Criminal Appeal (SJ) No.365 of 2007 With Criminal Appeal (SJ) No. 458 of 2007 **** Against the judgment, dated 12.03.2007, passed by Sri Diwakar Mishra, Additional Sessions Judge, Fast Track Court, V, Samastipur, in S. Tr. No. 133 of 2005 (arising out of Tajpur P.S. Case No. 188 of 2003) **** Ashok Sah, son of Satrughan Sah, resident of village Bherokhra, P.S. Tajpur, district Samastipur .. Appellant (in Cr. Appeal (S.J.) No. 365/07) Ramvati Devi, wife of late Lakhan Ram, resident of village Gangapur, P.S. Musarigharari, district Samastipur .. Appellant (in Cr. Appeal (S.J.) No. 458/07) Versus The State Of Bihar .. Respondent (in both the cases) **** For the Appellant .. M/S Jitendra Narain Sinha (in both the appeals) & Rina Sinha, Advs. as Amicus Curiae For the Respondent .. Mr. Sujit Kr. Singh, APP **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard the counsel for the appellants and the State. 2. These two appeals are being heard together and are being disposed off by this common judgment. 3. The appellant of Cr. Appeal (S.J.) No. 365 of 2007, namely, Ashok Sah, has been convicted and sentenced to undergo rigorous 2 imprisonment for five years under Section 365 of the Penal Code and to pay a fine of Rs.10,000/- out of which Rs.5,000/- shall be payable to the victim and in default of payment of fine, further, sentenced to undergo simple imprisonment for two years and the appellant of Cr. Appeal (S.J.) No. 458 of 2007, namely, Ramavati Devi, has been convicted and sentenced to undergo rigorous imprisonment for two years under Section 365 of the Penal Code though charged under Section 364A of the Penal Code. 4. The prosecution case is that the informant found his son, Rajiv Kumar, missing at about 08.00 p.m. then he enquired and learnt from Ram Pravesh Sah and Ramesh Sah that the victim was being taken by Ashok Sah and Ramesh Kumar. The informant make out a search, but, did not find his son then he reported the matter to police, thereafter, police came, recorded the fardbeyan and forwarded the same for lodging the first information report and proceeded with the investigation. During the investigation and as per the disclosure of the informant and his wife that the co-villagers, Ram Pravesh Sah and Ramesh Sah disclosed that the victim was taken by Ashok Sah and Ramesh Kumar. Ashok Sah was arrested who confessed his guilt that Ramesh Kumar has conspired to kidnap the boy and promised that if he will kidnap the boy, Rs.2000/- will be given to him and then the house of Ramesh Kumar was raided and his confessional statement recorded and on the statement of Ashok Sah and Ramesh Kumar they raided the house of Shanker Rai where two persons were found fleeing and the police catch hold one lady Ramavati Devi, the mother of Shanker Rai and at the instance of the said lady a room was opened. The victim boy was recovered from said room. After the recovery of the boy the statement of the victim was recorded and, thereafter, police submitted the charge sheet. 3 After investigation, cognizance was taken and the case was committed to the Court of sessions and after commitment the charge was framed under Section 364A of the Penal Code against three accused persons. 5. During the trial, nine persons have been adduced as witnesses. P.W. 1 is Md. Shoaib, P.W. 2 is Bechan Sah, P.W. 3 is Dhaneshwar Sah, have been declared hostile, P.W. 4 is the informant, P.W. 5 is Shanti Devi, the wife of the informant, P.W. 6 is Ram Pravesh Sah, declared hostile, P.W. 7 is the victim, P.W. 8 is Basudeo Prasad Sah, declared hostile and P.W. 9 is the investigating officer. However, the documentary evidence adduced are Exhibit “1” is the signature of the formal witness on the first information report, Exhibit “2” is the signature of informant on fardbeyan, Exhibit “2/A” is the signature of Basudeo Sah on fardbeyan, Exhibit “3” is the signature of the victim, Rajiv Kumar, on his statement under Section 164 of the Criminal Procedure Code before the Magistrate, Exhibit “2/B” is the fardbeyan, Exhibit “1/A” is the formal first information report, Exhibit “4” is the confessional statement of Ashok Sah and Exhibit “4/1” is the confessional statement of Ramesh Kumar. 6. The trial Court after considering the evidence of the informant, P.W. 4, the victim, P.W. 7, the mother of the victim, P.W. 5, and the investigating officer and recovery of the boy from the possession of Shanker Sah and Ramavati Devi, convicted the appellants, as stated above. 7. The learned counsel for the appellants, however, contends that only Baleshwar Sah, P.W. 4, Rajiv Kumar, P.W. 7, the wife of the informant, P.W. 5 and the investigating officer, P.W. 9, have supported the prosecution case, but, other witnesses have turned hostile. It has, further, been contended that there are various contradictions in the evidence of the witnesses and, 4 further, that first information report has been lodged after the occurrence and, hence, the prosecution has not been able to prove the case beyond reasonable doubt. 