CRIMINAL APPEAL No.154 OF 2004 (DB) Against the judgment of conviction and order of sentence dated 27th August, 2002 passed in Sessions Trial No. 129 of 2001 by Sri Daroga Prasad, 4th Additional Sessions Judge, Sitamarhi. ********** TAPAS DAS SON OF LATE CHALITAR DAS, RESIDENT OF VILLAGE- DHENG BARHARWA, P.S.- MAJORGANJ, DISTRICT- SITAMARHI …..APPELLANT Versus STATE OF BIHAR …….RESPONDENT ********** For the Appellant :- None For the State :- Mr. Ashwini Kumar Sinha, APP **************** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE GOPAL PRASAD S. K. Sharma & Gopal Prasad, JJ. This jail appeal has been filed on behalf of the above named sole appellant Tapas Das against the judgment dated 27th August, 2008 in Sessions Trial No. 129 of 2001 by the learned 4th Additional Sessions Judge, Sitamarhi whereby the appellant was found guilty under Sections 364A and 384 of the Indian Penal Code and he has been sentenced to undergo rigorous imprisonment for life under Section 364A of the Indian Penal Code including fine of Rs. 5,000/- and in default of payment of fine he was further sentenced to undergo rigorous imprisonment 2 for one year. The appellant was further sentenced to undergo rigorous imprisonment for two years under Section 384 of the Indian Penal Code. It was ordered that all the sentences will run concurrently. 2. In this jail appeal one Madhuri Lata Jha, Advocate was appointed as Amicus Curiae to assist this court on behalf of the appellant but she has not appeared to argue. The appellant is in custody, so this appeal is being disposed of after perusing the judgment as well as lower court records and after hearing the learned APP for the State. 3. The prosecution story, in brief, is that the informant’s minor son Dinesh Das aged about 11 years was mentally retarded. As per allegation, in between Barharwa Chawk and his house, Dinesh Das was kidnapped by this appellant in the morning of 10th June when he had been to graze his she goat. The matter was informed to the informant by his wife (PW 6). When the informant returned then he contacted the appellant who demanded money in lieu of releasing the boy. He also stated that the boy has been sold to Bhola Mandal who runs a tea stall at Riga Railway Station. Tapas Das was assaulted by a mob with fist and slaps and was handed over to police. The information resulted into registration of Majorganj P.S. Case No. 52 of 2000 dated 13.8.2000 3 under Sections 363 and 364 of the Indian Penal Code against Tapas Das and another accused Bhola Mandal. After investigation chargesheet was submitted. Accordingly, cognizance was taken and the case was committed to the court of Sessions where the charges were framed against the appellant and another accused Bhola Mandal and explained to them to which they pleaded not guilty and claimed to be tried. 4. Defence of the appellant besides false implication is that the victim is still alive who has came to his house after five years of the occurrence and has given statement before the police that he had gone to Nepal. 5. Now it has to be seen here as to whether the prosecution has been able to prove the charge against the appellant beyond all reasonable doubt or not. 6. In order to prove its case the prosecution has examined altogether 10 witnesses. They are Binda Sah (PW 1), Brahmdeo Mahto (PW 2), Sakal Das (PW 3 informant), Mankeshri Devi (PW 4), Mauje Mahto (PW 5), Fuleshwari Devi (PW 6 the mother of the victim), Laxminiya Devi (PW 7), Bamshish Mahto (PW 8), Bhagwat Das (PW 9), and Ram Sewak Das (PW 10). 7. The defence has also examined Bindeshwar Mandal (DW 1) and one Siya Ram Rai has been examined as Court witness (CW 1). 4 8. The prosecution has also got exhibited some documents which are written report of the informant given to the police (Ext. 1), forwarding of the FIR (Ext.2), forwarding Report (Ext.3) and the formal FIR (Ext. 4). 9. PW 1 Binda Sah, PW 2 Brahmdeo Mahto, PW 4 Mankeshri Devi and PW 10 Ram Sewak Das have not supported the prosecution story and they have been declared hostile. 10. The mother of the victim Phuleshwari Devi is PW 6. She has deposed that her son Dinesh Das was lifted by Tapas and Mankeshwari Devi when he had been to graze his she goat. When he did not return then accused Tapas and Mankeshri Devi demanded money in lieu of return of her son. This matter was informed by her to her husband. When he came then she narrated the occurrence to him and the police was informed. She has developed her prosecution case and she has stated that her son went to Dheng Barharwa Railway Station situated near her house and she had seen her son in train. The train started running and her alarm remained unreplied. At 8 AM on the date of occurrence she has witnessed her son along with two persons. She went to inform the police but the police asked her to call her guardian and she informed this to her husband by writing a letter. After arrival of her husband the matter was informed to the 5 police and Tapas was apprehended. 11. PW 3 Sakal Das is the husband of PW 6 Fuleshwari Devi and father of the victim. He is the informant and he has come to the place of occurrence after getting a letter of his wife. He was told about the occurrence by his wife then he informed the police that his son has remained traceless. In paragraph 10 of his deposition he stated that he has received a registered letter written by Mukesh. 12. Other witnesses are not relevant because they have not seen the occurrence and they have come to know about the occurrence only through the mother of the victim. 13. The mother of the victim in her evidence has stated that her son had been to graze she goat and when he did not return then she suspected that he has been kidnapped by this appellant Tapas. The version of the fardbeyan is emphasized by her when she has stated that she had been to Dheng Railway Station and she has seen her son in the train and this appellant was going along with her son. This was the new version and it has not been supported by any other witness. 14. The plea of defence was that the case is based on testimony of sole witness and this is also a fractured version of the occurrence. Her deposition is not 6 in tune of her fard-beyan. No doubt, fard-beyan is not an encyclopedia of all the facts but the brief facts which gives basis of the investigation has to be incorporated. It was a matter of grave importance that the victim was seen in the running train. That version was not given in the fard-beyan. The case is based on the sole testimony of the mother of the victim. When the case is based on circumstantial evidence then the duty of the prosecution is to complete the chain of events in such sequence which can make it only probability that the accused alone has committed the offence. If another version comes then the prosecution case is bound to fail if other probabilities are available. 15. The present case is wholly based on circumstantial evidence and circumstances narrated are fully incomplete. Circumstances do not point out accusing finger to the appellant rather chain of circumstances are thoroughly incompletely. Therefore, benefit of doubt must be given to the appellant. Accordingly, we hold that the prosecution has not been able to prove its charges beyond all reasonable doubts against the appellant. The judgment of conviction and order of sentence awarded to the appellant as stated above is hereby set aside and this appeal is allowed. 16. It is reported that the appellant is in 7 custody. He is directed to be released forthwith, if not wanted in any other case. (Shyam Kishore Sharma, J.) (Gopal Prasad, J.) Patna High Court, Patna Dated 13th July, 2010. Avin/N.A.F.R.