Difference between Kidnapping & Abduction: Comparative Analysis Introduction
Generally, we have seen that many people co-relate ‘Kidnapping’ with ‘Abduction’ and often use them interchangeably. But in actual, we cannot. Although all kidnappings begin with abduction but not all abductions lead to kidnapping. Both Kidnapping & Abduction are two distinct offences with distinct meanings.
Herein, we shall discuss those differences that make Kidnapping, a distinct offence from Abduction.
Kidnapping
- Definition
Kidnapping is an unlawful activity of taking or carrying away of a person against his/her will through forceful or fraudulent means.
- Provision
The provisions related to Kidnapping are laid down under Section359 to Section 362 and Section 363A-Section 369 of the Indian Penal Code,1860.
Kidnapping is of two kinds:
- Kidnapping from India
Section 360 of IPC, 1860, says that 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 such person is said to commit an offence of kidnapping from India.
- Kidnapping from lawful guardianship
Section 361 of IPC,1860, says that if a person takes 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, from his/her lawful guardian without the guardian’s consent, then such person is said to commit an offence of kidnapping from lawful guardianship.
- Consent
Consent of the person kidnapped is immaterial.
- Continuity of crime
Kidnapping is not a continuing offence. The offence of kidnapping is completed as soon as the kidnapped person is removed from his/her lawful guardianship.
- Punishment
Section 363 of the Indian Penal Code, 1860 envisages a maximum punishment of seven years along with a fine. Kidnapping is a substantive offence.
- Recent Judgments on Kidnapping
In the case of“Shaik Ahmed Versus State of Telengana, 2021 SCC OnLine SC 436”, the Hon’ble Supreme Court has stated that merely proving the kidnap of a person is not sufficient for a conviction for the offence of kidnapping for ransom under section 364A of the Indian Penal Code,1860. It is necessary to prove that there was a threat to cause death or harm to the kidnapped person. If the victim is treated well and there is no threat to cause death or hurt then in such a case kidnapper cannot be sentenced to life imprisonment.
Also on 4th April 2022, Recently, the Hon’ble High Court in the case titled as “TaslimunNisha Alias Tanu Arya And Another v. State Of U.P. Trhu. Its Prin. Secy. Home Civil Sectt. Lko. And Others”, has rendered that while investigating Kidnapping cases, the police authorities must first assess the age of the victim girl so that, in case, it is found that she is major and has taken any step for her life, then no one should be unnecessary put to any harassment.
Abduction
- Definition
Abduction means when one person forcefully compels or induces other person to move from a particular place against his/her will.
- Provision
Abduction is defined under section 362 of the Indian Penal Code, 1860. It says that any person who by force compels, or by any deceitful means induces any person to go from any place, is said to commit an offence of abduction.
Two requirements are necessary in order to constitute Abduction:
- Forceful compulsion or inducement by deceitful means
- Movement of a person from a particular place because of such compulsion or inducement
- Consent
Free and Voluntary consent of the person alleged to be abducted condones abduction.
- Continuity of crime
Abduction is a continuing offence and continues so long as the movement of the abducted person continues from one place to another due to forceful compulsion and deceit.
- Punishment
Abduction is not a substantive offence but an auxiliary act. It is not punishable by itself unless accompanied with some criminal intent provided under Section 364-Section 366 of the Indian Penal Code,1860.
- Few Important Judgments on Abduction
On 24.04.2020 , in the case “Arvind Singh Versus State of Maharashtra”,Criminal Appeal 640-641 of 2016, the question that arose before the Supreme Court was whether abduction and murder of eight-year-old falls under the category of rarest of rarest cases? While answering to this question and by taking into account the doctrine of rarest of rare case which was developed in the case “Bachan Singh Versus State of Punjab, AIR 1980 SC 898”, the Hon’ble Court held that the crime was not at all brutal, cruel or ruthless in any nature nor it was unusual of its kind. Further, the motive was to create a threat and not to kill. The main element is mensrea or motive. The motive of the accused to take life was to become rich by not doing hard work but by demanding ransom after kidnapping a young, innocent boy of 8 years. Therefore, this case does not fall into the category of rarest of rare case.
Also, the Hon’ble High Court in the case titled as “Shri Moni Neog and Ors Versus State of Assam, 2006 CrilJ 1944”, provided that the “abductors of SanjoyGhose had abducted him with the object and/or with the intention that he may be murdered or, at least, with the knowledge that he may be murdered or he may be put to danger of being murdered. Whether, eventually, SanjoyGhose was murdered or not is, therefore, not really material; what is material is that, at no stage, the abductors, in the present case, gave indication that they would spare the life of SanjoyGhose by either letting him go or by allowing anyone to free him, for, at all relevant time, SanjoyGhose was kept surrounded by the abductors, who were armed with weapons, exhibiting potent threat to his life, and he, as the evidence on record indicates, made attempt to escape or had anyone made even a fragile, but forcible attempt to obtain his release from the clutches of his abductors.
………….In the case at hand, the prosecution has successfully proved beyond any pale of doubt that accused appellant, Moni Neog, abducted SanjoyGhose and ChandanDoley with the help of other members of their banned outfit. in the absence of any explanation offered by the accused-appellants under Section 313, Cr. P.C. in this regard and in the absence of any explanation discernible, in this regard, from the evidence on record, there remains no logical room for doubt that both the victims were abducted with, at least, the knowledge that they were likely to be murdered. Similarly, forcibly taking away of ChandanDoley by armed militants, headed by accused appellant, Kanaya Hazarika, in the absence of any explanation offered by this accused or discernible in this regard from the evidence on record, leave one with no reasonable option but to hold that the accused-appellant, Kanaya Hazarika, too abducted ChandanDoley with, at least, the knowledge that he was likely to be murdered. If the accused-appellants had any reasons other than what have been indicated hereinbefore, the onus rested on them to show those reasons. Having failed to offer any explanation in this regard and in the absence of any explanation, which ran be discerned, in this regard, from the evidence on record, the inference has to be, and we do hold, that prosecution have proved beyond doubt that the two accused-appellants abducted the victims aforementioned with, at least, the knowledge that the victims were likely to be murdered. Because of these proven facts, the conclusion, which is irresistible to draw, is that the two accused-appellants were guilty of the offence under Section 364 read with Section 34, I. P. C.”
In “Gurcharan Singh Versus State of Haryana, 1972 AIR 2661”, Supreme Court held that inducing prosecutrix with the help of a pistol to move from a particular place amounts to abduction.
CONCLUSION
From the above reading, we conclude that both kidnapping & abduction violates the right to life and liberty of a person as enshrined under Article 21 of the Constitution of India. Both kidnapping and Abduction are serious offences that restrict a person’s freedom.
There is a high time to establish and frame a strong Law and Order in order to put a halt to the occurrence of these crimes especially when these are usually being carried out for the purpose of forced sexual intercourse, forced begging, extortion, and forced marriages.