Baij Nath Sah vs State Of Bihar

CRIMINAL APPEAL NO. 1475 OF 2003

BAIJ NATH SAH .. APPELLANT(S)

vs.

STATE OF BIHAR .. RESPONDENT(S)

O R D E R

Four persons in all Parwati Devi, Prabhunath Sah,

Baij Nath Sah, the appellant herein, and one Surajdeo

Misssir were brought to trial for an offence under Sec.366-

A of the Indian Penal Code for having kidnapped Suman

Kumari the minor daughter of Arjun Prasad on 24th June, 1984

from her home. The fourth accused i.e. Surajdeo Missir

died during the course of the trial. The Trial Court by

its judgment dated 5th September, 1991, convicted the

accused for the aforesaid offence and sentenced them to

five years rigorous imprisonment. An appeal was thereafter

taken to the Patna High Court and the learned single Judge

altered the conviction from one under Sec.366-A to Sec.363

of the IPC, released Parvati Devi on the basis of the

sentence already undergone and reduced the sentence of the

appellants Baij Nath Sah and Prabhunath Sah, to one year's

R.I. -2-

A special leave petition was subsequently filed in

this Court by Baij Nath Sah - the appellant and his brother

Prabhunath Sah but as the latter did not surrender to

custody, his special leave petition was dismissed. We are

told that he has undergone the sentence as of now.

This appeal by special leave filed by Baij Nath Sah

is before us.

Mr. Gaurav Aggarwal, the learned counsel for the

appellant has argued that there was no evidence whatsoever

against the appellant herein. He has pointed out that his

name had not figured in the FIR and that the only evidence

used by the Courts below to convict the appellant was the

statement under Sec.164 of the Cr.P.C. made by Suman Kumari

before the Magistrate on the 25th July, 1984. He has

further pointed out that this statement was inadmissible in

evidence but even if taken into account did not involve or

implicate the appellant in any manner.

Mr. Tanmay Mehta, the learned counsel appearing for

the State of Bihar has however supported the judgment of

the Trial Court and has submitted that in addition to the

aforesaid statement the other evidence with regard to the

involvement of the accused was also available on record. -3-

We have heard the learned counsel for the parties

and have gone through the record. We see from the

judgments of the Courts below that the only material that

has been used against the appellant is the statement under

Sec.164 of the Cr.P.C. This Court in Ram Kishan Singh vs.

Harmit Kaur and Another ((1972) 3 SCC 280) has held that a

statement of 164 Cr.P.C. is not substantive evidence and

can be utilized only to corroborate or contradict the

witness vis-a-vis. statement made in Court. In other

words, it can be only utilized only as a previous statement

and nothing more. We see from the record that Suman Kumari

was not produced as a witness as she had since been married

in Nepal and her husband had refused to let her return to

India for the evidence. In this light her statement under

Section 164 cannot be used against the appellant. Even

otherwise, a look at her statement does not involve the

appellant in any manner. The allegation against him is

that after she had been kidnapped by the other accused she

had been brought to their home, where the appellant was also present. In other words, when she had been brought to

the appellant's home the kidnapping had already taken

place. The appellant could therefore not be implicated in

the offence under Sec.363 or 366-A of the IPC de hors other

evidence to show his involvement in the events preceding

the kidnapping.

We accordingly allow the appeal and set aside the

judgment impugned. The appellant is acquitted.

-4-

The appellant is on bail. His bail bonds shall stand

discharged.

.................J. (HARJIT SINGH BEDI)

.................J. (C.K. PRASAD) New Delhi, April 29, 2010.