Mahipal Singh And Others vs State Of U.P.

HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1362 of 1984
Final AFR
Reserved On 29.04.2026
Delivered On 29.07.2026
Mahipal Singh and others
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Amit Mishra, Hasan Parvej, T.
Rathore
Counsel for Respondent(s) : A.G.A.
Court No. - 88
HON'BLE SANJIV KUMAR, J.
1. This appeal has been filed under Section 374(2) Code of Criminal
Procedure 1973 (in short Cr.P.C.), by appellants Mahipal Singh, Ram Pal
Singh, Ram Singh, Subeydar Singh, Kunwar Singh and Angan Singh,
against the impugned judgment and order dated 26.04.1984 passed by
Sri Mahesh Chandra, Additional Sessions Judge-VIII, Bareilly in
Sessions Trial No.570 of 1982, Police Station- Bahedi, District- Bareilly.
2. By the impugned judgment and order dated 26.04.1984, the
learned trial court has convicted the appellants and for offence
punishable under Section 147 Indian Penal Code,1860 (in short IPC)
sentenced them to undergo rigorous imprisonment for a period of one
year; for offence punishable under Section 452 IPC sentenced them to

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undergo rigorous imprisonment of three years; for offence punishable
under Section 365 read with 149 IPC sentenced them to undergo
rigorous imprisonment of three years; for offence punishable under
Section 324 read with 149 IPC sentenced them to undergo rigorous
imprisonment of two years. Accused Angan Singh is convicted for
offence punishable under Section 148 IPC and sentenced to undergo
rigorous imprisonment for two years; for offence punishable under
Section 452 IPC sentenced to undergo rigorous imprisonment of three
years; for offence punishable under Section 365 read with 149 IPC
sentenced to undergo rigorous imprisonment of three years; for offence
punishable under Section 324 read with 149 IPC sentenced to undergo
rigorous imprisonment of two years. It was further directed that all the
sentences shall run concurrently.
3. During the pendency of this appeal, the appellants Mahipal Singh,
Ram Pal Singh, Subeydar Singh, Kunwar Singh and Angan Singh have
died and, therefore, this appeal stands abated against Mahipal Singh,
Ram Pal Singh, Subeydar Singh, Kunwar Singh and Angan Singh,
passed earlier. Now this appeal survives against Ram Singh, only.
4. Brief facts of the prosecution case are that Chandra Pal Singh son
of Hem Singh, resident of Mitidandi, Police Station- Baheri, District-
Bareilly, filed a written application dated 24.07.1980 (Ext.Ka.1), before
Incharge Police Station- Baheri, stating that he had solemnized court
marriage with Maya Devi, the daughter of Tara Singh, resident of
Gurbara Gautihya, Police Station- Baheri about six months ago. She was
living with her mother at his house. A day before yesterday i.e. on
22.07.1980 some altercation took place, as a result, her mother left the
house. His wife was earlier married with Mahipal Singh son of unknown
resident of Jham, Police Station- Baheri. Today, in the night he was
sleeping with his wife then at about 12:30 a.m. Mahipal Singh, Ram Pal
Singh, Ram Singh, Subeydar Singh, Kunwar Singh, Angan Singh and his
wife’s mother after climbing the wall, entered in his house. He was
sleeping with his wife in the courtyard, the lantern was lit. From the

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noise he got awaken and all of them forcefully pulled Maya Devi aged
about 19-20 years. Thereupon, he and his wife raised alarm then Balka
Ram, Ghan Shyam Singh, Nathu Singh and Kunwar Pal and other
villagers came running flashing their torches. In the meantime, the
accused pulled his wife outside the house and when he was trying to
separate them, Angan Singh shot at him with a gun. Two other persons
were armed with lathis and due to the fear of the gun, none could dare to
stop them and the accused kidnapped his wife with the purpose to
solemnize her marriage. He sustained firearm injury over his leg and had
identified the accused in the light of lantern and flash of torches.
5. On this information FIR under Case Crime No.366 of 1980,
Sections- 147, 148, 149, 452, 324 and 366 IPC was lodged at Police
Station- Baheri on 24.07.1980 at 02:30 a.m. and the investigation was
entrusted to S.I. P.N. Mishra. He recorded the statements of witnesses
and inspected the place of occurrence and prepared its site-plan
(Ext.Ka.4). The injured was medically examined and after investigation
the I.O. has filed charge-sheet (Ext.Ka.5) against all the appellants under
Sections- 147, 148, 149, 324, 352 and 366 IPC before the concerned
Magistrate.
6. The court concerned took cognizance of the offence and
summoned the accused, they appeared and copies of relevant
prosecution papers were furnished to them under Section 207 Cr.P.C. and
thereafter the case was committed to the Court of Sessions for trial.
7. Before the Sessions Court, the accused appeared and charge under
Sections- 147, 366 read with 149 IPC, 452, 324 read with 149 IPC was
framed against appellants Mahipal Singh, Ram Pal Singh, Ram Singh,
Subeydar Singh and Kunwar Singh and charge under Section 148, 366
read with 149, 452, 324 read with 149 IPC was framed against appellant
Angan Singh. The accused pleaded not guilty and claimed to be tried.

