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2003 DIGILAW 195 (PAT)

Sattan Yadav @ Ahir v. State Of Bihar

2003-02-18

P.N.YADAV, S.N.JHA

body2003
Judgment S.N.Jha, J. 1. The appellants have been convicted under Section 364 of the Indian Penal Code and sentenced to rigorous imprisonment for fife. Appellants Sattan Yadav, Vishwanath Yadav and Lallan Mahto have also been convicted under Section 27 of the Arms Act but no separate sentence has been awarded for the same 2. The appellants along with others who either died or have been acquitted were initially charged with the offences under Section 364 of the Penal Code and Section 27 of the Arms Act. Later after examination of 12 prosecution witnesses the charge under Section 302/34 of the Penal Code was added. The witnesses were recalled for cross examination only one of whom turned up. On the statement of the accused that they did not wish to cross examine the remaining witnesses the prosecution case was closed and the trial proceeded. At the end of the trial the appellants were acquitted for the charge under Section 302/34 of the Penal Code but convicted under Section 364 of the Penat Code and Section 27 of the Arms Act as mentioned above. Two were acquitted altogether. 3. The case relates to an occurrence of the night between 30 and 31 October 1980. At about mid night one Bhowaii Devi wife of Rajendra Mahto, younger brother of the informant Ramadhar Kamkar, resident of Village Balua Rampurwa, PS Bairia, District West Champaran came out of the house for easing of her child. She saw about thirteen persons eight out of whom including the appellants were named by her.They asked about Sheo Pujan Kamkar, another brother of the informant, and entered the house. Sheo Pujan Kamkar was carried away on gun point despite repeated remonstration by the family members to spare him. The miscreants were armed with rifle, gun etc. The family members returned on being threatened. On alarm villagers assembled and saw the occurrence. The occurrence was reported by Ramadhar Kamkar to SI Lallan Dass of Bairia PS in the morning at 6 AM. He disclosed that the reason behind the occurrence was a piece of land sold by one Kamal Nath Tiwari to the informants nephew as well as appellant Sattan Yadav @ Ahir. Tiwary was putting pressure on the prosecution party to part with the land which they declined. 4. On the basis of the said report/fardbeyan of Ramadhar Kamkar Bairia PS Case No. 4(10)80 was registered and investigation commenced. Tiwary was putting pressure on the prosecution party to part with the land which they declined. 4. On the basis of the said report/fardbeyan of Ramadhar Kamkar Bairia PS Case No. 4(10)80 was registered and investigation commenced. At the end of investigation the police submitted chargesheet against 11 persons. Only seven out of them were put on trial as others were either reportedly killed in police encounter or absconded. Out of the seven put on trial one died in course of the trial leaving only six who finally faced the trial. Two out of them were acquitted. 5. At the trial the prosecution examined twelve witnesses to prove its case. Seven out of them namely PW 3 Bhutkun Mahto, PW 7 Khodabin Gaddi, PW 8 Kokil Sah, PW 9 Nand Kishore Prasad, PW 10 Yogendra Chaubey, PW 11 Mahatma Sah and PW 12 Ram Chandra Sah were tendered. The material witnesses are PW 1 Ramadhar Mahto, the informant himself, PW 2 Harendra Mahto, PW 4 Rajendra Mahto, PW 5 Dhulwa Devi @ Geni and PW 6 Bhowali Devi. PWs 1, 2 and 4 are brothers. PWs 5 and 6 are wives of PWs 1 and 4. The material witness are thus family members. 6. The fact that all the material witnesses are family members was one of the submissions of the counsel for the appellants. However having regard to the general disinclination of the people to get involved in others cases, if the prosecution simply tendered them for cross examination, it would not affect the merit of the prosecution case. After all veracity of the prosecution case depends on evidence on the record and the evidence of a witness cannot be discarded simply on the ground of relationship subject to rule of prudence and the test of truthfulness and reliability. 7. Submissions were also made to the effect that the parties are co-villagers, the occurrence was result of a land dispute, and it was improbable that the victim slept in a room which had no door. It was also said that the victim was a notorious criminal and an absconder in the murder case of Bamdeo Chamar. These submissions however lacked in conviction and therefore, have been merely noticed to be rejected. 8. It was also said that the victim was a notorious criminal and an absconder in the murder case of Bamdeo Chamar. These submissions however lacked in conviction and therefore, have been merely noticed to be rejected. 