Chhote Pathak, Naresh Bin and Singhasan Yadav vs The State of Bihar

M.L. Visa, J.—All three appeals under consideration which arise out of the same judgment dated 25.7.1997 and order dated 29.7.1997 passed by 4th Additional Sessions Judge, West Champaran, Bettiah, in Sessions Trial No. 276/95 convicting and sentencing the Appellant Jagarnath Mahto of Cr. Appeal No. 523 of 1997 to undergo imprisonment for life u/s 364A of the Indian Penal Code (in short, IPC) and. Appellants namely, Ashok Mahto @ Ashok Kumar Mahto (sole Appellant of Cr. Appeal No. 453 of 1997), Chhote Pathak, Singhasaan Yadav and Naresh Bin (Appellants of Cr. Appeal No. 581 of 1997) to undergo imprisonment for life u/s 364A read with Section 34 IPC have been heard together and being disposed of by this common judgment.

The case of prosecution, in short, is that Sushil Kumar Bhartiya (PW6) was posted as Chief Judicial Magistrate, Bettiah, where his son Jay Bhartiya (PW4) was studying. In the month of February, 1995, Sushil Kumar Bhartiya joined Sasaram on his transfer. On 2.4.95 he along with his son Jay Bhartiya came to Bettiah where Jay Bhartiya was to appear in matriculation examination. On 8.4.95 Jai Bhartiya came to know that his practical examination would commence on 26.4.95, therefore, on 9.4.95 his father Sushil Kumar Bhartiya left for Sasaram leaving him behind at Bettiah. On 14.4.95 at about 2 PM when Jai Bhartiya was at the house of informant, co-accused Deepak Giri @ Anil Giri who used to visit the house of informant and during those visits Jai Bhartiya ceme to know him, came to the house of informant and asked Jai Bhartiya for going to see cinema show. Jai Bhartiya left the house of informant along with him for cinema show and in the way he found some boys standing on road out of whom he identified Parwej, Manoj Mian, Babara and Jugnu. There were two other persons, one having beard and tall and another having moustache and short statured whose names were not known to Jay Bhartiya. Co-accused Deepak Giri suggested for strolling before going to cinema hall and therefore he, co-accused Deepak Giri and the aforesaid persons all moved together and after going for some distance one another man met them who was addressed by Deepak Giri as Ajay Mama and he also joined their company. Thereafter Parwej told that he had some work at his house and suggested that all will go first to his house and thereafter to cinema hall. Jay Bhartiya and the aforesaid persons went to the house of Parwej situated at Dargah Mohalla of Bettiah town where some other persons also joined them and Parwej offered sweets to Jai Bhartiya who after eating the sweets felt intoxication. He was put on a ''Chauki'' and he saw that Parwej and his companions repeatedly were going out side and having some talks and then he realised that he was in some trouble. Thereafter one another man who was addressed by Parwej as Hasnain Bhaiya told that every arrangement had been made and asked the persons assembled there to come to ''Chhawani'' at about 12 o''clock in the night and thereafter he left the house. Thereafter aforesaid persons brought beer and wine and forced Jai Bhartiya to take beer and thereafter they all took him to a house at Chhawani at about 12 o''clock in the night where Jai Bhartiya found one man present there who was addressed as Rahim Mian and at about 2 o''clock in the night two persons came near Jai Bhartiya who boarded him on a truck. At that time co-accused Anil Giri came there and demanded remuneration saying that he had already brought the boy but the aforesaid persons gave him a kick and he fell down from the truck and thereafter the truck was started. Amongst the persons who were present in the truck Jai Bhartiya identified Appellant Jagarnath Mahto who was in police uniform and Ambika. Whenever the truck was stopped in the way by police Appellant Jagarnath Mahto used to tell that his family was travelling and on this pretext truck used to be allowed to proceed further without checking. Jay Bhartiya was brought by the truck in a forest where he was kept for five days and later on he came to know that it was Madanpur Forest situated west of Bettiah town. Villagers