CRIMINAL APPEAL (SJ) NO.538 OF 2006 Against the judgment of conviction dated 22.04.2006 and order of sentence dated 24.04.2006 passed by Additional Sessions Judge, Fast Track Court-V, Gaya in Sessions Trial No.172 of 2005/370 of 2005. PRAKASH @ JITENDRA.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT ------ For the Appellant: Sri Arun Kumar Tripathi, Amicus Curiae For the Respondent: Sri Ajay Mishra, A.P.P. ------ THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The solitary appellant Prakash @ Jitendra was put on trial by being charged with committing offences under Sections 364, 365, 368 and 120B of the Penal Code by the learned Additional Sessions Judge-cum- Presiding Officer, Fast Track Court-V,Gaya in Sessions Trial No.172 of 2005/370 of 2005. By judgment dated 22.04.2006 the trial court found the appellant guilty of committing offence only under Section 365 IPC and directed him to suffer rigorous imprisonment for seven years as also to pay a fine of Rs.30,000/-. In case of not paying the fine the appellant was to suffer rigorous imprisonment for two years. The trial Jude further directed that if the fine was deposited, 2 Rs.25,000/- was to be paid to the father of the kidnapped boy. 2. P.W.1 Gopal Prasad Bihari filed a written report on 18.01.2005 at about 3.30 P.M. before the officer-in-charge of Kotwali Police Station, Gaya alleging that his six year-old son Rishav Kumar @ Rishu Kumar who had put on a blue colour jeans and striped sweater bearing an embroidered teddy bear, had gone to the house of his cousin Ravi Kumar(since acquitted)and did not return that night. After search of the child he came to know that this appellant had gone out of the house of P.W.1 to the house of acquitted accused Ravi Kumar who under a serious conspiracy with his family members had caused the boy to disappear. The informant claimed that it was the act of acquitted accused Ravi Kumar and the present appellant who was working with Ravi Kumar for some times. 3. On the basis of the written report, the officer-in-charge of Kotwali police station, Gaya instituted the FIR and entrusted the investigation to P.W.8 S.I. Jai Prakash who investigated into the case. He recorded the statements of various witnesses and also arrested the accused persons and during that course recorded the confessional statement (Ext-2) of the present appellant. The present appellant was taken 3 to Delhi by the police in search of the boy but the boy could not be traced and, lastly, the chargesheet was laid which resulted in commitment of the case to the court of Sessions and, ultimately, into the impugned judgment. 4. The defence of the appellant was of innocence and non-participation in commission of the offence and also of false implication on account of being suspected to have committed the offence. 5. Eight witnesses were examined by the prosecution to substantiate the charges. Out of whom P.W.1 Gopal Prasad Bihari was the father of the boy Rishav Kumar @ Rishu Kumar as also the informant of the case. P.W.2 Rekha Devi was the mother of the victim. P.W.3 Lootan Devi was the mother of the informant P.W.1 whereas P.Ws.4, 5 and 6 were the uncles of the victim. P.W.7 Raju Prasad Bihari @ Rajendra Prasad was the full brother of the informant. 6. P.W.1, the informant has stated, as do all witnesses, that it was this appellant who had taken away the victim. P.W.1 stated in paragraph-9 that he had not seen the appellant taking the boy with him and the same had been seen by P.W.2 Rekha Devi. Rekha Devi(P.W.2) has stated that the victim boy had been taken away by this appellant. However, the attention of Rekha Devi was drawn to her police statement and it 4 was suggested that she did not make that statement before the police and P.W.8 Jai Prakash, the investigating officer has stated in paragraph-16 that Rekha Devi had not made that statement before him. Thus, it pales into doubt that Rekha Devi could be an eye witness to the occurrence. Other witnesses who had come to support the charges on the basis of being eye witnesses to the occurrence of the victim being taken away by the present appellant, what I find from the evidence of witnesses other than P.Ws.1 and 2 is that they were witnesses who learnt about the occurrence after they had returned from their respective places of vocation to their houses or were told by some one or had picked up the rumour of the boy being taken away. This is the reason it was conceded by Sri Ajay Mishra, the learned A.P.P. for the State that the evidence was merely raising a suspicion, may be strong one, against the appellant and that could never be sufficient to up-hold the conviction. 7. Considering the nature of the evidence and the non-proof of the charges on that account, I find that the conviction of the appellant Prakash @ Jitendra was completely unfounded as a result of which the judgment and order of conviction is hereby set aside. The sentences passed upon him are also set aside. The appellant Prakash @ Jitendra is acquitted. 5 The appellant is in custody who shall be released forthwith if not wanted in any other case. Patna High Court, Dated, the 8th day of July, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)