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Kathuria: Supreme Court on Criminal Law/A/AB/ABDUCTION

ABDUCTION

1 i) The offence of abduction is a continuing offence.

Bhimrao Narsimha Hublikar vs Emperor 26 Cr LJ 695 (Bom).

Ramji Lal vs State 52 Cr LJ 217 (Raj).1 ii) An abducted woman cannot abet her own abduction.

40 PR 1886 Cr: 14 PR 1875 Cr1 iii) When an accused committed sexual intercourse near her own house without any

intention of taking her away, he does not commit offence of abduction.

Abdul vs Emperor AIR 1932 All 580: 34 Cr LJ 100.1 iv) A Muslim abducted person constitutes a well defined class for the purposes of

legislation. A classification may well be made on a geographical basis.

State of Punjab vs Ajaib Singh AIR 1953 SC 10: 1953 Cr LJ 180: 1953 SCR 254.1 v) No accused can be convicted on the charge of abducting a girl for the purpose of

illicit intercourse in the absence of that charge and further when no question was put to the accused under S. 342, Cr.P.Code in regard to the accused giving sweets to the girl or otherwise compelling or inducing her to leave her father's place. So the conviction under S. 366, I.P.Code is bad in law.

Ram Devi vs State of Uttar Pradesh AIR 1955 SC 574: 1955 Cr LJ 1296.1 vi) Clause fifth of S. 100 of the I.P.Code will have no application unless an offence

under Ss. 362 to 369 of the I.P.Code is likely to be committed. S. 100 gives an extended right of private defence where an assault is an offence against human body and that assault should be with intention of abducting. Therefore, when appellant's sister was being abducted, even though by her husband, when there was an assault on her and was being compelled by force to go away from her father's place, the appellant had the right of the private defence of the body of his sister against an assault with intention of abduction by force. This right would extend to the causing of death.

Vishwa Nath vs State of Uttar Pradesh AIR 1960 SC 67: 1960 Cr LJ 154: (1960) 1 SCR 646.

1 vii) Abduction pure and simple is not offence under the Indian Penal Code. Only abduction with certain intent mentioned in the Code, is punishable as an offence.

Viswa Nath vs State of Uttar Pradesh AIR 1960 SC 67: 1960 Cr LJ 154: (1960) 1 SCR 646.

1 viii) The three principal ingredients of the offence under S. 366-A, I.P.Code are:--1. that the minor girl below the age of 18 years is induced by the accused,1. that she is induced to go from any place or to do any act, and1. that she is so induced with intent that she may be knowing that it is likely that

she will be forced or seduced to illicit intercourse with another person.

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1 Whoever merely accompanies a woman going out to ply her profession of a prostitute, even if she has not attained the age of eighteen years, does not thereby commit an offence under S. 366-A of the I.P.Code.

It cannot be said that thereby he induces her to go from any place or to do any act with the intent or knowledge contemplated by the section. The seduction to illicit intercourse contemplated by the section does not mean merely straying from the path of virtue for the first time, it is also used in the wider sense of inducing a woman to submit to illicit intercourse at any time or on any occasion. It is in the latter sense that the expression has been used in Ss. 366 and 366-A of the I.P.Code which sections partially overlap. This is not a case in which a girl who had strayed from the path of virtue when she was in the custody of her guardian and had with a view to carry on her affair accompanied her seducer or another person. Such a case may certainly fall within the terms of S. 366 or S. 366-A, whichever applies.

But where a woman follows the profession of a prostitute that is, she is accustomed to offer herself promiscuously for money to "customers" and in following that profession she is encouraged or assisted by someone, no offence under S. 366-A is committed by such person, for it cannot be said that the person who assists a girl accustomed to indulge in promiscuous intercourse for money in carrying on her profession acts with intent or knowledge that she will be forced or seduced to illicit intercourse. So when a woman offers herself for intercourse for money, not casually but in the course of her profession as a prostitute, it would then be impossible to hold that the person who instigates another to assist a woman following the profession of a prostitute abets him to do an act with intent that she may or with the knowledge that she will be seduced to illicit intercourse, guilty.

