Criminal Appeal (SJ) No.202 of 1996 Against the judgment dated 27. 07. 1996 and order Of sentence dated 31. 07. 1996, passed by Shri Madhusudan Singh, 2nd Additional Sessions Judge, East Champaran,Motihari, in Sessions Trial No. 58/5 of 1994/96. Jagarnath Sah, son of Late Basudeo Sah, Resident of Village;- Samanpur, Police Station:- Kundwachainpur, District- East Champaran. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. For the Appellant: 1. Mr.Rakesh Kumar Sinha, Advocate. 2. Mr. Anuj Prakash, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. Jagarnath Sah, the appellant has been convicted for offence under Section 364/34 of Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case as alleged in the Fardbeyan of the informant Nand Kishore Sah that his sister Lalmati Devi was married to one Jagarnath Sah and they were living together with love and affection. But some times back both were in dispute for which a 2 Panchayati was organized and the informant was asked for bidayi of his sister. It is also alleged that the informant on the occasion of his daughter’s marriage, about twenty days back had gone to village Samanpur for bringing his sister to his house where the appellant his brother-in-law disclosed that he is not well so he will come after 2 to 4 days. It is further alleged that appellant did not come in the marriage with his wife who is sister of the informant and then on enquiry from the co-villagers it was learnt that they have gone out of their house with pretext of going to the house of the informant, but did not reach there. On enquiry it was secretly learnt that Jagarnath Sah, Vishwanath Sah Harinath Sah and Lakhishwari Devi have enticed and kidnapping the victim with intention to kill. It is further alleged that Jagarnath Sah has illicit relation with Lakeshwari Devi, wife of Vishwanath Sah and Lalmati Devi used to protest. So kidnapped to kill. On the statement of Nand Kishore Sah, F.I.R. was lodged. After investigation charge sheet was submitted. Cognizance was taken and the case was committed to the Court of Sessions. However, charges were framed before the court of Sessions and trial proceeded. 3 4. During trial, five witnesses were examined on behalf of the prosecution. P.W. 1, Devendra Prasad, P.W. 2, Ram Ayodhya Sah, P.W. 3, Jagarnath Pd. Yadav, P.W. 4 Nand Kishore Sah and P.W. 5 Harendra Singh, I.O. However, two witnesses were examined as court witnesses as C.W.1 Shail Kumari Devi and C.W. 2 Chanda Kumari. On considering the oral and documentary evidence order of conviction was recorded as stated above. 5. However, it is pertinent to mention that three persons facing trial i.e. Jagarnath Sah, Vishwanath Sah and Lakheswari Devi. During trial, the trial court convicted Jagarnath Sah, but acquitted Vishwanath Sah and Lakheshwari Devi. 6. Learned counsel for the appellant however, contends that there is no eye witness to the occurrence for kidnapping or abduction with intention to kill and conviction and sentence has been recorded merely on conjecture and surmises as well as on suspicion as there is no reliable evidence. It has further been submitted that there is only substantial circumstance that appellant is the husband and he did not reported to the police regarding missing of his wife. However, contends that then on 4 circumstance established does not indicates that it is the appellant himself alone who has committed the crime and none else and hence number of substantial evidence has not been established to hold that appellant is guilty for offence under Section 366 I.P.C. 7. However, the prosecution as alleged in the First Information Report that victim and appellant were husband and wife and were living with love and affection. It is stated that since some times back prior to the occurrence there was some differences and when the informant gone to village to invite marriage of his daughter, but appellant and his wife did not turn up. 8. P.W. 4 is Nand Kishore Sah who is informant stated that about 15-20 days back prior to the marriage of his daughter he went to the call his sister then Jagarnath Sah disclosed that he will come in the marriage along with his sister of the informant, but they did not come to the house of the informant in the marriage. Then he enquired from Devendra, son of Ram Ayodhya, resident of same village of the occurrence disclosed that Jagarnath and Lalmati have proceeded from the house to attend the marriage and when the informant went to the house of his 5 sister then he learnt in the village that Vishwanath, Jagarnath and Lakeshwari Devi have kidnapped and concealed the victim. Then he went to the Police Station and lodged a case. 9. P.W. 1 Devendra Prasad has stated that he has gone in the marriage where his Nana and Mama enquired from his about mausa and mausi as to why he did not brought Mausa and Mausi (Jagarnath and his wife) then he disclosed that they have proceeded the house three days back. However, he stated that he did not found his Mausa and Mausi. 10. P.W. 2 Ram Ayodhya Sah has stated that while he was came in the morning with his wife, Jagarnath and Lalmati after attending marriage of informant’s daughter and on search Jagarnath and Lalmati was not found. However, he has stated that Jagarnath went out of the village three days prior to the occurrence along with his wife. 11. P.W. 3 has also stated that he was seen Lalmati and Jagarnath going in the Bazar. P.W. 5 is the I.O. 12. However, taking into consideration of the 6 entire evidence, there is no eye witness of occurrence of kidnapping or abduction. 13. P.W. 3 has stated that he saw Lalmati and Jagarnath going in the village and hence taking into consideration the entire circumstances, it is established that appellant was the husband of the victim and he was seen going along with his wife and he has also promised to go in the marriage. 14. Two witnesses examined in this case as court witnesses who are daughters of the victim. C.W. 1 has stated that Nand Kishore Sah, the informant is maternal uncle and Lalmati was her mother. However, she has stated that her mother had gone somewhere and she had gone mad. It was not known where she was and her mother had gone somewhere in the day and did not return in the night. His father and uncle met hectic search of her mother, but she could not trace out. Court witness no. 2 however, stated that her mother had gone mad and she is traceless. In cross-examination, she has stated that she got up in the morning she did not saw her mother then she informed her father and her father make out search, but her mother was not traced. 7 15. However, taking into consideration of two sets of evidence, though, evidence of prosecution witnesses except P.W. 3 none have stated that he saw the appellant going along with the victim. The informant was also not eye witness. However, he stated that he learned from Devendra. However, Devendra has not specifically stated that he saw the victim going with the husband. However, P.W. 3 has stated that he saw Lalmati and Jagarnath in the Bazar. However, date and time has not been mentioned where the evidence of court witnesses, daughters of the victim have stated that her mother got mad and had gone out of the house and did not return and when the matter reported to her father then he make out search. However, in two sets of evidence there is no eye witness to the occurrence of kidnapping. However, the circumstance that the victim went away and found traceless and hence the circumstances are the appellant is husband and they were seen going towards the bazar three days prior to the occurrence and went to attend the marriage, but they did not reach there. There is no direct evidence about the implication of Jagarnath Sah. However, the case hinges on circumstantial evidence. 8 16. However, the circumstances against appellant is that he is husband and has fasten with the responsibility to make out search or to give a clue about the occurrence. However having regard to the circumstances the chain of circumstance not as such to establish irresistible conclusion about guilt of accused. 17. Having regard to the facts and circumstances as emerged of the evidence and in such circumstances the appellant is required to give benefit of doubt and I find and hold that benefit of doubt be given to the appellant as the circumstances pointed out did not establish the guilt of the accused beyond reasonable doubt. Hence, I find and hold that prosecution has not been able to establish the charges beyond all reasonable doubt and order of conviction and sentence recorded by the lower court is not sustainable. Hence order of conviction and sentence recorded by the lower court is hereby set aside and the appeal is allowed. Patna High Court, The 13th July, 2011. N.A.F.R./m.p. ( Gopal Prasad, J.)