Sah Vs. State of Bihar  INSC 348 (29 April 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1475
OF 2003 BAIJ NATH SAH .. APPELLANT(S) vs.
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.
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.
appeal by special leave filed by Baij Nath Sah is before us.
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
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.
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.
accordingly allow the appeal and set aside the judgment impugned. The appellant
appellant is on bail. His bail bonds shall stand discharged.
.................J. (HARJIT SINGH BEDI)
.................J. (C.K. PRASAD)
April 29, 2010.