Ramesh vs State of Maharashtra AIR 1962 SC 1908: (1963) 1 Cr LJ 16: (1963) 3 SCR 396.

1 ix) Where the girl made discrepant statements and she as per medical evidence was used to sexual intercourse, held, in order to accept her statement, there should be corroboration of some material particulars from independent source.

Unproved and unexhibited school certificate cannot be treated as evidence.

Note: No corroboration was found. She was also held to be over 18 years of age. Appeal was allowed.

Ram Murti vs State of Haryana AIR 1970 SC 1029: 1970 SCC (Cr) 371: (1970) 3 SCC 21: 1970 Cr LJ 991: 1970 UJ (SC) 569.

1 x) Prima facie there would be no question of abduction when a husband takes his wife with him, but he would be guilty of an offence of abduction under S. 362, I.P.Code if by force he compels or even by deceitful means induces his wife to go from her brother's house with him.

Note: In this case the Court came to the conclusion that neither force nor deceitful means were used. She was brought in the presence of her relation only on pretext of being called by her brother.

Sohan Lal vs State of Uttar Pradesh AIR 1971 SC 2064: 1971 SCC (Cr) 206: (1971) 1 SCC 498: 1971 Cr LJ 1458: 1971 UJ (SC) 334: 1971 Cr App R (SC) 138.

Note: See also Pir Mohammed Kukaji vs State of Madhya Pradesh AIR 1960 Madh Pra 24: 1960 Cr LJ 83; Ghungru vs Emperor AIR 1936 All 360: 37 Cr LJ 827 (A woman is not slave and husband cannot use force to compel his wife to leave her parents house and join him.)

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1 xi) In order to support the conviction under S. 457, I.P.Code, it is necessary to prove first that there was lurking house trespass by night or house breaking in order to commit an offence punishable with imprisonment. Lurking house trespass means that the accused took some active means to conceal their presence. The accused would take some steps to escape notice. The accused came with the object of abducting Jahura Bibi. House breaking by night was for the purpose of committing an offence punishable with imprisonment. There was house breaking by night for the purpose of abduction which is an offence, punishable with imprisonment. The ingredients of S. 457 of the I.P.Code have been proved.

Nasiruddin vs State of Assam AIR 1971 SC 1254: 1971 SCC (Cr) 656: (1971) 3 SCC 408: 1971 Cr LJ 1073: 1971 Cr App R (SC) 400: 1971 UJ (SC) 642.

1 xii) Where the appellant induced the minor girl by threatening her with a pistol to go with him to the room in his field and there he committed rape on her, he clearly commits offences under Ss. 362 and 376, I.P.Code.

Gurcharan Singh vs State of Haryana AIR 1972 SC 2661: (1972) 2 SCC 749: 1973 Cr LJ 179: (1973) 2 SCR 197: 1972 Cr App R (SC) 407: 1973 Cr LR (SC) 280.

1 xiii) Where all the appellants armed with deadly weapons came together, abducted the deceased who were soon thereafter murdered using fire-arms, their conviction under S. 364, read with S. 149 was proper.

Rameshwar Pandey vs State of Bihar 2005 Cri LJ 1407 (1410). AIR 2005 SC 1064: 2005(1) Crimes 250: 2005(9) SCC 210.

1 xiv) If the deceased was proved to have been abducted by the accused and was found murdered soon thereafter, it is for the abductors to satisfy the Court as to how else the abducted victim was dealt with by them. In the absence of any such explanation, it is open to the Court to draw the presumption that the abductor is the murderer also.

State of M.P. vs Lattora 2004 SCC (Cr) 1195: (2003) 11 SCC 761.1 xv) To constitute an offence under S. 368, I.P.Code, it is necessary that prosecution

must establish the following ingredients:--2. The person in question has been kidnapped.2. The accused knew that the said person had been kidnapped.2. The accused having such knowledge, wrongfully conceals or confines the

person concerned.