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8. The prosecution has examined five witnesses, to wit, P.W.1
Chandra Pal Singh; P.W. 2 Kunwar Pal Singh; P.W.3 Dariyab Singh;
P.W.4 Dr. K.U. Ahmed; P.W. 5 S.I. Prem Nath Mishra, to prove its case.
9. P.W. 1 Chandra Pal Singh is the first informant of the case and has
stated that he has solemnized marriage with Maya Devi about six months
prior to the incident. It was a court marriage and his wife was living with
him. Due to some altercation his mother-in-law left him sometime prior
to the incident. Earlier his wife was married to accused Mahipal Singh.
On the date of incident at about 12:30 a.m. he was sleeping in the
courtyard of his house, the lantern was lit, then the accused along with
Maya Devi’s mother climbed the wall and entered in the house. He got
awaken and his brother Dariyab Singh and Maya Devi also woke up
then, they kidnapped his wife Maya Devi. He chased them then Angan
Singh shot at him with his gun. The witness Kunwar Pal Singh, Nathu
Singh and others came there having torches. He went to the police
station at about 02:30 a.m. in the night and lodged the FIR. The witness
has proved the tehrir (Ext.Ka.1) and has said then he was sent for
medical examination.
10. P.W.2 Kunwar Pal Singh, is the neighbour of the first informant
and is an eye-witness of the incident. He has said that he reached at the
house of the first informant upon hearing the noise. There he saw the
incident and the accused along with a woman kidnapped the first
informant’s wife. Angan Singh fired with a gun causing injuries to the
first informant over his leg.
11. P.W.3. Dariyab Singh, is the brother of the first informant and he
is also one of the inmates of the house in which the incident occurred.
He has also supported the prosecution case and has said that Maya Devi
was married to the first informant and it was a court marriage. The
marriage took place about six months prior to the incident. He was
sleeping inside the house and Chandra Pal and his wife are sleeping in
the courtyard. Maya Devi’s mother had left house two days prior to the

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incident. Then the accused and Maya Devi’s mother came having gun
and lathis. They pulled and took Maya Devi with them. Chandra Pal
chased them, then Anagan Singh fired at him. It was a moon lit night and
lantern was lit, and the accused had torches in their hands. Maya Devi is
not traced out till today. He scribed the tehrir at the dictation of the first
informant.
12. P.W. 4 Dr. K.U. Ahmad, is the Medical Officer, P.H.C. Baheri,
who has medically examined Chandra Pal Singh, while he was posted as
Incharge Medical Officer, there. He has found following injuries over his
body:-
(i) Gunshot wound on dorsal aspect of the left lower leg and
foot on the sole of the foot, measuring about 1/10 cm x 1/10
cm x skin and muscle deep and circular in nature. Some shots
were skin deep and some were muscle deep and some of the
nature of abrasion over lower part of left leg. Swelling was
present. The movement of leg was painful. X.-Ray was
advised.
(ii) Contusion 2 cm x 0.5 cm to the right of forehead.
In the opinion of the doctor injury no.1 was kept under observation till
the X- Ray report. Injury no.1 was caused by firearm and injury no.2
was caused by any blunt object. Injuries were simple in nature. The
witness have proved injury report as Ext.Ka.2 and said that all the
injuries could have been caused on 23/24.07.1980 at 12 or 12:30 a.m.
Injury no.2 could be caused due to a fall.
13. P.W.5 S.I. Prem Nath Mishra, is the investigating officer of the
case, he has proved chik FIR as Ext.Ka.3 and copy of G.D. No.2 dated
24.08.1980, time 02:30 a.m. scribed by Head Moharrir Omkar Misra as
Ext.Ka.6, is the secondary witness. He has stated that he has investigated
the case and recorded statement of first informant and other witnesses,
inspected the place of occurrence and prepared its site-plan which he
proved as Ext.Ka.4. He searched out the missing girl Maya Devi, but she

