JUDGMENT The appellant, Md. Riyaz, has preferred this appeal against the judgment of conviction dated 21.8.2000 and order of sentence dated 26.8.2000 passed in Sessions Trial No.218 of 1999/206 of 1999 by the court of 8th Additional Sessions Judge, East Champaran, Motihari, whereby the court of 8th Additional Sessions Judge, East Champaran, Motihari, convicted the appellant, Md. Riyaz, for the offence under Section 364 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for six years. 2. The prosecution case, as contained in the written report of the informant, Mangal Prasad (P.W.4), as given on 22.9.1997 at police station-Sugauli, is that on 11.9.1997 at about 7 P.M., the accused-appellant, Md. Riyaz, son of Hasbullah Mian, resident of Kasai Tola, Sugauli, came to his house and his son, Dhananjay Prasad, aged about 21 years, accompanied him and since then his son did not return to his house. He searched his son at his own level but no trace was found. It is further alleged that since few days dispute was going on in between his son, Dhananjay Prasad and the accused-appellant, Md. Riyaz, regarding money transaction. He has firmed believe that his son has been carried by the accused-appellant, Md. Riyaz, with an intention to kill. The informant, Mangal Prasad (P.W.4), also raised suspicion against Saheed Mian, son of Anwar Master, Afroz Mian, son of Bholi Mian, Ganesh Prasad, son of Bhagwat Prasad, Bhutta Mian, son of Ainul Mian and Firoz Mian, son of Muzammil Mian, all resident of Sugauli Barwa , P.S. Sugauli, as there was some differences in between them and his son. The taking away of his son by the accused-appellant, Md. Riyaz, was witnessed by him, his wife, Surajmukha Devi (P.W.3), his son, Chuman Prasad (P.W.2), Dinanath Prasad (not examined) and Wakil Mian (P.W.1). 3. On the basis of the written report of the informant, Mangal Prasad (P.W.4), Sugauli P.S. Case No.106 of 1997 was instituted on 22.9.1997 under Section 364 of the Indian Penal Code against the accused-appellant, Md. Riyaz and after investigation of the case, police submitted the chargesheet and after the cognizance, the case was committed to the court of sessions for trial, where the charge was explained to the accused-appellant, Md. Riyaz, who pleaded his innocence and the trial proceeded. The defence of the accused-appellant, Md. Riyaz, was of false implication on account of previous enmity. Riyaz and after investigation of the case, police submitted the chargesheet and after the cognizance, the case was committed to the court of sessions for trial, where the charge was explained to the accused-appellant, Md. Riyaz, who pleaded his innocence and the trial proceeded. The defence of the accused-appellant, Md. Riyaz, was of false implication on account of previous enmity. The defence, as appears from the trend of cross examination, is that Dhananjay Prasad was doing the work of smuggling and had also kept Meera Devi, who was also engaged in smuggling, and he used to reside with Meera Devi at Hazipur and there is possibility that Dhananjay Prasad might have been concealed by strangers in relation to that activities. 4. The prosecution, in order to prove its case, examined altogether six witnesses. They are P.W.1, Md. Wakil Mian, P.W.2, Chuman Prasad, P.W.3, Surajmukha Devi, P.W.4, Mangal Prasad, the informant of the case, P.W.5, Sri Rajeshwar Tiwari, Judicial Magistrate, First Class, Motihari, who has formally proved the statements of Md. Wakil Mian (P.W.1), Chuman Prasad (P.W.2), Surajmukha Devi (P.W.3) and Dinanath Prasad (not examined), as recorded under Section 164 of the Code of Criminal Procedure by Sri R.K. Tiwari, Judicial Magistrate, First Class, Motihari, as Exts.3 to 3/C, and P.W.6, Dilsan Ahmad, who has proved the formal F.I.R. as Ext.5 and also the endorsement of S.I., Harendra Kumar, of Sugauli police station as Ext.1/B. 5. The trial court on considering the evidence of the prosecution witnesses came to the conclusion that the prosecution has been able to prove the charge under Section 364 of the Indian Penal Code against the accused-appellant, Md. Riyaz, beyond all reasonable doubts. 6. P.W.4, Mangal Prasad, is the informant of the case and the father of Dhananjay Prasad. He has stated in his evidence that his son has been murdered. The occurrence is of before two and half years. It was Thursday and the time was about 7.00 P.M. At that time, he alongwith his wife and son, Chuman Prasad, was at his house then Riyaz Mian came to his house and his son, Dhananjay Prasad, accompanied him. Just thereafter, Shahid, Afroz, Firoz, Ganesh Prasad and Bhutta Mian also came there and made query about Dhananjay then he replied that Riyaz has taken him away. Thereafter, his son did not return. He searched his son about 5 days. Just thereafter, Shahid, Afroz, Firoz, Ganesh Prasad and Bhutta Mian also came there and made query about Dhananjay then he replied that Riyaz has taken him away. Thereafter, his son did not return. He searched his son about 5 days. On 5th day, Wakil Mian (P.W.1) met and told him that before 5 days Dhananjay was seen