2 Facts: The child in question had been kidnapped by the second accused from its lawful custody, namely, the mother. So far as the second ingredient is concerned, namely, that the appellant had the knowledge, that the child had been kidnapped, it is an inference to be drawn by the Courts from the various circumstances.

Held: The child was of tender age, being less than 15 hours old. The appellant admittedly had no child of her own. The second accused, it has been established, had not delivered a child within 15 days from the day of occurrence, i.e., 5th November, 1963. The second accused was in the company of the appellant in the latter's room alongwith the child when the Police party visited her on the morning of 6th November, 1963.

From these circumstances, the only legitimate inference that can be drawn, is that the appellant must have had knowledge that the child had been kidnapped from the lawful custody of its mother. Therefore, the second ingredient is also satisfied in this case.

Saroj Kumari vs State of Uttar Pradesh AIR 1973 SC 201: 1973 SCC (Cr) 475:

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(1973) 3 SCC 669: 1973 Cr LJ 267: 1973 Cr LR (SC) 107: 1973 Cr App R (SC) 62.1 xvi) The expression used in S. 361, I.P.Code is whoever takes or entices any "minor".

The word "takes" does not necessarily connote taking by force and it is not confined only to use of force, actual or constructive. This word merely means, "to cause to go", "to escort" or "to get into possession". No doubt, it does mean physical taking, but not necessarily by use of force or fraud. The word "entice" seems to involve the idea of inducement or allurement by giving rise to hope or desire in the other. This can take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle; depending for their success on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual but imperceptible impression culminating after some time, in achieving its ultimate purposes of successful inducement. The two words "takes" and "entices", as used in S. 361, I.P.Code, are intended to be read together so that each takes to some extent its colour and content from the other. The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in S. 361, I.P.Code, but if the guilty party has laid a foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie, it would be difficult for him to plead innocence on the ground that the minor had voluntarily come to him. If he had at an earlier stage solicited or induced her in any manner to leave her father's protection, by conveying or indicating an encouraging suggestion that he would give her shelter, then the mere circumstance 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.

Note: There was ample material showing earlier allurements and appellant's participation in the formation of minor girl's intention and resolve to leave her father's house. The appellant's conviction must, therefore, be upheld.

Thakorlal D. Vadgama vs State of Gujarat AIR 1973 SC 2313: 1973 SCC (Cr) 835: (1973) 2 SCC 413: 1973 Cr LJ 1541: (1973) 1 SCR 178: 1973 Cr App R (SC) 323:

1973 Cr LR (SC) 515: 1973 UJ (SC) 705.1 xvii) Girl had gone to the appellant on her own free will and with the consent of her

mother. She wanted to marry him. She was not taken away by the appellant for the purpose of compelling her to marry him against her will.

Note: The girl was above 16 years of age.

Held: Charge of abduction as well as rape fails.

Lalta Prasad vs State of Madhya Pradesh AIR 1979 SC 1276: 1979 SCC (Cr) 954: (1979) 4 SCC 193: 1979 Cr LJ 867: 1979 Cr LR (SC) 114.

1 xviii) The respondent had taken away Dhanpal with him and hired a cycle and then had gone to a grocer's shop and bought some sweets for the boy. Thereafter, the boy was found missing. The respondent appears to have taken away the ear-rings from the boy and they were sold in the market to PW Shaha for a sum of Rs. 35. On a search of the person of the accused, Rs. 34.50 were recovered from him. The body of the deceased was recovered next day from a well situated in the field of PW Ralo. This was the evidence led against the respondent.

The possibility that after having snatched the ear-rings, the respondent might have left the boy near the field, cannot be excluded. As there was sufficient interval between the death of the boy and the recovery of the body, the link in the chain of

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the circumstantial evidence does not appear to be fully complete.

Held: There cannot be any doubt that the respondent had taken away the child for the purpose of snatching ear-rings which was recovered from him.

