CRIMINAL APPEAL No.375 OF 2007 (Against the judgement judgment of conviction and order of sentence dated 28th March, 2007 and 30th March, 2007 respectively passed by Sri Vijay Bahadur Mall, Additional Sessions Judge, F.T.C. No. III,Vaishali at Hajipur in Sessions Trial No. 219 of 2002.) ************* 1. MD. ISHA S/O MOHD. YUNUS 2. MD. HABIB S/O MD. ALI HUSSAIN 3. MD. KUDUSH S/O MD. YUNUS 4. MD. NASIRUDDIN @ NASIM S/O RAJAK MIAN ALL R/O VILLAGE- MUSTAFAPUR TARA, P.S.- GORAUL, DISTRIDT- VAISHALI ……………………………………..APPELLANTS Versus STATE OF BIHAR………………………………………….. RESPONDENT ********* For the Appellants :- Mr. Rajendra Kumar Jain, Advocate Smt. Punam Srivastava, Advocate Mr. Pradeep Kumar Sinha, Advocate For the State :- Mr. S. N. Prasad, APP ****** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA S. K. Sharma, J. These appellants have filed this appeal against the judgment of conviction and order of sentence dated 28th March, 2007 and 30th March, 2007 respectively passed by the Additional Sessions Judge, F.T.C. III, Vaishali at Hajipur in Sessions Trial No. 219 of 2002 whereby the appellants above named have been convicted for the offence under sections 365/34 of the Indian Penal Code and they have been sentenced to undergo rigorous imprisonment for four years with a fine of Rs. 2,000/- each for the offence under section 365 read with section 34 of the Indian Penal Code and in default of 2 payment of fine they have been further ordered to undergo one month rigorous imprisonment under section 235 of the Cr.P.C. The complaint case is the basis of the prosecution which was filed by Pyar Mohamad alleging therein that Md. Jamaluddin aged about 14 years was playing on 25th May, 2000 in the evening he did not return. At the time of playing Jamaluddin was seen near the house of the accused persons. The informant made query and suspected that the appellants were the persons who might have kidnapped Jamuluddin. The complainant went to police station but the police does not lodge the case. The complainant subsequently came to know after few days that in furtherance of conspiracy all the accused persons have kidnapped Jamaluddin and kept him at a secret place for the purpose of marriage. The complaint was filed before the learned Chief Judicial Magistrate which was referred to police under section 156 (3) of the Cr.P.C. where the case was registered under sections 365, 366, 120 B of the Indian Penal Code. The matter was investigated into by the Sub Inspector of Police Vijay Prasad Sinha who in course of investigation recorded the re-statement of the informant. He inspected the place of occurrence and recorded the statement of other witnesses. Due to his bad health he handed over the charge of investigation to Sub-Inspector of Police Sri Baleshwar Prasad, Officer Incharge of Kathara O. P. for further investigation. The second Investigating Officer recorded the statement of the victim who was produced before the court and statement under section 164 of the Cr.P.C. was recorded. After investigation 3 Chargesheet was submitted under sections 364, 365/34 of the Indian Penal Code and accordingly, cognizance was taken under the aforesaid sections. The case was tried and in course of trial prosecution has examined nine witnesses, namely, PW1 Pramod Kumar Singh who is a formal witness, PW 2 Rizwan Ahmad, PW 3 Noor Alam, PW 4 Md. Jamaluddin (victim), PW 5 Banke Rai, PW 6 Pyar Mohammad (informant), PW 7 Md. Habib, PW 8 Sri Mithilesh Kumar Dwivedi the Judicial Magistrate, PW 8 Vijay Prasad Singh is the first Investigating Officer and the last witness PW 9 is a formal witness. PW 1 has proved only the handwriting and signature of S.I. Sri Madan Prasad Singh, Officer Incharge of Goraul Police Station on the formal FIR (Ext-1). PW 9 has proved the typing of the complaint petition (Ext-6). PW 7 has proved statement recorded under section 164 of the Cr.P.C. (Ext-4). The prosecution has been able to prove the allegation and proved the charges so the accused persons have been convicted. It is submitted by the learned counsel for the appellants that the order of conviction was passed without any legal evidence on the record. There was no basis at all to form an opinion that PW 4 was kidnapped or detained by the appellants for the purpose of murder. In fact no kidnapping was done and the victim was himself appeared whose statement was never recorded by the police rather at belated stage the informant has managed the I. O. to