Suresh Prasad Mochi @ Suresh Prasad vs The State of Bihar

Anjana Prakash, J.—The Appellant has been convicted u/s 366 I.P.C. and sentenced to R.I. for three years by a judgment dated 31.8.1994 passed by the Additional Sessions Judge XII, Patna in Sessions Trial No. 635 of 1991.

The case of the prosecution is that the informant suspected that his grand daughter, who did not come back after the call of nature, had been kidnapped by the accused persons including the Appellant.

During trial the prosecution has examined five witnesses in all. Out of whom, P.W.1 has merely stated that the alleged victim was in her Sasural and has three children. He has no doubt proved the Exhibit 2, which is the statement of the victim recorded u/s 164 Code of Criminal Procedure but the same is inadmissible in view of the fact that the victim herself has not been examined. P.W.2, P.W.3 and P.W.4 are the sons and wife of the informant respectively, whereas P.W.2 and P.W.3 are not material witnesses and P.W.4 has been tendered. P.W.5 is an Advocate''s Clerk, who has proved the case diary. The Investigating officer has not been examined in this case.

On going through the evidence on record, I find that in fact this is a case of no evidence and apart from the vague suspicion that the victim had been kidnapped by the accused persons, there is no cogent proof of the same.

In the result, this appeal is allowed and the order of conviction and sentence passed against the Appellant on 31.8.1994 by the Additional Sessions Judge XII, Patna in Sessions Trial No. 635 of 1991 is set aside.