Mazhar Hussain vs The State of Bihar

R.N. Prasad and Chandramohan Prasad, JJ.—Both the appeals arise out of the judgment and order dated 18/22.12.1999 passed by Additional Sessions Judge, VI, Aurangabad in Sessions Trial No. 95 of 1999 whereby the Appellants have been convicted for the offence u/s 364A/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life.

The case of the prosecution is that one Manoj Kumar Sinha, Assistant Station Master, Rafiganj, district Aurangabad gave his fardbeyan before the Officer Incharge Sone Nagar, Railway Police Station. Rafiganj on 20.3.1995 at about 11.30 A.M. that his Bhagna (sister''s son), Roshan Kumar, son of Hriday Nandan Singh @ Pappu of village Jogapur, P.S. Sherghati district Gaya aged about 3 1/4 years and his mother, Nutan Singh was living with him for about two months ago in quarter No. 5. On 19.3.1995 he was playing out side quarter No. 5/A. When he did not return to the quarters in the evening they started searching him but he could not be traced out. On 20.3.1995 in the morning also he started searching. At about 8.30 A.M. one Jehangir Khan of village Nagwan Garh at present posted in the R.P.F. Rafiganj came and informed that Md. Majhar Hussain of village Jhiktia, police station Rafiganj had kidnapped Roshan Kumar and kept him in his house in the night. On 20.3.1995 in the morning Md. Majhar Hussain along with Md. Ashraf of village Jhiktia took the boy to village Veernama, the Sasural of Md. Ashraf. On this information he, officer incharge Dhanajay Singh and others went to village Veernama, P.S. Coach at about 10 A.M. and recovered the boy from the house of one Ghulam Rasool, father-in-law of Md. Ashraf. Ghulam Rasool disclosed that Mazhar and Ashraf kept the boy in his house saying that he is Bhagna of Mazhar Hussain and he would be taken to Hazaribagh. Seeing us, Mazhar Hussain and Md. Ashraf tried to run away. However, with the help of villagers they were caught. The accused persons disclosed before the people of the village that they had kidnapped the boy for ransom. The villagers knowing that they had kidnapped the small boy, assaulted them. However, they were saved.

On the aforesaid fardbeyan a formal first information report was drawn and investigation was taken up. On completion of investigation charge sheet was submitted against three persons i.e. Appellants and one Ghulam Rasool. Cognizance was taken and the case was committed to the court of sessions for trial. The trial court acquitted Ghulam Rasool, however, convicted the Appellants as indicated above.

The defence of the Appellants was that they were innocent and had falsely been implicated in the case.

The prosecution in support of its. case examined six witnesses out of whom P.W.4 is informant; P.W.1 is officer incharge of Rafiganj Police Station, who recovered the boy P.Ws.2 and 5 are witnesses to the recovery of the boy and they have been declared hostile; P.W.3 is mother of the victim boy and P.W.6 is investigating officer.

It would be apt to mention here that Ghulam Rasool was absconding and as such initially only the Appellants were put on trial. Manoj Kumar was examined as P.W.1. Thereafter, Ghulam Rasool was caught and he was also put on trial along with the Appellants. Thereafter, Manoj Kumar was again examined as P.W.4.

It is evident from the analysis of the evidence of the witnesses as mentioned above that there was no eye witness with respect to kidnapping of Roshan Kumar aged about 3 1/4 years by the Appellants. On the record there-is no evidence of eye witnesses that the victim boy was kept by the Appellants in the house of Ghulam Rasool from where he is said to have been recovered. There is no evidence on the record to show that there was any demand by the Appellants for ransom. There is no evidence of the witnesses on the point of recovery of the victim boy from the house of Ghulam Rasool except P.W.1. No document/paper was prepared with respect to recovery except the evidence of P.W.1. In this back ground we proceed to examine the relevant evidence on the record.

P.W.1 is officer incharge of Rafiganj police station. His evidence is that on 20.3.1995 people came and informed about the missing boy and also that the Appellants are keeping the boy. On the said information he went to village Jhiktia where the houses of the Appellants are situated. However, the. boy was not there. He got information from a lady and other villagers that these Appellants had taken the boy to village Veernama. He proceeded to village Veernama and the boy was recovered from the house of Ghulam Rasool. Ghulam Rasool disclosed that his son-in-law Ashraf and Mazhar had brought the boy and kept in his house. The recorvered boy was handed over to the informant. Thereafter, he arrested the Appellants in their village, Jhiktia. In cross-examination the witness'' admitted that he did not prepare any document with respect to recovery of the victim boy or any document was prepared for handing over the boy to the informant. He also stated in cross-examination that the Appellants were caught by the people of village Jhiktia. Then he took charge of the Appellants. P.Ws. 2 and 5 are said to be eye witnesses on the point of recovery but they have been declared hostile. P.W.3 is mother of the victim boy, who simply stated that her son was missing on the day of'' occurrence. P.W.6 is investigating officer, who after investigation submitted charge sheet. No other witness was examined. Thus, on consideration this much is obvious that ingredient of Section 364A of the Indian Penal Code has not been brought/established by the prosecution as there is no evidence that any demand was made by the Appellants. There is no evidence on the record that anybody had seen the Appellants kidnapping/taking away the victim boy. Ghulam Rasool had disclosed that the victim was brought by the Appellants. He was also made accused but he was acquitted. Therefore, it is manifest that no witness was examined by the prosecution to support even kidnapping by the Appellants.

Thus, on consideration we find that the prosecution has miserably failed to. establish its case. Thus, the appeals are allowed. The judgment and order of conviction is hereby set aside. The Appellants are directed to be released forthwith if not required in any other case.