State of Maharashtra vs Annappa Bandu Kavatage AIR 1979 SC 1410: 1980 SCC (Cr) 155: (1979) 4 SCC 715: 1979 Cr LJ 1089: 1979 Cr LR (SC) 175: 1979 UJ (SC)

323.1 xix) Appellant took an active part in abducting and torturing the complainant and also

demanded ransom like his confederates, so there is no extenuating circumstance to reduce the sentence.

Note: Three years sentence and a fine of Rs. 100 was upheld.

Ranchhod vs State of Madhya Pradesh AIR 1979 SC 1493: 1979 SCC (Cr) 1052: (1979) 4 SCC 798: 1979 Cr LR (SC) 168: 1979 UJ (SC) 381.

1 xx) The charge of abduction is not proved if the purpose of offence as required by S. 366, I.P.Code is not mentioned.

Chotelal vs State of Haryana AIR 1979 SC 1494: 1979 SCC (Cr) 972: (1979) 4 SCC 336: 1979 Cr LJ 1126: 1979 UJ (SC) 302: 1979 Cr LR (SC) 102: 1980 Cr App

R (SC) 316.1 xxi) On mere finding that the appellants abducted the woman, the charge under S.

366, I.P.Code could not be held to have been proved. It was further necessary to find that they abducted the woman for any of the purposes mentioned in S. 366, I.P.Code.

Note: In the absence of such a finding that charge falls against both the appellants.

Chotelal vs State of Haryana AIR 1979 SC 1494: 1979 SCC (Cr) 972: (1979) 4 SCC 336: 1979 Cr LJ 1126: 1979 Cr LR (SC) 102: 1980 Cr App R (SC) 316: 1979

UJ (SC) 302.1 xxii) It has come on record that the appellant was known to the family of PW-2 and

was on visiting terms. It is his own case that during such visits he developed intimacy with PW 2. It is the case of the defence that even on the day of incident when the appellant was standing outside the house, PW 2 came to him and requested him to take her away. But there is material on record to show that the appellant promised to marry her and it is based on such promise she went away with the appellant and there is also material on record to show that on that day preparation for marriage was already made in the house of the appellant. Thus two things are clear from this fact; one, that there was a promise of marriage and secondly, based on the said promise PW 2 went with the appellant. Of course, PW 2 had come out with the case that she had come out of the house to answer the call of nature when she was forcibly taken by the appellant which part of the prosecution case is not accepted. But the material on record, showed that there was a promise of marriage made to PW 2 which amounts to enticement of a minor because of which she had left the house of her lawful guardian. In this background, the Supreme Court held, that the Courts below were justified in coming to the conclusion that the appellant had committed the offence punishable under S. 366 of IPC. In the instant case, it was clear from the evidence that appellant who was a regular visitor to the house of PW 1, took undue advantage of his friendship and persuaded the minor to abandon the guardianship with a promise of marriage which on facts of this case is sufficient to uphold the judgments of the Courts below.

Maniram Hazarika vs State of Assam 2004 Cri LJ 2553 (2554, 2555): AIR 2004 SC 2472: (2004) 5 SCC 120: (2004) 2 Crimes 254.

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1 xxiii) The benefit of probation should not be given to the abductor.

Devki vs State of Haryana. AIR 1979 SC 1948: 1979 SCC (Cr) 861: (1979) 3 SCC 760: 1979 Cr LJ 1309: (1980) 1 SCR 91: 1979 Cr LR (SC) 573: 1979 Cr App R (SC)

259: 1979 UJ (SC) 594.1 xxiv) There is considerable divergence in the evidence as to whether Brindaban came

into the jeep of his own accord or had been forcibly put into it. Most of the witnesses have stated that on being persuaded by the accused persons and Vinod in particular, he went inside his house and came properly dressed to accompany the group to village Rampura. In that event, it cannot be said that Brindaban was abducted by the accused persons.

