Judgment : ( 2 ) THE case of the prosecution is that one nasir Ali (P. W. 3) lodged a complaint case before the Court of Judicial Magistrate, bhiwandi under Sections 420, 406/34 of the indian Penal Code and Sections 18, 19 and 20 of the Transplantation of the Human organs Act, 1994 against Deepak Kumar jaiswal, Lalia (Shyam Kumar Sharma), qamar Alam. a nurse named as Mery, Dr. Tabrez and also 2-3 Doctors (not named) of hurkisandas Nurrotumdas Hospital and research Center, Bombay alleging therein that accused persons fraudulently and in deceitful manner got his kidney removed. The said complaint was registered as Complaint Case no. 236 of 1998 (Ext. 13) and was sent before the concerned police station Bhiwandi (Bombay) under Section 156 (3) of the Code of Criminal Procedure for institution and investigation. On getting the said complaint on 7-4-1998 it was registered and one Pratap maruti Kadam (P. W. 13) the then Sub-Inspector of Police, Crime Branch Bhiwandi (Bombay) took up the matter for investigation and did enquire from Hurkisandas nurrotumdas Hospital and Research Center, as to whether one person named as Nasir ali has been operated upon in the Hospital as a kidney donor which was replied in negative by the Hospital under Ext. 14 series. However, it was informed that one Nasir Ali had been tested for HLA typing on 13. 3. 1997. Thereafter in order to get the matter regarding removal of kidney verified p. W. 13 referred Nasir Ali before the J. J. Hospital, Bombay and on being examined it was reported by the said Hospital under Ext. 15 series as "left kidney not visualized". Further in course of investigation P. W. 13 also made enquiry from the accused persons named in the complaint an. i in that course when some information was gathered he brought the informant to Ranchi along with Head constable and constable, namely, b. B. Thorat P. W. 14. Baban Niarabo P. W. 15 and Athar Khan Peer Khan Tarvi P. W. 16 all attached with Bhiwandi crime branch and took him to Kotwali Police Station on 8-5-1998 where Nasir Ali gave his Fardbeyan (Ext. Baban Niarabo P. W. 15 and Athar Khan Peer Khan Tarvi P. W. 16 all attached with Bhiwandi crime branch and took him to Kotwali Police Station on 8-5-1998 where Nasir Ali gave his Fardbeyan (Ext. 1) in presence of one R. N. Panda, Land reform Deputy Commissioner P. W. 10 wherein it has been stated that he is a resident of Bihar but since last 14 years he has been living at Bombay and has been earning his livelihood by doing embroidery work. It has been alleged that some times in May. 1997 he came across with one Deepak at bombay to whom he expressed his desire to go to Saudi Arab, upon it he said that he will fulfil his desire provided Rs. 40,000/- is paid, to which he agreed and then he introduced him with a man named as Lalia (Shyam Kumar Sharma) who asked for Rs. 40,000/- for the work to be done. The informant paid him Rs. 40,000/- and then Lalia brought him to Hurkisandas Nurrotumdas hospital and Research Center where stool and urine were given for test. Further case is that after eight days when he met with the said Lalia and asked about thedevelopment, said Lalia told him that the persons to whom money was given for making arrangement, for sending the persons to Saudi arab, has gone somewhere and when he gave threatening that he will report the matter to the police, Lalia told him not to worry about as he will send him with a man named as salim and then Salim brought him to bombay Airport where he introduced him to Dr. Tabrej and a nurse Mery, who brought him to Delhi and then brought him to Patna on the plea that no Air ticket was available for Saudi Arab from Delhi and then brought to Ranchi and took him to a Nursing home where blood sample was taken on the plea that if everything is found normal in the test, then only he could be sent to Saudi Arab. He was kept in one room of the Nursing home where in the night Dr. Tabrez, nurse mery, who had come from Bombay as well as Dr. Prasad and his staff named as Radha kishan came and informed that blood report is not normal and hence he cannot be sent to Saudi Arab. He was kept in one room of the Nursing home where in the night Dr. Tabrez, nurse mery, who had come from Bombay as well as Dr. Prasad and his staff named as Radha kishan came and informed that blood report is not normal and hence he cannot be sent to Saudi Arab. On hearing this, he became upset and then Dr. Tabrez told him that things can be set at right if blood transfusion is done and for that he will have to undergo a small operation, to which he agreed and then one injection was administered and thereafter he became senseless and after a week he found him in a bed of hospital named as Hurkisandas nurrotumdas Hospital and Research Center, bombay, where he was kept for about 7-8 months and in that course said nurse mery disclosed him that after removing his kidney it has been sold to some foreign national but neither they are paying money to her nor they are ready to share the money and in this way he has been duped by the accused persons. After knowing all these things, he fled from Hospital and reported the matter to the police station and the police officer after making enquiry asked him to forget all about by taking Rs. 5000- 10,000/- and thereafter he on the advice