used to bring food for the kidnappers. When the activity of police increased Jay Bhartiya was shifted to another forest at a distance of 15-20 km from the earlier place where he was kept for about 10-12 days. Co-accused Parwej and Appellant Jagarnath Mahto left the forest and while leaving Parwej snatched his wrist watch. Thereafter other co-accused persons also came who were armed with guns and country made pistols who used to give threatening to Jai Bhartiya for killing him. Out of them Jai Bhartiya came to know the names of Lambu Musahar, Chhotu Dadhi Bala, Kishori Chauhan Verma, Chaudhary Ravindra and Vijay Mahto Gupta. One another man named Sadhu Bin was also there. All these persons kept Jai Bhartiya in their custody for ransom and they used to force him to write letters to his father. Jai Bhartiya was shifted from there and was taken to the border of Nepal. The pressure of police was increasing and once police came very near to Jai Bhartiya. Jai Bhartiya was kept by kidnappers at different places and a number of persons used to come to meet the kidnappers and Jay Bhartiya came to know their names as Monika Chaukidar, Appellant Ashok Mahto, Appellant Naresh Bin, Appellant Chhote Pathak and Appellant Singhasan Yadav and Nandlal Mahto. The kidnappers used to tell Jay Bhartiya that some of their family members were arrested by the police and by asking his father if he gets them released he would also be released and sometimes they used to tell him to get money from his father. Later on, Jai Bhartiya came to know that his father had met the kidnappers and he was released in Nepal and was shown the way for going and meeting his father and when Jay Bhartiya moved on that way for some distance he found his father who had come on a jeep and thereafter Jay Bhartiya along with his father came to Bettiah. He narrated the entire incident to his father as well as to his relations and othefr persons. His statement was recorded by the Police and by Magistrate. In the meantime, when informant Dina Nath Keshan (P.W. 5) found that Jay Bhartiya after leaving his house on 14.4.95 in the evening had not come back on that day he started making search for him and on 15.4.1995 lodged a written information at the police station, Bettiah stating therein that Jay Bhartiya had gone with co-accused Deepak Giri @ Anil Giri, Parwej, Jugunu, Manoj Mian and two others, one having long beard and another having moustache and had not returned thereafter. On the basis of written report (Ext.4) of the informant a case u/s 364A IPC was registered drawing a formal FIR (Ext.7) against co-accused Deepak Giri @ Anil Giri, Parwej, Jugunu, Manoj Mian and two unknown persons. Police after investigation submitted charge sheet against the Appellants and co-accused Deepak Giri @ Anil Giri, Kanhaiya Lal Chaudhary, Rahim Ansari, Nandlal Mahto and Narsing Bin u/s 364A IPC keeping further investigation pending. After taking cognizance case of all those persons was committed to the court of Session where case of co-accused Rahim Ansari was separated on account of his absconding and charge u/s 364A IPC was framed against all the Appellants, co-accused Anil Giri @ Deepak Giri, Kanhaiya Lal Chaudhary, Nand Lal Mahto and Narsing Bin. Later on, case of co-accused Deepak Giri @ Anil Giri was separated on 7.6.97 on account of his absconding. The Appellants and co-accused Kanhaiya Lal Chaudhary, Nand Lal Mahto and Narsing Bin faced the trial and after trial co-accused Kanhaiya Lal Chaudhary, Narsing Bin and Nand Lal Mahto were not found guilty and they were acquitted but so far Appellants are concerned, Appellant Jagarnath Mahto was found guilty u/s 364 IPC and other Appellants were found guilty u/s 364A read with Section 34 IPC and accordingly they were convicted and sentenced to undergo imprisonment for life. The case of Appellants as it appears from the trend of cross examination of prosecution witnesses is complete denial of charge against them and their false implication in this case. The specific defence of Appellant Ashok Mahto is that before putting him on T.I. parade he was shown to witnesses by police. Three witnesses have been examined on behalf of Appellants.

