Offences Against Children under IPC

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Offences Against Children under different legislations



Offences Against Children under IPC

Children all over the world are considered among the most vulnerable & innocent victims of crimes committed in the society. Amongst the most significant legislations enacted to protect children’s rights and ensure their safety are the POCSO Act and the Juvenile Justice Act, whereas the Indian Penal Code, 1860 recognises the various offences committed against children and penalizes their commission under various heads. These offences may include homicide, foeticides, kidnapping, sexual acts, etc. and are discussed herein.

Murder (Section 302)

Murder, as defined under Section 300, is a species of the offence of culpable homicide. The acts excepted under this section are found to be culpable homicide not amounting to murder. Any person who commits an offence of Murder is punishable under Section 302 with death, or imprisonment for life & fine; provided that death penalty is pronounced only in the rarest of rare cases whereby the collective conscience of the community expects the holders of the judicial power centre to inflict such punishment irrespective of their personal opinion, for example, when the victim is an innocent child.

Abetment of Suicide (Section 305)

Abetment by other persons for the commitment of suicide by children: Section 305 of the IPC provides that a person who abets suicide, committed by a person under the age of eighteen years shall be punished with death/life imprisonment, or imprisonment of upto 10 years and fine. This provision is based on a reasonable public policy principle to prevent other persons’ involvement, instigation, and aiding in the termination of a child’s life.

Kidnapping & Abduction

Kidnapping in any form curtails the liberty of an individual, thereby impinging the right to life guaranteed under Article 21 of the Constitution of India. The IPC, under Section 359, recognises two kinds of ‘kidnapping’:

 Kidnapping from India; and

Kidnapping from lawful guardianship.

An offender of kidnapping shall be punished under Section 363 of the IPC with imprisonment of upto 7 years and fine.

Kidnapping for exporting (Section 360)

Section 360 provides that whoever conveys any person ‘beyond the limits of India’ without his/her consent or of the legal guardian, commits the offence of kidnapping that person from India. It essentially indicates that the offence is complete the moment a person is taken outside the geographical territory of India, but until so happens it may amount to an attempt to commit this offence banking on the principle of locus poenitentiae.

Kidnapping from lawful guardianship (Section 361)

Section 361 deals with the taking away/enticing of minor children, i.e. under sixteen/eighteen years of age for male/female respectively, from lawful guardianship without their consent. The object of the section is to afford protection & security to minor wards from being seduced, harmed, or otherwise exploited by others.

Kidnapping for ransom (Section 364A)

Section 364A of the IPC provides that whoever kidnaps/abducts and detains a person while causing reasonable apprehension of death/hurt in order to extort ransom, shall be punishable with death/life imprisonment and fine. This section was inserted in the IPC by the Criminal Law (Amendment) Act, 1993 to provide for stringent punishments for such an offence.

Kidnapping for begging (Section 363-A)

Section 363A was introduced in the year 1959 to counter the growth of ‘organized begging’, wherein unscrupulous persons kidnapped children and maimed them for the purpose of begging, as defined under this section. It also introduced the presumption that if a person other than the lawful guardian uses/employs a minor for begging, then unless the contrary is proven, the child is presumed to be kidnapped. The offence of kidnapping the minor for begging is punishable with simple/rigorous imprisonment upto 10 years and fine, and if the child is maimed during the commission of this offence, the accused shall be punished with imprisonment for life.

 Kidnapping to compel for marriage (Section 366)

Section 366 provides that whoever kidnaps/abducts any woman with intent/knowledge likely to compel her to marry any person against her will, or in order that she may be forced/seduced to illicit intercourse shall be punishable with imprisonment of upto 10 years and fine. Further, if such offence is committed by employing the means of criminal intimidation/abuse of authority, the same punishment shall apply. The Bombay High Court, in the case of Emperor v. Ayubkhan Mir Sultan, has laid down that a minor’s consent to marry the accused cannot be effective even for the purposes of this section, and that it would amount to an offence under such circumstances. This was later affirmed by the Apex Court in its judgment of Thakorlal D Vadgama v. State of Gujarat, by stating that if the accused had laid a foundation by inducement/allurement/threat and if this gain influences the minor to leave her guardian’s custody, then it’d be prima facie difficult for him to plead innocence on the ground that the minor voluntarily came to him.

Kidnapping for slavery etc. (Section 367)

Section 367 punishes those persons who kidnap/abduct any person in order to subject him or dispose him to the danger of being subjected to grievous hurt/slavery/unnatural lust of anyone, with imprisonment of upto 10 years and fine.

Kidnapping for stealing from its person (Section 369)

Under 10 years of age only: Section 369 provides the punishment for kidnapping/abducting a child under 10 years of age in order to dishonestly take any movable property from the person of such child, by making the offender liable with imprisonment of upto 7 years and fine.

Procuration of minor girls (Section 366-A)

For inducement to force or seduce, to illicit intercourse: For convicting a person under Section 366-A, it’s essential to establish that he has induced a minor girl below the age of 18 years to go from any place/ do any act with the intent/knowledge that she would be forced/seduced to illicit intercourse with another person. Such offender shall be punishable with imprisonment of upto 10 years and fine.

 Selling of minors for prostitution (Section 372)

Section 372 provides the punishment for selling a person under the age of 18 years of either sex for the purpose of prostitution, illicit intercourse, or for any other immoral purpose. The offence is complete the moment there is sale/letting to hire a minor with the aforementioned intention/knowledge, and is punishable with imprisonment of upto 10 years and fine. Further, such offence committed against a female is presumed to be done with the required mens rea unless proven to the contrary.

Buying of minors for prostitution (Section 373)

Section 373 punishes those persons who buy/hire any person under the age of 18 years with the intention/knowledge that he/she shall be employed for the purposes of prostitution, illicit intercourse, or for any other unlawful/immoral purpose, with imprisonment of upto 10 years and fine. Furthermore, such an offence committed against a female is presumed to be done with the required mens rea unless proven otherwise.

 Rape

Section 375(6) of the IPC provides that the commission of sexual intercourse in any of the forms mentioned in clauses (a),(b),(c), and (d), with a minor girl under the age of 18 years will amount to rape, irrespective of her consent to such act. It deems the minor girl’s consent immaterial and inconsequential on a presumable ground that she’s incapable of thinking rationally and giving any consent. Plausibly, the Legislature presumes that such minor can be easily lured into consensual sexual intercourse without completely realizing its implications. Moreover, this section under Exception 2, also protects married women under the age of 15 years from being subjected to any kinds of sexual acts.

The offence of rape committed against minor girls is punished under the IPC as follows:

·       Section 376(3) - Rape of woman under 16 years of age- Rigorous imprisonment of not less than 20 years/life & fine.

·       Section 376-AB- Rape of woman under 12 years of age- Rigorous imprisonment of not less than 20 years/life & fine, or death.

·       Section 376-DA- Gang rape of woman under 16 years of age- Imprisonment for life & fine.

·       Section 376-DB- Gang rape of woman under 12 years of age- Imprisonment for life & fine, or death.



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