Criminal Appeal (SJ) No.860 of 2006 Against the judgment of conviction dated 29.08.2006 and order of sentence dated 30.08.2006 passed by Additional District & Sessions Judge, Fast Track Court No.III, Kaimur at Bhabua in Sessions Trial No.169 of 2005/89 of 2005 arising out of Bhabua P.S.Case No.189 of 2004, G.R.Case No.647 of 2004. BIRJU YADAV.... .... APPELLANT VERSUS STATE OF BIHAR.... .... RESPONDENT With Criminal Appeal (SJ) No. 866 of 2006 1. RAMJEE NONIA & 2. MOHAN NONIA .... .... APPELLANTS VERSUS STATE OF BIHAR.... .... RESPONDENT For the Appellants: S/Sri Vikram Deo Singh Dharmendra Kumar Singh, Sadu Nand Roy & Pawan Kumar Singh, Advocates. For the Respondent: Sri S.N.Prasad, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The two appeals arise out of judgment dated 29.08.2006 passed by the Presiding Officer of Fast Track Court No.III, Kaimur at Bhabua in Sessions Trial No.169 of 2005/89 of 2005. The two appeals have been 2 heard and are being disposed of by this common judgment. 2. The three appellants of the two appeals were put on trial after being charged under Section 364A IPC in the above noted case and by judgment dated 29.08.2006 they were held guilty of committing the said offence. After being heard on sentence on 30.08.2006 each of the three appellants was directed to suffer rigorous imprisonment for ten years. The appellants have come up before this Court to question the correctness and propriety of order of conviction and sentence. 3. Kusum Devi(P.W.3)had four children. She along with her husband and children were sleeping on the verandah of the house in the night of 17.06.2004. Her daughter woke up and cried. P.W.3 also woke up to find that her son Chand, aged about four years, was in the bed wherein he had been put. She woke up her husband P.W.2 Ramlal Paswan. Both the couple searched the child and not finding the trace of him, went to the police station to lodge a missing report, on the 3 basis of which, the police recorded the station diary entry. 4. Subsequently on 21.06.2004, the couple received an anonymous letter asking them to cough up Rs.1,00,000/- as ransom for return of the child with further directions as to how the informant’s husband should reach a particular place putting on a red scarf over his head. The couple were convinced that it was not an ordinary case of the child going missing, rather it was an organized offence of lifting the child so as to extorting ransom. P.W.3 went to the police station. She lodged her fardbeyan Ext-2/1. On the basis of Ext-2/1, the case was registered and the investigation was handed over to P.W.9 S.I. Ashok Rajak. 5. It has come in the evidence of witnesses that appellant Mohan Nonia dropped some hints as to where the child could be found confined. Accordingly, a police team went to village Merh to search the house of appellant Birju Yadav. Evidence indicates that appellant Birju Yadav was not present at that 4 time in his house, but his wife Chhaya Devi was found with a child in her lap. She initially attempted to mislead the police by pointing out that the child belonged to one of her relatives. But, later on gave in to point out that the child had been put into her custody by accused Mohan Nonia, Ramjeet Nonia and her husband Birju Yadav. The child was recovered as may appear from the evidence of P.Ws.7 and 9 and was handed over to its parents. 6. Finding the materials sufficient, the appellants were sent up for trial and accordingly they were convicted as indicated above. 7. The plea of defence was of innocence and non-participation and further of being implicated by the police for any reason. 8. The learned trial Judge while proceeding to record the conviction of the appellants was considering the evidence of P.W.8 S.I. Pankaj Kumar Das who was on 21.06.2004, the officer-in-charge of Bhabua police station, specially, that part of his evidence which was contained in paragraph-1 in which 5 he stated that P.W.3 after having received letter calling upon her and her husband to cough up Rs.1,00,000/- got suspicious about the son of her landlord, i.e., appellant Mohan Nonia and accordingly, the police alerted itself and started watching the movement of appellant Mohan Nonia. He was questioned. P.W.8 stated that during that questioning Mohan Nonia was dropping an information as to how the child had been kidnapped and where he had been put for safe keeping and stated that it was the house of appellant Birju Yadav. There is no dispute in it that the police searched the house of Birju Yadav and had recovered the child from there as appears stated by witnesses examined on behalf of the prosecution. 