JUDGMENT
S.N. Pathak, J.
1. This appeal is directed against the judgment dated 5th May 1992, passed by the 4th Additional Sessions Judge, Rohtas at Sasaram, in ST. No. 266 of 1984. The appellants were convicted under Section 365 of the Indian Penal Code and were sentenced to undergo R.I. for your years each.
2. The prosecution case originated on the fardbeyan of Gumani Singh, recorded by Sri D.P. Sharma, S.I. of Dawath P.S. (Rohtas) on 7th May 1982, at 1.30 p.m., wherein it was alleged that the informant’s son Bhikhari Singh had gone to his School at 7.00 a.m. At about 9.00 a.m. 5-7 persons, armed with gun and rifle swooped upon the School and lifted the informant’s son from the Class and carried him away. When the School students raised alarm, the informants villagers, namely, Kawal Singh, Ayodhya Singh, Godhan Singh, Rameshwar Singh also chased the kidnappers raising alarm throughout. One of the kidnappers separated from the group of kidnappers and fled away. The rest five persons carried ahead the victim boy. When the informant and his villagers approached the kidnappers at distance of 100 yards, the informant identified Shiv Kumar Yadav (appellant No. 1), who was carrying his son on his shoulders. Lok Nath Yadav (appellant No. 2) was also identified and he was wielding a rifle. Another person who was carrying gun was identified as Sri Niwas Yadav (appellant No. 3). Sri Niwas Yadav fired from his gun sighting the chasers. Godhan Singh received injuries from the fire opened by Sri Niwas Yadav. When villagers of Padariya-Chhatni gathered, raising alarm and Raj Narayan Singh, Mukhiya fired from his gun, the kidnappers left the victim toy, Thereafter, the kidnappers took to their heels and while flying, they kept firing. The cause of occurrence as given in the fardbeyan was that the informant had deposed against the kidnappers twice earlier in some cases. Shiv Kumar Yadav was also a conviction in case of dacoity. Other dacoity case was also filed in which the informant had identified Shiv Kumar Yadav and Lok Nath Yadav (appellants). Accused-appellants were threatening to kill the informants son, if he was not prepared to enter into a compromise in the cases pending against them accused-appellants.
3. The accused appellants had taken a defence of false implication on account of litigation between parties.
4. Jhe prosecution had examined, in all, 14 witnesses. P.W.14 was the I.O. of the case P.W. 13 was the informant himself, P.Ws. 1, 2, 3 and 13 were formal witnesses. P.Ws. 7 and 11 were declared hostile. P.W. 11 stated in his evidence in Court that he did not know the informant who was of village Rajaundha. P.W. 11 himself is of village Chatni. He further stated that he knew nothing of the alleged occurrence P.W. 7 was Rameshwar Singh who was referred to in the fardbeyan as among the persons who were chasing the kidnappers. This witness stated in his chief that when he was in his village Rajaundha, he heard alarm being raised from the School. When he reached on the pitch road, 10-15 years from the School, he found that Shiv Kumar Yadav was carrying the victim on his shoulder. Shiv Kumar Yadav was associated by four other persons whom this witness failed to identify. When this witness and others followed the kidnappers, there was firing from the criminals. Godhan Singh received injuries and when the villagers of Chhatni Padariya fired, the victim was abandoned there and the kidnappers made their escape good, Then Shikhari Singh was carried to the village by this witness and others. Rest of P.Ws., namely PWs 4,5,8 and 9, including P.W. 13, in their evidence, stated that
when they had gone to the pitch road on hearing alarm, they had found two appellants carrying away the victim boy and it a particular point, when firing was resorted by the villagers, the victim was left at the spot and the kidnappers filed away. P.W. 10 was the Doctor who found injuries upon Godhan caused by firearms and, of course, he also referred to injuries sustained by Appellant No. 1 Shiv Kumar Yadav caused by hard and blunt substance.
5. So on the record, there was evidence of some witnesses that when there was alarm being raised from the School, the villagers of village Rajaundha rushed and found that the informant’s son was being carried away by the two appellants in association with some others, in total 5-6 persons.
6. The evidence was, firstly, criticised on the ground that all the witnesses were interested witnesses, because they were related to the informant and the enmity was well admitted and apparent on the face of the record. The evidence of P.W. 6 was especially referred to at Paragraph 12 where this boy stated that he was brought home in village by Ram Bhawan Singh and Jokhan Singh when he was left abandoned by the kidnappers. When the reached home, he narrated the alleged strong of kidnapping and consequent desertion by the kidnappers. It was submitted by the appellants lawyer that Ram Bhawan Singh and Jokhan Singh were not examined and whatever P.Ws. stated in Court was on the basis of hearsay information given by the victim boy. It has further been stated that other witnesses who, in Court, figured as eye-witness to the alleged kidnapping and chase of the kidnappers also appeared to be hearsay, because when the victim was brought home, had narrated the occurrence to his father.
