IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.273 of 2005 ***** Against the judgment of conviction and order of sentence dated 10th day of March, 2005 passed in Sessions Trial No. 853 of 2000 by the IInd Additional District & Sessions Judge, Naugachia. Sudhir Yadav @ Rudal Yadav, Son of Late Kirti Yadav, Resident of Village Pokharia, PS Gopalpur, District Bhagalpur .... .... Appellant Versus The State of Bihar .... .... Respondent Appearance : For the Appellant : Mr. Naresh Dikshit, Advocate Mr. Dhirendra Kumar Mishra, Advocate For the Respondent : Mr. Shiwesh Chandra Mishra, A.P.P. ***** CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT S.A. Khan, J. Sudhir Yadav, the sole appellant in this case, has been convicted under Section 364(A)/34 of the Indian Penal Code to undergo imprisonment for life. 2. The prosecution case is that on 5.3.2000 at about 5 A.M., the son of the informant Binit Kumar Mishra alias Guddu alongwith his driver Subash Thakur and a labourer Naresh Mandal had gone to irrigate his Banana field. After sometime, it is said that Bhawesh Yadav, Son of Bindeshwari Yadav alongwith one unknown person came to the Banana filed of the informant and told Binit Kumar Mishra alias Guddu that about 14 Banana trees have Patna High Court CR. APP (DB) No.273 of 2005 dt.18-08-2011 2 been damaged, and as such, requested him to accompany them to inspect the damages. Binit Kumar Mishra alias Guddu left with the aforesaid persons. However, after a lapse of several hours, when Binit Kumar Mishra alias Guddu did not return a search was conducted. The tractor driver Subash Thakur went to search of Binit Kumar Mishra alias Guddu but could not locate him. He thus, came back and informed his employer P.W. 2, Upendra Mishra regarding the said disappearance of Binit Kumar Mishra alias Guddu. Upendra Mishra who is also father of the kidnapped boy lodged the First Information Report. 3. On the basis of the First Information Report, investigation was conducted in this case. It would appear that only one of the accused in this case has faced trial. At the stage of trial, only three witnesses have been examined who are P.W. 1 Subash Thakur, the tractor driver, P.W. 2 Upendra Mishra, father of the kidnapped boy and the informant of this case and P.W. 3 Binit Kumar Mishra alias Guddu. 4. Unfortunately, the Investigating Officer who would have been able to establish the place of occurrence, as well as the circumstances under which Binit Kumar Mishra alias Guddu was recovered, alongwith proving the evidence taken under Section 161 of the Code of Criminal Procedure has not come forward to be examined to support the prosecution version. Because of the absence of the Investigating Officer, the Court finds itself handicapped in more than one ways. Patna High Court CR. APP (DB) No.273 of 2005 dt.18-08-2011 3 5. Subash Thakur who is the only eye witness to the occurrence, has turned hostile. He claims that he does not even know the kidnapped boy Bipin Kumar Mishra alias Guddu. The entire prosecution is based on what has been revealed by Subash Thakur, the driver who had accompanied Binit Kumar Mishra alias Guddu to the Banana field. He is also a witness to the fact that Bhawesh Yadav, Son of Bindeshwari Yadav had come to the Banana field and requested Binit Kumar Mishra alias Guddu to inspect the damaged Banana plantation in the adjoining field. Therefore, it becomes difficult for this Court to hold that the version of the occurrence, as has been revealed by Binit Kumar Mishra alias Guddu can be supported for the purposes of coming to the conclusion that the occurrence had taken place in the manner as described by Binit Kumar Mirshra alias Guddu, P.W. 3. 6. P.W. 2 is the father of the kidnapped boy. According to his version, he learnt about the occurrence from Subash Thakur and Naresh Mandal who have not examined in this case. According to P.W. 2, he states that he was told that his son had left with Bhawesh Yadav to inspect the damaged Banana plants, accompanied by 5-6 unknown persons. It is further said that his son returned on 8.3.2002. P.W. 2 claims that his son had told him that Lal Bahadur Yadav, Sudhir Yadav (appellant) and Bhawesh Yadav were present when he was kidnapped from the Banana field. P.W. 2 also claims that he received a letter asking for ransom of Rs. 2,00,000/- which is ext. 1. In the cross-examination, P.W. 2 states that Sudhir Yadav Patna High Court CR. APP (DB) No.273 of 2005 dt.18-08-2011 4 has his house just next to the Banana plantation of P.W. 2. A suggestion has been made that the appellant has been made accused on account of a dispute regarding irrigation of the Banana field. 