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2012 DIGILAW 114 (PAT)

Jogi Singh v. State of Bihar

2012-01-19

MANDHATA SINGH

body2012
JUDGMENT Mandhata Singh, J.-Prosecution case initiated on fardbayan of one Dhruv Narayan Singh in brief is that his cousin Ram Brikchh Singh was returning from the house of his villager Ram Babu, in the way this appellant Jogi Singh along with Devendra Singh, Sukho Singh, Sanjiv Singh, Rajiv Singh, Surendra Jha @ Bagula Jha, Rajo Jha, Manoj Singh, Arvind Singh and Khusbhoo Singh surrounded him. This appellant and Bagula Jha caught his hand, they were armed with various arms including fire-arms. They dragged him towards East. There was some alarm, informant's sister-in-law (bhabhi) Ram Pukari Devi came and caught leg of this appellant to request the rescue of her husband, for the same Rs.3,000/- was demanded, she brought Rs.3,000/- and handed over to accused Sukho Singh, but informant's cousin was not freed by them. Matter was informed to the police, two of the accused persons namely Sanjiv Singh and Arvind Singh faced trial and acquitted by the Additional Sessions Judge-II, Munger vide Sessions Trial No. 577 of 1990. Appellant's trial is ended in his conviction and sentence under Section 364 of the I.P.C. 2. In all, five witnesses are examined in the case, they are PW 1 Dhruv Narayan Singh informant of the case. PW 2 Ram Pukari Devi wife of abducted Ram Brikchh Singh, PW 3 Ram Swarath Singh, PW 4 Ragni Kumari and PW 5 Nakul Singh. Of them PW 1 states about his inability to name miscreants who abducted his cousin, victim of the case. PW 3 states to know nothing about the incident has been declared hostile, but nothing has appeared in his statement to corroborate the prosecution case. PWs-1, 4 and 5 are the witnesses who corroborate taking place of the incident, but are not involving this appellant in the incident. On that point, they have been declared hostile, but in their cross-examination also nothing has appeared about the involvement of this accused-appellant. 3. Now, PW 2 only remains to discuss, if can be solely believed to involve the appellant in the incident for his conviction for the offence under Section 364 of the I.P.C. On this point, submission of learned counsel for the appellant is that if the averment made in the F.I.R. along with the statement of this witness is taken into consideration no offence under Section 364 of the I.P.C. is made out. F.I.R. on the relevant point is to the effect that on the request a demand was made for Rs.3,000/- for rescue of the victim, which was paid even then the victim was not left rather was taken by accused persons, same is corroborated by PW 2. Now question remains to consider as what remained reason or purpose or motive behind the abduction. The learned counsel appearing on behalf of State failed to suggest the motive or reason behind the abduction, then only circumstance remains to come to any conclusion that he was kept in confinement secretly and wrongfully as he never returned/come back. For application of offence under Section 364 of the I.P.C. abduction must be for the purpose of murder or disposing for the same. There is no whisper in the prosecution case about such purpose anywhere. So, the conviction under Section 364 of the I.P.C. in my view also cannot be justified. 4. Section 365 of the I.P.C. is a minor serious offence of similar nature, so the conviction under Section 364 of the I.P.C. can be converted into one under Section 365 of the I.P.C. Once conviction is converted into one under Section 365 of the I.P.C., sentence is relevant to be considered by this Court. In this case, petitioner-appellant remained in custody since 16.02.2008 the day of his remand that can be taken sufficient towards punishment to meet the ends of justice. 5. On the observation made above, evidence on record and circumstances of the case, the appeal is allowed in part. The conviction and sentence under Section 364 of the I.P.C. dated 18.12.2009 passed by Additional Sessions Judge, F.T.C.III, Lakhisarai in Sessions Trial No.577-A of 1990 is set aside that is converted/recorded under Section 365 of the I.P.C. with sentence to the period already undergone by the appellant. The appellant is in custody. He shall be released forthwith, if not wanted in any other case. 6. A copy of judgment along with lower Court records be sent back to the trial Court forthwith. Appeal allowed.