on a Rikshaw with Riyaz moving towards station and on query Dhananjay told him that he is going to see the movie. He continued the search of his son about 5-6 days more but no trace was found then he gave the written report at the police station-Sugauli. This witness has proved his signature on the written report as Ext.1. This witness has further stated in paragraph-5 of his cross examination that on the date and time of occurrence his family members were present and the people were passing through but he could not say the name of the people. This witness has also stated that near the place of occurrence his Pattidar also resides. About 2-3 days, he did not tell about the occurrence to any one. He had also not asked about the occurrence to Wakil Mian. Wakil Mian himself had told him, where his son and wife were present. This witness has further stated that Hasbullah Kureshi, who had died in the year 1999, is the father of Md. Riyaz. He did not know that there was dispute in between Hasbullah and his brother, Musibullah, in which he and Wakil Mian were in favour of Musibullah and the said litigation was decided in favour of Hasbullah, due to which he was aggrieved. This witness has also stated that no dispute was occurred in between his son and the accused-appellant, Riyaz, in his presence. In paragraph-9 of his cross examination, this witness has further stated that his son used to go to Bettiah prior to the occurrence. The defence has drawn suggestion to this witness to the effect that Dhananjay had kept Meera, who was also indulged in the business of smuggling with Dhananjay, and a baby was also born to Meera. P.W.2, Chuman Prasad, is the son of the informant, Mangal Prasad (P.W.4) and the brother of Dhananjay Prasad. This witness has stated in his evidence that the occurrence is of before two and half years. P.W.2, Chuman Prasad, is the son of the informant, Mangal Prasad (P.W.4) and the brother of Dhananjay Prasad. This witness has stated in his evidence that the occurrence is of before two and half years. It was Thursday and the time was about 6.45 P.M. At that time, he was at his shop situated in his house then Riyaz came there and called Dhananjay and after talking both went away. After two days, search for Dhananjay was started as he did not return to the house. After four days, Wakil Mian (P.W.1) met and told him that he had seen Dhananjay with Riyaz on a Rickshaw. This witness has further stated that Dhananjay used to do the business of purchase and sell of spices. Dhananjay had told him about giving Rs.10,000/- to Afroz, resident of Hajipur, who had kept the same. Riyaz and Dhananjay had gone to Hajipur at the residence of Afroz, where Riyaz confined Afroz in the house and took the money saying that he had recovered the money as was given to him by Dhananjay. Thereafter, Dhananjay started to make demand of that money from Riyaz and due to that reason, there was difference in between Riyaz and Dhananjay. When Dhananjay did not return in the evening then he came in suspicion that Dhananjay had been killed. This witness has further stated that Ganesh, Shahid and Afroz, who were the associates of Riyaz, had also come in search of Riyaz. This witness has further stated in paragraph-2 of his cross examination that in the north of his house, the houses of Gajar Mian, Barsati Mian, Mokhtar Mian and Afzal Mian are situated; in the south of his house, the houses of Saryug Prasad Gupta and Hazari Prasad are situated, in the east of his house, the houses of Panchkauri Prasad, Ibram Mian, Panchkauri Mian and Lalai Mian are situated; in the west of his house, the houses of Ramashray, Rameshwar, Iqbal Prasad and Kunwar Munib are situated. He had not disclosed about the moving of Dhananjay with Riyaz to the aforesaid persons. This witness has further stated that Riyaz used to come to his house since before 2 years of the occurrence and the dispute arose in between Dhananjay and Riyaz before six months to the occurrence though no incident took place. He had not disclosed about the moving of Dhananjay with Riyaz to the aforesaid persons. This witness has further stated that Riyaz used to come to his house since before 2 years of the occurrence and the dispute arose in between Dhananjay and Riyaz before six months to the occurrence though no incident took place. This witness has further stated in his cross examination that after four days of the occurrence, Wakil Mian met him and during these four days, no trace of his brother was found, while search was made for Dhananjay at Bettiah (the house of brother-in-law), Pipra (sasural house) and Lalbagia (Nanihal). This witness has further stated in his evidence that when Dhananjay accompanied Riyaz, at that time, his father and mother were also present but none had restrained Dhananjay to move with Riyaz nor any talk was made with Riyaz on that day. After talk with Wakil, they did not go to Hajipur or Nepal for the search of Dhananjay. This witness has also stated that he did not go to the house of Riyaz for the search of his brother, Dhananjay. P.W.3, Surajmukha