of his well wishers lodged the case in the Court and in course of investigation P. W. 13 and others brought him to Ranchi and took him to Kotwali Police Station where his statement was taken and on the basis of which case was registered at Ranch. It may be mentioned that after the Fardbeyan of P. W. 3 was recorded. P. W. 13 along with other police officers namely, B. B. Thorat P. W. 14, Baban niarabo Sarunke P. W. 15 and Athar Khan peer Khan Tarvi P. W. 16 and also with Ranchi police came io Prasad Nursing Home and did make enquiry from the appellant but he flatly denied that any kidney of the informant has been taken out. However. P. W. 3 did tell P. W. 13 that this is the Nursing Home where his kidney was taken out and the persons involved were Dr. Prasad (appellant) his Compounder etc. However. P. W. 3 did tell P. W. 13 that this is the Nursing Home where his kidney was taken out and the persons involved were Dr. Prasad (appellant) his Compounder etc. However, it appears from the evidence of P. W. 13 that he did not find any record showing removal of the kidney in the Nursing Home. Moreover it could not be ascertained as to where and when kidney of Nasir Ali was removed. It would be significant to note here that P. W. I3 did submit charge sheet against those accused persons named in the First Information report lodged at Bhiwandi and the appellant was not charge sheeted in the case lodged at Bhiwand. Before submission of the charge sheet. P. W. 13 seems to have seized from the possession of one of the accused certain documents which were the affidavits. Exts. 2, 3, 4. 5 of different donors indicating therein that donors voluntarily agreed to donate kidney to different recipients and gave consent to be operated upon at the prasad Nursing Home. Further case appears to be that after the case was lodged at Ranchi p. W. 17 Mahesh Ram Paswan. the then Inspector, took up the investigation and visited the Nursing home and found several instruments installed which were meant for transplantation of the kidney and after finding the case true, charge sheet was submitted and, accordingly, cognizance of the offences was taken and in due course when the case was committed to the Court of session, charges were framed to which accused pleaded not guilty and claimed to be tried. ( 3 ) IN this case the prosecution examined as many as 17 witnesses, of them Uma shankar Prasad P. W. 1, Ajay Kumar P. W. 4 though have been declared hostile but have stated only that dialysis was being done in the Prasad Nursing Home. P. W. 2 Roslin josheph posted at the relevant time as Nurse has deposed in her evidence that Doctors from outside used to be called for kidney transplantation. P. W. 3 Nasir Ali, informant has deposed that he had given Rs. 40,000/- to Lalia for going to Saudi Arab, but when he did not do anything, he approached him and then he told that his blood sample was not found to be normal and, therefore, he will have to be examined medically again. P. W. 3 Nasir Ali, informant has deposed that he had given Rs. 40,000/- to Lalia for going to Saudi Arab, but when he did not do anything, he approached him and then he told that his blood sample was not found to be normal and, therefore, he will have to be examined medically again. Therefore, one Nurse administered injection to him, as a result of which he became unconscious and when he woke up, he found that he has been operated upon at Bombay. This witness has been declared hostile. P. W. 5 Jaleshwar Mahto. P. W. 6 Mokhtar ahmad. P. W. 7 Basant Lal, P. W. 11 Ram prasad Burman either have proved affidavits or the signature of the deponent on the affidavits. P. W. 8 Thomas Kuruvilla is on the point that Doctor had made a conference in the Hotel. P. W. 10 Ravindra Nath Panda is on the point that Nasir Ali came from bombay along with Bombay police and gave fardbeyan (Ext. 1) in his presence. P. W. 12 anil Kumar Gupta (Technician) is on the point that appellant is having Nursing Home at Radium Road, Ranch. ( 4 ) ON the basis of evidences as indicated above the trial Court did hold that Nasir Ali got his kidney removed on his own volition and sold it to someone for its transplantation in another human being and that kidney of nasir Ali was removed under the supervision of the appellant in the Nursing home belonging to the appellant. Having held so, the trial Court however, did refer the case of other accused namely, Qamar alam, Shyam Kumar Sharma @ Lalia and deepak Kumar Jaiswal to the Court at bombay where the case instituted under sections 18, 19 and 20 of the Transplantation of the Human Organs Act, 1994, was pending. However, the trial Court did find the appellant guilty under Section 109 of the Indian Penal Code for abeting the commission of the offence under Sections 18, 19 and 20 of the Transplantation of the Human organs Act and also under Section 201 for causing the evidence of commission of the offence under Sections 18, 19, and 20 of the Transplantation of the Human Organs act disappear. Accordingly, the appellant was convicted and sentenced as aforesaid. ( 5 ) BEING aggrieved with that order of conviction and sentence, the appellant has preferred this appeal. Accordingly, the appellant was convicted and sentenced as aforesaid. ( 5 ) BEING aggrieved with that order of conviction