Judgment 1. This appeal has been preferred against the judgment and order dated 27th of May, 1994 passed by the 2nd Additional Sessions Judge, Katihar in Sessions Trial No. 101 of 1993 convicting the appellant under S. 364 of the Indian Penal Code (hereinafter referred to as the I.P.C.) and sentenced him to undergo R.I. for seven years. 2. The prosecution case in brief is that the F.I.R. (Ext. 1) was lodged by one Radha Kant Jha (P.W. 3) of village Dewat Laxmipur, P.S. Amdabad, District-Katihar, alleging that on 31-3-1992 his youngest son Brahmdeo Jha aged about 10 years was sleeping at the Darwaja along with the other family members. The appellant and his father came there and took away his son Brahamdeo Jha. Since then the boy did not return back. The first informant enquired from the co-accused Jichhu Thakur, father of the appellant Manoj Kumar Thakur, about his son, on which he replied that his son had gone to purchase biscuit along with his son (Appellant). It is further alleged that appellant and son of the informant remained absent, but on 27-5-1992 the appellant returned back to the village alone. The first informant enquired from him about the whereabout of his son, but he denied of any knowledge. The village Chaukidar also enquired from the appellant about the son of the informant who told him that he had kept the boy in a Kirana shop at Bombay but did not give any detail of the shop where he had kept the son. After some time the first informant filed a petition stating the above facts before the Superintendent of Police, Katihar, which was duly forwarded to the local police station and Gram Panchayat. It appears that the informant has filed his petition before the Superintement of Police, Katihar on 6-6-1992 who ordered the police station to register the case and investigate it. Accordingly the case was registered on 5-7-1992 and after investigation the charge-sheet was submitted and the trial proceeded in the Court below. 3. The case of the defence is that he has been falsely implicated in this case because of village politics and previous enmity. Accordingly the case was registered on 5-7-1992 and after investigation the charge-sheet was submitted and the trial proceeded in the Court below. 3. The case of the defence is that he has been falsely implicated in this case because of village politics and previous enmity. It is further defence of the accused that the informant and his family members have snatched money from the accused for which he has filed a complaint case before the Chief Judicial Magistrate, Katihar before the alleged date of occurrence and due to this the first informant falsely implicated, the accused in this case. 4. In support of its case the prosecution examined in all four witnesses, out of which P.W. 1 (Rajendra Prasad Sah) has been tendered by the prosecution for cross-examination. P.W. 2 (Dukh Mochan Jha) is brother of the victim boy. He is an eye-witness of the occurrence. He stated that thealleged occurrence took place at the early hours on 31-3-1992. He was sleeping at his house along with his brother Brahamdeo Jha and other family members. The appellant came to his house at about 3-00 a.m. and took away his brother Brahamdeo Jha along with him on the pretence that they were going to watch the field. However, his brother did not return back till evening. The appellant was also not found in the village. For about two months there was no trace of either of his brother or accused Lucho Thakur. When he (the appellant) returned after two months, on enquiry he stated that he has kept his brother Brahamdeo Jha in the shop of Salamuddin at Bombay. He went to Bombay along with the accused and met with shop-keeper Salamuddin who stated that appellant has not brought any boy, namely, Brahamdeo Jha nor he was employed in his shop. Thereafter, the informant and P.W. 2 returned back to their home and the matter was reported to the Superintendent of Police, Katihar, on the basis of which the case was registered. According to him, till the date of registration of the case his brother has not returned back to home. He admitted in cross-examination that accused Luchho Thakur alias Manoj Kumar Thakur has instituted a case against him, his father and another brother. He denied the suggestion that he has falsely implicated the accused in this case because of previous enmity. 5. He admitted in cross-examination that accused Luchho Thakur alias Manoj Kumar Thakur has instituted a case against him, his father and another brother. He denied the suggestion that he has falsely implicated the accused in this case because of previous enmity. 5. P.W. 3 (Radha Kant Jha) is father of the victim boy and also informant of the case. He is eye-witness in whose presence his son was taken away by the accused on the ground to cut wheat crop in the field. His son was aged about 10 years on the date of occurrence and since then there is no trace of his son. He corroborated the evidence of P.W. 1 and stated that after about two months when the accused-appellant returned back to the village, he enquired from him about the whereabout of his son. He stated that he was working as a sales boy at Bombay in the shop of one Salamuddin. He went to Bombay along with his son and other villagers but could not locate his son and the shop-keeper Salamuddin denied that his son was ever brought at his shop by the accused. He apprehended that his son has been killed after abduction by the accused and his family members. On the basis of his written report filed before the Superintendent of Police, Katihar the case was registered in the police station. 6. P.W. 4 (Bhrigu Nath Singh) is the I.O. of the case. He stated that on 5-7-1992 while he was posted as S.I., Amdabad P.S., he received a letter from the Superintendent of Police, Katihar bearing No. 697 dated 9-6-1992 along with the annexure which was the written report of the informant, on the basis of which the case was registered and formal FIR (Ext. 3) was drawn up. He investigated the case and submitted charge-sheet against two accused persons including the appellant and his father. 7. The accused appellant Manoj Kumar Thakur alias Lucho Thakur was charged under Ss. 364 and 365 of the IPC and tried by the Court below. However, the trial Court acquitted him under S. 365 of the IPC but found him guilty under S. 364 of the IPC and convicted him accordingly. 8. On behalf of the defence two witnesses have been examined, namely, D.W. 1 (Abdul Manan) who is Mukhiya of the Gram Panchayat. However, the trial Court acquitted him under S. 365 of the IPC but found him guilty under S. 364 of the IPC and convicted him accordingly. 