Criminal Appeal (SJ) No.168 of 1997 ****** Against the order and judgment dated 16.06.1997 passed by Shri Shatrughan Singh “Rampuri” 2nd Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 201 of 1987. ****** Raj Kishore Rai, Son of Vishwanath Rai, resident of village – Bhagwanpur Ratti, P.S. – Vaishali, Dist. – Vaishali. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ****** For the Appellant : Mr. Shyam Sunder Singh “Shyam”, Advocate. Mr. Manoj Kumar, Advocate. For the Respondent : Mr. Parmeshwar Mehta, A.P.P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted under Section 365 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and further convicted under Sections 147, 323 and 342 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one month each. 3. The prosecution case as alleged in the fardbeyan by the 2 informant is that on 17.07.1983 at about 8:00 P.M. he proceeded from Gandhi Chowk Mahua to his house. In the way one jeep apprehended him and queried about the house of Sarpanch. On that jeep all the accused persons were youth. The informant avoided the query. He said that he does not know. The four persons got down from the jeep and caught hold of him and when the informant protested, they threw him on the jeep and thereafter they started the jeep and looted him on the jeep. He was assaulted by slaps and sleeper shoes and iron rod and then they said that they will not kill and they are taking him Bhagwanpur Ratti for his marriage. The informant made a cry and assured that he will get marry then said whatever he has to say, he will say at Sarai police station then one person pointed out him pistol. He identified one person Raj Kishore Rai who had come to his house for talk marriage. It is further alleged that another jeep came to his rescue and chase and then after one kilometer they thrown him from jeep. On Halla some person collected and took him in injured condition to the hospital. It is further alleged that about a month back Vishwanath Rai and his son Raj Kishore Rai had come for his marriage and the marriage was settled but when he went to see the girl, he did not approve and so he refused six hundred rupees and it is alleged that in the said jeep Raj Kishore Rai and Vishwanath Rai were sitting, to whom he identified. 4. On the fardbeyan of the informant, FIR lodged and investigation 3 proceeded and after investigation the charge-sheet was submitted, cognizance was taken and the case was committed to the court of Sessions and during the trial the charge-sheet was framed and nine witnesses were examined who are P.W. 1 Bindeshwar Paswan, P.W. 2 Ram Ashish Singh, P.W. 3 Mithilesh Kumar, P.W. 4 is Maksudan Singh, P.W. 5 Bishwa Nath Mishra, P.W. 6 Ram Sagar Singh, P.W. 7 Jagarnath Prasad, P.W. 8 Jai Mangal Rai, P.W. 9 Bindeshwari Prasad Tiwary. However, P.W. 7 is the informant and after considering the documentary evidence proved are Ext. A the formal FIR, Ext. 2 is the endorsement on the formal FIR, Ext. 3 is the fardbeyan and endorsement on the fardbeyan and Ext. 4 is the endorsement on the fardbeyan. 5. After considering the oral and documentary evidence, the order of conviction and sentence recorded against the appellants. However, co-accused Bishwanath Rai the appellant of this appeal was acquitted on the ground that he was 70 years old whereas the informant in his evidence has stated that all the persons on the jeep were young persons. 6. Learned counsel for the appellant, however, contended that there is only one identification and the time of occurrence is about 8:00 P.M and though there is allegation of assault, he was admitted in hospital but neither the injury report nor evidence regarding his being admitted in hospital has been proved nor the I.O. has been examined in this false 4 case. However, the prosecution is that while he was going on then he was intervened and they caught hold of him and assaulted and looted on the jeep and was brutally assaulted in the jeep by slaps, shoes and iron rod and the motive for the occurrence is that he was being taken for marriage as he refused to marry him. 7. However, the prosecution story itself in the fardbeyan is peculiar though P.W. 7 is the informant and has supported the prosecution case about the kidnapping in the jeep and assault and has stated that he was thrown from the jeep on assault and the jeep was followed him took him to the hospital. However, the other witness P.W. 2 has supported the prosecution case. However, the prosecution case about Halla of “Bachaw-Bachaw” from jeep but except P.W. 7 the informant none has identified the appellant. However, he claimed to have identified Vishwanath Rai and this appellant, the son of Vishwanath Rai. The lower court disbelieved the story of identification of Vishwanath Rai. Moreover, having regard to the fact that the witnesses though have supported the case about the occurrence of keeping from jeep and appellant has been found in injured stage but this the injury on the person of the informant which has not been supported by the medical evidence nor the I.O. has come to support. However, except the informant none has identified the appellant and moreover the occurrence alleged to have taken place in the night and no overt act 5 alleged against this appellant and it is only alleged that he was in the jeep and hence having regard to the facts and circumstances and since the I.O. and the doctor have not been examined, it casts a serious doubt about the implication of the appellant and hence I give the appellant benefit of doubt as the prosecution has not been able to prove the charges beyond reasonable doubt and hence the order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 22nd July, 2011. N.A.F.R./Kundan.