V.P. Mathur, J.@mdashThese two revisions arise out of toe same impugned order passed by the Vth Additional Sessions Judge, Saharanpur w 14-7-$7, charging the two petitioners u/s 364 read with Section 34 Indian Penal Code and Section 120-B read with Section 34, Indian Penal Code.
2. The first information report was lodged by Smt. Firdos Kausar, wife of Sagir Ayyub, in police station Sarsawa, district Saharanpur. It is dated 29-8-85. According to this first information report, Sagir Ayyub, who is an Advocate by profession, is husband of this lady. On 14-8-85 Kamil son of Sharif (the revisionist of criminal revision No. 1493 of 1987) came on a scooter to the house of Mr. Ayyub and took him on the pretext that they were going t& Delhi on some work and will return after 2-3 days. Kamil had earlier also come with the same purpose and on 13-8-85 he had even brought a car on which they both were to go to Delhi but on that date because Kamil had diarrhea, the going was postponed. On 14-8-85 Kamil as well as Sagir Ayyub both, want away on the Scooter. On 15-8-85 Kamil was seen in Sarsawa. Then the lady made an inquiry from him as to why her husband had not come. Kamil is said to have told her that he shall be brought on 28th of the month. Thereafter |& started, saying that Sagir Ayyub had not gone with him and the lady was apprehensive of the fact that her husband might have been abducted and it is possible that the intention of Kamil might be to murder him.
3. In support of this first information report, during investigation, statements of a number of witnesses were recorded. The learned Counsel for the State with the help of the case diary read out to me the statements of Smt, Firdos Kausar, the first informant, Leeloo son of Niyamuddin, Niayamat Ali, Yaseen, Rizwan, Mumtaz and Sagir Ahmad. He has also read out to me the statement of the accused recorded by the Investigating Officer. This statement of the accused simply shows that Sagir Ayyub was perhaps in Bombay or elsewhere. The other circumstance was that in Tehsil Nakud a sale deed had been executed in favour of Kamil and Arshad Ali, the two revisionists before me, on 16-8-85 and it is contended that the man who executed the sale deed in the name of Sagir Ayyub was impersonating. Proceedings of mutation on the basis of that sale deed are already going on and the learned Sessions Judge has already come, to the conclusion that all the cases of offences connected with the obtaining of'' this allegedly fictitious sale deed can be proceeded with only if there is a complaint by the Court. There is no dispute on that point. The question remains whether on the strength of the evidence that is on the record i.e. the statements of the witnesses taken down during the investigation u/s 161 Code of Criminal Procedure including the statement of the first informant any case u/s 364 read with Section 34 or Section 120-B read with Section 34 of the Indian Penal Code is made out against the present revisionist.
4. Section 364 Indian Penal Code is applicable when a man is kindapped or abducted in order that he may be murdered or may be disposed of as to be put in danger of being murdered. Kidnapping is of two types i.e. kidnapping from the lawful guardianship and kidnapping out of India. The present cannot be a case of kidnapping because the victim Sagir Ayyub was not a minor and there is no allegation that he was taken out of India. The case of abduction will be there only if there is evidence to show that the taking of the victim was a result of force or compulsion or application of deceitful means and inducement. From the evidence that is available on record uptil now, there is nothing to come to the conclusion that it was a case of force or compulsion or deceit or inducement The first information report and the statement of the first informant u/s 161 Code of Criminal Procedure make it out that the victim went with Kamil of his own free will and at no stage deceit was played upon him. There is no allegation that any force or compulsion was applied. No witness says so. All of them simply say that he was seen going with Kamil. In my opinion, upto this stage no case u/s 364 Indian Penal Code is made out against Kamil and none against Arshad Ali because Arshad Ali''s name does not find mention even in the FIR or in the statement of the witnesses. What happens at a subsequent date and what other evidence-is brought on the record at some other time will be a matter for consideration then and it will always be open to the learned Judge to frame additional charge on the strength of the evidence that may come before him, but at this stage the charge u/s 364 read with Section 34 Indian Penal Code against the revisionists cannot be allowed to stand and has got to be quashed.
5. Similar is the situation regarding the charge u/s 120-B read with Section 34 Indian Penal Code. It is contended that as a result of a common intention between Arshad Ali and Kamil, which was to murder Sagir Ayyub, his murder was committed and these two persons have been guilty of an offence u/s 120-B read with Section 34 Indian Penal Code. Uptil now there is nothing on record to show that Sagir Ayyub has been murdered. There is also nothing on record to show that there was any conspiracy between the present revisionists to commit his murder and that in pursuance of any such conspiracy and agreement the murder has been committed. I will again reiterate that as and when any definite evidence in this respect is obtained a charge may be framed out at this stage even the charge u/s 120-B read with Section 34, Indian Penal Code cannot be sustained and will have to be quashed.
6. In the result, both the revisions are allowed and the charges framed by Mr. S. C. Tyagi, Vth Additional Sessions Judge, Saharanpur, on 14-7-1987 against the applicants Kamil and Arshad Ali under Sections 364 read with Section 34 and 120-B read with Section 34 Indian Penal Code are quashed in the light of the observations made above.
