Cannot Infer Intent Under Section 366 IPC Based On Uncharged Offence Of Rape: Allahabad High Court Acquits Accused

"The Trial Court cannot be permitted, in effect, to import the ingredient of an uncharged and untried offence to sustain a conviction for an offence that depends on proof of intent connected to that very uncharged offence, without the appellants having the opportunity to meet that specific charge at trial." High Court of Judicature at Allahabad, in a significant ruling, held that a trial court cannot establish the specific culpable intent required for a conviction under Section 366 of the Indian Penal Code by relying on a prosecutrix's allegations of rape when no charge under Section 376 IPC was ever framed.

A single-judge bench of Justice Santosh Rai observed that the prosecution must independently prove the act of kidnapping and the specific intent to seduce or force a woman into illicit intercourse beyond a reasonable doubt, without selectively presenting a curtailed version of events.

The case stems from a 1975 First Information Report alleging that the appellant Jhabboo, his deceased brother Jhinkoo, and a woman named Kadora lured the minor prosecutrix away from her village, confined her in Gorakhpur, and subjected her to rape. Despite the FIR invoking kidnapping and rape, the investigating agency submitted a charge-sheet omitting Section 376 IPC, and the trial court eventually convicted the appellant solely under Section 366 IPC in 1984. The present appeal was filed challenging this conviction, highlighting that the primary instigator was never tried, the rape charges were inexplicably dropped, and independent witnesses had turned hostile.

The primary question before the court was whether the essential ingredients of Section 366 IPC, specifically the taking away of a minor and the intent to compel her into illicit intercourse, stood established beyond a reasonable doubt. The court was also called upon to determine if the sole, uncorroborated testimony of a prosecutrix could sustain a conviction when material contradictions permeated her narrative and the initial taking away was never proven.

Evidentiary Value of Prosecutrix's Sole Testimony

The court began by examining the reliability of the prosecutrix's oral testimony, noting that while a conviction can generally rest on her uncorroborated evidence, it must be inherently truthful and inspire confidence. Justice Rai pointed out that where contradictions and admissions strike at the root of the prosecution's narrative, the evidence cannot be treated as absolute without independent backing. The court highlighted the prosecutrix's crucial admission that she independently broke open her mother's box to take cash and ornaments before leaving the house.

Absence of Alarm Undermines Coercion Claims

The bench carefully evaluated the conduct of the prosecutrix throughout the alleged abduction. The court found it highly damaging to the prosecution's case that she travelled on two separate bus journeys and resided in Gorakhpur for several days without raising a single alarm. The judge noted that these omissions were not peripheral, as they went directly to the core question of whether she was actively "taken" or "enticed" by the appellants, or whether she left of her own volition amidst long-standing family discord.

Failure to Prove Minority and the Act of "Taking"

Turning to the foundational charge of kidnapping from lawful guardianship under Section 361 IPC, the bench emphasised that the prosecution failed to produce any documentary or medical evidence, such as an ossification test, to conclusively prove the prosecutrix was a minor. Citing the Supreme Court's ruling in Babloo Pasi v. State of Jharkhand, the court observed that oral estimations of age stand as a weak and unreliable basis for such a finding. Furthermore, the court reiterated the legal principle from Thakorlal D. Vadgama v. State of Gujarat, stating that the requirement of "taking" under Section 361 IPC connotes some active or direct part played by the accused which acts as the proximate cause of the minor leaving parental protection.

Selective Prosecution and Uncharged Offences

The bench strongly criticised the investigating agency for its selective and unexplained dilution of the charges, particularly the dropping of Section 376 IPC (rape) and the complete non-prosecution of Smt. Kadora, the woman who initially instigated the prosecutrix to leave. The court found it untenable that the trial court inferred the culpable intent for Section 366 IPC—the intent to force or seduce to illicit intercourse—solely from uncharged rape allegations made during witness testimony. The judge observed that an accused cannot be ambushed by an uncharged offence to prove the intent of a charged one.

"Selective and unexplained dilution of the offences charge-sheeted, coupled with non-prosecution of a person assigned a central and initiating role in the FIR, is a matter this Court cannot ignore, since it bears directly on the reliability and completeness of the investigation and the case as presented at trial."

Hostility of Independent Witnesses

Addressing the fact that the only two independent "last seen" witnesses cited in the FIR turned hostile during the trial, the court acknowledged that while their testimony is not entirely effaced per the precedent in Khujji v. State of M.P., their hostility leaves the prosecution without critical corroboration. In the context of admitted prior enmity between the families and glaring omissions by the Investigating Officer, including the failure to prepare a proper site plan, the court held that the entire genesis of the incident became highly doubtful.

Benefit of Doubt Must Enure to the Accused

The court concluded that the cumulative effect of an FIR lacking a definite date, the absence of age proof, hostile witnesses, and severe investigative defects created a substantial doubt. The bench clarified that the burden of proof never shifts to the accused merely because a woman was found in their company. It was held that where two views are reasonably possible on the evidence on record, the view favourable to the accused must be adopted.

Setting aside the judgment and order of conviction passed by the Additional Sessions Judge, Basti on March 28, 1984, the High Court allowed the appeal and acquitted the appellant Jhabboo of the charge under Section 366 IPC. The court directed that he be released forthwith, with his bail bonds cancelled and sureties discharged, concluding a legal battle spanning over four decades.

Date of Decision: 16 July 2026