In order to prove its case the prosecution has examined 11 witnesses. Dina Nath Keshan (P.W. 5) is informant. Jay Bhartiya (P.W. 4) is the victim boy. Sushil Kumar Bhartiya (P.W. 6) is father of victim boy Jay Bhartiya. Faresh Ram (P.W. 7) and Fulena Ram (P.W. 8) are Investigating Officers. Harendra Prasad (P.W. 9) and Md. Ali (P.W. 10) are formal witnesses who have proved the Fardbeyan (Exct. 4/1), formal FIR (Ext. 7/1) and seizure list (Ext. 8/1) of Gobardhan PS Case No. 16/95 and a letter (Ext.11) addressed by APP to Shri T.L. Verma, Advocate. Awadhesh Singh (P.W. 41) is a witness who had accompanied Sushil Kumar Bhartiya (P.W. 6) when he had gone to meet the kidnappers. Ramashray (P.W. 1) is a Judicial Magistrate who had recorded confessional statement of co-accused Ganga Prasad, Rahim Ansari, Kanhaiya Lal Chaudhary and Deepak Giri @ Anil Giri u/s 164 Code of Criminal Procedure Satish Chandra Roy (P.W. 2) is also a Judicial Magistrate who had conducted T.I. parade in which Appellant Ashok Kumar Mahto was put and was identified by the informant and Jay Bhartiya (P.W. 4). He has proved T.I. Chart (Ext. 2). Here we may mention that in his evidence this witness has first stated, that on 1.5.1.95 he got the T.I. parade conducted but in his cross examination he has said that T.I. parade was conducted on 15.1.96 the order for which he had received on 12.1.96. From the T.I. chart (Ext. 2) also it appears that T.I. parade was held on 15.1.96 and it appears that in his evidence the date 15.1.95 for conducting the T.I. parade is an error of record. Triloki Nath Tewary (P.W. 3) is an Additional Munsif who had recorded the statement of victim Jay Bhartiya (P.W. 4) u/s 164 Code of Criminal Procedure which he has proved (Ext. 3).

Jay Bhartiya (P.W. 4) is the victim boy. He in his evidence has said that his father was posted as CJM at Bettiah and was transferred to Sasaram in the month of February, 1995 and he therefore went to Sasaram with his father but in the month of April, 1995 he came to Bettiah from Sasaram for appearing in the matriculation examination and on 8.4.95 he came to know that his practical examination will be held on 26.4.95 and therefore, his father left Bettiah for Sasaram and he was staying at Bettiah in the house of informant Dina Nath Keshan (P.W. 5) where he came to know co-accused Deepak Giri @ Anil Giri who used to come there. He has further said that on 14.4.95 at 4 PM when he was in the house of informant co-accused Deepak Giri @ Anil Giri came and asked to accompany him to see the cinema show and he then left the house of informant and in the way he found some boys standing on road out of whom he identified Parwej, Manoj Mian, Babara and Jugunu along with two others who were having beard and moustache who also joined them and co-accused Deepak Giri @ Anil Giri then suggested for strolling before going to cinema hall and they all moved together and after going for some distance one another man met them who was addressed by Anil Giri as Ajay Mama and who also joined them and thereafter Parwej took them to their house saying that he had some work at his house. At his house Parwej offered him sweets and after eating sweets he felt some intoxication and he was then laid on a ''Chauki'' and at that time he saw Parwej and others going out of the room and talking with each other and he then realised that he was in some trouble. According to him, one another man came who was addressed by Parwej as Hasnain Bhaiya and he told that every arrangement had been made and asked the persons present there to bring him to Chhawani at about 12 o''clock in the night and thereafter he left. Thereafter his companions brought beer and wine and forced him to take beer and thereafter they took him to a house situate at Chhawani at 12 o''clock in the night where another man who was addressed as Rahim Mian also came there and thereafter at about 2 AM in the night a truck came there on which he was boarded by two persons whose name he later on came to know as Appellant Jagarnath Mahto and Ambika. He has further said that when he was boarded on truck co-accused Anil Giri @ Deepak Giri demanded remuneration from his companions but he was given a kick and he fell down from the truck and thereafter the truck started and Appellant Jagarnath Mahto who was in police uniform used to tell the traffic police whenever the truck was stopped that his family members were travelling in the truck and in this way the truck proceeded further without any checking and ultimately he was taken to a forest where he was kept for five days and later on he came to know that it was Madanpur Forest. Villagers used to provide food there and when activities of police increased he was shifted to another village at a distance of 15-20 Kms and there also he was kept for 10-12 days and Parwej and Appellant Jagarnath Mahto left that place and while leaving that place Parwej snatched his wrist watch. Other criminals also joined there who were armed with guns and country made pistols out of whom he came to know later on the names of Lambu Mushahar, Chhotu Dadhi Wala, Kishore Chauhan Verma, Chaudhary Ravindra Yadav and Vijay Mahto Gupta and one Sadhu Bin was also with them. He has further said that kidnappers used to force him to write letters to his father and from that place he was again taken to the border of Nepal through hills and forest area and some kidnappers used to tell him that he would be killed and some kidnappers used to tell that he would be released and once police came near to him and in nervousness some fire arms of Ambika Bind were left there. He has further said that he was kept by the kidnappers at different places and during the period of his captivity a number of persons used to meet the kidnappers and later on he came to know names of some of them as Manika Chaudhary, Appellant Ashok Mahto, Appellant Chhote Pathak, Appellant Naresh Bin and Appellant Singhasan Yadav and Nand Lal. He has also stated that kidnappers told him that his father was coming to meet him and he would be released and thereafter he came to know that his father had come to meet the kidnappers and two days after the meeting of his father with kidnappers he was released by the kidnappers and he was shown the way for going and he through that way came back and met his father who had come on a jeep and he then came along with his father to Bettiah.

