Criminal Appeal (SJ) No. 119 OF 1997 Against the judgment and order dated 17/18.12.1996 passed by Sri Anil Kumar Verma, Additional Sessions Judge-II, Katihar in Sessions Case No. 251 of 1995. ************ Tullu Mian, S/o Juddin Mian, Resident of Village- Labha, P.S.-Pranpur, District-Katihar. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellant : Mr. Pramod Mishra, Adv. For the State : Mr. B.B. Singh, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellant has been convicted under Section 364 IPC and sentenced to RI for seven years and a fine of Rs. 2,000/- in default of which a further period of one year RI by the Additional Sessions Judge-II, Katihar in Sessions Case No. 251 of 1995 by a judgment dated 17/18.12.1996. 2. The case of the prosecution according to Santolia Devi, P.W. 1 is that while about 16 days before 25.07.1995 when she was sleeping in her room with her husband some body knocked at her door. When the husband enquired it was learnt the appellant Tullu Mian had knocked. It was further stated that when the door was opened the appellant Tullu Mian asked the husband of the informant to proceed with him to talk with Anirudh Mandal and others. The informant’s husband did not return after the said incident and, therefore, she suspected that he had been kidnapped for purpose of murder by the appellant and others. 2 3. During trial the prosecution in all examined four witnesses out of whom P.W. 1, Santolia Devi is the wife of the alleged victim. P.W. 2, Sekh Manjur Alam is the father of the informant. P.W. 3 Abdul Sattar is a tendered witness. P.W. 4, Raj Kumar Singh is Investigating Officer. 4. During trial P.W. 1 in her evidence supported the factum and place of occurrence that the appellant had knocked at the door and asked her husband to accompany to Bandh where other persons were present there whereafter he did not return. She stated that she followed her husband but none was present there. This evidently is an improvement and development during trial since this fact was not mentioned in the First Information Report which was instituted after seventeen days of the occurrence. P.W. 2, the father of the informant has deposed as a hearsay witness that the appellant had taken away the alleged victim whereafter he did not return. The rest of the witnesses need not discussion. 5. From the evidence of the sole witness i.e. P.W. 1 evidently no offence under Section 364 IPC is made out since even as per the prosecution case the alleged victim had accompanied the appellant willingly. It was categorically stated by P.W. 1 that her husband had accompanied the appellant willingly and voluntarily. Also there is no evidence that the alleged victim was taken away for being murdered. 6. In view of such statement, important ingredient of Section 364 IPC is not satisfied and, therefore, this Court is not inclined to uphold the conviction of the appellant. In the result, the appeal is allowed and the 3 judgment dated 17/18.12.1996 passed by the Additional Sessions Judge-II, Katihar in Sessions Case No. 251 of 1995 is, hereby, set aside. The appellant is acquitted of the charge and discharged of the liability of his bail bond. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 15th July, 2011. NAFR/Vikash/-