Vinod Chaturvedi vs State of Madhya Pradesh AIR 1984 SC 911: 1984 SCC (Cr) 250: (1984) 2 SCC 350: 1984 Cr LJ 814: (1984) 3 SCR 93: 1984 Cr LR (SC) 202:

1984 Cr App R (SC) 181: (1984) 1 Crimes 733.1 xxv) It was the duty of Courts in all countries to see that a parent doing wrong by

removing children out of their country did not gain any advantage by his or her wrongdoing. The Court without going into the merits of the question as to where and with whom the children should live, would order that the children should go back.

Elizabeth Dinshaw vs Arvind M. Dinshaw AIR 1987 SC 3: 1987 SCC (Cr) 13: (1987) 1 SCC 42: JT (1986) SC 795: (1987) 1 SCR 175: 1987 Cr LR (SC) 117: 1987

Cr App R (SC) 52: (1987) 1 Crimes 71.1 xxvi) Roop Narain and his wife, deceased Shri Bai, were living in village Mudiya. Their

married life was not happy and Roop Narain wanted to get rid of Shri Bai and indeed sought for a divorce at a village panchayat held on 30-11-1970. Shri Bai, however, refused to be divorced. Therefore, in order to get rid of her, she was sold to Babu so that he could take her away. To enable Roop Narain to sell Shri Bai, the appellant, who is a resident of village Chilla had brought Babu of village Sadupura to Mudiya on the evening of 30-11-1970.

Shri Bai left village Mudiya alongwith her husband as well as the appellant and the stranger Babu. After proceeding some distance Roop Narain turned back saying he would attend to some unfinished work and then join the party but in the meanwhile the others may proceed to Jhansi. Not suspecting anything, Shri Bai went alongwith the appellant and Babu to Jhansi. After they reached Jhansi, the appellant gave the slip and went away leaving Shri Bai alone in the custody of Babu. Babu took Shri Bai to Sadupura stating that the appellant and Roop Narain would join them there. At Sadupura, Babu kept Shri Bai in solitary confinement in a house for two days. During that period he raped her. When Shri Bai begged him to release her he refused to do so on the ground that he had purchased her. He became enraged and beat her and then poured kerosene over her and set fire to her clothes. Thereafter, Babu locked the door of the house and went away. Shri Bai managed to put out the fire by pouring over herself the water kept in a pot in the house. In the night Babu returned and carried Shri Bai to a field on the outskirts of the village and abandoned her there.

For two days Shri Bai lay unnoticed by any one in the field. On 6-12-1970 some persons happening to pass the field heard her groans and rescued her. Shri Bai informed them as to how she had been abducted from village Mudiya and brought to Sadupura and as to how she had sustained burns on her body. She was then taken to the Police Station at Konch and she gave a report (Ex Ka-6).

Held: If the appellant had not accompanied Shri Bai, she would not have left Mudiya and gone to Jhansi in the company of a stranger. Moreover, the appellant's conduct in leaving Shri Bai in the lurch at Jhansi speaks volumes of the role played by him. It

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is, therefore, futile to contend that the appellant had no hand in the abduction of Shri Bai from Mudiya.

Pyare Lal vs State of Uttar Pradesh AIR 1987 SC 852: 1987 SCC (Cr) 209: (1987) 1 SCC 525: 1987 Cr LJ 769: JT (1987) 1 SC 236: 1987 Cr LR (SC) 174: 1987 Cr

App R (SC) 375: (1987) 1 Crimes 494.1 xxvii) The prosecutrix was taken from the lawful guardianship of her father Mool

Chand. She was a minor being below the age of 17 years as found by the High Court on the medical evidence. The High Court has rightly held that the ingredients of an offence under S. 366, I.P.Code have been made out by the prosecution beyond all reasonable doubt. No interference with the sentence is called for.

Bhushan Lal vs State of Madhya Pradesh 1988 SCC (Cr) 50: (1988) 1 UJ (SC) 396: 1988 Cr LR (SC) 111.

