JUDGMENT 1. This criminal appeal has been preferred against the judgment of conviction dated 18.7.2001 and sentence order dated 23.7.2001 passed by Sri Rajesh Kumar, learned Addl. Sessions Judge III, Sitamarhi in Sessions trial no. 162 of 1988/16 of 2000 by which and whereunder he convicted the appellants for the offences punishable under sections 147, 323 and 364 of the Indian Penal Code and accordingly, all the appellants were sentenced to undergo rigorous imprisonment for one year under sections 147, 323 of the Indian Penal Code on each count and furthermore, they were sentenced to undergo rigorous imprisonment for seven years under section 364 of the Indian Penal Code. All the aforesaid sentences were ordered to run concurrently. 2. In brief, the prosecution case is that P.W. 8, Budhiya Devi, gave a written report to the police Inspector, Sheohar police station on 3.8.1984 to this effect that FIR named accused Ram Padarath Singh (Since deceased) asked her son, namely, Deo Lochhan Manjhi to go to Sheohar for taking some money which was being distributed among the Harijans and after that her son Deo Lochhan Manjhi along with the aforesaid Ram Padarath Singh went Sheohar where the above stated Ram Padarath Singh took his thumb impression on plain paper and gave rupee one hundred. She further stated that her son after taking the aforesaid money went to Punjab and after two or three years, he returned from Punjab and then she disclosed to her son that the above stated Ram Padarath Singh had forcibly cultivated her land and also installed a boring in her land. She further stated that her son Deo Lochhan Manjhi went to enquire from Ram Padarath Singh but Ram Padarath Singh threatened to kill him and also to remove him from village. She further stated that she as well as her son left the work of Ram Padarath Singh and when in the morning of 3.8.1984 her son Deo Lochhan Manjhi had gone to work in the field of Chandra Mohan Singh, the appellants along with Ram Padarath Singh caught her son and started assaulting him at about 10 a.m. Her son became unconscious and after that all the appellants and Ram Padarath Singh took him to their Darwaja and since then her son was missing and she is not aware as to whether her son was killed or alive. 3. 3. On the basis of the aforesaid written report Shyampur Bataha P.S. case no.39/1984 for the offences under sections 147, 342, 323, 420 and 364 of the Indian Penal Code was registered and accordingly, formal first information report was drawn against the appellants and Ram Padarath Singh. The matter was investigated by the Investigating officer and after completion of investigation, charge sheet was submitted against the appellants and Ram Padarath Singh for the offences under sections 147, 342, 323, 420 and 364 of the Indian Penal Code. On being receipt of charge sheet, the cognizance of the offences was taken and the case was committed to the court of sessions, in usual way. 4. During the pendency of the appeal, charge sheeted accused Ram Padarath Singh died and accordingly, proceeding against him was dropped vide order dated 5.11.1990. 5. Appellants stood trial and accordingly, they were charged for the offences under sections 147, 323, and 364 of the Indian Penal Code. Appellants denied the charges and claimed to be tried. 6. In course of trial, prosecution examined, altogether, nine witnesses and got exhibited FIR as exhibit 1 and fardbeyan as exhibit 2. The statements of the appellants and the accused Ram Padarath Singh were recorded under section 313 of the Cr.P.C in which they reiterated their innocence. 7. The defence also examined one defence witness and got exhibited entry dated 31.7.1991 of money order receipt as exhibit A. 8. The learned trial court, having relied upon the testimony of prosecution witnesses, convicted and sentenced the appellants in the manner as stated above. 9. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order submitting that all the material prosecution witnesses are related to each other and they were inimical to the appellants. He further submitted that, as a matter of fact, one Jagat Singh set up prosecution witnesses against the appellants on account of enmity. 9. