H. C. MITTAL, J. ( 1 ) THE above named appellants have preferred this appeal against their conviction and sentence under S. 364, I. P. C. to eight years R. I. passed by Sri V. M. Kher, IV Addl. Sessions Judge, Etah by his judgement and order dated 5-2-1979. ( 2 ) THE prosecution case, in brief, as given in the first information report (Ex. Ka-2) lodged by Nathoo Singh on 5-9-1978 at 7 p. m. is that Data Ram, deceased, was his uncle; that Sri Brijendra Pratap son of Raja Saheb Sarnam was murdered and in that case appellants Mahabir and Rustam were accused and his uncle Data Ram deceased was a prosecution witness; that deceased Data Ram enjoyed the company of these appellants and they used to during together. That on 4-9-1976 at about 8 p. m. appellants Mahabir and Rustam along with another accused Itwari came at the Gher of Data Ram and had taken him to the engine of Roop Ram for drinks and enjoying a chicken. Data Ram, however, did not return till the following morning, hence he became suspicious and searched for Data Ram. At the engine of Roop Ram, Khan Sahai son of Roop Ram told him that the appellants along with Data Ram had come at the engine and remained there till 9 p. m. that they had enjoyed the drinks but thereafter they had left toward, he river. The informant then went toward the river and there he found moustaches of Dataram at the river side and also some drops of blood. They tried to search the dead body but only a torn Kurta of Dataram was found (sic) the dead body was not found. As the river was overflowing the dead body could not be recovered. He lodged the first information report at the police station Marhara as stated above in the evening at 7 p. m. on 5-9-1976, also stating therein that he had suspicion against all the three accused namely, Mahabir, Rushtam and Itwari, who had taken the deceased from the Gher. ( 3 ) ON the basis of the first information report a case was registered and investigation of the case was entrusted to S. I. S. K. Tyagi, who reached the village in the night end on the following day on 6-9-1976 he inspected the site where moustaches and blood stains of Data Ram were found. ( 3 ) ON the basis of the first information report a case was registered and investigation of the case was entrusted to S. I. S. K. Tyagi, who reached the village in the night end on the following day on 6-9-1976 he inspected the site where moustaches and blood stains of Data Ram were found. He put the moustaches as well as sample of blood stained earth in separate sealed bundles and prepared the recovery memos. He also seized the Kurta alleged to be of the deceased. He made every effort to find out the dead body but could not succeed. However on 7-9-1976 he came to know that the dead body had been found within the circle of police station Baghwala. ( 4 ) ON 12-9-1976 the Investigation Officer received the inquest report and postmortem report from police station Baghwala. Thereafter, on completion of the investigation he submitted charge-sheet and thereafter the case was committed to the Court of Sessions, where the accused were charged under Ss. 364,302 read with Ss. 34, I. P. C. and 201, I. P. C. to which they pleaded not guilty. Accused Itwari had been murdered before he start of the evidence, hence only these two appellants stood their trial. ( 5 ) TO prove its case the prosecution in all examined ten witnesses, of whom P. W. 1 Natthu, the informant, P. W. 4 Bhagwan Singh and P. W. 5 Hakim Singh have deposed that in their presence the appellants had taken the deceased from his Gher to the engine of Roop Ram for enjoying drinks and the chicken and thereafter they did not see the deceased alive. P. W. 2. Pokhi Ram gave evidence that when he was returning from village Pithanpur Solai then at about 9. 30 p. m. (in the night) he saw the appellants in the field of Nannu Mal along with Data Ram, and on the following day in the morning he heard that Data Ram had not returned and a search was made, when his moustaches and kurta were found clear the near P. W. 6 Roop Ram did not support the prosecution case. He was a witness to the effect that in the night along with Pokhi Ram he had also seen the appellants with the deceased in the field of Nannu Mal. He was a witness to the effect that in the night along with Pokhi Ram he had also seen the appellants with the deceased in the field of Nannu Mal. P. W. 3 Chandrapal is the son of Data Ram and has stated about the recovery of the dead body from the river. P. W. 8 Dr. Dhirendra Pratap had done the autopsy on the dead body and prepared the post-mortem report Ex. Ka-11 and had noted the following : "the deceased was about 45 years of age. Rigor mortois had passed of. Body was in a state of decomposition. Maggots were