The distinction between the offence of ‘Kidnapping’ and ‘Abduction’ is often smudged and misconceived. This is because both these offences largely concern taking someone against their will/without consent. This is the commonality. However, there are certain fundamental points of difference between offences of kidnapping and abduction, which may be summarised as follows :-
- Age of the victim – ‘Kidnapping from guardianship’ can be committed only with respect to a minor or a person of unsound person; whereas Abduction can be committed with respect to anyone;
- Substantive and Auxiliary – The offence of kidnapping is a Substantive offence, whereas Abduction is an auxiliary act, that is to say, only when abduction is accompanied with a specific criminal intent, is it rendered culpable; whereas kidnapping is an offence by itself and intention is immaterial;
- Mens Rea – The intent of the offender is immaterial for the offence of Kidnapping as kidnapping is a strict liability offence. The offence has been created with a larger purpose of securing rights of guardians and for the protection of minors, therefore, keeping in mind the salutary purpose of the Act it was considered conducive that mens rea should not be made an essential precondition of liability, lest it will afford a specious defence to accused persons. As opposed to this, ‘abduction’ is not an offence until and unless it is committed with a specific intent, for instance : to wrongfully confine, maim for the purpose of begging etc.
- Out of lawful guardianship – A person kidnapped is ‘removed from lawful guardianship’, on the other hand it is not necessary in case of Abduction.
- Means employed to effectuate crime : In the offence of Kidnapping, the minor or unsound person is ‘taken away’ or ‘enticed’; whereas in case of Abduction – forceful or deceitful means are employed for the purpose of effectuating the offence.
- Consent immaterial – In case of kidnapping, the consent of the child/unsound person is immaterial, whereas the consent of abductee, if voluntarily given, condones the offence and exonerates the accused;
- Crystallised versus Continuing offence – Kidnapping is not a continuing offence and is complete the moment the child is taken out of lawful guardianship, whereas abduction is a continuing offence.
Dear Students, this is a part of the series in ‘Model Answers’ that we’ll try and share with your through this platform. Try to analyse the method with which the legal issues are to be analysed and conclusions drawn. It be noted that, more than the end result/answer to the question, it is the thinking process that is important. This is what the answer attempts to demonstrate. Most of these questions can be decided either way, and there is no straight right or wrong answer. What matters is, the ability to give rational, legally (and common sensically) sound reasons and legal justification for the conclusions reached. God Bless you, Rahul Yadav