Criminal Appeal (SJ) No.166 OF 1995 (Appeal against the Judgment and Order dated 27.7.1995 passed by the Sessions Judge, Nalanda, Biharsharif in Sessions Trial No. 516 of 1990.) 1. AWADHESH PRASAD 2. RAJENDRA PRASAD 3. KEDAR PRASAD ALL SONS OF AKLU MAHTO ALL ARE RESIDENTS OF VILLAGE RANA BIGHA, P.S. DEEP NAGAR, DISTT. NALANDA. ----- APPELLANTS. Versus THE STATE OF BIHAR ----------RESPONDENT For the Appellants : Mr. Nawal Kishore Singh, Adv. Mr. Upendra Mishra, Adv. For the State : Mrs. Indu Bala Pandey, A.P.P. Criminal Appeal (SJ) No.185 OF 1995 (Appeal against the Judgment and Order dated 27.7.1995 passed by the Sessions Judge, Nalanda, Biharsharif in Sessions Trial No. 516 of 1990.) BILAS YADAV @ LULHA SON OF BRABHAMDEO YADAV, RESIDENT OF VILLAGE SIPAH, P.S. DEEPNAGAR, DISTT. NALANDA. ------- APPELLANT. Versus THE STATE OF BIHAR ---------RESPONDENT For the Appellant : Mr. Anjani Kumar, Advocate. For the State : Mr. J.K. Singh, A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: Heard learned counsel for the Appellants and learned counsel for the Respondents. The Appellants have been convicted under Section 364 of the Indian Penal Code and sentenced to rigorous 2 imprisonment for ten years by a Judgment dated 27.7.1995 passed by the Sessions Judge, Nalanda in Sessions Trial No. 516 of 1990. The case of the Informant (PW-2) is that she was returning with her husband (deceased) on 2.9.1989 from Biharsharif and when she had reached the river bed near village Sipah, the accused persons accosted them and took away her husband. The reason for the occurrence is that the deceased had some kind of a tiff with accused Rajendra for which he had also threatened him. She named one Sohan Mahto as having arrived soon after the occurrence who looked for her husband but could not find him. During trial the prosecution examined three witnesses out of whom PW-1 is Sohan Mahto. PW-2 is the Informant whereas PW-3 is the Doctor who conducted the post mortem examination. The evidence of Sohan Mahto has been placed before this Court from which I find that he was accompanying the deceased and the Informant on the date of occurrence and had stopped to urinate while the other two proceeded and this occurrence took place. Surprisingly, he does not depose as an eye witness even to the extent of having seen the accused persons retreating taking away the deceased even though admittedly, the place of occurrence is on open area i.e. a river bed and normally nearby activities would be very well visible to everyone at such a place. I also find from the 3 evidence of PW-1 who has deposed as hearsay that the Informant had named only accused Bilas and Dayanand as the two accused persons. Therefore, the only eye witness (PW-2) is materially contradicted by the evidence on record. Since this case is solely dependent on the lone eye witness it would have to be strict in its scrutiny of evidence of such a witness and would accept it only if it is completely trustworthy which is not the position here. For the reason stated above, the evidence of PW-2 does not appear above suspicion. Moreover, the prosecution has not examined the Investigating Officer who could have brought corroborative objective evidence with regard to the actual occurrence. Under the circumstances, the Appeal is allowed. The order of conviction and sentence passed against the Appellants in Sessions Trial No. 516 of 1990 by the Sessions Judge, Nalanda at Biharsharif, is hereby set aside. The Appellants are discharged from the liability of their bail bonds. Patna High Court, Patna Dated, the 22nd April, 2011. NAFR/S.ALI ( Anjana Prakash, J.)