crawling. Skin and muscles of the right side of upper half were absent. All soft tissues from the shoulder to left arm were absent. Right ear was absent. Tissues of the right cheek, left ear were partially present and skin of cheek was absent. He also noted 24 incised wounds over the chest and abdomen. One incised wound 8 cm x 5 cm over abdomen below the umblies and 3 incised wounds on the mouth and one incised wound on right side of the face. ( 6 ) IN the opinion of the doctor death was caused due to shock and haemorrhage on account of injuries. The post-mortem was done on 7-9-1976 at 3 p. m. and in the opinion of the doctor the death had taken place about 3 days back. In the end he further stated that death might have taken place sometime in the night between 4th and 5th September, 1976. ( 7 ) P. W. 10 S. I. Jitem Singh had completed the investigation of the case and submitted the charge-sheet. In defence accused did not adduce any evidence. ( 8 ) THE learned trial Judge believed the prosecution evidence that there was a motive for the accused and that they had taken away the deceased on 4th Sept. 76 from his Gher as set up by the prosecution and that thereafter the deceased was not found alive but his dead body was recovered. Evidence regarding the murder of the deceased having been committed by the accused was not found sufficient and worthy of reliance. Hence he acquitted the appellants of the offence under Ss. 76 from his Gher as set up by the prosecution and that thereafter the deceased was not found alive but his dead body was recovered. Evidence regarding the murder of the deceased having been committed by the accused was not found sufficient and worthy of reliance. Hence he acquitted the appellants of the offence under Ss. 302/34 and 201, I. P. C. but convicted and sentenced them to eight years R. I. under S. 364, I. P. C. ( 9 ) ON being aggrieved this appeal has been preferred and on behalf of the appellants it was urged that once the appellants have not been found guilty of the murder they could not be held guilty of the offence under S. 364, I. P. C. and that the prosecution evidence to that effect was also wholly unreliable. ( 10 ) AS regards the contention that once the appellants were acquitted of murder they could not be held guilty for the offence under S. 364, I. P. C. reliance was placed on "saidula v. Hyderabad Govt. , AIR 1953 Hyd 249 wherein also according to the prosecution one V. R. was forcibly abducted by the accused and five others and the said V. R. was never heard of again. Accused was tried on charges of abduction with the intent to murder and for murder. Trial Judge acquitted on the charge of murder for want of evidence of murder but convicted u/s. 301 Hyderabad Penal Code corresponding to S. 364, I. P. C. Their Lordships relied on Akam Sheikh v. Emperor, AIR 1947 Cal 35 : (47 Cri LJ 680) Ijjatulla Akanda v. Emperor, AIR 1945 Cal 42 : (46 Cri LJ 557) and Upendranath v. Emperor, AIR 1940 Cal 561, wherein it has been held that when the case of the prosecution is that the person abudcted has been murdered by the abductor, there is no scope for the charge u/s. 364, I. P. C. hence the conviction and sentence u/s. 301 Hyderabad Penal Code (corresponding to S. 364, I. P. C.) was set aside by their Lordships of the Hyderabad High Court. The facts of the present case are also similar. The facts of the present case are also similar. ( 11 ) HOWEVER, in the case of State v. Dallela, ILR (1958) 8 Raj 181, the applicability of the above view under all circumstances in cases where the person abducted alleged to have been murdered by the abductors themselves or other persons has not been followed and the accused appellant though acquitted by the trial Judge was convicted in appeal u/s. 364 though acquittal u/s. 302, I. P. C. his conviction was upheld as it was proved beyond doubt that the accused was one of the persons who had abducted the deceased and that he was one of the three persons who were of desperate character and had no hesitation in robbing and looting the passengers of the bus and also killing a person who might have opposed them and they had abduced the deceased. ( 12 ) WITH due deference to their Lordships of Calcutta and Hyderabad High Courts the correct view in my humble opinion is that of he Rajasthan High Court that under all circumstances where the abducted person is murdered accused should not be held not liable to be convicted u/s. 364, I. P. C. and facts of each case would determine the liability for the offence. ( 13 ) IN the present case the prosecution evidence to bring home the guilt to the appellants for the offence u/s. 364, I. P. C. besides the eye-witness account is also regarding the motive of the appellants. ( 14 ) REGARDING