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Justice for all (Legal)     17 November 2011

Age factor in kidnapping

While deciding the culpability in the offence of KIDNAPPING: Is the defence of 'bonafide' belief about the age (that she is above 18yrs) of the girl, NOT sustainable in any case, whatsoever?

  1. Any exceptions? Any SC ruling on the point?
  2. What if the girl wrongly states her age?
  3. What is the scope of medical tests (Bone ossification test) for verifying age: 
    i> when school leaving certificate available;  ii> when otherwise?


Learning

 5 Replies

Arvind Sehdev (Advocate)     17 November 2011

You mean Kidnapping a minor or not ???

Or do you mean a kidnapping where the girl [minor] ran along with the guy on her own free will ??

 

1. Let me ask you, as for the age she conveyed and in reality what was the age ?

2. Even if she wrongly states her age the guy is still screwed.... One just doesnot kidnap a girl / run away with her without konwing her for some time and if the guy knew her for some time then it is impossible for him to not know her actual age and if she was like 17 and he was conveyed 18 then also the guy has some remote chances to excape the law...

3. If her age is established by way of a birth certificate of 10th class board marksheet... There is seldom a need for medical examination to test her age.

As for the tests you are stating https://articles.timesofindia.indiatimes.com/2011-04-20/delhi/29450452_1_convict-bone-test-ossification-test

Bone ossification tests are not ignored by the courts... So if anything different that the Birth Certificate comes in that... Then the accused shall not be held liable for kidnapping a minor.


(Guest)

If she is above 18 then its Abduction. Abduction can become very serious as issues regarding her bank accounts, property and other pecuniary stuff can be extorted from her by the use of third degree methods while for minors the NEXT FRIEND has to blackmailed. In many case the purpose of kidnapping gets defeated if the Next Friend states that : "Kill her but I won't give you a pie". If the stupid kidnapper/abductor actuals kills her then he gets the noose instead of a jail sentence for a few tears.

Nadeem Qureshi (Advocate/ nadeemqureshi1@gmail.com)     17 November 2011

Section 361. Kidnapping from lawful guardianship

 

Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[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.

 

STATE AMENDMENT

 

Manipur

 

In section 361 for the words ‘eighteen’ substitute the word ‘fifteen’.

 

[Vide Manipur Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950), read with Act 81 of 1971, sec. 3 (w.e.f. 25-1-1972)].

 

 

COMMENTS

 

Inducement not immediate cause

 

The accused was charged for kidnapping a minor girl, below 15 years of age from the lawful guardianship of her father. It was established that the accused had an earlier stage solicited or induced minor girl to leave her father’s protection by conveying or indicating an encouraging suggestion, that he would give her shelter. Holding the accused liable for kidnapping under section 363, the Supreme Court said that the mere circumstances that his act was not the immediate cause of her leaving her parental home or guardian’s custody would constitute no valid defence and would not absolve him from the offence of kidnapping. The question truly falls for determination on the facts and circumstances of each case; Thakorilal D Vadgama v. State of Gujarat, AIR 1973 SC 2314: (1973) 2 SCC 413.

 

Lawful guardian

 

Where facts indicate that a girl left her father’s protection, knowing and having capacity to know the full import of what she was doing and voluntarily joined the accused, the offence of kidnapping cannot be said to have been made out; S. Varadrajan v. State of Madras, AIR 1965 SC 942.

 

Use of word ‘keeping’: Meaning of

 

The use of the word “keeping” in the context connotes the idea of charge, protection, maintenance and control; further the guardian’s charge and control appears to be compatible with the independence of action and movement in the minor, the guardian’s protection and control of the minor being available, whenever necessity arises. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial: it is only the guardian’s consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section; Prakash v. State of Haryana, AIR 2004 SC 227.

 

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     17 November 2011

Kidnapping is a strict offence. Read "R Vs. Prince".

 

However courts can decide lesser punishments based on the facts of the case.

 

Rest questions have been answered above.

 

 

Regards,
 
Shonee Kapoor
harassed.by.498a@gmail.com

Arvind Sehdev (Advocate)     17 November 2011

If the girl ran with you with her choice and she was an adult then it is nothing....

 

If the girl ran with you with or without her choice and she was a minor then it constitues the offence of Kidnapping...


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