8. However, the case of the prosecution that the informant found his son missing and then informed the police. The police came, recorded the fardbeyan and then conducted raids and then the boy was recovered. 9. P.W. 9 is the investigating officer. He on information came to the village recorded the statement of Baleshwar Sah and his wife. Then he raided the house of Ashok Sah. Ashok Sah confessed that on the instruction of Ramesh Kumar he sent the boy on pretext of purchase of fish. Then police raided the house of Ramesh Kumar. Ramesh was apprehended and he disclosed the police that boy is at the house of Shanker Ram. The house of Shanker Ram was raided and the boy recovered along with the appellant, Ramavati Devi (Cr. Appeal (S.J.) No. 458 of 2007). The evidence of P.Ws. 1, 2, 3 and 7 is supported by the evidence of P.W. 9. 10. P.W. 1 has stated in his evidence that during the search Ram Pravesh disclosed that the victim was going along with the Ashok Sah and Ramesh Kumar and, thereafter, making search he could not found out then he informed the police and then police came and caught hold of Ashok Sah and then Ashok Sah disclosed that the boy is with Ramesh Kumar then he make out a search of Ramesh Kumar along with police and got him who disclosed that the boy is in the house of Shanker Ram and from there the victim boy was recovered and a woman was also arrested. However, Ram Pravesh turned hostile and not supported the prosecution case. Ashok Sah and Ramesh Kumar are the accused. However, P.W. 7, is the victim, Rajiv Kumar, son of informant, supported the 5 prosecution case that Ashok Sah had kidnapped him at the time when he was playing and Ashok Sah took him at about 05.00 a.m. and Ashok Sah gave him to another person and he took him to Gangapur. He has also stated that police along with his father and mother recovered him and police also arrested the lady. Hence, this witness supported the prosecution case that he was kidnapped by Ashok Sah who handed him over to another person and recovered from the hut of Shanker Ram with the lady. P.W. 5 is the mother of the victim. However, she has only come to support that during search Ram Pravesh disclosed that Ashok Sah has taken Rajiv Kumar on cycle along with other person. 11. It is apparent that the victim was kidnapped by Ashok Kumar was recovered from the house of Shanker Ram, the mother of Ramavati Devi, and P.W. 7 has disclosed that Ashok Kumar is his neighbour. Ashok send him with the man under a pretext to purchase fish. His statement also recorded under Section 164 of the Criminal Procedure Code, marked as Exhibit 4 supporting the prosecution case. 12. The learned counsel for the appellants, however, contends that there is contradiction and the informant learnt from Ram Pravesh that he has come to depose and P.W. 7 has stated that one Jitu Kumar was also with Ashok Sah at the time of kidnapping, but, Jitu has not been examined and, further victim has stated that Dinesh, Bharat, Rajesh and Manoj were also playing with Rajiv Kumar, but, not examined. But, Rajiv Kumar, the victim, has stated that after play was over Dinesh, Bharat, Rajesh and Manoj went away and he was waiting for his mother then the occurrence took place. It is pertinent to mention that appreciation of evidence in criminal case is required to be done on broad 6 probabilities of the case and evidence of witness can not be thrown away because of minor discrepancy. The discrepancy and the contradiction pointed out does not go to the root of the prosecution to disbelieve the prosecution case and prosecution case has been established by the cogent, reliable and unimpeachable evidence of P.Ws. 4, 7 and 9 and, hence, I find and hold that the prosecution has been able to prove the charges against the appellant beyond reasonable doubt. 13. However, so far the sentence is concerned, the appellant, Ashok Sah (Cr. Appeal (S.J.) No. 365 of 2007), is concerned, he was arrested in 2005 and remained in jail and it was pointed out that having completed his period of sentence and released from jail. However, so far the appellant, Ramavati Devi (Cr. Appeal (S.J.) No. 458 of 2007), is concerned, there is only evidence against her that she was there at the house, but, she is the mother of Shanker Ram and nothing against her except that she was present there and she has remained in jail for about eight months and she was aged about fifty years at the time of the judgment and, hence, the end of justice shall meet by sentencing her to the period already undergone and, hence, with the modification in sentences both these appeals are dismissed. ( Gopal Prasad, J. ) The Patna High Court, The 23rd day of August 2011, N.A.F.R., S.A.