8. The submission made with emphasis was that once the appellants were acquitted of the charge under section 302/34 they could not be convicted for the offence under Section 364 of the Penal Code. Reliance was placed on Bhola Singh & Ors. V/s. State of Bihar, (1961) ILR 40 Patna 809. It was submitted that each of the material witnesses stated that the accused took away Sheo Pujan Kamkar PW 1 Ramadhar Mahto, PW 2 Harinder Mahto, PW 4 Rajendra Mahto and PW 5 Dhelwa Devi claimed to have seen the accused killing him. PW 5 in fact claimed to have seen the accused throwing the dead body in the river. Thus the definite case of the prosecution is that Sheo Pujan Kamkar was killed in the orchard of the village taking the case out of the realm of Section 364 of the Penal Code. The killing part of the prosecution case having been disbelieved the appellants could not be convicted under Section 364 of the Penal Code. On behalf of the State it was submitted that acquittal of the charge under Section 302 would not effect the charge under Section 364, the scope of which is much wider. As soon as the person is kidnapped or abducted for the purpose of murder or being so disposed of as to be put in danger of being murdered, the offence under Section 364 is complete and therefore even though actual murder is not proved, the accused can be convicted for the offence of kidnapping or abducting in order to murder under Section 364 IPC. 9. A question of law having been raised, Counsel were directed to assist the Court with reference to case law and, accordingly, they cited decisions in support of their respective contention. 10. From perusal of the case law on the subject it appears that the question as to whether notwithstanding failure of the prosecution to prove the charge under Section 302 and acquittal of the accused thereunder, he can be convicted under Section 364 of the Penal Code or not has fallen for consideration in the past and there is diversity of opinion on the point. Recently the Supreme Court also had occasion to consider the question but before I refer to the decision of the Supreme Court I may refer to the decisions of the different High Courts. I must first refer to the case of Bhola Singh vs. State of Bihar (supra) which supports the contention put forward on behalf of the appellants. Therein, it was observed by this Court; "It is well established that where the case for the prosecution is that the person abducted has been murdered by the abductor there can be no scope for a charge under this Section. The charge under Section 364 of the Indian Penal Code must therefore fail." With utmost respect to the learned Judges the observation appears to be too wide to be accepted as a rule of universal application. At the same time, in defence of the learned Judges it must also be said that in the facts and circumstances of the case the observation would seem to be quite apposite. The facts of the case were that three Constables including deceased Ram Chander along with some Chaukidars were on night duty to prevent theft of copper wires. They saw some persons standing near a Telegraph Post. One of them had climbed up and was trying to reach the copper wires. On seeing the Constables and Chaukidars they started running away. Two Constables including the decesed. chased them. They noticed the theves boarding a boat at the river bank. The Constables too rushed into the boat.Two out of them jumped from the boat in the sore, one of the Constables also Junmped out and followed them. The boat in the meantime moved away with the deceased and others. The thieves who had jumped from the boat and tried to run away were arrested by other constables. Attemt was made to search the deceased. Having failed to find him or to secure the boat he lodged the First Information Report. The dead body of the deceased was found floating on the river bank alter a week the incident. The prosecution case was that while the deceased was in the boat he was assaulted by the persons in the boat strangulated with a rope and then thrown in the river. The trial court convicted the accused both under Sections 364 and 149 of the Penal Code. The prosecution case was that while the deceased was in the boat he was assaulted by the persons in the boat strangulated with a rope and then thrown in the river. The trial court convicted the accused both under Sections 364 and 149 of the Penal Code. While considering the validity of the conviction under Section 364 the learned Judge observed that "mere abduction is not an offence. In order to sustain a charge under Section 364 it is incumbent upon the prosecution to prove that the abductors had intention at the time of abduction that the person abducted should be murdered or would be so disposed as to be put in danger of being murdered." But there was nothing to indicate (in that case) that the abductors had this intention at the time the abduction took place, (emphasis by me) 11. A similar view was taken by the Calcutta High Court in the case of Upendra Nath Ghosh V/s. Emperor, AIR 1940 Calcutta 561, and Hyderabad High Court in the case of Kalaporla Saidulu V/s. Hyderabad Government, AIR 1953 Hyderabad 249. The facts of the case of Upendra Nath Ghosh were that a girl of 11-12 years age was taken away by the accused on the pretext that certain festivities were to take place in connection with Satyanarain Puja in his house. The girl did not return. After some days a female skeleton was found by some persons. Near the bones, a sari, a petticoat, a bunch of keys and some other articles were recovered with the aid of which the skeleton was found to be that of the girl. However certain gold ornaments which she was wearing at the time of her departure from house were found missing. The accused were charge with the offences under Sections 364 and 302 of the Penal Code. While one of them was acquitted of both the charges, appellants Upendra Nath Ghosh, was acquitted under Section 302 but convicted