Criminal Appeal (SJ) No.156 of 1998 **** Against the judgment and order of conviction, dated 27.021998 and 28.02.1998, passed by Sri Prqamod Bahadur Mathur, Additional Sessions Judge, VI, West Champaran, at Bettiah, in S. Tr. No. 589 of 1996 **** Sarif Mian, son of Thag Mian, village Parshurampur, P.S. Kangali (Sikta), district West Champaran .. Appellant Versus The State Of Bihar .. Respondent **** For the Appellant .. Mr. Akhileshwar Kumar Shrivastava, Adv. For the Respondent .. Mr. Sujit Kumar Singh. APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellant and the State. 2. The appellant has been convicted under Section 364 of the Penal Code and has been sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.1000/- and on failure to pay the fine ordered to undergo rigorous imprisonment for one year. 3. The prosecution case as alleged in the fardbeyan of the informant, Peer Mohammad, alleging therein that he had his sasural at Parsurampur where he get his property and lives there and on 18.02.1996 came to Parshurampur along with his samdhi, Adalat Mian, 2 and after taking meal get his samdhi slept on his bed and he himself went to sleep into the room adjoining to room in which samdhi was sleeping. At about 11.30 p.m. some unknown persons came and knocked the door in which samdhi was sleeping and when he came out after opening the door then the accused persons kidnapped him. He saw the accused persons taking his samdhi, but, out of fear he did not came out. It has, further, been alleged that he is in litigation with Sarif Mian and Sarif Mian has threatened that he will kill him and he is in association with criminals and may have come for his kidnapping. 4. On the fardbeyan the first information report was lodged and the investigation proceeded and after investigation the charge sheet submitted, cognizance taken and the case committed to the Court of sessions and after commitment the charge was framed and nine witnesses were examined on behalf of the prosecution. 5. The trial Court, taking into consideration the evidence of P.W. 8, who claimed to have identified the appellant amongst the persons who lifted Adalat Mian (P.W. 5), P.W. 6, Peer Mohammad, the informant, has stated that four-five persons came and kidnapped or abducted Adalat Mian. P.W. 5, Adalat Mian in their evidence has stated that the accused persons dragged Adalat Mian and brought him to the door of Sarif Mian and was assaulted there and he identified Sarif Mian as one of the miscreants and then was taken and kept one month, one hut to another, from where he was taken to sugarcane field from where he managed to flee away when the persons watching over him were under the influence of liquor and considering the evidence the trial Court convicted and sentenced the appellant. 3 6. The learned counsel for the appellant, however, contends that the evidence of the witnesses suffers from contradiction and the witnesses have not supported the prosecution case by legal, cogent, reliable and unimpeachable evidence to establish the charge beyond reasonable doubt. 7. However, taking into consideration the statement of the informant in fardbeyan the informant, P.W. 6, did not claimed to identify the appellant in the fardbeyan though suspicion raised on the appellant that he may have been instrumental. P.W. 5 has stated that 5- 6 persons came and kidnapped his samdhi from his bed room on the pretext that they were kidnapping Peer Mohammad. P.W. 5 is the victim, the samdhi of the informant, who was kidnapped. However P.W. 5 stated that after kidnapping they took him to the house of Sarif Mian and there he was assaulted and he identified Sarif Mian amongst the miscreants. However, the attention of this witness has been drawn with regard to his earlier statement before the police to this part of the evidence in paragraph 27 of his deposition. P.W. 7, the investigating officer, in paragraph 10 of his deposition has stated that Adalat Mian had not disclosed before him about the identification of any accused persons and he did not show any sign of assault and during entire evidence none of the witnesses disclosed him the name of Sarif Mian amongst the assailant or they identified Sarif Mian and, hence, this part of the evidence about the identification of the appellant by P.W. 5 stands contradicted. Hence, this part of the evidence at all is not reliable and suffers from contradiction. 8. P.W. 2 does not claim to have identified any accused 4 and has been declared hostile and P.W. 1 is only a formal witness has only proved Exhibit 2. 9. P.W. 3 though claims to have identified Sarif Mian amongst the persons who alleged to have kidnapped, P.W. 5, Adalat Mian at the time of occurrence. However, his attention has been drawn to paragraph 14 of his evidence and has stated that it is not a fact that he had not stated before the police about the identification of Sarif Mian amongst the miscreants or that he got upon the roof and saw 5-6 persons are carrying Adalat Mian. The attention has specifically drawn to his statement before police that he had stated before the police that he went to the house of Rabindra Singh along with him, but, he did not saw any person coming and going and when he went to the baithka of Rabindra then saw the complainant sitting on the chowki. P.W. 7 is the investigating officer and has stated that Chandra Shekhar, P.W. 3, has not stated in his evidence that he saw the accused persons from his roof or he identified Sarif Mian. However, this witness has, further, stated that Adalat Mian has not stated before him that the miscreants took him to the door of Sarif Mian and assaulted and, hence, the evidence of P.Ws. 3 and 7 stands contradicted regarding the implication of Sarif Mian in the occurrence. Hence, no reliance can be placed on their evidence to this part of the evidence regarding identification of Sarif Mian by P.Ws. 3 and 7. 10. P.W. 4 is the Chowkidar and he has stated that on Monday in the morning Peer Mohammad came along with Sita Ram and disclosed that his samdhi has been kidnapped and Sarif Mian was instrumental and then he went and reported to police. However, in his 5 cross examination he has stated that Peer Mohammad has only stated that his samdhi has been kidnapped and he is going to the Court as has no time to inform police. However, this witness is not an eye witness and his statement is only what Peer Mohammad disclosed him. 11. However, from the evidence of the informant in his fardbeyan as well as in his deposition that there is prior litigation, both civil and criminal, is going on between the appellant and the informant. 12. Hence, taking into consideration the entire facts and circumstances the evidence of P.W. 5 is only suspicion and evidence of P.Ws. 6 and 3 regarding implication of the appellant suffer from contradiction and, hence, there is no cogent, reliable and trustworthy evidence to prove the charges. Hence, the prosecution has not been able to prove the charges beyond reasonable doubt. P.W. 5 and the evidence of P.W. 4 and 5 stands contradicted regarding the evidence of the implication of the and, hence, it can not be relied upon. 13. Hence, taking into consideration the entire evidence there is no legal evidence against the appellant and the prosecution has not proved it’s case beyond it’s reasonable doubt and, hence, the order of conviction and sentenced, recorded by the lower Court, is hereby set aside the appeal interlocutory application allowed. ( Gopal Prasad, J. ) The Patna High Court, The 10th day of August 2011, N.A.F.R., S.A.