Patna High Court
Surendra Kumar vs State Of Bihar on 21 April, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.600 of 2005
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SURENDRA KUMAR, Son of Umesh Chandra Yadav, Resident of Village-
Parariya, Police Station- Kumarkhand, District- Madhepura
... ... Appellant/s
Versus
State Of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Abhas Chandra, Amicus curiae
For the Respondent/s : Ms. Anita Kumari Singh, APP
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CORAM: HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY
ORAL JUDGMENT
Date : 21-04-2026
1. This appeal is arising out of the
Judgment of conviction dated 29.10.2005 and
order of sentence dated 11.11.2005 passed by
Learned Additional Sessions Judge, FTC No.1,
Madhepura, in Sessions Trial No. 153 of 1998,
arising out of Kumarkhand P.S. Case No. 136 of
1997, whereby the appellant was convicted for the
offences punishable under Sections 364 and 498-A
of the Indian Penal Code (hereinafter referred to as
the I.P.C.). The appellant was sentenced to undergo
rigorous imprisonment for a period of ten years
and to pay a fine of Rs. 10,000/- for the offence
Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026
2/25
punishable under Section 364 of the I.P.C., and in
default of payment of fine, to undergo simple
imprisonment for six months. Further, he was
sentenced to undergo rigorous imprisonment for a
period of three years and to pay a fine of Rs.
5,000/- for the offence punishable under Section
498-A of the I.P.C., and in default of payment of
fine, to undergo simple imprisonment for three
months.
2. The appeal pertains to the year 2005.
There was no assistance from the Learned counsel
for the appellant and this Court was constrained to
appoint Mr. Abhas Chandra as amicus curiae vide
order dated 10.03.2026.
3. This Court, vide order dated
20.09.2025, called for a report from the Superintendent of Police, Madhepura, regarding the live status of the appellant. Pursuant thereto, a report dated 04.10.2025 was sent by the Superintendent of Police, Madhepura, stating therein that the appellant/ Surendra Kumar, is alive.
Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 3/25
4. Heard Mr. Abhas Chandra, the Learned amicus curiae as well as Ms. Anita Kumari Singh, the Learned Additional Public Prosecutor for the State and perused the record.
5. The case of the prosecution, in brief, is that the informant/Ugra Narayan Yadav/P.W. 6 preferred a written application/fardbeyan before the Officer-in-Charge of Kumarkhand (Belari) Police Station on 02.10.1997, alleging that his daughter, Veena Devi, got married to the appellant/Surendra Kumar three years prior to the date of the fardbeyan, as per Hindu customs, in the month of January. After marriage, his daughter went to her sasural. At the time of marriage, P.W. 6 fulfilled the demands of the appellant/accused; in spite of that, the appellant used to torture and assault his daughter and demanded money from her. In the month of May, P.W. 6 went to his daughter's place and paid a sum of Rs. 2,000/- to the appellant. On 13.09.1997, P.W. 6 went to bring his daughter back, but his son-in-law (appellant) demanded Rs. 50,000/- and a television. P.W. 6 was unable to fulfil Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 4/25 the said demand for which the appellant did not permit his wife to go to her parental house. The contents of written application/farbdbeyan disclose that the appellant further informed that he would bring his wife to her parental house on 20.09.1997 and on such assurance, P.W. 6 returned; however, his daughter did not reach his house till 01.10.1997. Thereafter, on suspicion, P.W. 6 again went to the house of the appellant, where the family members of the appellant informed him that the appellant, along with his wife, had left the house. Further, the informant/P.W. 6 came to know that the appellant had an illicit relationship with one Manju Kumari and, in conspiracy with Brahmdeo Yadav, Soniya Devi @ Kaushalya Devi, and Manjur Kumar, the appellant took his daughter and kept her, at an unknown place.
6. Basing on the fardbeyan of P.W. 6, an FIR was registered on the file of Kumarkhand P.S. Case No. 136 of 1997 dated 03.10.1997, against the appellant/ Surendra Kumar, Soniya Devi, Brahmdeo Yadav, and Manju Kumari for the offence Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 5/25 punishable under Sections 498-A and 364 r/w 34 of the I.P.C.
7. On completion of the investigation, a charge-sheet was filed against the appellant on 03.12.1997 for the offences punishable under Sections 498-A and 364 of the I.P.C. The Learned Chief Judicial Magistrate, took cognizance against the appellant for the offences punishable under Sections 498-A and 364 of the I.P.C and further committed the case to the Court of sessions for trial. On 30.03.1998, charge was framed under Sections 364 and 498-A of the I.P.C. against the appellant, for which he pleaded not guilty and claimed to be tried.