under Section 364 of the Penal Code.The High Court on;appeal by Upendra Nath Ghosh held that to establish an offence punishable under Section 364 Penal Code, it must be.proved that the person charged with the offence had the intention at the time of abductipn that the person abducted would be murdered or would be so disposed of as to be put in danger of being murdered. The prosecution thus had to prove that the appellant at the time when he took away the girl had this particular intention. The High Court found that this element of the offence was not properly placed before the jury, the trial Judge nowhere told the jury that they must be satisfied that this was the state of mind of the appellant at the time of the alleged abduction. In the opinion of the High Court the trial Judge should have told them that they could not find the appellant guilty unless there was evidence to establish beyond all doubt that at the time he took the girl from her house he had intention that she should be murdered or be put in danger of being murdered. The learned Judges thereafter took into consideration the circumstances proved in the case and came to the conclusion that the circumstances negatived the case that the appellant at that time had any intention to have the girl murdered or to put her in danger of being murdered. 12. The facts of the case of Kalaporla vs. Saidulu (supra) were that a Congress Worker had forcibly been abducted by the accused and his comrades and he was never heard of again. The appellant was charged with offences punishable under the Hyderabad Penal Code corresponding to Sections 149, 364 and 302 of the Indian Penal Code and finally convicted for the offence corresponding to Section 364 of the Indian Penal Code. The learned Judges of the Hyderabad High Court following the decision in the case of Upendra Nath Ghosh vs. Emperor (supra) and two other cases, mentioned in the judgment, set aside the conviction agreeing with the appellants Counsel that the conviction and sentence was "wrong in law". The judgment does not contain any discussion on the point unlike the case of Upendra Nath Ghosh in which the finding had been arrived at after elaborate discussion of the evidence. 13. It would appear that the decisions in the cases of Bhola Singh (supra) or Upendra Nath Ghosh (supra) were rendered on the facts of the case upon a finding that the prosecution had failed to prove that abduction was for the purpose of murder or for being so disposed of as to be put in danger of being murdered. 13. It would appear that the decisions in the cases of Bhola Singh (supra) or Upendra Nath Ghosh (supra) were rendered on the facts of the case upon a finding that the prosecution had failed to prove that abduction was for the purpose of murder or for being so disposed of as to be put in danger of being murdered. It need hardly be emphasised that abduction need not be only for the purpose of murder, it may be for the purpose of ransom, theft or any thing of the kind. While abduction in the case of Upendra Nath Ghosh was apparently for theft, there was hardly any abduction in the case of Bhola Singh. The deceased had boarded the boat in course of chase on his own. Later he was assaulted and strangulated in the boat and his dead body was thrown in the river. 14. In the case of Kalaporla Saidula (supra), no doubt, the learned Judge stated as a matter of law that when the case of the prosecution is that the person abducted has been murdered by the abductor, there is no scope for the charge under Section 364 of the Penal Code. But, as mentioned, the learned Judges said so simply following the decisions in the cases of Upendra Nath Ghosh (Supra), Ijjatula Akanda V/s. Emperor, AIR 1945 Calcutta 42, and Akam Sheikh V/s. Emperor, AIR 1947 Calcutta 35, without any discussion of evidence on the point, the facts of the case of Upendra Nath Ghosh have been seen above. In the case of ljjatula Akanda the circumstances were such that if the case under Section 364 was established, the graver charge under Section 302 would also be established and if the graver charge was not established, the charge under Section 364 also could not be established. The prosecution case was that several accused were seen taking away the victim at a river bank who was never heard of later. A corpse was discovered from that place and was identified to be the body of the missing woman. In these circumstances the conviction under Section 364 IPC, was set aside and the case was remanded for trial on charges of murder or abetment of murder. A corpse was discovered from that place and was identified to be the body of the missing woman. In these circumstances the conviction under Section 364 IPC, was set aside and the case was remanded for trial on charges of murder or abetment of murder. In the case of Akam Sheikh vs. Emperor (supra), the prosecution evidence was that the deceased was forcibly taken away and never heard of and his corpse was discovered on the next day. It was observed that the prosecution case must have been that the three accused either themselves murdered the deceased or abetted his murder and, therefore, the offence was triable by the Sessions Judge and not by the Assistant Sessions Judge. In none of these cases it was held as a matter of law that in no circumstance a charge under Section 364 IPC can be made out if the prosecution alleges that the deceased met his death after he was abducted and that this death was met at the hands of the abductors or other persons. 