Sushil Kumar Bhartiya (P.W. 6) is father of victim Jay Bhartiya and he has said that he was posted as CJM at Bettiah till the first week of February, 1995 and thereafter he went to Sasaram on his transfer. He has further said that as his son Jay Bhartiya was to appear in the matriculation examination at Bettiah he along with his son Jay Bhartiya came to Bettiah on 02.4.1995 and stayed at Bettiah till 8.4.95 where he came to know that practical examination of his son would commence on 26.4.95 and he left for Sasaram leaving his son at Bettiah in the house of informant Dina Nath Keshan (P.W. 5). He has further said that on 15.4.95 at about 5.30 PM he was informed on telephone by informant that his son Jay Bhartiya had left the house on 14.4.95 at about 4 PM along with co-accused Deepak Giri and since then he was traceless and informant suspected the kidnapping of his son and he then told the informant to inform the police and he himself came from Sasaram to Bettiah on 16.4.95 at about 5 PM and after reaching Bettiah he contacted police officers and also saw the written information of informant lodged at the Rs. and he came to know that his son had been kidnapped and also came to know that Anil Giri, Prawej, Jugunu, Babra Mian, Manoj Mian, Hasnain and two unknown persons, one having beard and other having moustache had kidnapped his son and he in search of his son went to various places but he could not get any information about his son and during his stay at Bettiah he was staying in room No. 103 in Amrapali Hotel. On 17.5.95 at about 7 AM when his door was knocked he opened the door and then he found that nobody was there but a letter and one shirt of his son were found kept near the door and when he read the letter he found that it was letter of his son. He has proved this letter (Ext.5). According to him in this letter his son had written that he should meet the kidnappers at Basua Bazar in the area of Mari in Nepal. He has proved the shirt (Material Ext. I) of his son and has said that on the same day he asked Rana Bijay Singh to arrange a jeep and on 18.5.1995 he along with Vijay Singh (not examined) and Awadhesh Singh (P.W. 11) went to Basua Bazar in Nepal where he reached at about 4 PM where two persons whose names were Vijay Mahto and Kishori Chaudhary came and inquired his name and address and told him that his son was with them and in case he gives them money and gets some of their persons who were arrested by the police released they would release his son. He has said that on this demand he told that he had no money and also showed his ignorance about their persons arrested by the police but in order to secure release of his kidnapped son he however agreed that he would do his level best in getting their relations released from the custody and thereafter those persons demanded from him the expenses which they incurred in keeping his son with them and then he replied that he had only Rs. 200-400/- which he can give them and thereafter those persons told that they after consulting their companions will tell him and asked him to stay there and he therefore, stayed there for some time and after one hour his son came to him. According to him, those two persons during the course of talk disclosed their names and he had read the name Vijay Mahto tattooed on the left arm of one of them. According to him, at the border of India and Nepal the S.R and Dy. S.P. met him and he along with them came to Bettiah and in the way his son told him about the entire occurrence.