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order submitting that all the material prosecution witnesses are related to each other and they were inimical to the appellants. He further submitted that, as a matter of fact, one Jagat Singh set up prosecution witnesses against the appellants on account of enmity. He further submitted that the appellants had also filed criminal case against the prosecution witnesses and some others for the occurrence of the same day and, as a matter of fact, non-bailable warrant of arrest was issued against the so-called victim of this case in the case lodged by prosecution party and so-called victim of this case absconded to evade his arrest in the case lodged by the prosecution party and taking the advantage of the aforesaid circumstance, the prosecution witnesses and enemies of the appellants set up the informant of this case and got lodged the present case. He further submitted that when the informant of the present case realized the aforesaid fact, she stated true story before the court. He further submitted that the informant of this case has been examined before the learned trial court as prosecution witness no. 8 and at para 5 of her cross-examination, she, specifically, admitted that the youngest son of the victim Deo Lochhan Manjhi was aged about three years at the time of recording her deposition. He further submitted that admittedly, P.W 8 was examined before trial court on 29.3.1993. So, the aforesaid fact clearly suggests that the youngest son of Deo Lochhan Manjhi was born in the year 1990 and Deo Lochhan Manjhi was alive in the year 1990 and he used to visit at his home and, therefore, story of kidnapping, as propounded by the prosecution, became false because according to the prosecution case, alleged kidnapping took place on 3.8.1984 and, therefore, conviction of the appellants under section 364 of the IPC is not in accordance with law. He further submitted that, as a matter of fact, so-called victim Deo Lochhan Manjhi is still alive and working at Punjab and he used to send money through money order to his family members. He further submitted that, as a matter of fact, so-called victim Deo Lochhan Manjhi is still alive and working at Punjab and he used to send money through money order to his family members. To fortify the aforesaid contention, he drew my attention towards the deposition of defence witness no.1 as well as exhibit A. He further submitted that the learned trial court has not appreciated the materials available on record in right perspective and passed the impugned judgment and sentence order only on the basis of surmises and conjectures. 10. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and sentence order arguing that almost all material witnesses have stated this fact that on the alleged date of occurrence Deo Lochhan Manjhi was assaulted and was taken away by the appellants and, therefore, prosecution succeeded to prove its case beyond all shadow of reasonable doubts and the learned trial court rightly convicted and sentenced the appellants in the manner as stated above. 11. According to the prosecution case, alleged occurrence took place on 3.8.1984 at 10 a.m. and it is stated that the appellants assaulted son of P.W 8 and after that he was taken by the appellants. To substantiate the aforesaid fact I have already stated that prosecution examined, altogether, nine witnesses. Out of the aforesaid prosecution witnesses, P.W 9 is a formal witness who has proved formal FIR as well as written report as exhibits 1 and 2 respectively. 12. P.W 3 Lochhan Manjhi, P.W 5, Yadubansh Singh and P.W 8 Budhiya Devi the informant of this case, have been declared hostile. 13. P.W 3, Lochhan Manjhi and P.W 5, Yadubansh Singh have stated nothing about alleged occurrence and they have also denied to have made statements before the police. 14. P.W 8 Budhiya Devi is the informant of this case. She stated that on the alleged date of occurrence, she was at her home and heard that some one assaulted her son Deo Lochhan Manjhi and after that she gave written report in the police station. She further stated that her son is still traceless. At this juncture, she has been declared hostile on the prayer of prosecution and on being cross-examined by the prosecution, she admitted the contents of her written report. She further stated that her son is still traceless. At this juncture, she has been declared hostile on the prayer of prosecution and on being cross-examined by the prosecution, she admitted the contents of her written report. Furthermore, on being cross-examined by the defence, she stated that she had not seen the occurrence and she lodged the case on the basis of the information given by the people of her village. She further stated that some people took her to police station and the aforesaid persons prepared written report on which she gave her thumb impression. She further stated that the aforesaid written report was not read over to her. She further stated that there were four sons of Deo Lochhan Manjhi and the youngest son of Deo Lochhan Manjhi was aged about three years. She denied this fact that her son Deo Lochhan Manjhi used to send money order from Punjab. She also admitted this fact that the appellant Chandeshwar Singh had filed criminal case against her son Deo Lochhan Manjhi and witnesses- Ram Chandra Manjhi and Binda Manjhi. She also admitted that witness Batahu Manjhi is her Jaut and similarly, witnesses- Ram Chandra Manjhi, Rajan Manjhi, Binda Manjhi are her relatives. 