HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.500 OF 2007 & CRIMINAL APPEAL NO.1121 OF 2007 DATE:13.08.2010 CRIMINAL REVISION CASE NO.500 OF 2007 Between: Borkar Mallaiah …… Petitioner. And: The State of AP., rep. by its PP, High Court of A.P., Hyderabad and another …..Respondents CRIMINAL APPEAL NO.1121 OF 2007 Between: Subba Madhukar …… Petitioner. And: The State of AP., rep. by its PP, High Court of A.P., Hyderabad …..Respondent. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.500 OF 2007 & CRIMINAL APPEAL NO.1121 OF 2007 COMMON JUDGMENT: 1. The appellant/A-1 was convicted by the I Additional Sessions Judge, Adilabad by judgment dated 27.08.2007 in Sessions Case No.159 of 2002 for offence punishable under Section 364 IPC and was sentenced to Rigorous Imprisonment for five years and fine of Rs.2,000/- . 2. A-1 was working as Additional Sub Inspector of Police, Mandamarry. The alleged victim Borakari Rajam @ Rajaiah was an accused person in Crime No.17 of 1988 for offence punishable under Section 392 IPC pending in Kalamadugu (Jannaram) Police Station of Adilabad District. On 09.05.1988 he was arrested in that crime and was sent to judicial custody. It is alleged that on 23.05.1988, A-1 approached P.W.2 K. Kishan Rao, Advocate of Luxettipet and instructed him to file bail petition for Rajaiah and that accordingly P.W.2 filed bail petition and obtained bail order from the Judicial Magistrate of the First Class, Luxettipet and that after release of Rajaiah, A-1 took him along with him and that subsequently whereabouts of Rajaiah were not known and that on 30.05.1988 some unknown dead body of a person who died in police encounter was found. The trouble arose when Luxettipet Bar Association took up the matter on the same day and boycotted the court on this issue. 3. The lower court framed charges against A-1 and two others for offences punishable under Sections 364/34, 302/34 and 420/34 IPC. A-1 and two others pleaded not guilty of the charges. After trial in which P.Ws.1 to 17 were examined and Exs.P-1 to P-21 and D-1 were marked, the lower court found A-1 alone guilty of offence punishable under Section 364 IPC only; and passed the above said conviction and sentence against him. 4. It is contended by the appellant’s counsel that even if evidence of the entire prosecution witnesses is accepted to be true, there is no proof of abducting Rajaiah much less for the purpose of committing his murder. In order to constitute an offence of abduction defined in Section 362 IPC, the prosecution has to prove that there was exercise of compulsion by the accused by use of force or inducement by deceitful means to the victim to go from one place to another. In the case on hand, except evidence regarding A-1 giving instructions to P.W.2 to move bail application for Rajaiah in Crime No.17 of 1988, there is absolutely no evidence to show that after Rajaiah was released from Sub Jail, Luxettipet, he joined A-1 and both of them went together. 5. P.W.1 who is father of Rajaiah has no personal knowledge about any of the facts or circumstances relating to this case. He gives evidence only on information furnished to him. It is evidence of P.W.2 that on 23.05.1988, A-1 came to his office at 09.45 a.m and asked him to move bail application for Borakari Rajam @ Rajaiah. On A.1’s instructions, P.W.2 moved bail application before the Magistrate at Luxettipet, obtained bail order, furnished sureties and got release orders. P.W.2 says that it was A-1 who furnished sureties and gave solvency certificates and that on A.1’s representation he identified the sureties and got Rajaiah released. P.W.2 says that when another Advocate by name K. Rajanna P.W.11 stated to him about Rajanna’s father instructing him to move bail application, P.W.2 stated to P.W.11 that A.1 had represented to him about Rajanna being his farm servant. P.W.2 in cross-examination deposed that after release, Borakari Rajam was brought to Deputy Nazir’s room where P.W.2 gave chit noting the next date of hearing and asked Rajanna to come on the next date of hearing. P.W.2 did not speak about anybody accompanying Rajaiah subsequent to his release, much less A-1. P.W. 3 is Executive Officer of Mandamarry Gram Panchayat who issued