Informant Dina Nath Keshan (P.W. 5) (in deposition described as Dina Nath Khetan) in his evidence supporting the evidence of Sushil Kumar Bhartiya (P.W. 6) and Jay Bhartiya (P.W. 4) has said that the victim Jay Bhartiya had come to Bettiah from Sasaram for appearing in the matriculation examination and was staying in his house and on 14.4.95 at 4 PM left his house along with co-accused Deepak Giri @ Anil Giri for cinema show. He has said that Deepak Giri @ Anil Giri used to come to his house from before and on 14.4.95 victim boy Jay Bhartiya had gone out from his house along with Jugnu, Parwej, Manoj, Babra and two others and thereafter he did not return and on the same day at about 12 o''clock in the night he went to the house of Deepak Giri and he did not find him there and on 15.4.95 at about 8 AM Anil Giri came to his house and when he inquired from him about Jay Bhartiya he told that although he was with him but thereafter he left him and went with his friends and he (Jay Bhartiya) had gone to the house of his maternal uncle on which he suspected that Jay Bhartiya was kidnapped for ransom and then he informed Sushil Kumar Bhartiya by phone at Sasaram about the occurrence and Sushil Kumar Bhartiya asked him to lodge information with the police and he has further said that before lodging information with the police he had gone to the house of Manoj, Parwej and Babra for searching the victim boy. He has proved his written statement (Ext. 4) which he had lodged with the police. He has further said that in spite of lodging information with the police he continued the search of Jay Bhartiya and during that search Appellant Ashok Mahto came to him and told him that in case he spends money he would find out the victim. He has further said that Sushil Kumar Bhartiya (P.W. 6) came to Bettiah from Sasaram and stayed at Amrapali Hotel where he received a letter and shirt of his son and his son had written him to come to Basua Bazar in Nepal and meet the kidnappers and then Sushil Kumar Bhartiya went to Nepal where he found his son and brought him to Bettiah.

The evidence of Sushil Kumar Bhartiya (P.W. 6), father of victim, that he had gone to Basua Bazar in Nepal where after his talks with kidnappers his son was released has been supported by the evidence of Awadhesh Singh (P.W. 11) who has said that on 18.5.1995 he had accompanied Sushil Kumar Bhartiya to Basua Bazar in Nepal where he had gone on a jeep where two persons came with whom Sushil Kumar Bhartiya talked privately and thereafter both persons returned and one hour thereafter the kidnapped son of Sushil Kumar Bhartiya came and was brought to Bettiah.

Prem Lai Yadav (D.W. 2), a police constable, examined on behalf of Appellant Singhasan Yadav, in his evidence has said that Appellant Singhasan Yadav is a Dafadar who used to. perform substituted duty and although he brought an attendance register of Chaukidars and Dafadars from the year 1991-1996 but he could not prove any entry in this register. Shambhu Pandey (D.W. 3), an Advocate''s Clerk examined on behalf of Appellant Ashok Mahto, in his evidence has said that on 18.1.96 Pitamber Prasad, brother of Appellant Ashok Mahto, came to Shri Parshuram Dwivedi, an advocate and told him that Faresh Ram (P.W. 7), a Police Inspector, had brought two persons at the gate of jail and got Appellant Ashok Mahto identified to them and he asked Shri Dwivedi to file a petition to this effect and then at the dictation of Shri Dwivedi, Nagendra Chaudhary wrote an application which was signed by Shri Dwivedi. He has proved this application which is marked Ext. B.

