CRIMINAL APPEAL No.499 OF 2004 Against the Judgement of conviction passed by Shri Ravindra Mani Tripathi, Additional Sessions Judge, Fast Track Court No. – IV, Samastipur in connection with Sessions Trial No. 39 of 1998 / 02 of 2003, arising out of Patori P. S. Case No. 102/1991 PARIKSHAN RAI, SON OF SHIVI LAL RAI, VILLAGE – BEDI BARAT, P.S. – PATORI, DISTRICT – SAMASTIPUR ------------------ (APPELLANT) VERSUS STATE OF BIHAR ---------------------- (RESPONDENTS) ----------- P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE DHARNIDHAR JHA ****** Mridula Mishra and Dharnidhar Jha, J.J.: - The sole appellant, Parikshan Rai, has been convicted under Sections 364, 302 and 201 IPC by the Additional Sessions Judge, Fast Track Court No. – IV, Samastipur in connection with Sessions Trial No. 39 of 1998 / 02 of 2003, by judgement and Order dated 25.02.2004. The appellant has been sentenced to undergo RI for life under sections 364 and 302 IPC and fine of Rs. 10,000/- for each of the offence. No separate sentence has been awarded for offence under Section 201 IPC in view of the life sentence awarded to the appellant under other sections. 2. The Shahpur Patori P. S. Case No. 102 of 1991 was instituted on the basis of Station Diary Entry No. 396, dated 19.10.1991, drawn up on the basis of written report of Shashi Bhushan Kunwar, P.W. 7, son of the deceased, Balbhadra Kunwar. 3. As per the written report of P.W. 7, dated 14.10.1991, his father Balbhadra Kunwar had gone with Teju Rai to Samastipur on 09.10.1991 and was expected to come back in the evening as stated by him at the time of departure. He did not come back till 14.10.1991. When, he did not come back and no one gave any information regarding his whereabouts, the son of the deceased became apprehensive that he might have been kidnapped by some unknown persons. In this circumstance, he submitted written report for drawing Sanha and to take necessary steps to find out his whereabout. On the basis of Sanha, FIR was instituted, case was investigated, charge sheet submitted, cognizance taken and finally it was put for trial. 4. During trial, the prosecution examined altogether 7 witnesses. Out of 7 prosecution witnesses, P.W. 1, 2 and 3 have been declared hostile. 5. P.W. 4, Ram Swaroop Singh, who is the full brother of the deceased admitted in his deposition that for the first time he has come to depose in the case. During investigation the police never recorded his statement under Section 164 Cr.P.C. 6. P. W. 5, Bir Bahadur Singh in his deposition gave clean chit to the accused persons by making statement that these accused persons have not participated in the offence. 7. P. W. 6, Raghunandan Paswan, in para 4 of his evidence has stated that he saw the accused persons going with the deceased on a truck loaded with milk canes. He also admitted that his statement was never recorded by the Investigating Officer during investigation. He also came, for the first time in Court to depose for the prosecution. 8. P. W. 7, Shashi Bhushan Kunwar is the son of the deceased and informant of the case. He has also not come out with any material evidence against the accused persons. Merely, he endorsed the statement made by P.W. 6. 9. Considering evidence of all prosecution witnesses, it can be concluded that none of the witnesses has come out with any specific case to rope the accused persons with the liability of committing the offence alleged, rather it is a case of no evidence. 10. In such circumstance, the judgement and Order of conviction passed by Shri Ravindra Mani Tripathi, Additional Sessions Judge, Fast Track Court No. – IV, Samastipur awarded sentence of R.I. for life, in connection with Sessions Trial No. 39 of 1998 / 02 of 2003, arising out of Patori P. S. Case No. 102/1991, can not be sustained. It is set aside. The appellant Parikshan Rai is acquitted. He is in custody, as such directed to be released at once, if not wanted in any other case. 11. Mrs. Asha Kumari was appointed Amicus Curiae, and she assisted the Court. She should be paid fee for one hearing by the High Court Legal Services Authority. 12. Let a copy of this Judgment be made available to the High Court Legal Service Authority as well as to the counsel appointed Amicus-curiae. (Mridula Mishra, J.) (Dharnidhar Jha, J.) Patna High Court Dated 26.07.2010 NAFR / SKM