7. On the basis of the aforesaid submission, the appellants lawyer submitted further that, perhaps, this case was filed after planning and concocting a story of kidnapping to feed fat the grudge of the infprmant account of litigation between the parties. Now the question is as to who would have the grievance of alleged pending cases. There was no evidence nor any allegation that the informant was accused in any case filed by the appellants. It were, rather, the accused appellants along with others who were accused in some dacoity case. So it were accused-appellants themselves who would have any grievance against the informant and for that matter against the witnesses, for cases having been filed against them in which the informant and his other relations were witnesses. In such a circumstances, there was no good occasion for the informant to implicate the accused appellants in any false case. So far the submission that the informant was a hear-say witness. I am of the opinion that it may be so; nut so far other witnesses are concerned, they had stated that they had chased the kidnappers and there is nothing in the evidence of P.W: 6 from which it can be inferred that they were not chasing the kidnappers. Simply because, Raj Bhawan and Jokhan who had, of course, brought the victim to his home in the village, their non-examination in itself will not indicate that other witnesses who were chasing the kidnappers had not appeared at the spot to chase them – The victim was being carried on the shoulders of one of the kidnappers and in such a circumstance, he was not supposed to know exactly as to who were chasing the kidnappers. I am, therefore, of the opinion that the evidence of the witnesses, who were, of course, related to the informant regarding their claim of chasing the kidnapers, cannot be brushed aside simply on the basis of evidence of P.W. 6 at Para 12. The evidence of interested witnesses must not necessarily be discredited simply because they are related to the informant. It is the circumstance of the case which would render their testimony untrustworthy. The evidence of the witnesses to whom I have referred to above, so far their claim of chasing the kidnappers and identifying the appellants does not suffer from any specific and broad infirmity. So far part of the evidence of P.W. 6 is concerned, he has given minute details as to how he was present in the School on the alleged date of occurrence, where he was sitting and who was sitting by his side. He has further stated in his evidence that teacher Kuldip Singh @ Langra had pointed out to him
(the victim), when kidnappers had lifted another boy by mistake. This specific statement of the victim would not have come from his mouth just on imagination. That means, the victim boy was relating an occurrence which had actually taken place in which he was subjected to kidnapping by force and as identified and pointed out by teacher Kuldip Singh @ Langra. Some stray statements in the deposition of the victim, who was a boy of 9-10 years on the alleged dated of occurrence, has come which may cast some doubt regarding the alleged occurrence, but it cannot be given specific significance just in order to record a finding that the alleged occurrence did not at all had taken place. The evidence of the victim made in Court describing the alleged occurrence in its minute details and some specific facts of it as stated above, would reveal that the victim boy was narrating an incident which had actually happened and he was not giving a narration of an imagined story of his alleged kidnapping and subsequent abandonment. So far the finding of the trial Court that the case under Section 364 I.P.C. was not established, I am of the opinion that, of course, this finding also is not unsupported by the circumstances on the record. Admittedly, the victim boy was not subjected to any hard, so the intention of the kidnappers was only to coerce the informant to enter into a compromise in the concerned case or not to depose in some case of dacoity which was earlier admittedly pending. In such circumstances, charge, which was framed against the accused-appellants Under Section 364 I.P.C. could legitimately be reduced to a charge under Section 365 I.P.C. which would be a connected Section of Section 364 I.P.C. Both the sections referred to an offence of kidnapping. The difference lies in the motive of the kidnappers. So when the evidence on the record disclosed that the kidnapping was done not for the murder of the victim, the offence may legitimately be reduced to the offence under Section 365 I.P.C.
8. So I am of the opinion that the order of conviction recorded by the trial Court does not necessitate any interference by this Court. As far as the sentence is concerned, it has been submitted that the appellants had been facing the trauma of prosecution for the last 20 years. In this connection. I am of the opinion that this kind of submission is notworthy of acceptance, because normally it s expected that appeal shall be filed. So passage of time, 20 years or whatever may be the period of time, is inevitable. I am, therefore, of the opinion that if sentences are reduced for remitted taking into account the period of litigation, nobody would get appropriate punishment for the offence committed by him. So I am of the opinion that there is no necessity for reducing the sentence.
9. The appeal is, accordingly dismissed.