9. However, the contention of the counsel appearing for the appellants in the two appeals has centered around the finding recorded by the learned trial Judge that Mohan Nonia, while in custody of the police, had given certain informations which led to the recovery of the child from the house of Birju Yadav and, as such, the whole evidence was admissible 6 under Section 27 of the Evidence Act. The learned trial Judge has not specifically stated, like that but appears indirectly observing by interpreting the evidence that way. 10. Controversy was raised by the counsel by referring to the evidence of P.W.9 S.I. Ashok Rajak who was stating that P.W.8 Pankaj Kumar Das was never the member of the police party which was sent to village-Merh within the jurisdiction of Chainpur police station for conducting the search of the house of appellant Birju Yadav and as such his evidence on questioning of Mohan Nonia or search of the house of Birju Yadav was completely inadmissible. It was further contended that as regards the evidence of Mohan Nonia giving some informations that evidence appears not acceptable as P.W.9 S.I. Ashok Rajak has stated that Mohan Nonia was formally arrested on 24.06.2004, whereas the child had already been recovered on 23.06.2004. Thus, the recovery of the child was preceding the taking into custody of appellant Mohan Nonia and any information which might 7 have been dropped by him leading to the discovery of the fact of confinement of the child in the house of appellant Birju Yadav was admissible under section 27 Evidence Act besides being irrelevant to raise the inference of guilt of appellants. 11. From the evidence of witnesses, like, Ramlal Paswan, the father of the victim and Kusum Devi, his mother who have been examined as P.Ws.2 and 3, there could not be any doubt it that the child was kidnapped or taken away. The child was recovered that goes undisputed, but the dispute was as to from where he was recovered. The prosecution was alleging that the child was recovered from the house of Birju Yadav, but it was acting unfairly when the prosecution was not producing the documents of recovery or documents of finding him at a particular place and further evidence of handing the child over to his parents, rather the prosecution witnesses, like, P.W.8 Pankaj Kumar Das or P.W.9, the Investigating Officer of the case were categorically stating that they did not remember that any document had been prepared regarding 8 the search of the house of appellant Birju Yadav and the recovery of the child there form. The curious aspect of the matter was that Chhaya Devi who was found very much having the child in her lap was not put on trial by the police, reasons is still illuding the judicial conscience of all courts. If the recovery was preceding the arrest of Mohan Nonia as is indicated by the evidence of P.W.9, then the whole evidence of searching the house of Birju Yadav consequent upon the information given by appellant Mohan Nonia pales into serious doubt. Police officers, like, P.Ws.7, 8 and 9 do state that the house of Birju Yadav was searched but in absence of evidence of recovery of the child from his house the mere oral evidence could not be sufficient,specially, when it is found by this Court that the story of Mohan Nonia being taken into custody and further dropping the information regarding the place where the child could be confined was not convincing. The evidence of P.W.8 Pankaj Kumar Das who claims to be the star witness of the prosecution could not be accepted in view of the 9 admission by P.W.9, the Investigating Officer of the case, that while going to search the house of appellant Birju Yadav, the name of Pankaj Kumar Das was not figuring as amongst the officers or police personnel who had been roped in to assist P.W.9 in search of the house. The very presence of P.W.8 Pankaj Kumar Das as one of the officers of the group conducting the raid in the house of Birju Yadav becomes suspect. 12. The evidence is so uncertain and indefinite and appears such a mix of inadmissible piece of it that it does not appear safe to act upon the same to uphold the conviction of the appellants. It is true that a child of four years was lifted and taken away and it might also be true that the child was recovered, but the manner in which the prosecution produced evidence in support of the charges, its story was completely unconvincing and appears as if the whole prosecution was conducted with quite some amount of indifference and the police officers who were deposing in court were acting with 10 irresponsibility as if it were not the part of their duty to produce quality evidence before the court. On account of the infirmity the prosecution evidence suffers as also on account of non-proof of the fact by proper evidence. This Court has no hesitation in allowing the two appeals by setting aside the conviction of the appellants and the sentences passed upon each of them. 13. In the result, the three appellants are acquitted. Appellant Ramjee Nonia is on bail. He shall stand discharged from the liabilities of his bail bond. Appellants Birju Yadav and Mohan Nonia are in custody. They shall be released forthwith, if not wanted in any other case. Patna High Court, Dated the 4th of August, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)