offence is committed. Consent is irrelevant in case of minor.

Section 361: kidnapping from lawful guardianship

Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years
of age if a 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 person from lawful guardianship.

Explanation. —The words “lawful guardian” in this section include any person lawfully
entrusted with the care or custody of such minor or other person.

Exception —This section does not extend to the act of any person who in good faith believes
himself to be the father of an illegitimate child, or who in good faith believes himself to be
entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful
purpose.
Essentials: -

1. Taking or Enticing: - the word ‘takes’ means to cause to go, to escort or to get into the
possession; it does not imply force, actual or construction. The word ‘entice’ involves an idea of
inducement by exciting hope or desire in the order. One does not entice another unless the latter
attempted to do a thing which he or she would not otherwise do. This is the key difference
between taking and enticing. For example, Persuasion by the accused person which creates
willingness on the art of the minor to be taken out of the keeping of the lawful guardian would be
sufficient to attract to the provision of this section. Moreover, duration is immaterial in this
section.

2. A minor or any person of unsound mind: - the person kidnapped must be a minor i.e. a boy
under the age of 16 and a girl under the age of 18 or must be a person of unsound mind. The
unsoundness of mind should be permanent and not temporary insanity produced due to alcoholic
excess or other reason. For example, where a girl aged 20 years had been made unconscious
from dhatura poisoning when she was taken away, it was held that accused was not guilty of
kidnapping because the girl could not said to be of unsound mind.

3. Out of the keeping of lawfulguardian: - The word ‘Keeping’ simply denotes that a minor is
within the due care and protection of the guardian. It is not necessary that a minor should be in
the physical possession of the guardian. It would be enough if a minor is under a continuance
control which is for the first time terminated by the act of offender. moreover, there is difference
between legal guardian and lawful guardian. When a father sends his son to school with, here
father is a legal guardian and servant or friend is lawful guardian for that matter.

4. Without the consent of such guardian: -The act of taking or inciting a minor to keep
him/her out of the custody from guardian should be done with free consent as per the section 90
of IPC. The consent of the minor is irrelevant. The consent can be implied and need not to be
express. In addition to that, if a consent is obtained after the commission of an offence so can’t
be used as a good defence. Hence, it is immaterial.

Punishment - The provision for punishment of kidnapping is given under section 363 which
says whoever kidnaps any person from India or from lawful guardianship, shall be punished with
imprisonment of either description for a term which may extent to seven years, or with fine or
with both.

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.
Essentials of Section 362

1. Abducting by use of force or any deceitful means: - The abduction should be done by
compelling or inducing a person by use of force or deceitful means. The expression force means
consent obtain by force or use of force to commit abduction. Whereas, the expression deceitful
means includes any misleading statement. The intention of the offender is the deciding element
of the offence.

2. Taking of a person from one place to another: - in order to commit the offence of abduction
the movement of the abducted person is must and that to be with the use of force or any deceitful
means. For example, if A enters the house of a girl B and lifted her in order to take her away, but
when B raises alarm A dropped her and ran away, A will not be liable for abduction but he will
be guilty for attempt to abduct.

3. Punishment Abduction is an auxiliary act, not punishable by itself, unless accompanied with
some intent specified u/s 364-366. Hence, a particular purpose is necessary to punish an accused.

Differentiate between Kidnapping and Abduction.

Basis Kidnapping Abduction

Section 359 of IPC states the two

types of kidnapping. Section 360
Provision of The definition of abduction is
defines kidnapping from India,
law given in Section 362 of IPC.
Section 361 defines kidnapping
from lawful guardianship.

As per section 360 and 361, the There is no provision which

female kidnapped should be puts a bar on the age of the
Age of the
under 18 years of age and male person abducted, since being a
victim
kidnapped should be under 16 minor is not essential to
years of age. constitute this offence.

In kidnapping, the person is

In abduction. force, deceit or
taken away or enticed. The
Means compulsion is used to take a
means of doing these is
person from a place.
irrelevant to constitute the crime.

Removal from Here lawful guardian refers to a In abduction, there is no

lawful person who is legally authorised concept of taking a person away
guardianship to take care of a minor or a from his/her lawful guardian.
person of unsound mind. For
kidnapping, it is essential that
the victim is taken away from
their lawful guardian

Consent of the person kidnapped In case the person abducted

Consent of the is immaterial, however, the gives his/her consent, it is
victim consent of the guardian can be considered that there is no
material. offence.

In kidnapping the intention of

In abduction, intention is
The intention the person kidnapping the minor
essential to determine the guilt
of the accused or person of unsound mind is
of the accused.
immaterial.

Since abduction is an auxiliary

offence, it does not have a
Since kidnapping is a substantive
general punishment prescribed
offence, it’s general punishment
Nature and in the IPC. Rather, the
is prescribed in section 363 of
Punishment punishment of specific types of
IPC as imprisonment for a term
abduction is given in different
up to seven years and a fine.
sections of IPC. (As discussed
above)

Abduction is a continuing
offence because it does not end
Continuity of Kidnapping is not a continuing when a person is moved from a
the offence offence. particular place, rather
continues with every movement
from one place to the other.

The offence is completed as soon It is a continuing offence and

Completion of as a person is taken away from involves forcibly or deceitfully
the offence the country or from his/her taking a person from one place
lawful guardianship. to another