Criminal Appeal (SJ) No. 76 OF 1995 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ 1. Satto Yadav, S/o Late Mahabir Yadav. 2. Hari Nandan Yadav, S/o Satto Yadav. Both R/o Village-Malhanitola, Bharna, P.S.-Supaul, District-Supaul. ……(Appellant) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellants : Mr. Viveka Nand Singh, Adv. For the State : Mr. Binod Kumar, 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 Section 366/34 IPC and sentenced to RI for five years by a judgment dated 04.05.1995 passed by the 2nd Additional Sessions Judge, Saharsa in S.Tr. No. 84 of 1993 (S)/13 of 1993. 2. The case of the prosecution is that when the complainant was away he learnt that his wife had been kidnapped by the accused persons for forcing her into prostitution or begging. 3. During trial, the prosecution in all examined sixteen witnesses out of whom P.W. 2, P.W. 3, P.W. 5, P.W. 8 and P.W. 9 were named in the First Information Report have been declared hostile. P. W. 7, P.W. 11 and P.W. 14 are tendered witnesses. P.W. 1, P.W. 4, P.W. 6 and P.W. 10 are the witnesses on the point of occurrence and are relative of P.W. 15, the informant. P.W. 16 is the Investigating Officer and P.W. 13 is the witness on the point of Panchayati. 2 4. On going through the evidence of P.W. 4, one finds that all he has stated is that he had seen the appellants going along with the victim. P.W. 7 has also stated likewise. P.W. 9 and P.W. 10 are other eye-witnesses to the occurrence who also merely deposed on this fact. Since the ingredient of kidnapping is that the persons if a minor is abducted from the care her guardianship and without her consent if she is a major but this important ingredient is missing in the present case since the victim has not been examined by the prosecution. 5. Under the circumstances, it is difficult to uphold the conviction of the appellants under Section 366 IPC. In the result, the appeal is allowed and the judgment dated 04.05.1995 passed by the 2nd Additional Sessions Judge, Saharsa in S.Tr. No. 84 of 1993 (S)/13 of 1993 is set aside. The appellant is discharged of the liability of his bail bond. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 22nd April, 2011. NAFR/Vikash/-