Criminal Appeal (SJ) No.219 OF 1996 (Appeal against the Judgment and Order dated 30.8.1996 passed by the Additional District &Sessions Judge, Naugachia, in Sessions Trial No. 335 of 1988) ******* 1. PAWAN KUMAR SHARMA SON OF DEO NARAYAN SHARMA 2. DINESH PRASAD SINGH SON OF DIP NARAYAN SINGH BOTH RESIDENTS OF VILLAGE HARIO, P.S. BIHPUR, DISTT. BHAGALPUR. --------- APPELLANTS Versus The STATE OF BIHAR ----------RESPONDENT ******* For the Appellants : Mr. Dhananjay Kumar, Advocate. Mr. Arvind Kumar, Advocate For the State : Mr. Jitendra Kumar Singh No. 1, A.P.P. ********* P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J: The Appellants have been convicted under Section 364 of the Indian Penal Code and sentenced to ten years rigorous imprisonment and a fine of Rs. 30,000/- each in default of which a further imprisonment of two and a half years of each by the Additional Sessions Judge, Naugachia in Sessions Trial No. 335 of 1988 by a Judgment dated 30.8.1996. 2. The case of the prosecution according to the PW- 2 Satya Deo Prasad is that she was returning from a case along with the son Wakil Yadav on 3.12.1986. The Appellants caught hold of Wakil Yadav and took him to courtyard of Bindeshwari Mistri and when she resisted, she was fisted and slapped. Later she narrated this incident to her another son who accompanied her to look for Wakil Yadav but he became traceless whereafter the present case was filed. 3. During Trial the prosecution examined only two witnesses out of whom PW-1 is Ganesh Paswan who is the 2 Chowkidar of the village who had allegedly gone looking for said Wakil Paswan but he did not support the case of the prosecution so the case rests only on evidence of PW-2 who happened to be the Informant of this case. None of the charge sheeted witnesses including the other son of the Informant or the Investigating Officer, have been examined. From the evidence of PW-2, I find that she herself has conceded that she did not know why her son had been taken away by the accused person so the ingredient of Section 364 of the Indian Penal Code is not satisfied. One defence witness was examined to testify that in fact, Wakil Yadav was involved in several dacoity cases. On an appreciation of the evidence of the sole witness, I find that the only evidence against the Appellants at best is of confining the said Wakil Yadav, and, therefore, it is difficult to sustain their conviction under Section 364 of the Indian Penal Code. 4. Under the circumstances, the Appellants are convicted under Section 341 of the Indian Penal Code and the sentence is modified to the period already undergone by him during trial. 5. In the result, the Appeal is dismissed with the aforesaid modification. (Anjana Prakash, J.) Patna High Court, Patna Dated, 24th June, 2011. NAFR/S.ALI