CRIMINAL APPEAL No.784 OF 2004 Against the judgment/sentence dated 29.9.2004 passed by Fast Track Court No. II, Kaimur (Bhabhua) in Sessions Trial No. 399 of 1996/146 of 2004 1. SHIVPRASAN YADAV 2. Sudarshan Yadav 3. Ram Murat Yadav, All three sons of Late Ganesh Yadav. All of resident of village- Babhaniyan, P.S. Chainpur, District- Kaimur (Bhabhua). ------- Appellants Versus THE STATE OF BIHAR ------- Respondent For the Appellant :- Mr. Ram Bachan Singh, Advocate For the State :- Mr. S. N. Prasad, A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R S.A. Khan, J. The appellants have challenged the judgment dated 29th September, 2004 passed by the Fast Track Court No. II, Kaimur (Bhabhua) in Sessions Trial No. 399 of 1996/146 of 2004 whereby the appellants have been convicted to undergo R.I. for 7 years and a fine of Rs. 1500/- each under Section 365 and R.I. for 3 years under Section 387 of the Indian Penal Code respectively. The case made out in the First Information Report is that one Munna Singh 2 informed Umesh Singh that his (Umesh Singh’s) father was missing from the `Khaliyan’. When the informant came to the `Khaliyan’, he found a blood stained `Gamchha’ and the Lathi lying in the `Khaliyan’ and he also disclosed that his father was missing from the bed where he was sleeping. The informant suspected that Shivprasan Yadav and his brother Sudarshan Yadav were responsible for the occurrence. The motive for the occurrence is that Shivprasan Yadav used to work as a tractor driver with his father for the past several years. It is said that one of the parts of the tractor had broken down which had annoyed the informant’s father Ramsurat Singh and he had dismissed Shivprasan Yadav from service. It has also been stated that there was an exchange of hot words between them and Shivprasan Yadav is said to have threatened the informant’s father by saying that he will teach him a lesson in six days. The informant has also stated that his father had some dispute with respect to taking water to his field with one Ramashraya and, therefore, he also suspected the hand of Ramashraya and his associates in the said 3 kidnapping. Nine witnesses have been examined in this case. None of the witnesses including the informant are eye witnesses to the occurrence. The only evidence is that of Ramsurat Singh, who had died before the trial could be taken up, as such the prosecution could not get the benefit of having his evidence in Court. None of the witnesses including the informant have stated in Court that after Ramsurat Singh came home, he disclosed the names of the kidnappers. It is only statement under Section 161 of the Code of Criminal Procedure that the names were disclosed. It is said that there were 10 to 15 miscreants. All of them have stated that it is on the basis of suspicion and the threat given by the appellant Shivprasan Yadav that they have come to the conclusion that he is the person responsible for the said occurrence. The Court below while convicting the appellants has relied on the evidence of all the witnesses without considering the main aspect that the witnesses have not disclosed that (a) the Gamchha and Lathi found on the place of occurrence was not identified by a 4 single person, (b) that the witness Munna Singh who gave information to the informant regarding the occurrence has not been examined in Court, (c) that the informant seems not to know anything regarding the occurrence or the affairs of his father. P.W. 6, the informant, in fact has stated that he does not remember which part of the tractor was broken or how long the appellant Shivprasan Yadav was working with his father. He cannot disclose the salary paid by his father to the tractor driver or even state in Court the details regarding the name of the present driver of the tractor. The informant however, has stated the names of several persons including the appellants and others to say that his father has disclosed the names of these persons as being responsible for the kidnapping. All others except the appellants have been acquitted. Having considered the evidence and the submissions of the counsel appearing on behalf of the appellants and the State, I find that the appellants have been convicted on the basis of the evidence of Ram Surat Rai. 5 It has been vehemently argued that the said kidnapping took place on 27.4.1995. The First Information Report was lodged on 28.4.1995 and Ramsurat Singh returned home on 29.4.1995. It has been submitted that the appellants are not involved in the occurrence of kidnapping. Their names have been involved in the case because they are very poor persons and because Shivprasan had been kicked out of his job. At that time, there was exchange of hot words. The prosecution has recorded the statement of one Cahnga Bind which has been marked as Exhibit-7 with objection. This Changa Bind claims to be the eye-witness to the occurrence and claims to have identified only Shyam Lal Moti. This witness has not been produced during the trial of the case to substantiate the statement made under Section 164 of the Code of Criminal Procedure. The Court below has rightly acquitted Shyam lal and rejected Exhibit-7. Ram Surat Singh has also been examined under Section 164 of the Code of 6 Criminal Procedure. In his statement, he has alleged that three unknown persons dragged him from Khaliyan. It is said that one of them gave a blow on the head. He also states that Sudarshan Yadav, Dattu Yadav, Shivprasan Yadav were amongst the miscreants. Dattu Yadav have not been convicted in the case. It may be mentioned that only the name of appellant no. 3 has not been disclosed in the statement of Ram Surat Singh. The 10 or 12 others were unknown. The case of the prosecution is that the appellant was kidnapped for ransom by unknown persons including the appellants. The evidence as disclosed is restricted only to the appellants’ involvement for the reasons which have been stated during investigation. Nothing has been stated to indicate that the appellants had a criminal history and it is hard to believe that in three days’ time i.e. the date from which the appellant no. 1 was discharged from service and the date of occurrence, he along with his two brothers would be responsible for kidnapping Ram Surat Singh. Besides which the witnesses 7 including the son of Ram Surat Singh have not been able to give the details as disclosed in the statement under Section 164 of the Code of Criminal Procedure regarding the manner in which these appellants were involved. It is submitted that the entire case has been instituted making all persons accused who were remotely having some short of dispute with the informant or his father and the manner of the occurrence has not been correctly stated by the informant or his father. Having considered the evidence and the submissions made by the counsel appearing on behalf of the appellants and the A.P.P. representing the State, this Court finds that, the prosecution has not been able to prove the involvement of the appellants beyond reasonable doubts. As such, the appellants are acquitted of the charges levelled against them giving them the benefit of doubt. The judgment and order dated 29.09.2004 is set aside. In the result, the appeal is allowed. Patna High Court, April 23rd, 2009 N.A.F.R./Sanjay (Sheema Ali Khan, J.)