and sentence, the appellant has preferred this appeal. ( 6 ) LEARNED counsel appearing for the appellant submitted that though there has been absolutely no legal evidence on the record to establish that the appellant got the kidney of Nasir Ali (P. W. 3) removed in his nursing Home, still the Court below by taking the statement made under Section 164 of the Code of Criminal Procedure by P. Ws. 3 and 2 and also P. Ws. 13, 14, 15 and 16 disclosing therein that informant Nasir Ali p. W. 3 had stated before them that he was operated upon by the appellant in his Nursing home, even though P. W. 3 in his evidence nowhere has stated that he made such statement to the witnesses as aforesaid passed the order of conviction and sentence and, hence, the order of conviction and sentence is quite illegal. It was further submitted that the appellant was charged under Section 109 of the Indian Penal Code for abetment in consequence of which the offences under sections 307, 326, 328, 201 were committed and similarly was also charged under section 201 of the Indian Penal Code for causing disappearance of the evidences of the aforesaid offences but the appellant was convicted both under Sections 109 and 201 of the Indian Penal Code for abeting the offences under Sections 18, 19 and 20 of the transplantation of the Human Organs Act and also under Section 201 of the Indian penal Code for causing disappearance of the evidence of the aforesaid offences, but no charge whatsoever was framed either under sections 18, 19 and 20 of the Transplantation of the Human Organs Act and hence, the order of conviction and sentence is bad on this count also. ( 7 ) HEARD learned counsel appearing for the State. ( 8 ) HAVING heard learned counsel for the parties and on perusal on the records, I do find that the informant Nasir Ali P. W. 3 though has made statement in his fardbeyan (Ext. ( 7 ) HEARD learned counsel appearing for the State. ( 8 ) HAVING heard learned counsel for the parties and on perusal on the records, I do find that the informant Nasir Ali P. W. 3 though has made statement in his fardbeyan (Ext. 1) and also under Section 164 of the Code of Criminal Procedure that when he was brought to the Nursing Home of the appellant at Ranchi, accused persons, who had brought him from Bombay got his blood test done at Prasad Nursing Home and then Dr. Tabrez told him that report is not normal and in order to get the things right he has to undergo small operation to which he agreed and then injection was given and he became unconscious and when he regained consciousness, he found in a bed of a Hospital at Bombay, but P. W. 3 did not come forward to support his case as has been made out in the First Information Report or in the statement made under section 164 of the Code of Criminal Procedure, as he in his evidence has stated that on being promised by Lalia that he will send him to Saudi Arab he paid him Rs. 40,000/- and then he at his instance got his blood tested but when nothing was done he approached him and then Lalia told him that report of the blood test is not normal and hence another test of the blood is to be undertaken and for that one lady gave injection, as a result of which he became unconscious and when he regained consciousness, he found that he has been operated upon and all these things were done at Bombay. Thus, it is evident that there has been absolutely nothing in the evidence of P. W. 3 to show that P. W. 3 was ever operated upon at Prasad Nursing home. Similarly, P. W. 2 who at the relevant time was working as Nurse in the Prasad nursing Home, has stated that there used to be kidney transplantation at Prasad Nursinghome for which Doctors used to come from different places such as Ahmedabad, bombay. Lucknow, Delhi, Kolkata etc. In the evidence of P. W. 2 there is nothing to suggest that Nasir Ali was operated upon at prasad Nursing Home. Further I do find that p. W. 13. Lucknow, Delhi, Kolkata etc. In the evidence of P. W. 2 there is nothing to suggest that Nasir Ali was operated upon at prasad Nursing Home. Further I do find that p. W. 13. who was investigating the case lodged at Bhiwandi and also P. Ws. 14, 15 and 16 all Police officials attached with the crime Branch, Bhiwandi came to Ranchi with Nasir Ali, did depose that Nasir Ali took them to Prasad Nursing Home and disclosed them that this is the place where he had been operated upon and Nasir Ali made identification of the appellant as Dr. S. S. Prasad. Thus, it appears from the evidences of the aforesaid witnesses that they were told by nasir Ali P. W. 3 that he was operated upon at Prasad Nursing Home but in absence of any evidence to that effect by P. W. 3, the evidences of the aforesaid witnesses, e. g. P. Ws. 13, 14, 15 and 16 will have no evidentiary value. Thus, 1 do find that there has been no evidence to the effect that Nasir Ali was operated upon at Ranchi in Prasad Nursing home. However, the trial Court by putting reliance on the statement made in the fardbeyan and under Section 164 of the code of Criminal Procedure by the informant and also the statement made under Section 164 of the Code of Criminal Procedure by p. W. 2 did hold that Nasir Ali was operated upon at Prasad Nursing Home at Ranchi but the approach of the trial Court is quite erroneous as it has