8. The record reveals that charge under Section 304-B was also framed against the appellant on 04.06.1998, which was also explained to the appellant to which, he pleaded not guilty and claimed to be tried.
9. During the course of trial, the prosecution examined altogether seven prosecution witnesses, i.e., P.Ws. 1 to 7, marked Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 6/25 Exhibits nos. 1 to 3 and 1/1. Further the appellant was examined under Section 313 of Cr.P.C. for the purpose of enabling him to explain incriminating evidence found against him. Further, on behalf of the appellant D.Ws. 1 and 2 were examined. The name and details of the witnesses, and exhibits are as follows:-
PW no. Prosecution Prosecution witness name witness Details P.W. 1 Manoj Kumar Hostile P.W. 2 Nawal Kishore Yadav Hostile P.W. 3 Umesh Chandra Father-in-law of victim Yadav (Hostile) P.W. 4 Shakuntala Devi Mother-in-law of the victim (Hostile) P.W. 5 Nityanand Yadav Hostile P.W. 6 Ugra Narayan Yadav Informant P.W. 7 Uday Narayan Singh Sub-Inspector of Police (Investigating Officer) Sl No List of Exhibits Exhibit Details
1. Exhibit-1 Handwriting and signature of informant on formal FIR
2. Exhibit-2 Formal FIR
3. Exhibit-1/1 Endorsement on written reported
4. Exhibit 3 Written report Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 7/25 DW no. Defence witness Defence witness name Details D.W. 1 Prof. Chandra co-villager Kishore Kumar D.W. 2 Hareram Yadav co-villager
10. On perusal of the entire material available on record, it is evident that the trial Court neither acquitted nor convicted the appellant for the charge for the offence punishable under Section 304-B of I.P.C. However, the trial Court has convicted and sentenced the appellant for the offfences punishable under Sections 498-A and 364 of the I.P.C.
11. The points for determination in this appeal are as follows:-
(i) Whether the trial Court is right in convicting and sentencing the appellant for the offence punishable under Sections 498-A and 364 of I.P.C?
(ii) Whether the prosecution is able to prove the guilt of the appellant for the said offences beyond reasonable doubt?
12. In order to determine these points, it is Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 8/25 just necessary to re-appreciate the evidence available on record.
13. P.W. 1/Manoj Kumar, P.W. 2/Nawal Kishore, P.W. 3/Umesh Chand Yadav, P.W. 4/Shakuntala Devi, and P.W. 5/Nityanand Yadav were examined before the trial Court. They all are supposed to speak about the demand of dowry by the appellant, the torture/harassment made by the appellant to the victim/Veena Devi, and about the appellant taking away the victim from his house along with him on 20.09.1997. However, these witnesses, i.e., P.Ws. 1 to 5, did not support the case of the prosecution and were declared hostile at the instance of the Learned Additional Public Prosecutor. In spite of cross-examination by the public prosecuter nothing could be elicited in favour of the prosecution. The evidence of P.Ws. 1 to 5 is nowhere helpful for the prosecution, in proving the offences punishable under Sections 364 and 498-A of the I.P.C.
14. P.W. 6/informant is the father of the victim. His evidence is on the same lines as that of Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 9/25 the contents of the written application, which was marked as Ext. 3. The handwriting and signature of P.W. 6 on the written application is marked as Ext.
1. P.W. 6 has testified the same contents as that of Ext. 3, hence it is not necessary to reproduce examination in chief.
15. In the cross-examination, P.W. 6 testified that Veena Devi married the appellant in the year 1994, but he did not remember the exact date of marriage or the date of duragman. However, he stated that duragman was arranged in the year 1996. He also testified that after his daughter went missing, he had a conversation with the appellant on 01.10.1997 and 02.10.1997. It is further admitted by P.W. 6 that after duragman, he used to give articles, money, and other items to the appellant out of happiness, and had no information about any torture meted out by the appellant to his daughter. P.W.6 further stated that his daughter was a graduate, a beautiful woman, and he was not aware whether she was alive or dead.
Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 10/25
16. On perusal of the evidence of P.W. 6, it is evident that, except for the sole testimony of P.W. 6, there is no other corroborative evidence to prove the alleged harassment or cruelty meted out by the appellant towards his daughter.