15. On perusal of the deposition of P.W 8, it is apparent that on the alleged date of occurrence, some one had assaulted her son Deo Lochhan Manjhi and after that she lodged the present case. Furthermore, it is apparent from the statement of this witness that Deo Lochhan Manjhi is still traceless. 16. P.W. 1 Batahu Manjhi. P.W 2, Ramchandra Manjhi, P.W 4, Rajan Manjhi, P.W 6, Faguni Manjhi and P.W 7, Binda Manjhi supported the case of the prosecution and all the aforesaid witnesses stated that the appellants assaulted Deo Lochhan Manjhi and when he became unconscious, he was taken away by the appellants and they confined Deo Lochhan Manjhi in their Dalan and since then Deo Lochhan Manjhi is missing. Although the aforesaid witnesses were cross-examined by the defence at length but except the previous enmity, the defence could not succeed to illicit anything from the depositions of the aforesaid prosecution witnesses. 17. Although the aforesaid witnesses were cross-examined by the defence at length but except the previous enmity, the defence could not succeed to illicit anything from the depositions of the aforesaid prosecution witnesses. 17. No doubt, almost, all prosecution witnesses are related with each other as well as the informant P.W 8 and they used to work at the field of one Jagat Singh but it is well settled principle of law that the statement of a prosecution witness can not be discarded only on the ground that the witness is related witness until and unless the deposition of the aforesaid witness does not inspire confidence. In the instant case, as I have already stated that defence could not succeed to illicit anything from the aforesaid prosecution witnesses except previous enmity and, therefore, in my view, the statements of the aforesaid prosecution witnesses can not be discarded only on the ground that they had enmity with the appellants and they were related witnesses. 18. On careful perusal of the aforesaid statements of the prosecution witnesses, I find that all the aforesaid witnesses have consistently supported the factum of assault as well as this fact that victim Deo Lochhan Manjhi was taken away and confined in Dalan by the appellants. 19. No doubt, Investigating officer of this case was not examined by the prosecution but at para 15 of the impugned judgment the learned trial court held that no prejudice was caused to the appellants on account of non-examination of Investigating officer and furthermore, at para 14 of the impugned judgment, the learned trial court held that Investigating officer conducted investigation and recorded the statements of witnesses in a very perfunctory manner. 20. I find that P.W 1 admitted at para 4 of his cross-examination that he made his statement for the first time in the court. So, it appears that P.W 1 had not made the statement before the police. Similarly, I find that attention of P.W 2 towards his previous statement was drawn by the defence at para 10 of his cross-examination. The attention of P.W 4 towards his previous statement was drawn by the defence at para 8 of his cross-examination and the attention of P.W 6 was drawn towards his previous statement by the defence at para 8 of his cross-examination. The attention of P.W 4 towards his previous statement was drawn by the defence at para 8 of his cross-examination and the attention of P.W 6 was drawn towards his previous statement by the defence at para 8 of his cross-examination. Similarly, attention of P.W 7 towards his previous statement was drawn by the defence at para 7 of his cross-examination. The learned trial court has observed at para 14 of the impugned judgment that Investigating officer recorded the statements of all the aforesaid witnesses in one paragraph and the statements of the aforesaid witnesses were not recorded by Investigating officer properly with an intent to help the accused persons. Perusal of para 4 of the case diary shows that joint statements of the aforesaid witnesses were recorded by Investigating officer in course of investigation and, therefore, in my view, the learned trial court rightly came to the conclusion that even if Investigating officer was not examined by the prosecution, no prejudice has been caused to the appellants. 21. Appellants have been convicted under section 364 of the IPC but not a single prosecution witness stated that victim Deo Lochhan Manjhi was taken away and confined by the appellants with intent to commit his murder. 