CRIMINAL APPEAL No.132 OF 1993 (Against the judgment of conviction and order of sentence dated 12.5.2009 passed in Sessions Case No.118 of 1987 arising out of Chousa P.S. Case No.140 of 1984 by Sri Ram Vyas Ram, the then Ist Additional Sessions Judge, Madhepura). -------- 1. SK. MUSHO, SON OF SHEKH GULAB. 2. SK. IRFAN, SON OF MD. RAHMUDDIN. 3. SK. KALIM @ KARIA, SON OF SHEKH MUSHO. 4. SK. KALIM, SON OF SHEKH MUSHO. 5. SK. TIPO ALIAS ABDUL MIAN, SON OF SHEKH GAFUR. ALL RESIDENTS OF VILLAGE-BANKE, P.S. SUPAUL, DISTRICT-PURNEA. ……………………………………………………………………….APPELLANTS. Versus THE STATE OF BIHAR…………………………………………..RESPONDENT. ----------- For the Appellants : Mr. Ranvir Singh, Amicus Curiae. For the State : Mr. Jharkhandi Upadhyay, A.P.P. ------------- P R E S E N T THE HON'BLE MR. JUSTICE ABHIJIT SINHA Abhijit Sinha,J: All the five appellants have been convicted for commission of offence under Section 364 read with Section 34 I.P.C. and have been sentenced to undergo rigorous imprisonment for 10 years for allegedly having kidnapped the father of the informant and to put him in danger of being murdered in furtherance of common intention of all of them. 2. Chousa P.S. Case No.140 of 1984 was registered under Section 364 I.P.C. on 29.11.1984 on the basis of the - 2 - fardbeyan given by one Praduuman Paswan of village Arajpur Gope, P.S. Chousa who alleged that at about 9 A.M. on 28.10.1984 all the accused persons came to his darwaja and took away his father to their village Banke from where he was taken to Dhamdaha Registry Office to get a document executed in their favour with respect to Sikmi right of a piece of land in village Banke. It is said that the father of the informant was willing to execute such a document in favour of the accused since they had been coming in possession over the same lands from much before this occurrence took place. It is stated that the informant and his father being weak, socially and economically, could not dare to cultivate the said lands. It is further alleged that since his father could not return to his village home for about 4 days search for him began in all earnest and in course thereof the informant went to village Banke to inquire the whereabouts of his father but the accused persons did not give any satisfactory reply and the reply offered was evasive. Searches were also made at the houses of the relatives of the informant but without any success. It is further stated in the fardbeyan that about two months prior to the lodging of the fardbeyan when his father had attempted to cultivate the Sikmi lands standing in his name the accused persons had threatened him since the accused Md. Irfan and Md. Musho were desirous of purchasing the Sikmi rights over the Sikmi lands in question . The informant was sanguine on the basis of the aforesaid reasons that his father had been abducted and kept - 3 - somewhere in captivity to put him in danger of being murdered for the reasons of getting the document in respect of the Sikmi rights of the Sikmi lands executed in their favour. It was also stated that the witnesses of his village had seen his father being taken away by the accused persons. 3. After completion of the investigation a chargesheet was submitted against all the accused, named in the fardbeyan, and following the taking of cognizance and completion of all formalities the case was committed to the court of sessions on 29.6.1987. 4. At the trial before the Sessions Court charges under Sections 364/34 I.P.C. was framed against the five persons and at the trial the prosecution examined as many as 7 witnesses in support of its case. 5. The defence of the accused is a total denial of the prosecution case and they have taken the plea of false implication. However, no evidence either oral or documentary has been adduced by the defence in support of its stand. 6. As it appears that P.W.1 (Upendra Yadav), P.W.6 (Luxman Prasad Mandal) and P.W.7 (Triveni Yadav) are formal witnesses who have appeared in court merely to prove documents like the F.I.R. (Ext.1), the signature of Suresh Prasad, the Mukhiya of Arajpur [Ext.3 and Ext.3A (paragraphs 1 to 96 and 97 to 154 respectively of the case diary)]. As such their evidence is hardly of any consequence and requires no deliberations. - 4 - 7. The grievance of the appellants is that the judgment of conviction is perverse and erroneous in law as also on facts since the findings of the Sessions Court in paragraph-20 of the impugned judgment is that “the evidence of the witnesses examined in the case if scrutinized properly will reveal that the accused named above did not display any harsh attitude while they were taking Yadu Paswan to their village and from there to Dhamdaha” It was submitted on the aforesaid premise that under the circumstances only offence under Section 362 I.P.C. is made out as no force or any deceptive means have been resorted to by the accused against the victim Yadu Paswan and the ingredients of an offence under Section 364 I.P.C. was sadly lacking. The further grievance of the appellants is that in the absence of any material brought before the court by way of evidence that Yadu Paswan had indeed been murdered the conviction under Section 364 I.P.C. was unjustified and not sustainable in law. The appellants were also critical of the finding of the Trial Judge in respect of the genesis of the occurrence. In this context, drawing my attention to paragraph-13 of the impugned judgment, it was sought to be pointed out that it had been mentioned that Yadu Paswan had no Sikmi land in village Banke and accused Irfan had been cultivating the lands before the occurrence. The appellants were also critical of the finding of the Sessions Court on the point of abnormal delay in the institution of the prosecution case. In this context, it was submitted that the Trial Judge being aware and - 5 - coming to a finding that the case had been instituted after one month from the date of the occurrence illegally condoned the same as according to him in the circumstances the abnormal delay was quite probable. 