Judgment P.K.Deb, J. 1. There is chequered history of this case. The sole appellant in this case was convicted for the charge under Sectipn 364/34, I.P.C. and thereby sentenced to undergo R. I. for six years, but the appellant was acquitted by the same judgment for the charge under Section 302/34, I.P.C. in S.T. No. 188 of 1987 passed by the then learned Sessions Judge, Dhanbad on 9-8-1989. 2. At the time of admission of the appeal before a Single Judge, a show cause notice was issued to the appellant as to why the sentence imposed on him should not be enhanced, accordingly, reply was made by the appellant. As the enhancement notice was issued, the case was referred to a Division Bench and it was heard on 19-2-1992, but the Brother Judges of the Division Bench differed in their opinion and as such by order dated 5-11-1992, the case was referred to the Chief Justice for an order under Section 392, Cr. P. C. for the case being heard by a third Judge. Honble Mr. Justice R. N. Sahay recorded a finding of acquittal while Honble Mr. Justice S. H. S. Abidi recorded the confirmation of the conviction and enhacement of the sentence. By the order of the Chief Justice, case was referred to Honble Mr. Justice Om Prakash, but the case could not be heard by his Lordship till his superannuation and then the case was referred to Honble Mr. Justice Amir Das by the order of the Chief Justice. It was heard by his Lordship on 10-5-1993 and 11-5-1993 and the case was reserved for judgment but then by order dated 24-8-1993 it was released by his Lordship for placing before another Judge. Accordingly, by order of the Chief Justice, this case has come before me for hearing. 3. It should be mentioned here that by this time, because of the inordinate delay in disposal of the appeal, the accused-appellant in the case served the sentence of six years passed by the impugned judgment of the learned Sessions Judge. Dhanbad and he has been released as is submitted by Mr. Mukhopadhyaya, advocate appearing an behalf of the accused-appellant. 3. It should be mentioned here that by this time, because of the inordinate delay in disposal of the appeal, the accused-appellant in the case served the sentence of six years passed by the impugned judgment of the learned Sessions Judge. Dhanbad and he has been released as is submitted by Mr. Mukhopadhyaya, advocate appearing an behalf of the accused-appellant. But, in the circumstances of the case, it is required to give a judgment on merit as the appeal remained pending and when there were difference of opinion of the two Brother Judges, one of whom had enhanced the sentence to R. I. for life. 4. The facts of the case are required to be stated in brief for appreciating the discussions which I am going to make in this judgment. On an information given by Mrs. Mita Banerjee wife of deceased Tapan Kumar Banerjee alias Bablu on 5-2-1987 at 4.30 p.m. before the Officer-in-charge, Dhanbad Police Station, a case was registered. The report of Mrs.Mita Banerjee has been marked as Ext. 5. It was the case of Ms. Mita Banerjee that on 3-2-1987 which was a Saraswati Puja day, her husband Tapan Banerjee in the morning hours went out for plucking flowers for the Puja purpose and came home, then again he went out and after some time he came back with injuries on his head and reported that Gopai Prasad Sah, one of the co-accused had assaulted him with an iron rod on account of a quarrel ensued between two. On receipt of the injury, her husband went to bed and was sleeping in the house when Md. Ekram, Farooqui and Mumtaz of the same locality came and asked about her husband to which she said that he was sleeping. They insisted her to woke him up but she refused and then they went away. It has further been alleged that after some time this accused-appellant, Lakhan Rabidas, who has his house just in front of the Informant came and asked about her husband. She replied in the same way as was given to Md. They insisted her to woke him up but she refused and then they went away. It has further been alleged that after some time this accused-appellant, Lakhan Rabidas, who has his house just in front of the Informant came and asked about her husband. She replied in the same way as was given to Md. Ekram and others and then he forcibly entered into her house and forced her husband to accompany him at 4.30 p.m. on the plea that he was accompanying her husband for having medical treatment of her husband, but since then her husband was traceless in spite of the best efforts on their part to trace him out. She expressed her apprehension in the report, Ext. 2 that the appellant alongwith other, accused, namely, Gopal Prasad Sah, Md. Ekram, Farooqui and Mumtaz had kidnapped her husband in order to murder him. On that very night of the occurrence, the father-in-law of the informant made searches about his son and also took information from the accused-appellant, who was found missing in the house upto midnight. But, on the next morning when being asked by the father of the deceased, Tapan Kr. Banerjee, he gave evasive reply stating that upto some distance, he accompanied the deceased but then he went outside alongwith others and he came back home. Ultimately, deadboby of the victim was found by an officer of patrolling party on 6-2-1987 on the railway track. Police prepared inquest report and post mortem examination was done, after the deadbody was being identified by the informant. 5. After investgation, charge-sheet was submitted against the accused-appellant alongwith Gopal Prasad Sah. The other accused persons could not be apprehended and they remained still absconding. On being committed to the Sessions, charges were framed under Section 364/302/34, I.P.C. and when the same was read over and explained to the accused-appellant, they pleaded not guilty. 6. 