Criminal Appeal (SJ) No.285 of 1998 Against the judgment and order of conviction and sentence dated 21. 07. 1998, passed by Mishri Lall Chaudhary, Additional Sessions Judge I, Barh, in Sessions Trial No. 1053 of 1996. Dhanjay Kumar @ Dhanjay Singh @ Dhanesh Singh, son of Ram Krit Singh, resident of Village- Agwan Pur, P.S.- Barh, District- Patna. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. WITH Criminal Appeal (SJ) No. 293 of 1998 Against the judgment and order of conviction and sentence dated 21. 07. 1998, passed by Mishri Lall Chaudhary, Additional Sessions Judge I, Barh, in Sessions Trial No. 1053 of 1996. Rajdeo Ram, son of Mathura Ram Resident of Village- Puraibag, P.S.- Barh, District- Patna. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellants : Mr. Tej Narayan Singh, Advocate. Mr. Satyendra Prasad Singh, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONBLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. Two appeals i.e. Cr. Appeal no. 285 of 1998 and Cr. Appeal No. 293 of 1998 have heard together and being disposed by the common judgment as the two appeals arising out of same judgment and order dated 21. 2 07. 1998, passed by Shri M. L. Chaudhary, Additional Sessions Judge, I, Barh, in Sessions Trial no. 1053 of 1996, by which he has been convicted the appellants for offence under Section 364 I.P.C. and sentenced to undergo imprisonment for ten years. 3. Prosecution case that Rameshwar Paswan, the son of the informant Sheo Balak Paswan was a teacher in Primary School. On 07. 02. 1996, he went to attend the school as usual, but did not return in the evening as usual. On enquiry by informant he learnt that Rameshwar left the school after school hour. Informant learnt from some reliable source that on 07. 02. 1996, some persons have been kidnapped. So lodged the written report. The F.I.R. was lodged and during investigation the police raided the clinic of one Mathura Mahto, father of Rajdeo Ram and recovered the victim, Rameshwar Paswan from a room which was locked for outside and also arrested the accused Dhanjay said to be guarding the victim at the clinic. The victim recovered from the said clinic was kept there was blind folded, there was path in this eye and he disclosed that when he reached on his bicycle at Hasanchak then three persons kidnapped him and blind 3 folded him asked him to write a letter to this father for demand of ransom of Rs. 5,00,000/-. Police recovered and catch hold of one person from road and after investigation, the police submitted charge sheet. Cognizance taken and case committed to the Court of Sessions. However, during trial five witnesses were examined. P.W. 1, Sheo Balak Paswan, P.W. 2, Rameshwar Paswan, P.W. 3 Bundela Paswan, P.W. 4, Tripurari Paswan and P.W. 5 Amrendra Jha, I.O. 4. The trial court taken into consideration of the evidence of witnesses and found P.W. 1, 2, 3 and 4 did not support the prosecution case about the implication of the appellants and having been declared hostile, but convicted the appellants on sole evidence of P.W. 5, the I.O. that he recovered the victim from the clinic of one Mathura, who is father of accused-appellant Rajdeo and had arrested accused-appellant Dhanjay from the said clinic with pistol, for pistol another case filed. Hence convicted the appellants as stated above. 5. Learned counsel for the appellants however contends that no witnesses have supported the prosecution case regarding the hand of the appellant either in 4 kidnapping or implication of the appellant except P.W. 5 who is I.O. and only evidence against Dhanjay that he was arrested from the side of the occurrence and against Rajdeo, that place from where the victim was recovered was the clinic of Mathura Mahto, the father of Rajdeo, but Rajdeo was neither identified by any one nor arrested on and arround the place of occurrence and clinic of Mathura Mahto has not established by cogent and reliable evidence and hence order of conviction and sentence is not sustainable. 6. Taking into consideration the entire facts and circumstance, only evidence against the appellants are evidence of P.W. 5 who is I.O. The victim, informant and other witnesses have not supported the prosecution case regarding implication of the appellants. However, the informant has stated that he saw one person flee away and stated that victim was blind folded. However, the person who is stated to flee away has not been identified by any one. 7. So far Rajdeo is concerned, there is no evidence except that clinic belong to Mathura Mahto, the father of Rajdeo. However, neither Rajdeo identified by 5 any one at the place just recovered was made which is alleged to be clinic of Mathura Mahto, nor prosecution has not been able to establish that said clinic was really clinic of Mathura Mahto, the father of Rajdeo. I.O. in his evidence has stated that he learnt from the person there, but has not named the person from whom he learnt nor any cogent and reliable evidence has been established that said clinic was clinic of Mathura Mahto, the father of Rajdeo and hence, virtually there is no evidence with regard to implication of Rajdeo in kidnapping. 8. With regard to the appellant, Dhanjay, only evidence of I.O. that he catch hold of him along with a pistol and for the said recovery of pistol, a separate case has been filed, but no evidence adduced regarding recovery of pistol and regarding filing of the said case, except evidence of I.O., there is no evidence either police or any independent witness about arrest or apprehending of Dhanjay. Hence it is not safe to convict the appellants on the evidence of I.O. itself. 9. Hence benefit of doubt is extended to the appellant Dhanjay and I find and hold that prosecution has not been able to prove the charges against the appellants. 6 Hence order of conviction and sentence recorded by the lower court is hereby set aside and both the appeals are allowed. Patna High Court The 9th September, 2011. NAFR/m.p. ( Gopal Prasad, J.)