22. The learned trial court inferred this fact that victim Deo Lochhan Manjhi was abducted by the appellants in order to commit his murder on the ground that Deo Lochhan Manjhi remained traceless since 1984 till the date of pronouncement of judgment. In this connection para 5 of the cross-examination of P.W 8 is relevant. P.W 8, who happens to be mother of Deo Lochhan Manjhi and informant of this case, stated that the youngest son of Deo Lochhan Manjhi was aged about three years on the date of recording her statement in court. 23. Admittedly, deposition of P.W 8 was recorded in the year 1993. So, the aforesaid circumstance suggests that the youngest son of Deo Lochhan Manjhi was born in the year 1990. So, this fact proves that Deo Lochhan Manjhi was alive in the year 1990 and he used to visit his house. Furthermore, exhibit A reveals that some money was sent to the son of Deo Lochhan Manjhi from Punjab though it has not come on record as to who had sent the aforesaid money to the son of Deo Lochhan Manjhi. Furthermore, exhibit A reveals that some money was sent to the son of Deo Lochhan Manjhi from Punjab though it has not come on record as to who had sent the aforesaid money to the son of Deo Lochhan Manjhi. Besides, the aforesaid facts, none of the prosecution witnesses stated that Deo Lochhan Manjhi was kidnapped by the appellants for committing his murder. To attract section 364 of the IPC, the prosecution is bound to prove that victim has been kidnapped or abducted in order that victim may be murdered or may be so disposed of as to be put in danger of being murdered. Therefore, to prove the charge of section 364 of the IPC, the prosecution is bound to prove that victim was kidnapped with an intention to murder or to dispose of with knowledge that such disposal will put him in danger of being murdered. 24. From perusal of section 364 of the IPC, it is apparent that if a person is abducted with an intention that he may be murdered or with knowledge that he may be put to danger of being murdered, the offence section 364 of the IPC would be complete even if the victim eventually escapes or is not murdered. Admittedly, if the victim is not abducted with intention of being murdered or with knowledge that he is likely to be murdered and in such case, if victim was not eventually murdered, penal provision of section 364 of the IPC would not be attracted to such case. 25. In the instant case, according to the prosecution witnesses, appellants assaulted the victim in a field and when he became unconscious, he was taken away by the appellants. The learned trial court inferred that after the aforesaid occurrence, victim could not be traced out and therefore, the aforesaid facts established that victim was kidnapped by the appellants with an intention to commit his murder but, in my view, the aforesaid inference could not have been drawn from the facts of the present case because one of the most important aspects of the case has been lost sight by the learned trial court. The learned trial court did not consider this fact that appellants assaulted the victim with lathi in a field and had they intention to commit murder of the victim, they would not have left the victim alive because there is nothing on the record to show this fact that there was any intervening circumstance to prevent the appellants to fulfil the above stated intention. So, the aforesaid fact clearly shows that the appellants had no intention to commit murder of the victim and, therefore, it can not be inferred from the fact of the present case that victim was taken away by appellants with an intention to commit his murder or with knowledge that victim may be put to danger of being murdered. The prosecution witnesses have clearly stated that victim was assaulted and confined by the appellants in their dalan. So, in my view, in stead of section 364 of the IPC, section 365 of the IPC is attracted in this case. 26. So far as order of sentence is concerned, appellants have been convicted to undergo rigorous imprisonment for seven years under section 364 of the IPC but as I have discussed hereinbefore that the appellants are liable to be convicted under section 365 of the IPC in place of section 364 of the IPC, in my view, excessive sentence has been awarded to the appellants. It has come in course of trial that the youngest son of victim was aged about 3 years at the time of recording the statement of P.W 8 and the aforesaid fact established that victim was alive after alleged occurrence. Furthermore, alleged occurrence took place in the year 1984 and the appellants were convicted in the year 2001 and after conviction, they were sent to jail custody to serve out their sentences. The ends of justices would be met, if they are sentenced to the period already under gone by them. 27. On the basis of the aforesaid discussions, this criminal appeal is dismissed with modification in the impugned judgment of conviction and sentence order in the manner as stated above.