REPORTABLE                    IN THE SUPREME COURT OF  INDIA

           CRIMINAL APPELLATE JURISDICTION   

             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.

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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.

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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.

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The appellant is on bail. His bail bonds shall stand  

discharged.

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

     .................J.

                                    (C.K. PRASAD) New Delhi,

    April 29, 2010.