Criminal Appeal (SJ) No.71 of 1997 Against the judgment and order of conviction and sentence dated 13. 02. 1997, passed by Shri Ram Narain Singh, 4th Additional Sessions Judge, Purnea, in Sessions Case No. 123 of 1987. 1. Sk. Mohaseen 2. Sk. Hameed 3. Sk. Mahamood. Sons of Late Hazi Musleem. 4. Alauddin, son of Late Khursid Ali. All are residents of Basantpur, Police Station- Sadar, District- Purnea. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. For the Appellant. : Mr. Bidhanesh Mishra, Advocate. Mr. Taniya Mishra,Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad,J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellant no. 1 has been convicted for offence under Section 365 I.P.C. and sentenced to undergo rigorous imprisonment for three years and fine of Rs. 2000/- and in non-payment of fine he has further been sentenced to undergo rigorous imprisonment for six months. He has further been convicted under Section 324 I.P.C. and sentenced to undergo rigorous imprisonment for one year. Appellant nos. 2, 3 and 4 have been convicted for offence 2 under Section 365 I.P.C. and sentenced to undergo rigorous imprisonment for three years with fine of Rs. 2,000/- and in non-payment of fine to undergo rigorous imprisonment for six months. They have further been convicted under Section 323 I.P.C. and sentenced to undergo rigorous imprisonment for six months. 3. The prosecution case as alleged that while the informant Sundar Lal Uraon along with sister Runia Devi P.W. 3 and Panni Uraon, p.W. 2 were coming and reach at Chandan Nagar Gulabganj, then accused persons, namely, Sk. Hamid, Sk. Mohsin, Sk Mahbood and Allauddin came and surrounded them and began to assault in lathi. Mohsin assaulted by dagger on the head of Panni Uraon which caused at his chest and other assaulted by lathi and accused persons forcibly drag Runiya Devi and took her to Pokhariya. On hulla, several people collected there, but accused persons kidnapped Runia Devi. The motive of occurrence hat Runiya Devi has lodged a case against cousin brother of Allauddin and that is motive for occurrence. 4. On the Fardbeyan, F.I.R. was lodged and after investigation charge sheet submitted. However, during trial four witnesses were examined who are P.W. 1, Panni Lal 3 Uraon, P.W. 2, the informant, P.W. 3 Runiya Devi and P.W. 4, Deninath Gupta has been declared hostile. 5. However, I.O. and doctor have not been examined. P.W. 1, 2 and 3 supported the prosecution case about assault and kidnapping. P.W. 2 has stated that at the time of occurrence on hulla people came and saw and daroga enquired about occurrence. The victim has supported the prosecution case and stated she was recovered by the police. However, neither I.O. nor the doctor has been examined to prove the recovery or the injury. The defence has also adduced both oral and documentary evidence. Two witnesses examined on behalf of defence and several documents regarding dispute between the accused persons and his step brother to show that they have no concern with step brother to commit crime for him. 6. However, taking into consideration the evidence, the trial court convicted the appellants and sentenced the appellants as stated above. 7. Learned counsel for the appellants however, contends that neither the doctor nor I.O. has been examined nor independent witness has come to support the prosecution case when there is evidence that several people came to P.O. 4 at the time of occurrence and I.O. has not been examined. One of the independent witness examined as P.W. 4 has not been supported the prosecution case. 8. However, the prosecution case that while P.W. 1, 2 and 3 were coming, P.W. 1 and 2 were assaulted and P.W. 3 was kidnapped. However, it is alleged that P.W. 1 and 2 were assaulted by dagger and lathi, but injury report not proved nor the doctor was examined. The occurrence took place in the moment where there was several shops and it is stated at the time of occurrence several people came and the I.O. even recorded their evidence, but no person other than P.W. 1, 2 and 3 come forward to support the prosecution case. The evidence of P.W. 1, 2 and 3 are parrot like statement. The I.O. has also not come forward to prove the recovery and to prove the P.O. and hence caused prejudice. The statement of the victim under Section 164 Cr.P.C. not recorded after her recovery. There is enmity between the parties. Hence under the fact and circumstance, the evidence of prosecution witness does not inspire confidence. 9. Having regard to the facts and circumstances, the appellants are entitled for benefit of doubt as prosecution has not been able to prove the charges and hence order of 5 conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court, The 30th August, 2011. NAFR/m.p. ( Gopal Prasad, J.)