17. The evidence of P.W. 7/Uday Narayan Singh, Sub-Inspector of Police, disclose that he was posted as Sub-Inspector on 20.09.1997 and took up the investigation on 02.10.1997. The formal F.I.R. was marked as Ext. 2, which is in the handwriting of constable, Nawlin Rai, and it bears the signature of S.H.O, Kumarkhand, which was identified by this witness. The endorsement on the written report, which is in the handwriting of Sri Ram bears the signature of A.K. Khan, was marked as Ext. 1/1. His evidence further disclose that he inspected the place of occurrence, i.e., Parariya Village, and the house of the appellant where the appellant and Veena Devi were residing.
18. His examination-in-chief was adjourned at the request of the prosecution, and thereafter, the Investigating Officer did not appear for further Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 11/25 examination before the Court. Neither his examination-in-chief was completed nor he was subjected to cross-examination. The trial Court ought not to have relied upon the evidence of the Investigating Officer, as he was not available for cross-examination. His evidence out to have been excluded as he was not available for cross- examination. In any event, his evidence is nowhere helpful for the prosecution in proving the offences under Sections 364 and 498-A of the I.P.C. against the appellant.
19. In order to prove the offence punishable under Section 364 of the I.P.C., i.e., kidnapping or abducting in order to murder, the prosecution must establish the following core essential ingredients:
(i) The person must have been taken away or enticed away from the lawful custody of another person, or compelled by force or deceitful means from one place to another.
(ii) The kidnapping or abduction must have been committed with the specific intention that the Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 12/25 person may be murdered or disposed of in a manner that would put them in danger of being murdered.
(iii) It is not necessary to prove a direct threat of death (unlike Section 364-A); however, it must be shown that the victim was put in such a situation where there was a reasonable apprehension of murder.
20. The Learned Amicus curiae relied on the citation of the judgment of this Court in case of Chandeshwar Singh and Anr Vs. State of Bihar, reported in 2013 SCC OnLine Pat 116, wherein it has held as follows:
23. Admittedly, deposition of P.W. 8 was recorded in the year 1993. So, the aforesaid circumstance suggests that the youngest son of Deo Lochhan Manjhi was born in the year 1990. So, this fact proves that Deo Lochhan Manjhi was alive in the year 1990 and he used to visit his house. Furthermore, exhibit A reveals that some money was sent to the son of Deo Lochhan Manjhi from Punjab though it has not Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 13/25 come on record as to who had sent the aforesaid money to the son of Deo Lochhan Manjhi. Besides, the aforesaid facts, none of the prosecution witnesses stated that Deo Lochhan Manjhi was kidnapped by the appellants for committing his murder. To attract section 364 of the IPC, the prosecution is bound to prove that victim has been kidnapped or abducted in order that victim may be murdered or may be so disposed of as to be put in danger of being murdered. Therefore, to prove the charge of section 364 of the IPC, the prosecution is bound to prove that victim was kidnapped with an intention to murder or to dispose of with knowledge that such disposal will put him in danger of being murdered.
24. From perusal of section 364 of the IPC, it is apparent that if a person is abducted with an intention that he may be murdered or with knowledge that he may be put to danger of being murdered, the offence section 364 of the IPC would be complete even if the victim eventually escapes or is not murdered. Admittedly, if the victim Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 14/25 is not abducted with intention of being murdered or with knowledge that he is likely to be murdered and in such case, if victim was not eventually murdered, penal provision of section 364 of the IPC would not be attracted to such case.
21. Further, he relied on the judgment of Allahabd High Court, in case of Tondi and Others Vs. State of U.P. reported in 1974 SCC OnLine All 60, wherein it has held as under:
11. The question, therefore, arises whether the evidence on record is sufficient to warrant a conviction under Section 364, IPC.
Section 364, IPC runs as follows:--
"Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life.........and shall also be liable to fine."
12. After a careful scrutiny of the evidence on the record. I do not find any reliable evidence to show that Parasram was abducted so that he might be murdered. The prosecution case as mentioned above is to the effect that Parasram was deceived to the extent that a Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 15/25 marriage was proposed to be settled by the accused-appellants. It was on this representation that he made arrangements for funds and thereafter proceeded for a marriage. To establish a charge of abduction in order to murder, when the case is one of abduction by deceitful means, it is not enough for the prosecution merely to prove certain circumstances under which the abducted person was induced to go, nor even to prove a mis-
representation. The prosecution has to prove firstly that there was a misrepresentation and secondly, that particular misrepresentation was a plan to murder and thirdly that it was the plan by which the abducted person was himself deceived and was induced to go.