15 witnesses have been examined for and on behalf of the prosecution in the case. PW-1, Madhusudan Ghosh, PW-4, Md. Sirajuddin PW-10, Nand Lal Prasad Gupta and PW-14, Kaji Rahamatullah turned hostile and did not support in any way the prosecution case. PW-2, Dilip Ghosh, PW-3, Lakhan Mahto, PW-5, Hira Prasad and PW-6, Jumuna Prasad Singh were only tendered. PW-7, Ram Prabesh Ram is a witness of inquest report. PW-8 Dr. PW-1, Madhusudan Ghosh, PW-4, Md. Sirajuddin PW-10, Nand Lal Prasad Gupta and PW-14, Kaji Rahamatullah turned hostile and did not support in any way the prosecution case. PW-2, Dilip Ghosh, PW-3, Lakhan Mahto, PW-5, Hira Prasad and PW-6, Jumuna Prasad Singh were only tendered. PW-7, Ram Prabesh Ram is a witness of inquest report. PW-8 Dr. Suman Kumar Sinha had conducted post mortem examination on the dead body on 7-2-1987 and found following injuries on his person : (i) Lacerated wound 2" X 1" X bone deep under back of the scalp on the right side "occipital region." (ii) Lacerated wound 2" X 1" X bone deep 2 right parietal region. (iii) Lacerated wound 1" X 1/2" X bone deep on the left temporal region. (iv) Lacerated wound below right eye of 1" X 1/2" X 1/2". (v) Lacerated wound 1" X 1/3" X 1/3" on the right cheek. (vi) Both eyes present in their socket in-tact. (vii) Lacerated wound 1 1/2" X 1/2 X opening the measure cavity on the left side. (viii) Lacerated wound 1" X 1/4" X 1/4" just below left eye. (ix) Lacerated wound 1" X 1/3" X 1/3" on the outer side of left eye brow. (ix) Lacerated wound 2" X 1" X bone deep under left side of the forehead. (x) Lacerated wound 3/4" X 1/2" X 1/3" on tne upper lip. All the injuries were ante-mortem. Some parts of the body were foreaten by the animals. On dissection the Doctor found hearts chamber empty and four inciser teeth of the upper jaw not present. He found the stomach emty but distended with gasses of putrifaction. Liver was pale, spleen was soft and pale and urinary bladder empty, In the scalp nothing abnormal was detected. In the opinion of the doctor the death of the deceased was caused by intracrenial haemorrhage due to hard blunt force impact. Time elapsed since death was 48 to 72 hours taking into consideration of coid weather. The injuries were sufficient in ordinary course of nature to cause death. He also said that the injuries on the deceased might have been caused by impact of holders used in a throwing manner. He proved the post mortem report marked Ext. 1. PW 9, Sunil Kumar Chakravarty, brother-in-law (sisters husband of the deceased Tapan Kumar Banerjee) is the writer of the report of the informant Mrs. Mita Banerjee. He also said that the injuries on the deceased might have been caused by impact of holders used in a throwing manner. He proved the post mortem report marked Ext. 1. PW 9, Sunil Kumar Chakravarty, brother-in-law (sisters husband of the deceased Tapan Kumar Banerjee) is the writer of the report of the informant Mrs. Mita Banerjee. PW 11 is Mita Banerjee herself, who is the informant and a witness of the occurrence. PW 12, Smt. Raj Lakshmi Devi and PW 13, Hara Lal Banerjee are the mother and father of the deceased. They are only the reported witness of the incident of taking away of their son by the accused persons from the informant, PW-11, Mita Banerjee. PW 15, Bhogi Lal Paswan is the Investigation Officer. 7. Thus from the above, it is clear that the most relevant witnesses in this case are PWs 11, 12 and 13 and the learned court below after discussing their evidence together with the medical evidence came to the finding that the deceased Tapan Kumar Banerjee must have been taken away by the accused-appellant, Lakhan Rabidas for the purpose of committing murder to him or putting him to do such danger of being murdered and holding guilty under Section 364 roping under Section 34 of the Indian Penal Code on the ground that he had been accompanied by other absconding accused persons in abducting of the deceased Tapan Kumar Banerjee. In respect of charge under Section 302 I.P.C, it has been held by the learned court below that although deceased was last seen alive in the company of the accused-appellant, but there is missing link to the effect that the deceased was taken to the place of occurrence by this accused himself or by others and actually commit the murder of the deceased and as such he had been relieved from the charges of Section 302/34 I.P.C. The other accused Gopal Prasad Sah was acquitted as no case could be proved against him about the charge framed. 8. 8. For a charge under Section 364, I.P.C., the burden of prosecution lies to prove the following ingredients : (i) That the accused compelled the person to go from the place in question : (ii) that he so compell that person by means of force or he induced that person to do so by deceitful means ; (iii) that he so abducted the person in question in order that ; (a) such person may be murdered, or (b) such person may be so disposed of as to be put in danger of being murdered. 9. In the light of such ingredients, the evidence of the prosecution is required to be analysed. It is the case of the prosecution that the accused-appellant in the evening hours came to the house of the deceased and asked his wife about his whereabouts and when she replied that he was sleeping then he forcibly entered inside the house and then induced the deceased to go with him for the purpose of medical treatment. It is not the case of the prosecution that the deceased Tapan Kumar Banerjee was taken out by the accused forcibly. Their case is that of deceitful means. Now whether that was decitful means or not is required to be adjudicated from the circumstances which occurred in the latter part of the occurrence. 