IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.640 OF 2007 Against the judgment of conviction dated 25.04.2007 and order of sentence dated 26.04.2007 passed by Additional District & Sessions Judge, Fast Track Court-III, Khagaria in Sessions Trial No.228 of 2001. PADDU SADA @ BATAN SADA @ BHIKHARI SADA, Son of Halkhori Sada, resident of village-Khairidih P.S.Alauli(Morkahi)District-Khagaria. .... .... Appellant Versus State Of Bihar.... .... Respondent For the Appellant: Sri Ajay Mishra, Amicus Curiae. For the Respondent: Sri Abhimanyu Sharma, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The solitary appellant was convicted by the learned Presiding Officer of Fast Track Court-III, Khagaria in Sessions Trial No.228 of 2001 for committing the offence under Section 364 IPC and he was directed to suffer rigorous imprisonment for ten years. The appellant has preferred the present appeal to question the correctness and propriety of the finding and sentence. 2. Anita Kumari, the daughter of the informant, P.W.6 had set out from her Bathan to her house situated across a river for bringing meals for his family members who were residing at the Bathan. Bathan is a place where, generally cattle sheds and other establishments are 2 created and some of the male members of a family generally resides. The present appellant was a boatman who was to take the boat across the river whenever people wanted to cross it. 3. The prosecution story is that when Anita Kumai reached the embankment, in spite of the boat being anchored on that side, she was not taken across the river and was left stranded. It is stated further that Anita Kumari called the appellant out to bring back the boat and when she went inside it she was the only person to cross the river. The prosecution allegation is that she went traceless and when her mother, the informant, after waiting for her for quite some time, did not find Anita Kumari coming back with the meals, came to her house and could not find her there. This is the story which was investigated into and the chargesheet was submitted against the solitary appellant accusing him of causing the disappearance of Anita Kumari either by murdering her or disposing her in such a way as to be presumed to be murdered. The prosecution examined altogether eight witnesses, out of whom P.Ws.1, 2 and 3 were declared hostile. Out of the remaining witnesses, P.Ws.4 and 5 were hearsay and three including the informant, namely, Deva Devi, Ranjeet Singh and Sonelal supported the above story but the evidence of these three witnesses does not indicate that the appellant had been found not present by 3 the river side with the boat and had ever been seen by any one taking the victim to any place or was found absent from the river side for quite some time. The evidence of witnesses further indicates that the search was made by the informant in her house and then it was detected that she was not there. No evidence is there that the victim had not reached, after having come acrossed the river, her house and that just thereafter the appellant was also not seen by the river side. Thus, what appears the other probability to this Court is that might be that the victim had reached her house and had either disappeared herself or was made to disappear by some one else. No witness has stated that the appellant after taking the victim across the river was seen absent for sufficient time so as to be suspected of committing the offence. 4. The learned trial Judge appears not identifying this probability which was also arising out of the evidence and as such was passing the judgment of conviction due to inappropriate appreciation of the evidence. 5. On perusal of the evidence and consideration thereof, the appeal succeeds and, as such, is allowed by setting aside the judgment of conviction and the sentence passed upon the appellant. The appellant Paddu Sada @ Batan Sada @ Bhikhari Sada is hereby acquitted. If he is 4 still in custody, he shall be released forthwith, if not wanted in any other case. 6. This court records with appreciation, the assistance rendered by Sri Ajay Mishra, the learned Amicus Curiae who offered to assist this Court in absence of the counsel who was not appearing in spite of his name appearing in the cause list. As such, this Court feels that Sri Mishra is entitled to one fee of hearing which has to be paid by the Patna High Court Legal Services Committee. Patna High Court, Dated, the 28th day of September, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)