15. In State V/s. Dallela (1958) ILR 8 Rajasthan 181, the Rajasthan High Court observed that it cannot be said that in no circumstance a charge under Section 364 of the Indian Penal Code can be made out if the prosecution alleges that the deceased met his death after he was abducted and that his death was made at the hands of the abductors or other persons. Where the intention of the abductors was to torture the person abducted to the extent of killing him in case he did not disclose the whereabouts of his valuables the ingredients of Section 364 would be fulfilled and the abductors would te liable under that Section. The facts of that case were that dacoits came to the house of one Swami Bisodanand. They asked the inmates of the house to disclose the whereabouts of the cash and ornaments. On their denial they went to the other part of the house in which Swamiji lived. They tied his hand and beat him with lathi. Later he was made to sit on his camel and forcibly taken away. Swami Bisodanand was not seen or heard thereafter. It was alleged that he had been killed by the dacoits who had abducted him. They tied his hand and beat him with lathi. Later he was made to sit on his camel and forcibly taken away. Swami Bisodanand was not seen or heard thereafter. It was alleged that he had been killed by the dacoits who had abducted him. The learned Judges observed that the conduct of the dacoits who in course of the occurrence had later robbed the passengers of a bus at gun point, killed one of them and then taken away Swamiji showed that the persons were of desperate character. It did not appear that their intention was only to abduct Swamiji, the intention appeared to be to torture him to the extent of killing in case he did not disclose the whereabouts of the valuables. In the circumstances the ingredients of Section 364 IPC were held to be fulfilled. Holding that the abductor had the intention at the time of adduction to murder him or to put him in such state that he might be so disposed of as to be in the danger of being murdered, the appellant was held liable under Section 364 of the Penal Code. 16. The Allahabad High Court in the case of Mahabir V/s. State of U.P., 1990 Criminal Law Journal 1605, took a similar view dissenting from the view taken by the Calcutta High Court and the Hyderabad High Court in the aforementioned cases. The Court held that where accused persons are charged for offences under Sections 364 and 302 read with section 34 of the Code and they are acquitted of the offence of murder it cannot be said that they cannot be convicted under Section 364 in all circumstances. The facets of each case would determine the liability of the offence. In the facts of the case in hand, however, the Court held that the appellants having been acquitted of the charge of murder, on the evidence on record, it would not be sate to hold that they had abducted the deceased with the intention to murder him and their conviction under Section 364 could not be sustained. Clearly, where the facts constituting the two offences are so intermingled that they cannot be separated from each other, acquittal of one charge would have a bearing on the other charge. 17. Clearly, where the facts constituting the two offences are so intermingled that they cannot be separated from each other, acquittal of one charge would have a bearing on the other charge. 17. In the case of Ram Chandra V/s. State of Uttar Pradesh, AIR 1957 SC 381 , again, the accused had been charged, besides Sections 386 and 201, under Sections 302 and 364 of the Penal Code. The case related to kidnapping of.a 14 year boy for ransom. In course of investigation accused persons were nabbed. The boy had by then already been killed. One of them made a confession. Relying on the confession and other materials on record they were variously convicted to death under Section 302 of the Penal Code, imprisonment for life under Section 364 of the Penal Code, R.I. for ten years under Section 386 and R.I. for seven years under Section 201 of the Penal Code. The convictions were upheld by the High Court. The Supreme Court held it was not safe to rely on the confession and accordingly set aside the conviction under Sections 302 and 201 of the Penal Code but maintained the conviction under Sections 364 and 386. It would be useful to quote the relevant passage from the judgment as under: "As regards the charge against him under Section 364, Penal Code for kidnapping, though there is no direct evidence, the various ransom letters categorically state that the missing boy is in the custody or control of the writer thereof. It is asserted therein that on payment of the ransom money the boy will be restored at a particular time and place. We find it hard to believe that this can be mere pretence in order to strike terror in the mind of the father of the boy and to obtain money. It is to be noticed that the ransom letters started from the day next after the disappearance of the boy and they continued pouring in right up to 4th July, a period of about three weeks. It appears to us extremely improbable that a person can keep up the pretence for so long if he had not the absolute confidence that there was no chance of the boy returning until the time which he had to