been well settled that statement made either in the First Information report or under Section 164 of the Code of criminal Procedure cannot have any evidentiary value rather, it is used only either for the purpose of contradiction or corroboration. Further it be noted that when P. W. 13 in course of investigation came to Ranchi and made enquiry with respect to documents maintained at the Nursing Home, it was disclosed by the appellant that all those documents have been seized by Income Tax Department. Further it be noted that when P. W. 13 in course of investigation came to Ranchi and made enquiry with respect to documents maintained at the Nursing Home, it was disclosed by the appellant that all those documents have been seized by Income Tax Department. On account of that trial Court did observe that it was the duty cast upon the appellant under Section 106 of the Evidence act to produce the document as it was within his knowledge which was not discharged and threfore, the trial Court drew adverse inference under Section 114 (g) of the Evidence act and did hold that had those documents been produced, it would have been unfavourable to the appellant. The approach of the learned Magistrate appears to be quite erroneous. It is true that it has come in the evidence that when investigating agency asked for document relating to Nursing home, it was informed by the appellant that the same has been seized by the Income Tax authority. In my view, the provision enshrined in Section 106 of the Code of Criminal procedure is certainly not intended to relieve the prosecution of its burden of proof. It is designed to meet certain exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience. If knowledge of certain facts is as much available to the prosecution on exercise of due diligence as to the accused, the facts can not be said to be especially within the knowledge of the accused. As has been stated above when it was disclosed by the appellant that the documents have been seized by the Income Tax Authority, it was the duty of the prosecution in order to prove charge to fetch the documents and to adduce in evidence. In the circumstances, the appellant could never be saddled with duty to produce documents. In that view of the matter, no adverse inference of the guilt of the appellant can be drawn under Section 114 (g) of the Indian evidence Act. That apart, adverse inference in terms of Section 114 (g) of the Indian Evidence act can be drawn only if there is withholding of evidence and not merely on account of the failure to obtain evidence. That apart, adverse inference in terms of Section 114 (g) of the Indian Evidence act can be drawn only if there is withholding of evidence and not merely on account of the failure to obtain evidence. As I have said that in the facts and circumstances it cannot be a case of withholding of evidence and as such any adverse inference drawn against the appellant on account of the aforesaid facts and in the circumstances, as stated above, is quite erroneous. Thus, I do find that the trial Court has wrongly held that kidney of the appellant was taken out in the Nursing Home of the appellant and in course of enquiry the appellant in order to save himself from the accusation got the documents of the Nursing Home disappeared. ( 9 ) COMING to the other aspect of the matter, I do find that though the appellant was charged under Section 109 of the Indian Penal code for abeting the offences committed under sections 326, 327 and 328 of the indian Penal Code but the appellant was convicted under Section 109 of the Indian penal Code for making abetment in consequence of which offences under Sections 18, 19, and 20 of the Transplantation of the Human Organs act has been committed, whereas no charge was framed under sections 18, 19, and 20 of the Transplantation of the Human Organs Act either against this appellant or the other accused. Therefore, the order of conviction and sentence passed under Section 109 of the Indian Penal Code is quite illegal. Similarly, the order of conviction and sentence passed under Section 201 of the Indian Penal Code is quite erroneous as it has been held by the Court that the appellant caused the evidences of commission of the offences under Sections 18, 19, and 20 of the Transplantation of the human Organs Act disappeared, but no such charge has been framed, rather charge has been framed under Section 201 for causing the evidence of the offences under Sections 307, 326, 328 and 420 of the Indian penal Code disappeared. Moreover, as has been discussed above, I do find that there has been absolutely no evidence to show that documents relating to the Nursing Home were caused to be disappeared intentionally from screening himself from any illegal Act. Moreover, as has been discussed above, I do find that there has been absolutely no evidence to show that documents relating to the Nursing Home were caused to be disappeared intentionally from screening himself from any illegal Act. ( 10 ) IN the circumstances, the order of conviction and sentence passed by the Court below is hereby set aside. Consequently, the appeal is allowed and the appellant is hereby acquitted of the charges levelled against him and is discharged from the liability of the bail bonds. Appeal allowed. --- *** --- .