1 xxviii) The appellants herein alongwith one Ravi Shankar (since acquitted by the High Court) took their trial on the accusations that Ravi Shankar committed rape on the prosecutrix Suman Rani (examined as PW-17 before the Trial Court) in the field at Bhawani Khera on two occasions, i.e., firstly on 15-3-1984 and thereafter on 18-3-1984 and then later on 31-5-1984. Ravi Shankar abducted Suman Rani from Bhawani Khera and took her to Jammu Via Bhiwani, that the two appellants (who were arrayed as accused Nos. 2 and 3 alongwith Ravi Shankar and who were Police officials posted in Police Post Patram Gate, Bhiwani) took Ravi Shankar and Suman Rani in different rooms and committed rape on Suman Rani one after another and thereafter the appellant Prem Chand took Ravi Shankar and the victim girl to the railway station and left them there. On the said accusations Ravi Shankar took his trial under Ss. 366 and 376, I.P.Code and the two appellants herein under S. 376, I.P.Code. It may be stated that there was a joint trial against all the three accused.

There is misjoinder of charges on account of a joint trial of these two appellants with Ravi Shankar. As rightly pointed out by Mr. Tewatia, no objection to the joint trial has been raised by these two appellants either at the trial stage or at the appellate stage or even before this Court, nor the appellants had shown any prejudice having been caused to them by such a trial. However, as contemplated under S. 464, Cr.P.Code, in absence of proof that failure of justice had occasioned by the joint trial, the finding and the sentence recorded by the competent Court cannot be said to be invalid.

Prem Chand vs State of Haryana AIR 1989 SC 937: 1989 SCC (Cr) 418: (1989) 1 SCC 286: 1989 Cr LJ 1246: JT (1989) 1 SC 158: 1989 Cr App R (SC) 59: 1989 Cr

LR (SC) 247: (1989) 1 Crimes 398 (2).1 xxix) It is incorrect to say that the appellant being aged about 55 years would not have

developed fancy for a minor girl and, therefore, it is a false story that was concocted that he had abducted the minor girl.

Notes:3. The appeal was dismissed and the sentence of 7 years was maintained.3. The girl was minor and the abductor was the partner of her father in

business.3. Following circumstances were found against the appellant:

1. The appellant and the complainant PW-4 were together doing potato business;

1. the accused used to go to the house of the complainant;1. in the eventful night, the appellant stayed at the house of the

complainant;

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1. in the morning the appellant was seen taking the minor girl and thereafter the minor girl disappeared and her whereabouts are not known.

1.

3 Ganga Dayal Singh vs State of Bihar AIR 1994 SC 859: 1995 SCC (Cr) 154: 1994 Cr LJ 951.

1 xxx) he two appellants were friends. They were young people at the time of the commission of the offence in the year 1984. Out of them, Shyam, A-1 wanted to marry the prosecutrix, Lalita. He made a proposal to her about two to three months prior to the occurrence which was spurned by her. On the day of the occurrence, she was incidentally at the common tap for washing clothes and to fetch water back home. The appellants riding their respective bicycles came at that time and at their asking she sat on the carrier of the bicycle of Suresh, A-2 and Shyam, A-1 followed that bicycle as if escorting. The prosecutrix was taken to a room in the house of someone where she was made to perform a ritual signifying marriage between her and Shyam, A-1.

She has deposed that she was threatened right from the beginning when being kidnapped and she was kept under threat till the Police ultimately recovered her. Normally, her statement in that regard would be difficult to dislodge, but having regard to her conduct, as also the manner of the socalled "taking", it does not seem that the prosecutrix was truthful in that regard. In the first place, it is too much of a coincidence that the prosecutrix on her visit to a common tap, catering to many, would be found alone, or that her whereabouts would be under check by both the appellants/accused and that they would emerge at the scene abruptly to commit the offence of kidnapping by "taking" her out of the lawful guardianship of her mother. Secondly, it is difficult to believe that to the strata of society to which the parties belong, they would have gone unnoticed while proceeding to the house of that other. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but still she was in the age of discretion, sensible and aware of the intention of the accused-Shyam, that he was taking her away for a purpose. It was not unknown to her with whom she was going in view of his earlier proposal. It was expected of her then to jump down from the bicycle, or put up a struggle and, in any case, raise an alarm to protect herself. No such steps were taken by her. It seems she was a willing party to go with Shyam-the appellant, on her own and in that sense there was no "taking" out of the guardianship of her mother. The culpability of neither Shyam, A-1 nor that of Suresh, A-2, in these circumstances appears to us to have been established.

