Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.357 of 2000 =========================================================== 1. Md. Abbas son of Abldul Guium 2.. Taiwab alias Touwab alias Kasi son of Azizul Rahman 3. Md. Aiyub, son of Khairat Ali 4. Umera Khatoon, wife of Md. Touwab Ali alias Kasi, All resident of Village – Suhans, P.S.Bisfi, District- Madhubani. .... .... Appellants Versus State of Bihar .... .... Respondent =========================================================== Appearance : For the Appellants : Mrs. Archana Sinha, Amicus Curiae For the Respondent/s : Mrs. Abha Sinha, A.P.P. For the informant : Mr. Shailendra Kumar Jha, Advocate =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Date: 19-10-2012. Nobody appears for the appellants. Mrs. Archana Sinha, Advocate, is appointed as amicus curiae. 2. This appeal is directed against the judgment and order dated 21.9.2000 passed by the 2nd Additional Sessions Judge, Madhubani, in Sessions Trial No. 149 of 1991 by which he has found the appellants guilty of offence under [STATUTE] and has awarded them sentence to undergo R.I. for seven years. 3. The F.I.R. was instituted by Md. Muslim alleging therein that his brother Wahid was taken away by the appellants after enticing him to work in Delhi. After about a month, one Shamim Patna High Court CR. APP (SJ) No.357 of 2000 dt.20-10-2012 2 and Hafizul returned from Delhi and they disclosed that they did not know the whereabouts of Wahid. Thereafter the informant sent one Chhotu, Shamimul and Hafizul to Delhi to try and find out about the where-about of Wahid. They came back and reported that they could not find any trace of Wahid. It is alleged that the appellants are responsible for kidnapping and eventually doing away with his life. 4. The defence on behalf of the appellants is that the case is completely false and the appellants have been dragged into this case because of old enmity. It is stated that appellant no. 4 had an illicit relationship with Wahid and were caught in the act, for which a Panchayat was held in the village. It is also said that the appellants also alleged enmity due to a land dispute. The informant claims that appellant no.2 had encroached upon his land. 5. During the trial, nine witnesses have been examined in this case. All the witnesses are closely related to each other and came from one family, whereas the appellants also belong to a common family. Evidence would also reveal that both sides were related to each other. The I.O. has not been examined in this case. P.W.1 and P.W. 9 are brothers of Wahid whereas others are uncle and cousins of the informant. P.W.1 Moti Sah is the brother of Wahid. He supports the prosecution case. However, in his cross-examination, Patna High Court CR. APP (SJ) No.357 of 2000 dt.20-10-2012 3 he has stated that Wahid used to work in the field and he used to go outside the village to earn his livelihood. It is specifically stated that Wahid not only had gone to Delhi on several occasions, but had also gone to Calcutta to earn his livelihood. It is also stated that Wahid had two wives – one was from village Rajo, whereas the second wife was from Calcutta. At paragraph-5 of his cross-examination it is stated that Wahid had gone out of the village to work on 4-5 occasions. He admits that there was some dispute between Wahid and Muslim which was later resolved. 6. On the basis of the evidence of P.W.1 who is the brother, it is apparent that there was no occasion for anyone to persuade Wahid to go to Delhi to work as he has been to Delhi on several occasions and had lived in Delhi. 7. It is not a fact that the victim was a young impressionable boy rather he was a grown up man aged about 30 years at the time when the occurrence allegedly took place and as such, the story that the accused appellants had enticed Wahid to go to Delhi to earn his livelihood, seems unpalatable. P.W. 1 Moti Sah who is brother of the victim has been examined as a first witness. Subsequent statement would indicate that the prosecution is trying to water- down the evidence of P.W.1, who spoke the truth regarding the actual state of affairs. P.W.2 Md. Eid Mohammad is also a relation Patna High Court CR. APP (SJ) No.357 of 2000 dt.20-10-2012 4 of the informant. He supports the prosecution version. He admits in his cross-examination that there is enmity between Wahid and the appellants. Wahid is said to have an illicit relation with the wife of Taiwab, i.e.Umera Khatoon who is also an appellant. He supports the case that Wahid had gone to Calcutta and got married for the second time at Calcutta. He is trying to clarify the evidence of P.W.2 by stating that Wahid had never left the Village for the purposes of getting job. P.W.2 is obviously an interested witness which would appear from the genealogical table given by P.W.3 at para-3 of his cross-examination. In view of the fact that he along with others has made out a case which is difficult for this court to believe. 8. P.W.3 Md. Hasan Jan has given the details regarding the relationship between the witnesses and the informant as well as relationship between the appellants and the informant’s family. The ancestors of the grand father of the informant had a brother and the appellants accused are from his brother’s family. This witness has stated that he and the accused persons used to leave in Delhi. He has specifically stated that he had settled in Delhi. Later, he says that Wahid lived in Delhi. He next stated that Wahid used to work as rickshaw puller in Delhi. He admits that there was case between the father of appellant no.3 and Md. Jan in which he was also an Patna High Court CR. APP (SJ) No.357 of 2000 dt.20-10-2012 5 accused. This court cannot believe his evidence as it is inconsistent with respect to the movement of Wahid from the village. He is a highly interested witness and there is a direct

Applicable IPC Section: 364

Statute Text:
Section 364 of the Indian Penal Code. Kidnapping or abducting in order to murder. Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.