Criminal Appeal (SJ) No.182 of 1996 Against the judgment and order of conviction dated 31. 07. 1996, passed by Sri Prabhat Kumar Sinha No. II, 3rd Additional Sessions Judge, Begusarai. 1. Ashok Mahton, son of Ram Autaur Mahton, Resident of Village- Kharampur, P.S. Matihani District-Begusarai. 2. Bijay Ram, son of Jhari Ram, resident of Village- Babathan, P.S. Matihani, District- Begusarai. ………Appellants. Versus The State of Bihar ………………………..Respondent. = For the Appellants : Mr. Ajay Kumar Thakur, Advocate. Mr. Amit Kumar, Advocate. For the State : Mr. Sujit Kumar Singh, A.P.P. PRESENT HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. Ashok Mahton and Bijay Ram have been convicted for offence under Section 364 of Indian Penal Code and have been sentenced to undergo rigorous imprisonment for eight years for offence under Section 364 of Indian Penal Code. 3. The prosecution case as alleged that when the informant went to Deoghar to worship Lord Shiva leaving his minor son Amit. When he came back then he learnt that his son Amit aged about five years has been taken away by his Bhabhi, Beena, who was deserted by her 2 husband, the elder brother of the informant for the reason of her ill character and did not take her back and has ousted her. Then she was threatened to ruin his entire family. It is further alleged that his Bhabhi, Beena in love and developed illicit relationship with accused Jaddu Yadav and Bisun Yadav who have running a whole sale cloth shop. It is alleged that one Sarshwati Devi allowed to live Beena. It is further alleged that Jaddu Yadav and Bisun Yadav along with Beena and Sarswati have kidnapped his son with a view to murder. On the basis of Fardbeyan, F.I.R. was lodged and after investigation, Police submitted charge sheet and case was committed to the Court of Sessions. After charge was framed, trial proceeded and during trial fourteen witnesses were examined by the prosecution and both oral and documentary evidence have been adduced which has been marked Exhibit 1 to 5 series. 4. After considering both oral and documentary evidence accused persons Sarswati Devi, Bijay Das, Bisni alias Bisundeo Yadav, Jaddu alias Jadunandan Yadav were acquitted and accused Ashok Mahton and Bijay Ram have been convicted and sentenced as stated above, who are 3 appellants of this present appeal. 5. Learned counsel for the appellants however, contends that name of the appellants are not named in the Fardbeyan and only evidence against these two appellants has come in the evidence of P.W. 8 Jogendra Sah. 6. P.W. 8, in his statement has stated that he was taking his breakfast in the hotel of Arun Choudhary then Raju Mahto, Ashok Mahton and Bijay Ram came on two cycles and took tea. Then Amit came from the house. Raju Mahton gave love and affection to Amit and told him to follow him he will give chocolate and biscuit then Amit went inside the house and again came back. By that time Raju Mahton, Ashok Mahto and Bijay Ram went near the saloon. Thereafrer, Raju Mahton took Amit on his bicycle and went near the house of accused Sarswati Devi. Hence from these evidence it is apparent that Raju, Ashok and Bijay took tea in the hotel of Arun Chaudhary then went near the Saloon. Thereafter, Raju Mahto took Amit on his bicycle to the house of Sarswati. However, there is no role assigned to Ashok and Bijay either prior or subsequent to the occurrence about their implication in kidnapping nor any act of commission or omission has been suggested to 4 infer the hand of the two appellants in commission of kidnapping. 7. However, P.W. 9 Shankar Mahton, he is not neither charge sheeted witness nor his evidence was recorded by Police during investigation. However, he has came to depose that while he was loading bags of cement on Thela saw accused Raju Mahto going on cycle on which Amit was sitting behind his cycle. There was two persons followed by another cycle. Second cycle was to dash his lorry (thela) and the cycle rider of second cycle comment him as blind and unable to see. He has stated that he identified the appellant as Bijay in dock as one of the person on cycle. However, in his cross examination he has stated that he identified Bijay when there was collision with his thela and cycle. However, in his examination-in- chief has stated that Thela about to be collied. Hence this two statement in examination-inchief and cross- examination are contradicting. However the evidence of this witness is not worthy of confidence as he is neither a witness of charge sheet nor is possible for this witness to identify a person on bicycle who was about to have been collide with his lorry (thela) about four years back. 5 Hence evidence of P.W. 9 with regard to identify of this appellant at the time of occurrence does not inspire confidence. Moreover, evidence of this witness is neither reliable nor trustworthy nor worthy of confidence. Hence his identification of the accused is also doubtful. 8. However, other witnesses P.W. 1, 2, 3, 4, 5, 6, 7 have not even whisper regarding implication of the appellants in their evidence. P.W. 10, 11, 12, 13 are Police Officers and P.W. 14 has formally proved case diary and taking into consideration the entire evidence against this appellants that they were along with Raju Mahton took tea in the hotel of Arun Chaudhary and then went near the saloon. However, accepted this evidence on this evidence there is neither infer about implication of the accused for offence under Section 364 I.P.C. nor even infer there common intention for committing crime. 9. Hence order of conviction recorded by the learned lower court on the basis of evidence is neither sustainable and order of sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court The 12th July, 2011 NAFR/m.p. ( Gopal Prasad, J.) 6