8. It appears from perusal of the records that the Investigating Officer of the case had not appeared and figured as witness for the prosecution and, therefore, the fardbeyan and the formal F.I.R. were sought to be proved by one of the formal witnesses. It is true that the formal F.I.R. or the fardbeyan are not substantive evidence and its purpose is to corroborate or to contradict its matter. But then the non examination of the I.O. prejudicially affects the defence case when the defence wants to prove some material contradictions in the depositions of prosecution witnesses. In the instant case, in the face of the contradictory statements of the witnesses vis-a-vis their statements under Section 161 Cr.P.C. and their depositions in court, the defence case has been prejudiced by the non examination of the I.O. since the defence did not get the privilege of drawing the attention of the I.O. to the contradictory statements of the prosecution witnesses and putting certain objective questions to the I.O. which may have disproved the prosecution case. In this view of the matter an adverse inference against the prosecution ought to have been drawn by the learned Trial Judge. 9. There is another aspect of the matter. The very genesis of the prosecution case appears to be falsified in view of - 6 - the definite finding of the trial court that the name of Yadu Paswan does not appear as a Sikmi raiyat in the recent survey records nor is the land in possession of Yadu Paswan. If that be the position then there was no question of Yadu Paswan being abducted for purpose of executing a deed for transfer of Sikmi rights over Sikmi lands to the appellants. It is also to be noted that Sikmi rights are not transferable under law. The reliance of the Trial Judge on paragraphs of the case diary for a finding that Yadu Paswan had Sikmi rights on Sikmi lands is uncalled for and is not permissible. 10. P.W.2 (Shivnath Paswan), P.W.3 (Anandi Mishra), P.W.4 (Chulhia Mandal) and P.W.5 (Buddhan Paswan) have stated in court that the appellants had taken away Yadu Paswan to their village and from there to Dhamdaha Registry Office in their presence and before their eyes for getting the document executed in their favour with respect to Sikmi rights. In effect, they have tried to support the prosecution case in material particulars. But it would also appear that some of these very witnesses have stated that they merely saw Yadu Paswan being taken away by the accused persons but were not aware of the reasons or purpose for which he was being taken away and that they had come to know of the purpose subsequently when in course of efforts to trace out the whereabouts of missing Yadu Paswan they were given to understand the reasons for the alleged kidnapping of Yadu Paswan. - 7 - 11. Even if the prosecution case and the deposition of the witnesses aforementioned in respect of Yadu Paswan being taken away is to be believed then one has to consider whether the mere fact of a person being taken away would constitute an offence under Section 364 I.P.C. 12. To establish an offence punishable under Section 364 I.P.C. it must be proved that the person charged with the offence had the intention at the time of abduction that the person abducted would be murdered or would be so disposed of as to be put in danger of being murdered. In other words, it would be necessary for the prosecution to establish that the person charged intended at the time of abduction to place the abducted person in a position which would put her or him in danger of being murdered and that the intention was present at the time of abduction. 13. In the instant case, the reason for abduction of Yadu Paswan is that the accused persons were desirous of Yadu Paswan executing a deed transferring his Sikmi rights in the Sikmi lands in favour of the accused but from the evidence led by the prosecution, it is clear that Yadu Paswan had no Sikmi lands. Therefore, the very intention assigned by the prosecution for the alleged kidnapping of Yadu Paswan does not appear to be very convincing and that too in the light of the legal position which makes Sikmi rights non transferable. 14. In view of the discussions made above, I am of the view that the prosecution has not been able to prove its case - 8 - beyond all reasonable doubts which is a statutory requirement for inviting conviction or for arriving at a finding of a person being guilty of the offence he is charged with. 15. In view of the discussions made above, the appeal succeeds and the judgment of conviction and order of sentence recorded by the learned Trial Judge in Sessions Case No.118 of 1987 arising out of Chousa P.S. Case No.140 of 1984 is hereby set aside. 16. It appears that the appellants were directed to be released on bail vide order of this Court dated 26.5.1993. They are, accordingly, discharged from the liabilities of their respective bail bonds. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 18th day of August, 2009. Pradeep Srivastava/A.F.R.