Criminal Appeal (SJ) No. 78 OF 1997 Against the judgment and order dated 06.03.1997 passed by Sri Devi Dayal Prasad, 1st Additional Sessions Judge, Bhojpur, Arrah in Sessions Trial No. 179 of 1994. ************ Umesh Kumar Singh, S/o Pati Ram Singh, resident of Village-Dhanchhuan, Police Station-Karakt Gorary, District-Rohtas. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) With Criminal Appeal (SJ) No. 105 of 1997 1. Keswar Singh Yadav, S/o Sati Ram Singh Yadav, resident of Village-Mahuari, Police Station-Agiaon Bazar, District-Bhojpur. 2. Gauri Yadav, S/o Sri Genda Yadav, resident of Village Salkhana, Police Station-Agiaon Bazar, District-Bhojpur. ……….(Appellants) Versus The State of Bihar……..(Respondent) ************* For the Appellants : Mr. Suraj Bansh Ray, Adv. For the State : Mr. Shailendra Kr. Singh, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellants have been convicted under Sections 395 and 364 IPC and sentenced to RI for four and a fine of Rs. 1,000/- in default of which simple imprisonment for one month as also five years and a fine of Rs. 5,000/- in default of which one month RI under each count respectively by the 1st Additional Sessions Judge, Bhojpur, Arrah in Sessions Trial No. 179 of 1994 by a judgment dated 06.03.1997. 2. The case of the prosecution according to Ramdeo Upadhya, P.W. 8 is that on 18.03.1993 2 suddenly some miscreants flashing torches came to his house and committed dacoity of his household articles as also took away his six years old child, Mukesh Kumar and asked him to pay a ransom amount Rs. 60,000/- (Sixty Thousand) for return of the child. The case was instituted against unknown but subsequently when the complicity of the present appellants arose they were charge-sheeted and put on trial. 3. The prosecution in all examined ten witnesses out of whom P.W. 1 is Chowkidar, Ram Surat Yadav who stated that when he learnt that a dacoity has been committed in the house of Ramdeo Upadhaya he went to his house and on verification that the occurrence was true went to the police station the next day. He specifically stated that he had talked to the appellant and his wife P.W. 8 and P.W. 9 but he does not mention anything else having been disclosed by them. 4. P.W. 2, Shriman Upadhya stated that having learnt that dacoity had been committed in the house of the informant who was his neighbour, he went there and found the house locked from outside. He did not open the latch and entered inside whereafter the informant came out then a number of witnesses arrived there. The informant disclosed that the accused persons had committed dacoity in his house and had also taken away his six years old child. He disclosed the names of 3 Akshay Kumar Yadav, Gauri Yadav and Keshwar Yadav among the miscreants. 5. P.W. 3, Sitaram Upadhya is the uncle of the informant who also stated that on learning that a dacoity had been committed in the house of the informant he went to his nephew’s house where he was informed about the factum of occurrence. The informant allegedly also disclosed the complicity of the accused Akshay Kumar Pandey and Keshwar Yadav. In paragraph 6 his attention was drawn to the earlier statement recorded under Section 161 Cr.P.C. in cross- examination that he had not disclosed the names earlier to the police and he conceded this fact. 6. P.W. 4, Rajendra Chaudhary is a seizure witness on the point of green checked lungi having been recovered from the house of appellant Umesh Kumar Singh. He conceded that his village was about 18-20 Kms. from village Phandhara which was the village where the recovery had been made. He also stated in his cross-examination that the appellant Umesh Kumar Singh was wearing lungi from where it was seized and at that point of time he was in his house. 7. P.W. 5, Subedar Upadhya is also an hearsay witness who stated that on the date and time of occurrence he was sleeping on his terrace where he heard hulla and went to the house of the informant 4 where he learnt about the occurrence as also the names of the three accused appellants namely Akshay Kumar Pandey, Gauri Yadav and Keshwar Singh Yadav. In paragraph 11 of the cross-examination he stated that he did not state the names to the Chowkidar. His attention was also drawn to his earlier statement under Section 161 Cr.P.C. that he had not disclosed the names of the appellant to the police earlier. 