take for bringing about payment of the ransom. It appears to us extremely improbable that a person can keep up the pretence for so long if he had not the absolute confidence that there was no chance of the boy returning until the time which he had to take for bringing about payment of the ransom. The tone of these letters justifies one of two inferences, viz, either the boy has been already murdered, as the confession suggest, or the boy, having been kidnapped, is kept in effective custody, so as not to be able to escape. We have for reasons already given felt it unsafe to convict the appellant Ram Chandra of the offence of murder but there is absolutely no reason why the very admissions in the various letters of which he has been found to be the author, should not be treated as clear evidence against him that he has obtained the custody of the boy by kidnapping We are of the opinion that the circumstances lead to the conclusion that the appellant Ram Chandra is guilty of the offence under Sections 364 and 386 of the Indian Penal Code." 18. Recently in State of West Bengal V/s. Mir Mohammad Omar and ors. (2000) 8 SCC 382 , the Supreme Court laid down the scope of the 364 of the Penal Code in the context of a case in which the accused had been charged both under Section 302 and section 364 and while dealing with the argument that abduction by itself is not punishable by any provision of the Penal Code, as follows : "Section 364 IPC says, whoever abducts any person "in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered" he commits the offence punishable under this Section. So the important task of the prosecution was to demonstrate that abduction of Mahesh was 1or murdering him. Even if the murder did not take place, the offence would be complete if the abduction was completed with the said objective. Conversely, if there was no such objective when the abduction was perpetrated, but later the abductors murdered the victim. Section 364 IPC would not be attracted, though in such a case the Court may have to consider whether the offence of culpable homicide (amounting to or not amounting to murder) was committed." 19. Conversely, if there was no such objective when the abduction was perpetrated, but later the abductors murdered the victim. Section 364 IPC would not be attracted, though in such a case the Court may have to consider whether the offence of culpable homicide (amounting to or not amounting to murder) was committed." 19. While amidst the case law reference may also be made to Jhapsa Kabari & Ors. V/s. State of Bihar, (2001) 10 SCC 94 : 2002(3) PLJR (SC) 100, in which the conviction of the appellants under Section 364 of the Penal Code was maintained even though their conviction under Section 302/34 was set aside. The facts of the case were that the accused had snatched three year old child from the lap of this mother and taken him away. On the next day his dead body was found buried in a paddy field. 20. It would thus appear that the question as to whether the acquittal of an accused of the charge under Section 302 of the Penal Code would warrant acquittal of the charge under Section 364 also where he is tried for both the offences would depend on the facts and circumstances of the case. The crucial test being whether the accused intended at the time of kidnapping or abudction to commit his murder or so disposed ot as to be put in danger of being murdered. Where the prosecution succeeds in proving this much the offence under Section 364 would be complete, no matter whether the charge of murder also is proved or not. I am in respectful agreement with the view expressed by by the Rajasthan High Court and the Allahabad High Court that where accused persons are charged with both the offences under Sections 302 and 364 of the Penal Code and they are acquitted of the offence of murder, it cannot be said that they cannot be convicted under Section 364 in any circumstances. The view taken by the Hyderabad High Court to the effect that conviction under Section 364 of the Penal Code in such a case could be "wrong in law" cannot be said to be correct interpretation of law. The view taken by the Hyderabad High Court to the effect that conviction under Section 364 of the Penal Code in such a case could be "wrong in law" cannot be said to be correct interpretation of law. Similarly the observations of this Court in the case of Bhola Singh that "it is well established" that where the charge of murder fails "there can be no scope for a charge under Section 364", with utmost respect, does not lay down the correct law. Though, as already indicated above, the observation was quite apposite in the facts and circumstances of the particular case. 21. Coming to the instant case it is to be considered whether the offence under Section 364 has been proved against the appellants or not. As seen above the prosecution examined five witnesses all of whom consistently stated about the appellants forcibly taking away Sheo Pujan Kumar by putting him in fear of death. They are family members and, therefore, natural witness. They appealed to them to spare Sheo Pujan. In stead they were threatened. Appellant Nageshwa Yadav hurled abuses and asked others to finish him. The utterances made by them indicated that they believed that Sheo Pujan was responsible for the land dispute and that is why they stated that after finishing him