7. The next witness examined in this case is the kidnapped boy Binit Kumar Mishra alias Guddu. He has given statement with respect to how Bhawesh Yadav and Lal Bahadur Yadav had taken him to the damaged Banana field. When he reached the Banana plantation, they tied his hands and took him away. He was asked to write a letter regarding demand of ransom. It is said that he also rang up his uncle (Chacha) to inform him that he had been kidnapped. He admits that he was released on 8.3.2002. After being released, P.W. 3 claims that he went to the Investigating Officer and reported his release. P.W. 3 was taken to his house by the Investigating Officer of the police station. On the next date, he gave his statement under Section 164 of the Code of Criminal Procedure. He has identified Sudhir Yadav (appellant) as one of the kidnappers. P.W. 3 admits that Sudhir Yadav has his house and Banana plantation just next to the Banana plantation of his father. According to him, Sudhir Yadav was the incharge of looking after the Banana plantation belonging to Atya Nand Mishra and Anil. Apart from what has been mentioned aforesaid, P.W. 3 does not disclose anything further regarding the occurrence. 8. On perusal of the evidence aforesaid, the facts which are disclosed are that in the First Information Report, it has been specifically mentioned that Bhawesh Yadav had persuaded him to Patna High Court CR. APP (DB) No.273 of 2005 dt.18-08-2011 5 accompany them. The father of the victim subsequently states in his evidence that Bhawesh Yadav and Lal Bahadur Yadav had come to the field of the informant and persuaded P.W. 2 to accompany them, the kidnapped boy Binit Kumar Mishra alias Guddu also names Bhawesh Yadav and Lal Bahadur Yadav as the two persons who had persuaded Binit Kumar Mishra alias Guddu to accompany them. Therefore, the discrepancy in the evidence regarding the persons involved in initiating the kidnapping differs. The names of Sudhir Yadav (appellant) has been mentioned almost in passing because P.W. 3 only states that Sudhir Yadav (appellant) was amongst those persons who had accompanied him in the process of being kidnapped. The evidence of P.W. 3 is not supported by any other witness for example, Naresh Mandal, the labourer who was present along with Subash Thakur has not been examined in this case. He would be an important witness to substantiate the prosecution version that P.W. 3 was persuaded to examine the damaged Banana plants by Bhawesh Yadav, Son of Bindeshwari Yadav. Subash Thakur the other witness in this case who could have supported the prosecution version has also not been examined to substantiate the prosecution version. 9. The Court finds it difficult to rely on the sole testimony of P.W. 3 in view of the fact that the Investigating Officer has not been examined in this case who could have determined and identified the place of occurrence and manner of occurrence. The Magistrate who has taken the State under Section 164 of the Code of Patna High Court CR. APP (DB) No.273 of 2005 dt.18-08-2011 6 Criminal Procedure has also not been examined. It also seems to be unbelievable that a child of five years could have delivered the ransom note. There was nothing to prevent P.W. 2 from following the child or chasing the child to determine as to who had handed over the ransom note to the child. This ransom note has been exhibited. Sudhir Yadav @ Rudal Yadav the appellant is not a criminal and is a neighbour of the victim, which is not denied by father and son. It, therefore, seems improbable that he would be involved in the occurrence. All in all, this Court finds that it cannot uphold the sentence awarded by the Trial Court and allows this appeal granting benefit of doubt to the appellant on the ground that the evidence of P.W. 3 is not supported by any substantial witness. 10. In the result, the judgment of conviction and sentence imposed upon the appellant in Sessions Trial No. 853 of 2000, passed by the IInd Additional District & Session Judge, Naugachia is set aside and this appeal is allowed. The appellant is directed to be released forthwith, if not wanted in any other case. Shyam Kishore Sharma, J., I agree. Patna High Court, Patna Dated the 18th of August, 2011 N.A.F.R./Sanjay (Sheema Ali Khan, J.) (Shyam Kishore Sharma, J.)