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CRLA No. - 1362 of 1984
was not found. Thereafter, he filed charge-sheet which he proved as
Ext.Ka.5.
14. After the closure of prosecution evidence, the statements of
accused were recorded under Section 313 Cr.P.C. The appellant Ram
Singh in his statement under Section 313 Cr.P.C. has admitted that co-
accused appellant Mahipal Singh was married to Maya Devi since before
the incident. Rest of the prosecution case was denied and it was stated
that false case has been lodged against him.
15. The accused have not adduced any evidence in their defence.
16. After perusal of evidence, the learned trial court came to the
conclusion that the prosecution case is proved beyond reasonable doubt,
but the court observed that the accused are guilty of offence punishable
under Section 365 I.P.C. instead of Section 366 I.P.C. beside their
conviction in other sections under which they were charged and
accordingly, convicted and sentenced the appellants to the term as
indicated above.
17. Heard Shri Hasan Parvej, learned Counsel for the appellants and
Shri Akhilesh Kumar Mishra, learned A.G.A on behalf of the State and
perused the material on record.
18. It is submitted by learned counsel for the appellant that the
prosecution case is not established. The abduction in itself is not an
offence unless it is combined with a specific criminal intent as
mentioned in the IPC. It is also submitted that there is no specific role
assigned to the appellant. The marriage of the victim with the informant
is also not proved and there are material contradictions in the testimony
of the prosecution witnesses, which raises serious doubt over the
prosecution case.
19. Per contra, learned counsel on behalf of the State has submitted
that the charge against the appellant is fully established. The testimony

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CRLA No. - 1362 of 1984
of PW-1, PW-2 and PW-3 is consistent, reliable and trustworthy. It is
proved that the appellant along with other co-accused reached at the
house of the first informant and thereafter committed maarpeet and in
furtherance of their common object, as member of unlawful assembly,
shot at the first informant causing him injuries, and had abducted the
victim. Therefore the appellant has rightly been convicted, and therefore,
this appeal has no force and is liable to be dismissed.
20. In view of the submissions of learned counsel for the both the
parties and upon perusal of record, it is clear that the incident occurred
on 23/24.07.1980 at about 12:30 AM and the FIR has been lodged the
same night at 2:30 AM. Therefore, within two hours the FIR was lodged.
The appellant is named in the FIR along with other co-accused.
According to the first informant, at the time of incident Maya Devi was
aged about 19-20 years, therefore, she was major and as per prosecution.
21. The prosecution has examined PW-1 Chandrapal, the first
informant, PW-2 Kunwarpal Singh, the neighbour and PW-3 Dariyab
Singh, the first informant's brother, as witness of fact. All the above three
witnesses have supported the prosecution case. Apart from bearing
minor contradictions, their deposition is consistent throughout. It is
stated by these witnesses that on the fateful night, the appellant along
with other co-accused arrived at the house of the first informant, where
he was sleeping with victim Maya Devi. Then they kidnapped Maya
Devi and upon being chased, co-accused Angan Singh shot at the first
informant with his gun, causing injuries to his leg. According to PW-2,
the neighbour, he reached there upon hearing noise and saw that the
appellant along with other co-accused had kidnapped the first
informant's wife. PW-3 Dariyab Singh is the brother of the first
informant and also one of the inmates of the house, in which the incident
occurred. He has also stated the same version. There are no material
contradictions in their depositions. The first informant was medically
examined by PW-4 Dr. K.U. Ahmed, who has proved the injury report
and has said that the injury sustained was a gunshot wound over his left