the motive there is only oral testimony of the complainant that these appellants were accused in the murder case of Brijendra Pratap son of Raja Saheb-Sarnau and in that case Data Ram deceased was a prosecution witness. The appellants denied and alleged that Data Ram was also a co-accused. The prosecution did not tender in evidence, copy of the charge-sheet of that case or any other documentary evidence to show that Data Ram was a prosecution witness against these appellants in that murder case. ( 15 ) THE learned trial Judge, however, followed a very ingenious method of perusing the case diary of that case and observing that counsel for the accused also had no objection and from the perusal of the case diary it was apparent that Data Ram was a witness and not an accused. ( 15 ) THE learned trial Judge, however, followed a very ingenious method of perusing the case diary of that case and observing that counsel for the accused also had no objection and from the perusal of the case diary it was apparent that Data Ram was a witness and not an accused. The conduct of the trial Judge cannot be justified, even if the counsel for the appellant had no objection or had given his consent for perusing the case diary. That could not invest the trial Judge with the jurisdiction to take into consideration the contents of the case diary as the same is not permissible in law. Court can look into the case diary of the case itself but cannot rely on it unless its extracts are proved after confronting the same to the witness concerned under Section 162, Cr. P. C. According to the complainant himself as stated in the F. I. R. and in his statement on oath that the deceased used to have drinks with the appellants and the latter had taken the deceased with them for enjoying the drinks. Thus there was nothing unusual in the conduct of the appellants even if that part of the evidence is believed, to impute any motive or intention to murder Data Ram when even after the murder case of Brijendra Pratap, deceased Data Ram used to have drinks with the appellants. ( 16 ) THE prosecution evidence regarding taking away of the deceased by the appellants at about 8 p. m. on 4-9-76 from the Gher of the deceased Data Ram is that of P. W. 1 Nathoo, P. W. 4 Bhagwan Singh and P. W. 5 Hakim Singh. No doubt all of them have deposed that on that day in the evening the appellants had taken the deceased Data Ram for enjoying drinks and a chicken at the engine of Roop Ram. All of them have said that they were also present. Admittedly, deceased Data Ram was uncle of both P. W. 1 Nathoo Mal as well as P. W. 4 Bhagwan Singh. P. W. 5 Hakim Singh has also admitted that Data Ram deceased was his cousin. Thus all these witnesses are closely related to the deceased. All of them have said that they were also present. Admittedly, deceased Data Ram was uncle of both P. W. 1 Nathoo Mal as well as P. W. 4 Bhagwan Singh. P. W. 5 Hakim Singh has also admitted that Data Ram deceased was his cousin. Thus all these witnesses are closely related to the deceased. Because of their close relationship their presence at the Gher of the deceased is also possible as well as, as alleged on behalf of the appellants, they could also make a false statement against them, hence their testimony has got to be carefully scrutinised. P. W. 1 Nathoo had not stated regarding the presence of any lantern in the first information report as well as in his statement in the Court. Both P. W. 4 Bhagwan Singh as well as P. W. 5 Hakim Singh however, stated that a lantern was burning there. According to P. W. 7 S. I. S. K. Tyagi the Investigating Officer, Hakim Singh had not told him that any lantern was burning there though Hakim Singh asserted in his cross-examination that he had so stated to the Investigating Officer. S. I. S. K. Tyagi (P. W. 7) has further stated that he did not find any lantern burning there though admittedly he had reached there in the night. He has further stated that he could not proceed with the investigation at that time as there was no provision of any light. He had not taken any torch nor the villagers had shown any lantern; that he had sent for the torch in the village but its light was very dim. Thus the testimony of Investigating Officer clearly belied the testimony of the witnesses regarding the presence of any lantern at 8 p. m. when the appellants are alleged to have taken the deceased from the Gher. That apart, the First Information report was lodged at 7 p. m. on 5-9-1976 but P. W. 1 Nathoo Mal has stated in his cross-examination, para 15 that along with Ram Sanehi Pradhan he had reached the Police Station at about 12 in the noon. He has further admitted that the first information report was got written at the police station