8. P.W. 6, Lallan Upadhya is also a witness on the point of seizure of lungi from the person of the appellant, Umesh Singh. He also appears to be resident of village Phandara where P.W. 4 was residing and therefore evidently residing 18-20 KMs. away from Dhanchhua where the seizure had taken place. 9. P.W. 7, Sheo Shankar Upadhya is a tendered witness. P.W. 8, Ram Deo Upadhya is the informant who narrated about the occurrence and also disclosed the complicity of the appellants Umesh Singh, Gauri Singh and Keshwar Singh. This is a definite improvement in the prosecution case since the names of these three appellants were not disclosed by the informant at the time of recording the ferdbeyan. It is probable that to explain this fact he stated that he had not read the contents of the ferdbeyan. Surprisingly he also does not say anything about the recovery of his child much less from the possession of the appellant, 5 Umesh Singh. In paragraph 16 he stated that appellant Umesh Singh instead of selling his lands as agreed upon with the informant instead sold it off to one Ganesh Yadav thus showing the close proximity of this witness with Appellant Umesh Singh. In paragraph 21 his attention was also drawn upon the fact that the names of the three appellants have not been disclosed by him to the police in statement recorded under Section 161 Cr.P.C. 10. P.W. 9, Lilawati Devi the wife of the informant disclosed and testified about the manner of occurrence and also disclosed the complicity of the three appellants Umesh Singh, Gauri Singh and Keshwar Singh. She also did not say anything about recovery of the child much less from the house of appellant Umesh Singh. In paragraph 3 she stated that appellants Keshwar Singh and Gauri Singh used to work in her house and often came there. They were her labourers and had left working in their house. In paragraph 4 she stated that appellant, Umesh Singh was a close neigbour and they were on inimical terms with each other. In paragraph 9 her attention was drawn to the earlier statement recorded under Section 161 Cr.P.C. that she has not disclosed the names of the three appellants before the police at the earlier instance. 6 11. P.W. 10, Nisar Ahmad has given an account as to how the kidnapped boy was recovered from the possession of the appellant, Umesh Singh. However, there is no corroborative material by way of a document to show that there was any recovery effected from the house of the appellant, Umesh Singh. He stated in paragraph 13 that he had gone to village Dhanchhua along with the chowkidar but there is no mention of the Chowkidar. 12. On a careful consideration of the evidence adduced on behalf of the prosecution, I find that there are two sets of witnesses with regard to three appellants. As against appellants, Keshwar Singh Yadav and Gauri Yadav there is evidence of P.W. 2, P.W. 3 and P.W. 5 that they had heard the complicity of these two appellants from P.W. 8 and P.W. 9. These witnesses appear to be highly unreliable since the informant himself has not named the three appellants before the police in his ferdbeyan. Nor did P.W. 9, his wife or P.W. 1, the Chowkidar disclose these names as having heard their names. Admittedly the two Appellants were well- known to the informant and his wife and it does not stand to reason as to why they would commit the offence without concealing their identity. In view of the doubt with regard to their complicity, their appeals are allowed. 7 13. As for the material against the appellant Umesh Singh apart from the solitary evidence, of P.W. 10 that the lungi was recovered from his possession there is no further corroboration. The evidence of witnesses P.W. 4 and P.W. 6 who appeared as seizure witnesses on the point of recovery of lungi of the informant from the person of the Umesh Singh is also highly doubtful since they belong to the village which is 18-20 KMs. away. It does not appear reliable that they would be the witnesses to a recovery which is taking place at such a long distance. In view of complete paucity of evidence also with regard to appellant Umesh Singh, I am not inclined to sustain his conviction. 14. In the result, the appeals are allowed and the judgment and order dated 06.03.1997 passed by the 1st Additional Sessions Judge, Bhojpur, Arrah in Sessions Trial No. 179 of 1994 is hereby set aside. The appellants are acquitted of the charges and discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 21st July, 2011. NAFR/Vikash/-