Note: The appeal was allowed.

Shyam vs State of Maharashtra AIR 1995 SC 2169: 1995 SCC (Cr) 851: 1995 Cr LJ 3974.

1 xxxi) The evidence of prosecutrix does not indicate that the appellant had kidnapped prosecutrix with the intention to marry with her against her will or in order that she may be forced to illicit intercourse. These two vital ingredients for upholding conviction under S. 366, I.P.Code are not proved and, therefore, the conviction of the appellant under S. 366, I.P.Code cannot be sustained.

Kuldeep K. Mahato vs State of Bihar AIR 1998 SC 2694: 1998 SCC (Cr) 1460: (1998) 6 SCC 420: 1998 Cr LJ 4033: JT (1998) 5 SC 395: (1998) 3 Crimes 151.

1 xxxii) The important task of the prosecution was to demonstrate that abduction of Mahesh was for murdering him. Even if the murder did not take place, the offence

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would be complete if the abduction was completed with the said objective. Conversely, if there was no such objective when the abduction was perpetrated, but later the abductors murdered the victim, S. 364, I.P.Code would not be attracted, though in such a case the Court may have to consider whether the offence of culpable homicide (amounting to or not amounting to murder) was committed. If the words attributed to the abductors can be believed, the abduction was done for the purpose of finishing him off.

State of West Bengal vs Mir Mohammad Omar AIR 2000 SC 2988: 2000 SCC (Cr) 1516: (2000) 8 SCC 382: 2000 Cr LR (SC) 681.

1 xxxiii) Gangu would certainly have been abducted by somebody (even assuming that it was not this accused) and that person had taken the abducted girl from her house up to the farm. Unless it is suggested that there was another alternative and safer route for the culprit to take the girl unnoticed by any shopkeeper or even a pedestrian, there is no rationale in the reasoning that there is "inherent incredibility" in the version that the accused would have taken the girl through this route.

State of Maharashtra vs Suresh 2000 SCC (Cr) 263: (2000) 1 SCC 471: 2000 Cr LR (SC) 122.

1 xxxiv) The abductors alone could tell the Court as to what happened to the deceased after abduction. When the abductors withheld that information from the Court, there is every justification for drawing the inference, in the light of all the preceeding and succeeding circumstances that the abductors are the murderers of the deceased.

Sucha Singh vs State of Punjab AIR 2001 SC 1436: 2001 SCC (Cr) 717: (2001) 4 SCC 375: 2001 Cr LJ 1734: 2001 Cr LR (SC) 361: (2001) 2 Crimes 69.

1 xxxv) The charges were of abduction of victims and extortion of money. The money was recovered from the house of the accused. However, there was no evidence that money recovered was paid as ransom to the accused. The accused was also named by the co-accused in his confession. The acquittal of the two accused for offences under Ss. 362 and 383 IPC was held justified.

Abdulvahab Abdul Majid Shaikh vs State of Gujarat 2007 Cri LJ 3529 (3533, 3534): 2007 AIR(SC) 2492: 2007(5) SCR 549: 2007(9) SCC 293: 2007(7) JT 63: 2007(4)

SLT 771: 2007 CrLJ 3529: 2007(3) SCC(Cr) 126.1 xxxvi) Where the accused B called another accused B son of S to bring lathi to

kill the deceased R, the accused persons pulled the deceased R down the camel cart, beat him and took him inside the house of the accused K. The deceased R was beaten inside the house and thereafter taken to some unknown place. The persons of neighborhood told the informant that at night they heard the cry of the deceased R coming from the house of K and the deceased R was beaten up inside the house and thereafter taken to some unknown place. Later, the dead body of the deceased R was found in the nalla under a bridge.

