Criminal Appeal (SJ) No. 244 OF 1997 Against the judgment and order dated 19.08.1997 passed by Sri Amresh Kumar Lal, 5th Additional Sessions Judge, Bhojpur, Arrah in S.Tr. No. 220/93. ************ 1. Sheo Kumar Pandey, S/o Butan Pandey. 2. Sudarshan Pandey, S/o Meghnath Pandey. Both resident of Village-Imadpur, Police Sation- Tarari, District-Bhojpur.. ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellants : Mr. Bhavesh Kumar, Adv. For the State : Mr. Sanjay Kumar, APP. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellants have been convicted under Sections 364 and 379/34 IPC and sentenced to RI for five years and three years and a fine of Rs. 1,000/- in default of which further three months RI by the 5th Additional Sessions Judge, Bhojpur, Arrah in S.Tr. No. 220/93 by a judgment dated 19.08.1997. 2. The case of the prosecution according to one Mandodari Kuer is that on 10.02.1991 her son Deo Lal Dusadh had gone to the fields to irrigate the crop and at 7 P.M. she went to the boring looking for her son she saw one Binay Kahar talking with her son whereafter her son took dinner and asked her son to stay at night. At about 10P.M. 10-12 persons variously armed suddenly came there and surrounded them and took away her son Deo Lal Dusadh and also began removing her pumping set. She identified four persons out of whom two of them were appellants. It was suspected by the informant that the miscreants had killed her son after having kidnapped him forcibly. 2 3. During trial the prosecution examined five witnesses out of whom P.W. 1, Ayodhya Ram is that grandson of the informant and son of the alleged victim Deo Lal Dusad he has stated that his grand mother had told him about the occurrence. P.W. 2, Bari Lal Ram stated that on hulla about the occurrence he went to the fields whereas it was disclosed by the informant that the accused persons had taken away her son. P.W. 3, Hari Lal Paswan also stated that when he came to know the incident about the informant he went to the place of occurrence and found that the pumping set was missing and when he looked for Deo Lal Dusadh he was also found missing. P.W. 4, Phula Devi is the wife of the alleged victim, Deo Lal Dusadh who stated that her mother-in-law had gone to the place of occurrence carrying meal for her husband but she did not return on that night. She alleged that it was learnt by her that the accused persons had taken away her husband when he resisted of stealing the pumping set. She suspected that the accused persons had killed her husband. P.W. 5, Murat Ram is a formal witness. 4. On going through the evidence on behalf of the prosecution, I find that admittedly Mandodari Devi the mother of the victim the only eye witness is now dead and, therefore, she could not be examined in Court. From the evidence of the rest of witnesses undoubtedly they were hearsay witnesses who had been disclosed about the occurrence by the informant. However, the informant has not stated the fact that she had disclosed about the occurrence to any of the witnesses in the First Information Report and, 3 therefore, their evidence appears to be inadmissible and untrustworthy. Moreover, it is also noted that that statement of P.W. 1, Ayodhya Ram grandson of the informant was recorded by the police on 15.12.1991 i.e. after 10 months of the occurrence. 5. Considering the complete lack of any evidence to sustain the conviction of the appellants this Court has no option to allow the appeal. In the result, the appeal is allowed and the judgment dated 19.08.1997 passed by the 5th Additional Sessions Judge, Bhojpur, Arrah in S.Tr. No. 220 of 1993 is, hereby, set aside. The appellants are acquitted of the charges and discharged of the liability of their bail bonds. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 18th July, 2011. NAFR/Vikash/-