they would take possession of the land. After this Shjeo Pujan was never seen or heard of. 22. It is true that witnesses also spoke about the appellants killing Sheo Pujan seen by them. The trial court has rejected this part of the evidence as being an improvement since in their statements under Section 164 Cr.P.C. they did not state to have seen Sheo Pujan being killed.This may raise doubt about their truthfulness. However, it is well settled that even when major portion of the evidence of a witness is found unreliable, it the remaining part of the evidence is found to be reliable and the same is sufficient to prove guilt of the accused, he can be convicted. It is not that whole of the evidence ot a witness found lying, must be rejected. There is a general tendency to over-state the case and make some exaggerations. A witness may have only seen the accused running away from the place of occurrence immediately after the incident. It is not that whole of the evidence ot a witness found lying, must be rejected. There is a general tendency to over-state the case and make some exaggerations. A witness may have only seen the accused running away from the place of occurrence immediately after the incident. His claim of also seeing the actual incident besides running away, in course of his evidence may be rejected but this does not mean that he had not seen the accused running away. That part of the evidence may be accepted. of course, that may not be possible where evidence can not be dissectedwhere it is so inextricably mixed up- that chaff cannot be separated from grain. 23. As the Apex Court has observed on many occasions, there are three categories of witnesses-wholly reliable, wholly unreliable and neither wholly reliable nor wholly unreliable. While dealing with the witnesses of the third category the Court has to be circumspect. The maxim Faisus in uno, Faisus in Omnibus i.e. False in one, false in all has not been accepted as a mandatory rule of evidence, it is only a rule of caution. See Nisar Ali V/s. State of U.P., AIR 1957 SC 366 . The law on the point has been lucidly summarised by the Apex Court recently in the case of Gangadhar Bahera V/s. State of Orissa, (2002) 8 SCC 381 , as under : "Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim faisus in uno, faisus in omnibus" has no application in India and the witness cannot be branded as liars. The doctrine is a dangerous one specially in India for if a whole body of the testi mony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. The maxim "falsus in uno, faisus in omnibus" has not received general accceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The maxim "falsus in uno, faisus in omnibus" has not received general accceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it lis not what may be called "a mandatory rule of evidence". Witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. Even if a major portion of the evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of a number of other co-accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where chaff can be separated from the gain, it would be open to the court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guiit of other accused persons. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto." 24. It was submitted in the instant case that the deceased was an absconder and false case was instituted to shield him. I do not find any merit in this submission. The allegation that he was killed and his dead body was thrown in the river was a later development in the case, which was disbelieved by the trial court. It was submitted in the instant case that the deceased was an absconder and false case was instituted to shield him. I do not find any merit in this submission. The allegation that he was killed and his dead body was thrown in the river was a later development in the case, which was disbelieved by the trial court. If the prosecution wanted to institute a false case for the reason as suggested on behalf of the appellant, nothing prevented them from saying so at the first instance in the FIR itself. What really happened only was stated. There is no dispute that Sheo Pujan was never seen thereafter. No such suggestion even was made. 25. The evidence on record, in my opinion, leaves no room for doubt that the accused abducted Sheo Pujan Kumar for the purpose of committing his murder or to put him in danger of being murdered and therefore they committed the offence under Section 364 of the Penal code. In the facts and circumstances therefore I find no infirmity in the conviction of the appellants under Section 364 of the Penal Code. 26. Lastly coming to the question of sentence, we are of the view that in the facts and circumstances, also taking into account that the occurrence took place in 1980, the ends of justice would be served by awarding the sentence of seven years rigorous imprisonment. 27. In the result, the appeal is dismissed subject to modification in the sentence as above. Appellant Sattan Yadav is in jail, he will serve remainder of the sentence. Appellants Nageshwar Yadav, Vishwanath Yadav and Lallan Mahto are on bail. Their bail bonds are cancelled and they are directed to surrender in the court below within four weeks to serve the sentence. If they fail to do so the trial court will take necessary steps for apprehending them. P.N.Yadav, J. 28 I agree.