Considering the evidence of victim Jay Bhartiya (P.W. 4) we find that his evidence clearly establishes that he was "kidnapped. His evidence is fully supported by the evidence of other prosecution witnesses namely, Sushil Kumar Bhartiya (P.W. 6), the informant (P.W. 5) and Awadhesh Singh (P.W. 11). The victim Jay Bhartiya has said that at about 2 o''clock in the night a truck came to the house of co-accused Parwej at Bettiah where he had been taken and two persons boarded him on that truck and out of those two persons he identified Appellant Jagarnath Mahto who was in police uniform. He has further said that whenever the truck was stopped by traffic police Appellant Jagarnath Mahto used to fell that his family was travelling in the truck, He has also said that by truck he was brought to a forest where he was kept for five days and thereafter he was shifted to another forest where he was kept for 10-12 days and in this period Appellant Jagarnath Mahto along with Parwej left the forest, leaving behind his other companions there. So we find that so far the case of Appellant Jagarnath Mahto is concerned he has taken active part in the kidnapping of victim and victim had full opportunity to identify him because he was with the victim for a number of days. So far the case of remaining Appellants is concerned, the evidence of victim Jay Bhartiya (P.W. 4) is that when he was in the captivity of kidnappers a number of persons used to come to meet the kidnappers and to provide them food and he has identified the remaining Appellants in court saying that they were amongst those persons who used to come to meet the kidnappers. It has been argued on behalf of these Appellants that except Appellant Ashok Mahto, the other Appellants were not put on T.I. parade and although Appellant Ashok Mahto was put on T.I. parade but before putting him on T.I. parade he was shown to informant and victim boy who subsequently identified him in T.I. parade. So far the case of Appellants Singhasan Yadav, Chhote Pathak and Naresh Bin who have not been put on T.I. parade is concerned, we find that the court below in its judgment has observed that the decision of the Apex Court reported in 1979 Cri.L.J. 919 which was relied on by these Appellants in the court below is not applicable to the present case because in the referred case the fact was that evidence of a witness who for the first time identified Appellants in the court was not considered reliable on the ground that he had opportunity to see the Appellants only once while they were running away from the scene of occurrence whereas in the present case the victim boy had opportunity to see these Appellants for several days when they frequently used to visit the hide-out of the kidnappers, to provide food and to talk with them. On this ground the court below did not feel the requirement of putting the Appellants Singhasan Yadav, Chhote Pathak and Naresh Bin on T.I. parade necessary. We are quite unable to agree with the observation of the court below that aforesaid three Appellants frequently visited the hide-out of kidnappers and provided food and talked with them for several days exposing their faces to victim boy. We find that the victim has not stated that for how many days these Appellants came to visit the hide-out of kidnappers. On the other hand we find that the victim in his evidence has said that some of the persons who used to come to meet the miscreants used to come in day time and some in the night. About Appellants Singhasan Yadav, Chhote Pathak and Naresh Bin he has not stated that for how many times they visited the hide out of kidnappers and whether they visited in the day or night. To a specific question that whether Appellant Naresh Bin had visited in the day or night he has clearly stated that he does not remember it. In para-50 of his evidence he has clearly stated that he did not get opportunity to see again the persons who used to come to meet the kidnappers. Besides this, admittedly the occurrence took place on 14.4.95 and victim was released on 18.5.95 and he was examined as a witness in court on 10.4.96 meaning thereby that about one year after the occurrence the victim was examined as a witness. The victim in his evidence has clearly stated that he does not remember the names of person with whom he met during this interval. In view of the evidence of victim that he does not remember whether Appellants Singhasan Yadav, Chhote Pathak, and Naresh Bin used to meet the miscreants either in the day or night and he had never talked with them during their visits to hide-out and he had no opportunity to see them again after his release and he has not given the number of their visits, it is very difficult to hold that these Appellants used to go to meet the kidnappers for providing food to them and for having talks on the basis of identification of these Appellants by the victim for the first time in