Devi, is the wife of the informant, Mangal Prasad (P.W.4) and the mother of Dhananjay Prasad. In her statement, she has stated that the occurrence is of before two and half years. It was Thursday and the time was about 7.00 P.M. At that time, Riyaz came to her house and taken away her son, Dhananjay, but Dhananjay did not return. After four days of the occurrence, Wakil met her, who informed her that he had seen Dhananjay with Riyaz on a Rickshaw. Thereafter, the search of Dhananjay was started. This witness has further stated that Dhananjay and Riyaz were doing the business of purchase and sell of Laung and Ilaichi and there was some difference in between them prior to the occurrence. Dhananjay had told her that he had given Rs.10,000/- to Afroz and the said money was taken by Riyaz. In spite of that Riyaz used to make demand of Rs.10,000/- from Dhananjay and due to that reason, Riyaz had committed the murder of Dhananjay. This witness has further stated in her cross examination that there was friendship relation in between Dhananjay and Riyaz since before three years of the occurrence and during this period Riyaz had visited her house for about 10-20 times. This witness has further stated in her cross examination that there was friendship relation in between Dhananjay and Riyaz since before three years of the occurrence and during this period Riyaz had visited her house for about 10-20 times. On the day of occurrence, when Riyaz had come, he talked to Dhananjay, about two minutes and thereafter both proceeded. At that time, her husband and son were present but none restrained Dhananjay to go with Riyaz. P.W.1, Md. Wakil Mian, has stated in his evidence that in between his house and the house of the informant, Mangal Prasad (P.W.4), four houses are situated. Before two years and four months at about 7.00 P.M., he was returning to house after taking tea from Railway Station then he saw Riyaz and Dhananjay on a Rickshaw and on query Dhananjay told him that he is going to see movie at Motihari. This witness has further stated in his cross examination that at that time none was present with him nor any person met him in the way. 7. From the evidence of P.W.4, Mangal Prasad, P.W.2, Chuman Prasad and P.W.3, Surajmukha Devi, it appears that Dhananjay Prasad moved from his house with the appellant, Md. Riyaz in the evening at about 7.00 P.M. on the alleged date of occurrence, who were also seen on a Rickshaw by Md. Wakil Mian (P.W.1) and on query made by Md. Wakil Mian (P.W.1), Dhananjay Prasad replied him that he is going to see the movie at Motihari. From the evidence of Mangal Prasad (P.W.4), Surajmukha Devi (P.W.3) and Chuman Prasad (P.W.2), who respectively are the father, mother and brother of Dhananajy Prasad, it is apparent that when Dhananjay Prasad moved from his house with the accused-appellant, Md. Riyaz, none forbade him to move with Riyaz. P.W.1, Md. Wakil Mian, has specifically stated in his evidence that when he saw Dhananjay Prasad with the accused-appellant, Md. Riyaz, on a Rickshaw then he made query from Dhananjay Prasad, who replied him that he is going to see movie at Motihari. It also appears from the evidence of the aforesaid witnesses that no attempt was made to approach the house of the accused-appellant, Md. Riyaz to make query about Dhananjay Prasad. Riyaz, on a Rickshaw then he made query from Dhananjay Prasad, who replied him that he is going to see movie at Motihari. It also appears from the evidence of the aforesaid witnesses that no attempt was made to approach the house of the accused-appellant, Md. Riyaz to make query about Dhananjay Prasad. The date of occurrence is stated to be of 11.9.1997 but it appears that the written report, which is the basis of the F.I.R., was given by the informant, Mangal Prasad (P.W.4) at police station-Sugauli, which was at a short distance, i.e., about 1/2 kilometers from the place of occurrence, on 22.9.1997. 8. To establish the charge under Section 364 of the Indian Penal Code regarding kidnapping or abducting of a person in order to murder, it is necessary for the prosecution to prove the taking away of the person by the accused without consent, or by force or on inducement by deceitful means. None of the witnesses has stated about moving of Dhananjay with the accused-appellant, Md. Riyaz, without consent or by force or on inducement by deceitful means. Only suspicion has been raised against the accused-appellant, Md. Riyaz, that he has committed the murder of Dhananjay Prasad as Dhananjay Prasad had moved with him. 9. Under the aforesaid facts and circumstances of the case, I come to the conclusion that the prosecution has not been able to prove the charge against the appellant, Md. Riyaz, beyond all reasonable doubts. 10. In the result, the judgment of conviction and order of sentence passed by the trial court against the appellant, Md. Riyaz, are hereby set aside and the appeal is allowed and the appellant, Md. Riyaz, is acquitted of the said charge. The appellant, Md. Riyaz, is on bail, so he is discharged from the liabilities of his bail bond.