8. On behalf of the defence two witnesses have been examined, namely, D.W. 1 (Abdul Manan) who is Mukhiya of the Gram Panchayat. He stated that Radha Kant Jha has filed a written petition before him which he forwarded to the Superintendent of Police, Katihar. The forwarding memo which is in his writing, has been marked Ext. A. In cross-examination he admitted that as a Mukhiya of the village he has knowledge that son of Radha Kant Jha was missing from the village and he has also learnt that appellant Manoj Kumar Thakur has taken the boy from his home. D.W. 2 (Mahanand Singh) is an Advocate, who has proved the signature of Advocate, Shri Manjar Hussain on the complaint petition Complaint case No. 453 of 1992, which has been marked Ext. B. He has proved the signature of accused Manoj Kumar Thakur on this complaint petition (Ext. B/1). 9. It was submitted on behalf of the appellant that the alleged occurrence took place on 31-3-1992 but the FIR (Ext. 3) was registered on 5-7-1992. There is delay of more than three months in the institution of the case without any satisfactory explanation. There was no reason for the informant not to inform the local police immediately after the alleged occurrence relating to kidnapping of his son. The explanation given by the prosecution that for about two months the informant was searching his son and thereafter filed a written petition before the Superintendent of Police, Katihar is not a satisfactory explanation which has beenalleged to fill up this lacuna of delay. It appears that the informants son has left his house out of his own and the informant was making hectic search of him and when he became traceless, thereafter, because of previous enmity, the accused has been falsely implicated in this case. From the evidence of P.Ws. 1 and 2 it is admitted that before this occurrence accused has filed a complaint case against the informant and his family members regarding taking of loan but not returning the same. 10. From the evidence of P.Ws. 1 and 2 it is admitted that before this occurrence accused has filed a complaint case against the informant and his family members regarding taking of loan but not returning the same. 10. In reply the A.P.P. submitted that the delay in lodging the FIR has been explained by the prosecution, which is satisfactory because in natural course the informant was waiting for the return of the accused who was also missing from the village along with his son. Since both are from the same village and in presence of the informant the accused has taken his son to work in the field, therefore, he was expecting that his son would return back along with the appellant. After waiting for about two months when the appellant returned back alone, then he made enquiry about the whereabout of his son, who told him that his son was employed in Bombay. Thereafter he rushed to Bombay along with P.W. 2 but he could not find the trace of his son. Thereafter he returned back to his village and filed a written report before the Superintendent of Police, Katihar, on the basis of which the case was registered. Therefore, for all these period the informant was in search of his son and when he became satisfied that his son has been kidnapped with the purpose of murder by the appellant, thereafter he filed the case. 11. From the submissions made on behalf of the parties and after considering the evidences of P.Ws. 2 and 3 and perusal of the written report (Ext. 1) I find substance in the contentions made on behalf of the learned A.P.P. The delay in lodging the FIR has been explained by the prosecution which appears to be convincing. 12. It was further argued on behalf of the appellant that there is no independent witness to support the prosecution case. P.Ws. 2 and 3 are son and father. No villager has supported the case of the prosecution. In view of the admitted enmity in between the parties the examination of local independent witness to corroborate the evidence of interested witness was required. 13. In reply, the learned A.P.S. submitted that the alleged occurrence took place at about 3.00 A.M. when the son of the informant was taken away by the appellant-accused from his house on the ground to work in the field. 13. In reply, the learned A.P.S. submitted that the alleged occurrence took place at about 3.00 A.M. when the son of the informant was taken away by the appellant-accused from his house on the ground to work in the field. No other person was present at that time at the house of the informant. Therefore, in such cases the presence of any other eye-witness was not possible. Only the family members are competent witness. D.W. 1, who is Mukhiya of the Gram Panchayat, stated in cross-examination that he had knowledge that son of the informant was missing and he also knew that appellant Lucho Thakur had taken away that boy along with himself. Therefore, the evidence of D.W. 1 corroborates the evidence of P.Ws. 2 and 3 that it was the appellant who had taken away the son of the informant from his house and since then he is traceless. Therefore, there are cogent and reliable evidence on record to substantiate the charge levelled against the accused-appellant. 14. From the submissions of the parties and after considering the evidences on record, I find that the trial Court has rightly convicted the appellant under S. 364 of the IPC and there is no reason to interfere with the finding of the Court below. The kidnapped boy, namely, Brahamdeo Jha is still traceless and there is consistent evidence that appellant had taken away the boy from the house of the informant. Under such circumstances the natural inference would be that the accused had kidnapped the boy (Brahamdeo Jha) in order to commit his murder. 15. The learned appellants lawyer submitted that the appellant is in jail custody since 28-7-1992 and neither he was enlarged on bail in the Court below nor by the High Court. Hence by now, he must have completed the period of sentence imposed against him. 16. The learned A.P.P. also submitted that the case records show that the appellant has not been enlarged on bail up till now. 17. In the facts and circumstances of the case I do not find any merit in this appeal, which is accordingly, dismissed. The jail authorities are directed to release the appellant forthwith, if not released as yet or not wanted in any other case as he has served out the period of sentences. 18. Mrs. Veena Rani, Advocate hasappeared as amicus Curiae and assisted the Court. The jail authorities are directed to release the appellant forthwith, if not released as yet or not wanted in any other case as he has served out the period of sentences. 18. Mrs. Veena Rani, Advocate hasappeared as amicus Curiae and assisted the Court. The Legal Aid Committee of Patna High Court is directed to pay her fees, in accordance with law. Let a copy of this judgment be made over to her.Appeal dismissed.