From a careful scrutiny of the evidence on record, I find that there is no evidence to indicate that the alleged misrepresentation was the result of a plan to murder Parasram. In the absence of reliable evidence on this question, I am of the opinion that the appellant cannot be held guilty of the charge under Section 364, IPC. In this very connection reference may be made to a decision reported in Upendra Nath Ghosh v. Emperor (AIR 1940 Calcutta 561). In that case it has been held that:--
"To establish an offence punishable under Section 364 it must be proved that the person charged with the offence had the intention Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 16/25 at the time of the abduction that the person abducted would be murdered or would be so disposed of as to be put in danger of being murdered."
22. In this context, it is relevant to rely on the judgment of Hon'ble Supreme Court, in case of Chunda Murmu v. State of W.B., reported in (2012) 5 SCC 753 wherein, their Lordships have held as follows:
18. Insofar as the offence under Section 364 IPC is concerned, we have considered the materials on record on the basis of which the aforesaid offence has been held to be proved. According to us, the action of the accused in bringing back his wife to the matrimonial home from the house of PW 6 Bishu Murmu cannot attract the necessary ingredients of either the offence of kidnapping or abduction so as to attract Section 364 IPC.
23. The above citations squarely apply to the present facts and circumstances of the case.
24. From the above case law, as well as from the ingredients under Section 364 of the I.P.C., it is evident that, in order to establish the offence punishable under Section 364 of the I.P.C., Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 17/25 it must be proved that the person charged with the offence had the intention, at the time of abduction, that the person abducted would be murdered or would be so disposed of as to be put in danger of being murdered. In the present case, the prosecution was required to prove that the appellant/accused, at the time when he took away Veena Devi, had such specific intention. However, on this essential element of the offence, no finding has been recorded by the trial Court.
25. It is also pertinent to mention that in the present case, there is no evidence on record to show whether Veena Devi is alive or has been murdered. Furthermore, Veena Devi is the wife of the appellant, and it is the case of the defence that she had gone to her parental home to reside with her parents. Being a well-educated woman, she left her matrimonial house of her own free will to stay with her parents. The evidence of P.W. 6 also disclose that after his daughter went missing, he had conversations with the appellant on 01.10.1997 and 02.10.1997, and thereafter Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 18/25 preferred the written report. In such circumstances, the police ought to have initially registered the case as a "woman missing" case and not under Section 364 of the I.P.C. Veena Devi was about 22 years of age and was not under the lawful guardianship of P.W. 6; therefore, the question of kidnapping from the custody of P.W. 6 does not arise, so as to attract Section 364 of the I.P.C. Furthermore, the prosecution has miserably failed to prove that Veena Devi was either murdered or disposed of in such a manner as to put her in danger of being murdered. Except for the oral evidence of P.W. 6, there is no corroboration of the alleged harassment or torture by the appellant towards Veena Devi, so as to attract the offence under Section 498-A of the I.P.C.
26. Section 498-A of the I.P.C. envisages that whoever, being the husband or relative of the husband of a woman, subjects such woman to cruelty shall be punished. The Explanation to the said provision defines "cruelty" to mean a wilful conduct of such a nature as is likely to drive a Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 19/25 woman to commit suicide or to cause grave injury or danger to her life, limb, or health, which is required to be proved by the prosecution.
27. In the present case, there is no such evidence on record. Admittedly, prior to the missing of Veena Devi, neither she nor P.W. 6 had preferred any complaint before the police alleging that the appellant had subjected Veena Devi to cruelty.
28. The Learned Amicus curiae further relied on the citation Allahabad High Court, in case of Kunwar Sen Vs. State of Uttar Pradesh, reported in AIROnline 2019 All 2504 wherein the provisions relating to Section 364 of the I.P.C. have been elaborately dealt with in paragraph 16, which reads as under:
16. Learned trial court has based the conviction of appellant on the evidence of PW 1 Hem Raj and PW-6 Smt. Ram Shree. Before examining evidence on record, it would be pertinent to peruse provision of Section 364 of IPC, which is reproduced herein below:
Section 364 of IPC:-
Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 20/25 Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
There are two illustrations appended to Section 364 of I.P.C. These two illustrations are as follows-
(a) 'A' kidnaps 'Z' from India, intending or knowing it to be likely that 'Z' may be sanctioned to an idol. 'A' has committed the offence defined in this Section.
(b) A forcibly carries or entices 'B' away from his home in order that 'B' may be murdered. A has committed the offence defined in this section."
