Abduction is not an offence unless accompanied by specific criminal intent: High Court sets aside kidnapping conviction in 42-year-old case

The informant, Chandra Pal Singh, alleged that on the night of July 24, 1980, the appellants (including Ram Singh) forcibly entered his house, abducted his wife, Maya Devi, and shot the informant in the leg.

The prosecution claimed Maya Devi had entered a court marriage with the informant six months prior after a previous marriage to co-accused Mahipal Singh.

The trial court convicted the appellants under Sections 147, 452, 324/149, and 365 IPC.

During the appeal’s pendency, five of the six appellants died, leaving the appeal surviving only against Ram Singh.

1. Whether the charge of abduction under Section 365/366 of the IPC is sustainable when the victim’s marriage to the informant is unproven and she was taken by her first husband and mother.

2. Whether the appellants are liable for house trespass and causing hurt as members of an unlawful assembly.

3. Whether the sentence should be modified given the 42-year pendency of the appeal and the appellant's age.

The court applied Section 362 of the IPC regarding abduction and noted that abduction itself is not an offence unless accompanied by specific criminal intent.

It relied on the principle from Joseph Shine v. Union of India that mere abduction without requisite intent (such as under Section 366 or 365) does not constitute a crime.

The court also invoked Sections 147 (Rioting), 452 (House-trespass after preparation for hurt), and 324 (Voluntarily causing hurt by dangerous weapons) read with Section 149 (Common object) of the IPC.

Finally, it applied Section 4 of the Probation of Offenders Act, 1958, regarding the release of offenders on probation of good conduct.

The court found that the prosecution failed to establish Maya Devi’s marriage to the informant or a valid divorce from co-accused Mahipal Singh.

Since the victim was taken by her biological mother and her legal husband (Mahipal), the court reasoned there was no evidence of intent to "secretly or wrongfully confine" her under Section 365 or "compel marriage" under Section 366.

The court criticized the poor investigation, noting the failure to trace or examine the victim and her mother.

The court held that the ocular evidence of PW-1, PW-2, and PW-3, corroborated by medical reports of firearm injuries, sufficiently proved that the appellant was part of an unlawful assembly that committed house trespass and caused hurt.

Considering the appellant's advanced age and the 42-year delay, the court deemed a custodial sentence inappropriate.

The Court upheld the conviction under Sections 147, 452, and 324/149 IPC but modified the sentence, granting the appellant the benefit of Section 4 of the Probation of Offenders Act, ordering his release on probation for six months upon furnishing a personal bond of Rs. 50,000/- and two sureties.