Exs.P-2 and P-3 valuation certificates relating to the sureties. P.W.4 is Attender in-charge of Sub Jail duty at Luxettipet. P.W.4 says that as per release order of the court, he released Rajaiah on 23.05.1988. P.W.5 who is one of the sureties for Rajaiah turned hostile to the prosecution. P.W.6 is Head Clerk of the Magistrate Court at Luxettipet. P.W.7 is A.R. Constable who was on guard duty at Sub Jail, Luxettipet. P.W.8 is the then in-charge Head Constable at Sub Jail, Luxettipet. P.W.9 is another Reserve Constable who was on guard duty at Sub Jail, Luxettipet. P.W.10 is the then Magistrate at Luxettipet. All of them speak to bail order and release order relating to Rajaiah. There is no dispute about P.W.10 granting bail to Rajaiah and about giving release order after sureties were furnished. 6. P.W.11 deposed that P.W.2 informed him about A-1 approaching him to move bail application on behalf of Borakari Rajaiah on the ground that he was his farm servant. It was a case of professional controversy between P.W.2 and P.W.11 regarding moving of bail application for Rajaiah. P.W.11 says that he told P.W.2 about there being danger to life of Rajaiah since Mandamarry police themselves got him released. P.W.11 says that on the day of release of Rajaiah, he saw A-1 to A-3 in court premises during evening time. He further says that later he came to know about A-1 taking Rajaiah in a Jeep after getting him released from Sub Jail. P.W.11 was not an eye witness to A-1 taking Rajaiah with him in a Jeep after his release. P.W.11 deposed to the said version on some information conveyed to him. It is nothing but hear-say evidence. P.W.11 did not disclose source of information to him. So no reliance can be placed on that piece of evidence of P.W.11. 7. P.W.12 is said to have accompanied P.W.11 to Mandamarry Police Station after publication of news regarding death of unidentified extremist in news papers. Nobody identified the said unidentified dead body of the extremist, much less by P.W.1. There is no proof of death of Rajaiah. No Corpus delicti of Rajaiah is found. P.Ws.14 to 17 are official witnesses who are CID Police Officers and expert in Finger Print Bureau. 8. The above evidence let in by the prosecution does not disclose basic statutory facts required to be proved for abduction as contemplated under Section 362 IPC. There is no evidence at all to show that A-1 either compelled Rajaiah by force or induced Rajaiah by deceitful means to go from one place to another. There is no evidence at all that Rajaiah accompanied A-1 after his release from Sub Jail, Luxettipet either voluntarily or involuntarily or by deceitful means or by force. In the absence of proof of meeting between Rajaiah and A-1 subsequent to release of Rajaiah from Sub Jail, Luxettipet and in the absence of A-1 taking Rajaiah with him after his release from Sub Jail, Luxettipet, finding of the lower court that A-1 abducted Rajaiah is wholly without any basis. The said finding is based on no evidence at all. There is no indication even to show that Rajaiah was taken by A-1 with an intention to commit his murder. It is nobody’s case that Rajaiah was an extremist. He involved himself only in some property offence like robbery. It is not as if Rajaiah was a regular property offender. Evidence on record shows that there was only one case pending against Rajaiah in Crime No.17 of 1988 of Mandamarry Police Station. In that view of the matter, this Court does not approve finding of guilt recorded by the lower court against A-1 for offence punishable under Section 364 IPC. I find that A-1 is not guilty. 9. For the same reasons mentioned above, Criminal Revision Case No.500 of 2007 filed by P.W.1 who is father of Rajaiah, does not deserve any consideration. 10. Criminal Revision Case No.500 of 2007: In the result, the revision petition is dismissed. 11. Criminal Appeal No.1121 of 2007: In the result, the appeal is allowed setting aside the conviction and sentence passed by the lower court against appellant/A-1 and acquitting him. __________________________________ SAMUDRALA GOVINDARAJULU,J. Date:13.08.2010. Gk. HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE NO.500 OF 2007 & CRIMINAL APPEAL NO.1121 OF 2007 Date:13.08.2010 Gk.