get the statement of the victim recorded under section 164 of the Cr.P.C. and the I. O. was 4 never produced which has caused great prejudice to the appellants because they could not get benefit of taking out the contradictions between the statements under section 161 of the Cr.P.C. and the evidence of PW 4 (victim). Further submission is that the evidences are contradictory on the point of time, occurrence and the manner of alleged crime. There are evidences of PWs 2, 3, 4, 5 and 6 that PW 4 was playing near the house of the appellants before missing but it has been pointed out by the learned counsel for the appellants that not even a single witness has claimed that he has seen though the occurrence was in the village which is fully inhibited. Though six witnesses have supported the allegations but there are contradictions with regard to time of occurrence. With regard to place of occurrence, PW 2 in paragraph 1 of his evidence has stated that Jamaluddin (victim) was playing in the east of the house of Habib. Similar is the evidence of PW 3 but PW 5 has stated that the Jamaluddin was playing in the west of the house which has been thoroughly contradicted by the PW 4 who has stated that he was playing to the east of the house of Habib. On this basis, it has been pointed out that the place of occurrence itself is not proved. The I. O. has gone to the village and has examined a number of witnesses but they could not point out the specific place of occurrence. I have examined the evidences of the witnesses. No doubt, some witnesses have stated with regard to vanishing of Md. Jamaluddin but the police in course of investigation came to another 5 version that Md. Jamaluddin was kept by his uncle who is the informant of the case and after kidnapping, the complaint case was filed. Learned counsel for the appellants has submitted that due to non-examination of the witnesses this important evidence could not be brought on record so it caused prejudice to the appellants. PWs 2 and 3 are chance witnesses since both belong to village Fathepur Chak Suleman. There is evidence with regard to place of occurrence but the same is contradictory itself. The occurrence is of 28th May, 2000 but the complaint was filed after two days only with a view to harass the accused persons with whom the complainant was having a lot of differences. Learned counsel for the State argued that though there are some contradictions but those are minor in the nature and those cannot go to the root of the case. For proving the charge the prosecution has to prove that the kidnapping of the victim was done by the accused persons for the purpose either he may be murdered or he may put in danger of being murdered. Learned counsel for the appellants submits that no evidence has been brought at all with regard to that. Reliance has been place upon the investigation which could not be brought on record due to non-examination of the subsequent Investigating Officer. In this case major portion of allegation was investigated in by the second investigating officer who has recorded the statement of 6 the victim and other witnesses. When the alleged kidnapping has been doubted then it was incumbent upon the prosecution to bring the second investigating officer and his non-examination definitely cause prejudice to the appellants because the defence case of the appellants is that the victim was kept concealed by the informant. This fact was found by the investigating officer also but non-examination of the investigating officer has not brought this material fact of the case on record. Accordingly, I am in agreement with the submissions advanced on behalf of the appellants that due to non-examination of the second investigating officer vital defence was not brought on record. With regard to time of the occurrence also there are some contradictions. The different witnesses have stated about different time of playing of PW 4 which varies from 4 P.M. to 6 P.M. The prosecution has to prove its case beyond all reasonable doubts. I am of the view that the prosecution has failed to prove its case beyond all reasonable doubts. In the result, I hold that the prosecution case suffers from lacunae. Accordingly, the impugned judgment of conviction and sentence is set aside and this appeal is allowed. The appellants are directed to set at liberty forthwith if not wanted in any other case. (Shyam Kishore Sharma, J.) Patna High Court Dated 9th July, 2009 N.A.F.R./avin