itself. That further creates suspicion about the sanctity of the F. I. R. and there is force in appellants contention, that the same was got written after deliberation with the Investigating Officer. He has further admitted that the first information report was got written at the police station itself. That further creates suspicion about the sanctity of the F. I. R. and there is force in appellants contention, that the same was got written after deliberation with the Investigating Officer. ( 17 ) THERE is also evidence of P. W. 2 Pokhi Ram that he was returning to the village along with Roop Ram P. W. 6 at about 9 p. m. and had seen the appellants along with Data Ram deceased in the field of Nannoo Mal. However, P. W. 6 Roop Ram though he is relation of P. W. 2 Pokhi Ram has not corroborated his statement on this point and denied to have seen the appellants and the deceased in the field of Nannoo Mal. ( 18 ) P. W. 5 Hakim Singh has admitted that P. W. 2 Pokhi Ram was his brother and deceased Data Ram was son of his uncle while P. W. 2 Pokhi Ram even denied himself to be the relation of the deceased. That clearly shows that veracity has not been the strong point of P. W. 2 Pokhi Ram. ( 19 ) THAT apart, P. W. 2 Pokhi Ram has admitted in his cross-examination that he had told Natho P. W. 1 as well as wife of Data Ram deceased in the village in the morning when search of Data Ram was being made that he had seen Data Ram in the night in the field of Nannoo Mal in the moon light when he was coming to the village. However, P. W. 1 Nathoo did not mention that fact in the first information report nor he has deposed that Pokhi Ram had told him that he had seen the deceased along with the appellants in the field of Nannoo Mal. ( 20 ) IN the first information report it was, however, mentioned that when P. W. 1 Nathoo had gone to the engine of Roop Ram to search for the deceased. Khan Singh son of Roop Ram had told him that the deceased along with the accused had come to the engine at about 9 p. m. However, the prosecution did not examine Khan Singh to corroborate the testimony of Nathoo P. W. 1 and no explanation has been given why he could not be examined. Khan Singh son of Roop Ram had told him that the deceased along with the accused had come to the engine at about 9 p. m. However, the prosecution did not examine Khan Singh to corroborate the testimony of Nathoo P. W. 1 and no explanation has been given why he could not be examined. ( 21 ) THE prosecution has also given evidence regarding the recovery of a Kurta and bristles of the moustaches of the deceased from the side of the river. The evidence that bristles of the moustaches were of the deceased prima facie cannot be relied as it could not be humanly possible for any witness to recognise the bristles of the moustaches to be that of the deceased. As regards the Kurta, the same was not taken to the police station. Of course the fact of its recovery was mentioned. Under normal circumstances the same should have been taken to the police station and when the witness was asked why he had not taken it to the police station he stated that he was afraid of the police and their questioning regarding the place of its recovery. ( 22 ) NATHU P. W. 1 and Pokhi Ram P. W. 2 have also stated that the deceased was wearing the same Kurta when he had left the Gher along with the deceased and when he was seen last with them. However, S. I. S. K. Tyagi the Investigating Officer has deposed that Pokhi Ram P. W. 2 did not tell him that the deceased was wearing the same Kurta. No question was put to the Investigating Officer as regards the statement of P. W. 1 Nathoo on that point. However, even if the deceased was wearing the same Kurta which was recovered that is also of no avail to the prosecution. The deceased used to enjoy liquor with the appellants and on that day also according to the prosecution he had gone with the appellants willingly. The appellants have been acquitted of the charge of murder. hence it would not be safe to hold, on the evidence on record, that the appellants had abducted the deceased with the intent to murder him i. e. their conviction under Section 364, I. P. C. cannot be sustained. ( 23 ) IN the result, the appeal is allowed. The appellants have been acquitted of the charge of murder. hence it would not be safe to hold, on the evidence on record, that the appellants had abducted the deceased with the intent to murder him i. e. their conviction under Section 364, I. P. C. cannot be sustained. ( 23 ) IN the result, the appeal is allowed. The conviction and sentence of the appellants under Section 364, I. P. C. are hereby set aside. They are already on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. Appeal allowed. .