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CRLA No. - 1362 of 1984
lower leg and contusion on the right side of forehead and was simple in
nature. Therefore, the ocular evidence is supported by medical evidence
and the testimony of all the witnesses of fact is consistent and reliable in
this regard.
22. Here, according to the first informant, the victim Maya Devi was
his wife whom he had married six months prior to the incident. It was a
court marriage. He has stated that he has a marriage certificate with him
but it was not produced in the court. It is an admitted fact to the
prosecution that the victim was earlier married to co-appellant Mahipal
Singh and the first informant himself has admitted that there is no
evidence that the divorce has taken place between Maya Devi and
Mahipal Singh. In view of the above fact that the divorce of the victim
with co-appellant Mahipal Singh is not established, and he was the
husband of the victim, and also there is no evidence that the first
informant has married the victim, therefore, it is not established that
Maya Devi was the first informant’s wife. Importantly, from the
evidence it is proved that at the time of incident, co-appellant Mahipal
Singh, the victim’s husband, and the victim’s mother had come along
with other co-accused and had taken her away from the first informant’s
house. So even if, it is presumed that it was a case of abduction as
defined in Section 362 IPC, but mere abduction is not an offence as held
by the Hon’ble Supreme Court in a catena of judgments, such as Joseph
Shine Vs. Union of India AIR 2018 SC 2019. The prosecution has to
prove the intent with which the victim was abducted. In the present case,
the appellant has been charged for offence under Section 366 IPC, but
there is no evidence that she was abducted to compel her for marriage or
seduce her to illicit intercourse, therefore, the charge under Section 366
IPC is not proved against the appellant.
23. The Learned Trial Court has convicted the appellant under Section
365 IPC instead of Section 366 IPC, which provides that "kidnapping
with intent to secretly and wrongfully confine a person shall be an
offence punishable under this section." The intent to secretly and

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CRLA No. - 1362 of 1984
wrongfully confine the victim, cannot be gathered from the evidence
adduced by the prosecution. The victim herself was not properly traced.
The mother of the victim was also not found, though according to the
prosecution she was one of the accused, named in the FIR, who arrived
at the place of occurrence alongwith other accused and had taken away
her daughter. The I.O. did not bother to interrogate her or to capture her
for the reasons best known to him. The statement of Investigating
Officer shows that he has not investigated the case properly and did not
make any extensive search of the victim as well as her mother. In this
regard, the statement of victim and her mother was very material, but
due to poor investigation both of them were not traced and the I.O. has
filed charge-sheet hurriedly without any proper investigation.The
relationship of the first informant with the victim is highly suspicious,
under the circumstances that he claims himself as the husband of the
victim, but this is not proved from the evidence. He has admitted that he
is a home guard and was convicted in a murder case. Under what
circumstances the victim was living with the first informant is not well
explained by the prosecution. The victim was taken away by her husband
along with her own mother and others. So it does not show that she was
taken away with any intent to secretly and wrongfully confine her.
Therefore, the offence under Section 365 IPC is also not made out. In
this regard, the Learned Trial Court has not appreciated the evidence on
record correctly and has reached at a wrong conclusion of the guilt of the
accused, the appellant. So the offence under Section 366 or 365 IPC,
under which the Learned Trial Court has convicted the appellant, is not
proved. Therefore, the appellant deserves to be acquitted of the offence
under Section 365 IPC.
24. So far as the other offence under Sections 147, 452, 324 read with
149 IPC are concerned, it is proved that the appellant along with other
co-appellants formed an unlawful assembly and armed with weapons
committed the above offence. Therefore, the appellant was rightly
convicted of the offence punishable under Sections 147, 452, 324 read
with 149 IPC.

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25. So far as the sentence awarded to the appellant for the offence
punishable under Sections 147, 452, 324 read with 149 IPC is
concerned, looking into the facts and circumstances of the case, the role
of the appellant, and the pendency of this appeal which is more than
forty-two years old, it would serve no purpose to sentence the appellant
and put him behind the bars. There is no evidence that the appellant was
previously convicted in any case. The appellant is now an old and infirm
person. He has been appearing in this appeal since last more than forty-
two years and there was no specific role of the appellant in the said
crime except that he was present along with other co-appellants.
Therefore, the ends of justice would be met if, instead of passing any
sentence, the appellant is given the benefit of Section 4 of the Probation
of Offenders Act, 1958.
26. In view of the above this appeal is allowed partly and the
conviction of the appellant under Section 365 IPC is set aside and the
conviction of the appellant under Section 147, 452, 324/149 IPC, is
upheld. But the sentence awarded to the appellant is modified and
instead of sentencing him at once, he is released on probation for a
period of six months to keep peace and maintain good behaviour for the
aforesaid period, upon his furnishing a personal bond of Rs. 50,000/-
with two sureties of the like amount to the satisfaction of the concerned
probation officer, with an undertaking that in case of breach of the
condition he shall appear and be heard on sentence. The bonds and
sureties aforesaid be filed by the convict within fifteen days from the
date of the Judgment as per law and Rules.
27. Let a copy of this judgment be sent to the concerned Trial Court
and concerned Probation Officer for intimation and necessary
compliance.
(Sanjiv Kumar,J.)
July 29, 2026
AdityaG
Digitally signed by :-
ADITYA GAUTAM
High Court of Judicature at Allahabad