10. The informant stated that the deceased was in enimical terms with the accused-appellant but that has been denied by the father of the deceased PW 13 where he stated that his family was in cordial relations with that of accused-appellant. This fact could also be found from the fact that even after the missing of the deceased, father of the deceased went to his house during the midnight and then also on the next morning asking about the whereabouts of his son. Definitely till then there was no apprehension in the mind of the Informants party about the taking away of the deceased bythe accused-appellant by deceitful means. They became only apprehensive of his tracelessness afterwards when on delayed hours and also on the next day the deceased did not return home Moreover, it is found that about the treatment of Tapan Kumar Banerjee, due to his injuries received in the morning hours, his father could not be able to make any arrangement for his examination by a doctor or taking him to some pharmacy. It is the contention of PW 13 that he tried to get in a doctor but failed in his attempt. Therefore, definitely there were some anxiousness in the house of the informant about the treatment of the deceased. Then a neighbour came with a proposal of taking injured to a Doctor for his treatment and on assurance being given by him to return him safe, the decree was allowed to go with the accused-appellant. So in such circumstances, unless it could be shown that he was involved with the actual murder or Tapan Kumar Banerjee, it cannot be said apparently that the accused-appellant used the deceitful means to take out the deceased from his house. Now comes the most vital ingredients of Section 364 I.P.C. i.e. taking away of the deceased with the very intention to kill him. There is no evidence to that effect and it has been held by the Calcutta High Court and also by Hyderabad High Court which have been elaborately dealt with by the two brother Judges in their confering judgments and I do not want to reiterate those to make this judgment more burdensome, to the effect that unless the later part of charge under Section 302 LP C. is proved then there cannot be establishment of charge under Section 364 I P.C. 11. It is true that for some technicalities, the charge under Section 302 I.P.C. might not be established against a person. In that case also, there can be an establishment of charge under Section 364 I.P.C., but that should be seen or scrutinised in the facts and circumstances of a particular case. I do not subscribe the view that only because a charge under Section 302 I.P.C. has not been established beyond reasonable doubt, a charge under Section 364 I.P.C. cannot be held to be proved, but in the facts and circumstances of the cases, I find that in this particular case, there is not acquittal of the charge under Section 302, I.P.C. on technical ground rather the charge could not be found to have been established against the accused-appellant even on the circumstances proved in the case. So except this taking away from the house, there is no part played by the accused-appellant as is apparent from the facts and circumstances of the case. So except this taking away from the house, there is no part played by the accused-appellant as is apparent from the facts and circumstances of the case. If there was evidence to the effect that the enmities were going on between the parties and with the intention of vanishing the deceased the accused-appellant had taken him out from his house by deceitful means then only charge could have been proved against the accused-appellant. Only taking away simpliciter on a plausible plea of treatment of the deceased, in no case substantiate the charge under Section 364, I. P.C. Definitely, Section 364 I.P.C. has got a direct nexus with the charge under Section 302, I.P.C. but that nexus can be disintegrated if overwhelming evidence were there to prove the essential requirement/ingredient of the charge under Section 364 I.P.C. There is evidence to the effect that the deceased was not having very good reputation. He was alleged to be a drunken and it was also suggested that he had very many enmities and there were cases against him. In that circumstances, the accused-appellant cannot be said to have abducted the deceased for the purpose of murder unless it could be shown that he has having such intention as required under that Section. If the other accused-Gopal Pd. Sah have taken away the accused-appellant by such showing (about treatment etc.) then there might have been a plausible charge under Section 364, I.P.C, against him as he had immediate quarrel on the morning hours of the day itself. Moreover the accused-appellant came to the house of being instigated or being a member of the other accused-persons for the purpose taking him away for the purpose of murder could not be proved in the case. Mrs. Mita Banerjee, informant only stated that she saw the other absconding accused persons some distance away from her house while the accused-appellant came to her house. There is no evidence to the effect that this accused-appellant was an associate of those absconding accused persons who might have killed the deceased. The relationship between the accused-appellant and the family of the informant was always cordial. This accused-appellant had organised Saraswati Puja on that date and at his request father of the deceased had performed the Puja by going to the Pandal. The relationship between the accused-appellant and the family of the informant was always cordial. This accused-appellant had organised Saraswati Puja on that date and at his request father of the deceased had performed the Puja by going to the Pandal. As such there cannot be earthly reason to implicate this accused-appellant with the alleged crime unless some other insiniating evidence are there to connect him with the crime. 12. The question of enhancement of the sentence is unwarranted in this case and I do not want to discuss on that point. 13. In the result, this appeal is allowed and the judgment of conviction and sentence is hereby set aside. As accused-appellant has already undergone sentence, no further order is required in this case.