court. For the sake of argument if it be assumed that these Appellants used to meet the kidnappers even then we do not find that they can be held guilty in this case. These Appellants have been charged u/s 364-A IPC. The evidence of victim does not show that they took any part in the kidnapping. The offence of kidnapping is not a continuing offence. The moment a minor is taken out from his lawful guardianship without the consent of his guardian the offence is complete. In the present case, the victim was taken out from the guardianship of informant at Bettiah on 14.4.95 and was kept at different places and at one of such places as alleged Appellants Singhasan Yadav, Chhote Pathak and Naresh Bin went to meet the kidnappdrs. There is nothing on record to show that they had knowledge that the kidnappers had kidnapped the victim. Only finding the miscreants living in a forest and providing food to them will not itself prove that these Appellants were knowing that miscreants had kidnapped the victim. They might have done it for so many other reasons including the one that the miscreants might have told them that out of fear from their enemies they had taken shelter in the forest. Whatever may be their intention or the knowledge but for convicting them u/s 364-A IPC for which whey have been charged the prosecution has to prove that either they took part in the kidnapping of the victim or they had conspired with other persons who actually took part in the kidnapping. So we find that so far the case of Appellants Singhasan Yadav, Chhote Pathak and Naresh Bin is concerned, the prosecution has not been able to prove the charge u/s 364A IPC against them. About Appellant Ashok Kumar Mahto alias Ashok Mahto, his case stands on different footing. Not only the victim in his evidence has stated that he was amongst those persons who used to come to meet the kidnappers and provide food to them but has also identified him in T.I. parade. Satish Chandra Roy (P.W. 2) who is a Judicial Magistrate, in his evidence has said that the victim Jay Bhartiya in T.I. parade conducted by him identified Appellant Ashok Mahto saying that he used to come to meet the kidnappers. The plea of this Appellant that before putting him on T.I. parade he was shown to two witnesses has been considered in details by the court below and has been rejected by it and we fully agree with the findings of the court below and we do not want to burden this judgment by again repeating the same. Apart from the evidence of victim about this Appellant, informant Dina Nath Keshan (P.W. 5) in his evidence has clearly stated that after the kidnapping of victim this Appellant went to his house and told him that in case he spends money the victim can be recovered and on his part he passed this information to Sushil Kumar Bhartiya (P.W. 6), father of victim. Sushil Kumar Bhartiya in his evidence has corroborated this part of his evidence. Learned Counsel appearing on behalf of this Appellant has argued that merely saying that in case money is spent the kidnapped boy may be recovered will not amount to an offence because it simply suggests that in searching the boy some amount was required to meet the necessary expenses. We do not find any merit in this argument because this Appellant was not known to informant which has come in the evidence of informant and he went to informant and told him that in case he spends money the victim boy could be recovered and he was also seen by victim boy when he used to go to hide-out of miscreants for meeting them. Both these facts taken together clearly suggest that he was in league with the kidnappers and court below by taking aid of Section 34 IPC has rightly convicted him u/s 364A IPC.

Considering the entire evidence on record we find that the prosecution has proved its case beyond all reasonable doubts against the Appellants Jagarnath Mahto and Ashok Kumar Mahto alias Ashok Mahto. So far the case of Appellants Singhasan Yadav, Chhote Pathak and Naresh Bin is concerned we find that their case has not been proved beyond all reasonable doubts.

In the result, Cr. Appeal No. 381 of 1997 is allowed and Appellants of this appeal namely, Chhote Pathak, Naresh Bin and Singhasan Yadav are acquitted and as they are on bail, they are discharged from the liabilities of their bail bonds. So far Cr. Appeal No. 453 01 1997 of Appellant Ashok Kumar Mahto alias Ashok Mahto and Cr. Appeal No. 523 of 1997 of Appellant Jagarnath Mahto are concerned both these appeals are dismissed after confirming the judgment and order of court below convicting and sentencing Appellant Jagarnath Mahto u/s 364A IPC and Appellant Ashok Kumar Mahto alias Ashok Mahto u/s 364A/34 IPC. Bail bonds of Appellant Ashok Mahto who is on bail are cancelled and he is directed to surrender before the court below without any delay to serve out the remainder of sentence passed against him.

B.K. Jha, J.

I agree.