A careful reading of Section 364 of I.P.C. along with the illustrations appended thereto shows that kidnapping or abduction, which Section 364, I.P.C. envisages, must be with the intention to commit his murder or with the knowledge that the person, kidnapped or abducted, would be put to danger of being murdered. Section 364, I.P.C., In fact, shows that if the kidnapping or abduction is with an intention Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 21/25 that the person, kidnapped or abducted, be murdered or if the person is kidnapped or abducted with the knowledge that the victim is likely to be put to danger of being murdered, offence under Section 364, I. P. C. would be complete irrespective of the fact as to whether the victim is, eventually or actually, murdered or not. It is explicit that kidnapping or abduction is a basic and necessary ingredient to attract penal provisions of Section 364, I.P.C. The gravamen of the charge under Section 364, I.P.C. is that kidnapping or abduction has to be either with the intention to murder the victim or with the knowledge that the victim is likely to be murdered. Some glimpses of this proposition of law can be had from an analytical reading of the observations of the Apex Court in State of West Bengal v. Mir Mohammad Omar and Ors.
reported in 2000(8)SCC 234, which was as follows:
13. Section 364, I.P.C.
says, whoever abducts any person "in order that such person may be murdered or disposed of as to be put in danger of being murdered"
he commits the offence punishable under the Section. So the important task of the prosecution was to demonstrate:
that abduction of Mahesh was for Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 22/25 murdering him. Even if the murder did not take place, the offence would be complete if the abduction was completed with the said objective. Conversely, if there was no such objective when the abduction was perpetrated, but later the abductors murdered the victim, Section 364, I.P.C. would not be attracted, though in such a case the court may have to consider whether the offence of culpable homicide (amounting to or not amounting to murder) was committed
29. The above citation squarely apply to the present facts and circumstances of the case.
30. In order to attract Section 364 of the I.P.C., it must be established that the victim may be murdered or disposed of so as to be put in danger of being murdered. Bearing in mind the ingredients of Section 364 of the I.P.C., if the facts of the present case are examined, it appears that there is no evidence to prove that there was any abduction or kidnapping of the victim/ Veena Devi by the appellant/ Surendra Kumar. Kidnapping from lawful guardianship is defined under Section 361 of Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 23/25 the I.P.C., which is not applicable in the present case, as the victim/Veena Devi is not a minor. Abduction is defined under Section 362 of the I.P.C., wherein it is provided that whoever, by force compels, or by any deceitful means induces, any person to go away from any place is said to abducted person. Except for the statement of P.W. 6, i.e., father of Veena Devi, there is no other evidence on record to support the allegation that Veena Devi was abducted for murdering. In the absence of any incriminating evidence, it was not proper for the trial Court to convict the appellant for the offences punishable under Sections 364 and 498-A of the I.P.C. The prosecution has miserably failed to prove the case against the appellant for the aforesaid offences. The trial Court ought to have decided the charge u/s 304-B of the I.P.C., as a specific charge was framed against him.
31. Upon close scrutiny of the evidence and taking into consideration the entire material on record, it is apparent that there is no evidence to show that Veena Devi was either kidnapped or Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 24/25 abducted by the appellant in order to be murdered or disposed of so as to be put in danger of being murdered. The cardinal principles of criminal law is that the prosecution has to prove its case beyond reasonable doubt. Further, the evidence does not satisfy the ingredients of Sections 364 and 498-A of the I.P.C. The trial Court has not appreciated the evidence in the proper perspective.
32. In view of the aforesaid discussions, this Court is of the considerable view that prosecution has miserably failed to prove the guilt of the appellant for the offences punishable under Sections 364 and 498-A of I.P.C. and the trial Court has erred in convicting the appellant for the aforesaid offences. As such, the judgment of trial Court is liable to be set aside.
33. Accordingly, the Judgment of conviction dated 29.10.2005 and order of sentenced dated 11.11.2005 passed by Learned Additional Sessions Judge, FTC No.1, Madhepura, in Sessions Trial No. 153 of 1998, arising out of Kumarkhand P.S. Case No. 136 of 1997, is hereby Patna High Court CR. APP (SJ) No.600 of 2005 dt.21-04-2026 25/25 set aside, and the appellant is acquitted for the aforesaid offence.
34. The record reveals that appellant was released on bail by this Court vide order dated 19.10.2006. In view of the acquittal of the appellant, his bail bonds shall stand cancelled. Let the records be transmitted to the trial Court.
35. In result, the appeal is hereby allowed.
(G. Anupama Chakravarthy, J) AMANDEEP/-
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