Criminal Appeal (S.J.) No. 320 0f 1997 (Appeal against the Judgment and Order dated 1.12.1997 passed by the 4th Additional Sessions Judge, Purnia, in Sessions Case No. 183 of 1990/ Trial No. 233 of 1996.) ------------ 1. MD. HANIF @ HANNA SON OF LATE ALI JAN MIAN 2. MD. ZAHID SON OF MD. MAHMOOD 3. MD. MUNNA SON OF MD. ISLAM 4. MD. SHAKOOR SON OF LATE MASOOQUE MIAN 5. MD. MAHMOOD SON OF LATE GHULAM RASOOL 6. MD. SALIM SON OF LATE MUSLIM ANSARI 7. MD. MANZOOR SON OF LATE ABDUL RAHMAN ALL RESIDENT OF VILLAGE MADHOPARA, P.S. KHAZANCHI HAT, IN THE DISTRICT OF PURNEA. ------- APPELLANTS. Versus THE STATE OF BIHAR ------- RESPONDENT. -------- For the Appellant : Mr. Shakil Ahmad Khan, Sr. Adv. Mr. Hamayou Ahmad Khan, Adv. Mr. Joy Prakash Singh, Adv. Mr. Shailendra Kumar, Adv. For the State : Mr. R.B. Roy ‘Raman’, A.P.P. -------- P R E S E N T THE HON’BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The Appellants have been convicted under Sections 364 and 367 of the Indian Penal Code and sentenced to rigorous imprisonment for five years under each count by the 4th Additional Sessions Judge, Purnea, by a Judgment dated 1.12.1997 in Sessions Case No.183 of 1990/Trial No. 233 of 1996. 2. The case of the prosecution according to Md. Shamim Ansari is that on 28.6.1989 at about 2.00 P.M. while Md. Zafar, his step brother was sitting in his shop as usual, all the accused persons came there, and forcibly took him away and brought him to the house of Md. Hanif where he was brutally assaulted and then he was taken towards the Patna High Court CR. APP (SJ) No.320 of 1997 dt.19-07-2011 2 house of Mahmood Mian whereafter he became traceless. This complaint was filed on 1.7.1989 i.e. about four days later. 3. During trial, the prosecution examined eight witnesses out of whom PW-6 and PW-7 are formal in nature whereas PW-8 has been declared hostile. PW-1 Manikchand has stated that while he was at his shop at Laheri market, where the alleged victim Zafar also had a painting shop, on 28.6.1989, some 4-5 persons came to the shop of Zafar and took him on a rickshaw one of them was dressed in a Police uniform. He identified only Appellant No. 7 Md. Manzoor among the miscreants. PW-2 Dharmendra Kumar Thakur has stated that he was an assistant in the painting shop of Zafar and on 28.6.1989 at about 2.00 P.M., ten persons came to his shop out of which 4-5 persons entered the shop, one of whom was dressed in a Police uniform and he identified Appellant No. 2, Md. Zahid, Jalal and Manzoor Appellant No. 7 among the miscreants. They allegedly took away Zafar on a rickshaw whereafter he was never seen. He stated that Md. Shamim, brother of Md. Zafar who also happens to be the Complainant was also present at the time of occurrence and he had followed the miscreants. PW-3 Ali Murtaza has stated that on 28.6.1989 he had seen Md. Zafar being taken away by Shakeel, Hanif, Jalal, Manzoor and Munna towards the house of Jalal where he was confined and, thereafter, he was never seen alive. PW-4 Md. Shamim who is the Informant of the case and also the brother of the alleged victim has stated that on the date of occurrence, all the accused persons came along with another person dressed in a Police uniform and stated that Zafar was being called by the Police. Zafar refused to go along with them but he was forcibly put him on rikshaw despite its protest, and taken away. He followed his brother for a while, but returned when he was threatened. He was informed by his wife that she had seen Zafar having been confined in the house of Md. Jalal and being beaten by the accused Patna High Court CR. APP (SJ) No.320 of 1997 dt.19-07-2011 3 persons. The reason for the occurrence was that Jalal had wanted Zafar to marry his sister Shamim Mano but Zafar was not ready to do so for which he was threatened with dire consequences and thus, occurrence took place. 4. On the other hand, a suggestion has been given to the Informant that in fact, Md. Zafar had misbehaved with the sister of Jalal for which a Panchayti had been held and it was decided that Md. Zafar marry Shamim Mano but he had refused to do so. 5. PW-5 Khushbu Nisha, the wife of the Complainant has stated that on the date of occurrence when she was in her house, she heard some noise from the house of Jalal and when she went there, she saw that Zafar had been confined in his house and rest of the accused persons were assaulting him after having him tied up. She also stated that this occurrence has taken place on account of the fact that Zafar had refused to marry the sister of Jalal. 6. On going through the evidence of these five witnesses, it is apparent that occurrence had taken place on 28.6.1989 in their full view despite which no action was taken by only them to call the Police or rescue the boy. There is no evidence that the intention of the accused person in taking away Md. Zafar was to commit his murder nor is there any evidence to show that grievous hurt would be caused to him. From the evidence of these five witnesses, the only material that can be deduced is that in fact, the accused persons had indulged in confining Md. Zafar. 7. In view of complete paucity of evidence with regard to the intention of the accused persons to commit murder or to cause grievous hurt to the abducted person, I am inclined to set aside the conviction of the Appellants under Sections 364 and 367 of the Indian Penal Code. However, they are convicted for the offence under Section 341 of the Patna High Court CR. APP (SJ) No.320 of 1997 dt.19-07-2011 4 Indian Penal Code but the sentence that they have already undergone during trial shall be sufficient in the interest of justice. 8. In the result, the Appeal is dismissed with the aforesaid modification in conviction and sentence. (Anjana Prakash, J.) Patna High Court, Patna Dated, the 19th July, 2011. NAFR/S.ALI.