BAIJ NATH SAH versus STATE OF BIHAR

Citation: [2010] 5 S.C.R. 619 · Decided: 29-04-2010 · Supreme Court of India · Bench: H.S. BEDI, C.K. PRASAD · Disposal: Appeal(s) allowed

Judgment (excerpt)

r20101 s s.c:R. 619 
BAIJ NATH SAH 
v. 
STATE OF BIHAR 
(Criminal appeal No. 1475 of 2003) 
APRIL 29, 2010 
[HARJIT SINGH BEDI AND C.K. PRASAD, JJ.] 
Penal Code, 1860: 
A 
B 
s.363 - Kidnapping - Four persons including appellant 
C 
prosecuted - Conviction - Plea of appellant that there was no 
evidence against him -
HELD: As the victim was not 
examined as a witness, her statement uls 164 CrPC cannot 
be used against the appellant -
Even otherwise, her 
statement does not involve the appellant in any manner- The 
a/legation against him is that after the victim had been 
D 
kidnapped by the other accused she was brought to their 
home, where the appellant was a/so present - In other words, 
when she was brought to the appellant's home, the kidnapping 
had already take,n place - The appellant could, therefore, not 
be implicated in the offence punishable uls 3~3 or 366-A de 
E 
hors other evidence to show his involvement in the events 
preceding the kidnapping -
Accordingly, appellant is 
acquitted - Code of Criminal Procedure, 1973 - s.164. 
Code of Criminal Procedure, 1973: 
s. 164 - Sta"tement recorded under -
HELD: Is not 
substantive evidence and can be utilized only to corroborate 
or contradict the witness vis-a-vis statement made in coutt -
F 
In other words, it can be utilised only as a previous statement G 
and nothing more - Evidence - Penal Code, 1860 - s.363. 
Ram Kishan Singh vs. Harmit Kaur and Anr. (1972) 3 
sec 280 - retied on. 
619 
H 
A 
B 
c 
D 
620 
SUPREME COURT REPORTS 
[2010] 5 S.C.R. 
Case Law Reference: 
(1972) 3 sec 2so 
relied on 
para 4 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 14 75 of 2003. 
From the Judgment & Order dated 25.4.2003 of the High 
Court of Judicature at Patna in Criminal Appeal No. 349 of 
1991. 
Gaurav Aggarwal, Prashant Kumar for the Appellant. 
Tanmaya Mehta, for the Respondent. 
The following Order of the Court was delivered 
ORDER 
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 
E 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 
F 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. 
G 
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 
H has undergone the sentence as of now. 
BAIJ NATH SAH v. STATE OF BIHAR 
621 
This appeal by special leave filed by Baij Nath Sah is A 
before us. 
Mr. Gaurav Aggarwal, the learned counsel for the appellant 
has argued that there was no evidence whatsoever against the 
appellant here,in. He has pointed out that his name had not 8 
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 C 
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 D 
the accused was also available on record. 
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 
E 
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 contrad

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