Criminal Appeal (SJ) No. 137 of 1996 With Criminal Appeal (SJ) No. 148 of 1996 ****** Against the Judgment of conviction dated 07.06.1996 and order of sentence dated 14.06.1996 passed by Mr. Ajay Kumar Srivastava, learned Additional Sessions Judge – I, Rohtas at Sasaram. ****** 1. Rajendra Yadav, Son of Mohan Yadav. 2. Satyendra Yadav, Son of Mohan Yadav. Both resident of village Nimhat, Police Station – Nauhatta, District – Rohtas at Sasaram. .... .... Appellants (In Criminal Appeal No. 137 of 1996). 1. Kameshwar Yadav. 2. Rameshwar Yadav. Both Sons of Late Mohan Yadav, resident of village – Nanhath, Police Station – Nawhatta, District – Rohtas. .... .... Appellants (In Criminal Appeal No. 148 of 1996). Versus The State Of Bihar .... .... Respondents (In Both the Appeals). ****** Appearance: (In CR. APP (SJ) No. 137 of 1996) For the Appellants : Mr. Ram Chandra Singh, Advocate. Mr. Mahendra Prasad Roy, Advocate. Mr. Nand Lal Singh, Advocate. Mr. Shankar Kumar, Advocate. For the Respondent : Mr. Sujeet Kumar Singh, A.P.P. (In CR. APP (SJ) No. 148 of 1996) For the Appellants : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondent : Mr. Rina Sinha, A. P. P. ****** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD 2 GOPAL PRASAD, J. Nobody appears on behalf of the appellants in Cr. Appeal No. 148 of 1996. Mr. Arun Kumar Tripathi, Advocate is appointed as amicus curiae to assist this Court in Cr. Appeal No. 148 of 1996. 2. Heard learned counsel for the appellants, learned amicus curiae and learned counsel for the State. 3. These two appeals are being heard together and disposed of by the common order as both arise out of the common judgment passed by Mr. Ajay Kumar Srivastava, learned Additional Sessions Judge – I, Rohtas at Sasaram in Sessions Trial No. 128 of 1988 / 52 of 1989. 4. The appellants have been convicted under Section 366A of the Indian Penal Code and sentence to undergo rigorous imprisonment for five years. 5. The prosecution case is that the appellants by force kidnapped, Radha Devi aged about 15 years the married girl of informant Mukhdeo Yadav for getting her marriage or for illicit intercourse. Informant got information while he was grazing buffaloes at hill of Kaimur that the appellants have kidnapped the victim from his house. 6. On the fardbeyan of the informant Mukhdeo Yadav, the FIR was lodged and after investigation the charge-sheet was submitted, cognizance was taken and the case was committed to the court of 3 Sessions. The charge was framed. During the trial witnesses were examined. 7. P. Ws. 1 and 2 did not support the prosecution case about kidnapping. P. W. 3 mother of the victim has stated that she learnt that her daughter was in the house of Kameshwar Yadav. She was not allowed to take Radha Devi. She had not seen the victim kidnapped by appellants. The trial court convicted the appellants on the ground that P. Ws. 1 and 2 have resiled from their previous statement made before the police. However, P. W. 2 divulged that the daughter of Mukhdeo Yadav was taken away by one Mohan Yadav and it is not in dispute that the accused are sons of Mohan Yadav. P. W. 3 is the most competent witness who is mother of victim and her revelation in examination in chief has not been shaved and touched by the defence and victim was kept forcibly without consent in the house of accused and victim girl was not and held that it is proved that the appellants kidnapped the victim Radha Devi. 8. Learned counsel for the appellants, however, contended that there is no evidence at all against the appellants as neither anyone has seen the victim being taken nor has come to show that the victim was in the house of the appellants and hence apparently it is a case of no evidence. The I. O. has also not been examined. 9. Taking into consideration the evidence since P.Ws. 1 and 2 have 4 not at all supported the prosecution case and even turned hostile and have stated that they have not made any statement. P. W. 3 has also not stated that she saw the victim being taken by the appellants nor she has stated that she saw the victim in the house of appellants. However, she has stated that she have learnt that her girl has been kidnapped by the appellants. 10. The trial court misdirected itself to convict the appellants on inadmissible evidence. The trial court taking into consideration that P. W. 2 resiled from the statement made before the police though had divulged that daughter of Mukhdeo Yadav and further consideration of P. W. 2 that the victim was kept forcibly without her consent when there is no basis for the same as P. W. 3 neither claim to have seen nor claim to hear the sound of victim and hence the finding of the trial court based on inadmissible evidence is not sustainable in law. 11. However, it has not been mentioned from whom she heard and hence that part is not admissible in the evidence. Hence taking into consideration the facts and circumstances, neither the I. O. has been examined nor the fardbeyan and the First Information Report have been proved and it is a case of no evidence. There is no evidence against the appellants regarding their complicity in the crime hence the conviction and sentence recorded by the learned lower court is hereby set aside. Hence, this appeal is allowed. 5 12. Mr. Arun Kumar Tripathi, shall be supplied a copy of this judgment and he shall be entitled for the fee of hearing payable by High Court Legal Services Committee, Patna. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 8th September, 2011. N.A.F.R./Kundan.