IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.574 of 2007 Against the judgment and order of conviction and sentence dated 25.5.2007/28.5.2007 passed by Shri Krishna Kumar Srivastav, Additional District and Sessions Judge, F.T.C. VII, Munger. ------- =========================================================== Munna Sinha @ Chandan Kumar Sinha, son of Birendra Prasad Sinha, resident of Mohalla –Maksaspur, P.S. – Kasim Bazar, District – Munger at present residing at Village – Amari, P.S. Dharahra, District - Munger .... .... Appellant Versus The State Of Bihar .... .... Respondent =========================================================== Appearance : For the Appellant/s : Shri Rakesh Kumar Sinha-1, Advocate Mr. Anuj Prakash For the Respondent/s : Shri Ajay Mishra, APP =========================================================== P R E S E N T HONOURABLE SHRI JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. The solitary appellant was tried by the learned Presiding Officer, Fast Track Court VII, Munger in S.T. No. 55 of 2003 for committing an offence under section 364/34 IPC with co accused Suresh Yadav. By judgment dated 25.5.2007, the appellant was convicted of committing the offence while Suresh Yadav was acquitted. The appellant was heard on sentence and by order dated 28.5.2007, was directed to suffer RI for six years. The appellant has brought this appeal to challenge the judgment of conviction and sentence passed upon him. 2. The written report (Ext. 1) of P.W. 1 Md. Naimuddin is the basis of FIR in which he stated that his son Md. Nasim alias Chhotu aged 25 years did not return on 28.3.2001. The informant thought that he could have gone to some place and made enquiry from persons with whom he used to sit but could not get any clue about his disappearance. The informant further thought that might be his son would 2 have gone to witness Moharram procession and had not come back and he should come back but he did not, as a result of which the informant and the family members got anxious and worried and started making search for the boy. 3. It was stated that on 8.4.2001, Ajay Kumar Das (P.W.6), Manoj Kumar (P.W. 3), Md. Rizwan (P.W. 2), Md. Safjal Hussain (P.W. 4) and Md. Asgar Ali (P.W. 5) stated to them that on 28.3.2001 at about 12.00 O’clock Md. Sabbir alias Chhotu, who was the son of P.W. 5 had come and had taken him from his house. The informant further claimed to have learnt from Md. Rijwan (P.W.2) and Md. Safjal (P.W. 4) that at about 12.15 P.M. on the same day the present appellant and co accused Suresh Yadav took his son Md. Nasim on scooter and went away. When the informant came to his house and narrated the facts to his family members, his wife also stated that Md. Shabbir had come a couple of times on 28.3.2001 in search of her son at about 11 A.M. The informant suspected that might be the present appellant, Md. Shabbir and Suresh Yadav could have caused disappearance of his son. On the basis of the written report (Ext. 1), FIR of the case (Ext.2) was drawn up and the case was investigated into by P.W. 7. 4. The victim Md. Nasim could not be traced out nor his dead body appears found. The witnesses supported the fact that the victim had been taken away by the accused persons named above, as a result of which, charge sheet was submitted but accused Shabbir alias Chhotu who had been named in the FIR as the person who had taken the victim out of his house, was not sent up and it was only the present appellant who had been forwarded for trial. Later on, the acquitted accused Suresh Yadav was also sent up for trial and that resulted in the joint trial of the present appellant and acquitted accused Suresh Yadav, which ultimately, ended in the impugned judgment. 5. I was taken through the evidence of witnesses. Seven prosecution 3 witnesses were produced in support of the charges, out of whom, P.Ws 2, 3 and 5 stated that they had no knowledge of any aspect of the offence and, as such, they were declared hostile. P.W. 1 Naimuddin was stating that he did never know the appellant by his father’s name nor did he meet him on any particular occasion. Not only that, the story of incident which was narrated by the witness P.W. 1 as was narrated in the FIR was distorted a bit and was stated by him that his wife told him after he came back to his house that the two persons had come on two three occasions to his house in search of his son Md. Nasim and, lastly, it was Md. Sabbir who had taken his son. 6. When I was going through the evidence, I found that there is nothing in the evidence which could point out with authenticity that it was the present appellant who had really been seen taking the victim away. The informant was probably making the statement that it was the present appellant Munna Sinha who had taken away his son for the first time in court as appears from his cross examination (paragraph 3) and that part of the evidence appears corroborated by the evidence of P.W. 7, the I.O. that he had never stated before the police that it was appellant Munna Sinha who was also among persons who had taken away his son. It was the consistent case of the informant, as may appear from his evidence, that it was Md. Shabbir, who has not been sent up for trial, who had taken away his son. 7. So far as the evidence of P.W. 4 Md. Safjal is concerned, firstly, he appears not having made his statement before the police. This is the line that was spoken by P.W. 4 as answer to the first question in cross examination that he never made any statement before the police. Paragraph 4 of his cross examination is relevant so far as the merit of evidence is concerned. From that particular paragraph it may be noted that P.W. 4 had never seen the present appellant prior to the occurrence nor he had seen him after the occurrence. It was only on the day of the 4 occurrence that he was claiming to have seen the appellant. It is very curious as to how he could be certain about it, as he does not claim being acquainted with the appellant nor does he state anywhere in the evidence that it was the appellant who had taken away the victim. Thus, the evidence of P.W. 4 on the identification of the appellant was suspect and, as such, that particular evidence coupled with his admission that he had not made his statement before the police makes his evidence not fit to be accepted. So far as the evidence of P.W. 6 is concerned, his evidence throughout is that only Md. Shabbir was seen by him taking away the victim. He is not naming the appellant at all, least to talk of naming him in connection with the taking away of the victim. 8. Thus, on consideration of evidence of the witnesses including that of the informant, what I find is that the evidence was completely insufficient as regards the proof of participation of the appellant in either taking away or in disposal of the victim in any manner. It was not a case in which the charge had been proved. It was a case not proved and taking that view, I allow the appeal by setting aside the judgment of conviction and order of sentence passed upon the appellant. The appellant is in custody. He shall be released forthwith if not wanted in any other case. (Dharnidhar Jha, J.) Patna High Court, The 21st October, 2011, NAFR/Anil/