Held, in view of the evidence on the record the acts and words imputed to the accused persons when they pulled the deceased from the cart showed that their intention was to so dispose him of as to put him in a danger of being murdered. The conviction of the accused persons under S. 364 IPC was upheld.

Murlidhar vs State of Rajasthan 2005 Cri LJ 2608 (2610): AIR 2005 SC 2345: (2005) 11 SCC 133: (2005) 3 Crimes 1.

1 xxxvii) In the absence of any finding that there was any evidence that the prisoner knew, or had reason for knowing, or that he believed that the girl was under the care of her father at the time, the conviction was bad.

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(1869) 11 Cox CC 246.1 xxxviii) Where the suggestion came from the girl and the accused only takes a

passive part, he does not commit the offence.

(1903) 20 Cox CC 249.1 xxxix) Where the philosophical question raised in an abduction case was

whether "a person who has been abducted from abroad can be tried in the State where the abductor has brought the abducted person".

On 15-6-1992, the Supreme Court of the United States in United States vs Alvarez Machain (1992) 112 S Ct 2188, held that Federal Courts can assert personal jurisdiction over an accused abducted from abroad. Surprisingly, however, the facts in the case were extremely unfavourable for the prosecution. Dr. Humberto Alvarez Machain was a foreign national; the alleged underlying crime was committed abroad, the seizure was not executed on the authority of an arrest warrant; the abduction occurred in Mexico, a country with which the United States had an extradition treaty; the target was abducted by persons deemed to be controlled by US Drug Enforcement Agency (DEA) officials; and the target was held, despite multiple official protests by the Mexican Government. Confronted by these compelling facts, the US Supreme Court nonetheless held that kidnapping presented no jurisdictional impediment to trial.

This is not the first case of its kind. In several earlier decisions in the United States, substantially similar view had been taken. In Ker vs Illinois (1886) 119 US 436, and Frispie vs Collins (1952) 342 US 519, a similar view had been taken, so far as the question of ends and means is concerned. Probably, the only special feature of the recent judgment was that there was a treaty of extradiction in existence between the nations concerned and yet the object was achieved indirectly by the use of somewhat unusual means of getting the accused within the country. The majority of the Supreme Court in the recent case took the view that internal law had not been violated because the extradition treaty did not prohibit the use of such means, in the absence of evidence to the contrary from legislative history or actual intention. As a matter of treaty interpretation, thus, the majority of the Supreme Court adopted "literal" interpretation. Further, it took the view that even customary international law did not prohibit the action in question. Here, there is a conflict between two norms in competition. On the one hand, using force without consent in the territory of another sovereign is wrong. On the other, there is the customary norm that permits jurisdiction and trial even after an irregular arrest; male captus bene detentus (loosely translated: "Improperly captured, properly detained"). There is ample support for the doctrine of male captus in international law.

In Ex parte Scott, (1829) 109 English Reports 166, 167 noted in O'Higgins, "Unlawful Seizures and Irregular Rendition," (1960) British Yearbook of International Law 279, 300, it was held that pre-trial illegalities do not mar the validity of the trial. So far India is concerned, it is fairly well established that the fact that the arrest of the accused is illegal or that certain evidence has been illegally or improperly obtained, is not generally regarded as vitiating the trial.

Note: The doctrine of male captus ought to be repudiated in favour of a rule barring trial after abduction.

The abduction and the trial are illegal and are also contrary to constitutional protection of "due process", as has been envisaged by the American Constitution. This practice of abducting the citizens of the different Nation/State from that State and then to try is un-understandable. This is transgressing of the fundamental rights laid down by the International law and even by the dictum of due process envisaged

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by the American Constitution itself. With all humanity at my command and with great regards to the Lordships of the Hon'ble Supreme Court of United States I beg to differ with the verdict.