Bhairo Singh vs The State of Bihar

Anjana Prakash, J.—Heard.

The Appellants have been convicted u/s 363 of the Indian Penal Code and sentenced to rigorous imprisonment for two years by the 4th Additional Sessions Judge, Aurangabad, passed in Sessions Trial No. 42 of 1995/1 of 1995 by a judgment dated 14.9.1995.

The case of the prosecution is that on 6.11.1994 the Informant (P.W.-5) received information from P.W.-2, P.W.-6 and P.W.-7 that his daughter (P.W.-9) had been kidnapped by the two accused persons and had been kept in Studio from where she was subsequently recovered.

During trial, the prosecution in all examined 12 witnesses out of whom P.W.-1, P.W.-2, P.W.-4, P.W.-6, P.W.-7, P.W.-8, P.W.-9, P.W.-10 and P.W.-11 have been declared hostile. P.W.-3 is a formal witness whereas P.W.-5 is the Informant and P.W.-12 is the Investigating Officer.

Admittedly, the Informant is not an eye witness to the occurrence and he had received information from P.W.-2, P.W.-6 and P.W.-7 about the occurrence but they did not support this fact during trial and, therefore, the evidence of P.W.-5 is a nullity in the eye of law. Further, the victim who was examined as P.W.-4 has also not supported the factum of kidnapping. Under the circumstances, evidently, the prosecution has measarably failed in its primary duty of proving the charge of Section 363 against the accused persons.

In the result, the Appeal is allowed. The order of conviction and sentence passed against the Appellants in Sessions Trial No. 42 of 1995/1 of 1995 by the 4th Additional Sessions Judge, Aurangabad, is hereby set aside.

The Appellants are discharged from the liability of their bail bonds.