1. When the case was called, no one appeared on behalf of the appellant, as such in order to have assistance from the side of the appellant Mr. Ranbir Singh, Advocate was appointed as Amicus Curiae
2. Sole appellant Ghutar Rajbanshi has been convicted for offence under Sections 364A & 365 of the IPC by the Additional Sessions Judge, Fast Track Court No. II, Nawadah in Sessions Trial No. 125 of 2003/237 of 2000 and sentenced R.I. for life under Section 364 of the IPC and R.I. for five years under Section 365 of the IPC
3. Akbarpur P.S. Case No. 184 of 1993 was instituted on 13.11.1993 at 6.15 p.m. on the basis of fard- beyan of Gumma Pasi (P.W. 7) father of victim Santosh Kumar (P.W.8) aged about 10 years. The F.I.R. was instituted against unknown for offence under Sections 364 & 365 of the IPC. Later on, Section 364A of the IPC was also added.
4. The case of prosecution as disclosed in the fard-beyan of the informant is that in the morning of 13.11.1993 he had gone to sell Mahuwa liquor at the time of Diwali festival. In the midst of sale of liquor, in the evening went to market for purchasing crackers. During his absence his brother Dilip Pasi (P.W. 2) and his brother-in-law Fantus Pasi (not examined) were selling the liquor. In this very period seven unknown persons came and started drinking liquor after purchasing it. Suddenly the unknown accused persons lifted his ten years old son Santosh Kumar, who was exploding crackers and accused persons proceeded towards the river, south of his house, with his son. All accused persons were aged in between 25 to 30 years, wearing shirt, paint and of dark complexion. The informant started following the accused persons, but they exploded crackers, due to which some persons received injury and taking advantage of this explosion the accused persons took away the son of the informant. In the FIR name of some persons have been disclosed, who witnessed the occurrence. The informant has also stated that he has no idea about the real intention of the accused behind kidnapping of his son.
5. On the basis of fard-beyan of Gumma Pasi (P.W.7) Akbarpur P.S. Case No. 184 of 1993 was instituted and on submission of charge sheet and cognizance being taken the case was committed to the Court of Sessions for conducting the trial.
6. The prosecution in order to prove its case examined 8 witnesses. P.W. 1, P.W. 3, P.W. 4, P.W. 5 and P.W. 6, who are named in the FIR as eye witness, did not support the case of prosecution, they were declared hostile and cross examined by the prosecution. Dilip Pasi, P.W. 2 is the brother of informant. Kidnapped victim boy Santosh Kumar is his nephew. P.W. 2 has deposed that uknown accused persons took away his nephew. The police did not conduct T.I. Parade and also that Ghutar Pasi (appellant) is resident of another village, but in para 6 of his evidence he has stated that two years prior to occurrence, he was knowing Ghutar Pasi.
7. Similarly P.W. 7, informant of the case and father of victim Santosh Kumar has also stated that unknown accused persons kidnapped his son. However, he has admitted that in his restatement he disclosed names of accused persons, with their specific overt act. He has admitted that Ghutar Rajbanshi was known to him, one and half year prior to the occurrence. Similar is the statement of P.W. 8, so far acquaintance with Ghutar Rajbanshi, appellant is concerned. If deposition of P.W.2, P.W. 7 and P.W. 8 is considered on the point of identification of the appellant, it is quite surprising why he was not named as accused in the FIR.
8. P.W. 7 Gumma Pasi, the informant of the case and father of victim is an eye witness. He has fully supported the case of prosecution. But the evidence of this witness is also deficient on the point of identification. This witness has claimed to have identified the accused appellant as well as other accused but it has not been disclosed that, if accused persons were known to him why the FIR was instituted against unknown. Admittedly no T.I. Parade was held as such this witness as well as P.W. 2 did not have any occasion to identify the accused persons.
9. P.W. 8 has narrated the story of his kidnapping and disclosed that he had occasion to identify the accused persons, while in confinement, since accused persons used to call each other by name. This witness has also admitted that Ghutar Rajbanshi was known to him, prior to the occurrence. P.W. 8, in para 4 of his evident has admitted that prior to his deposition in court, police has never recorded his statement. He was not produced before the court for recorded his statement under Section 164 Cr.P.C. On this count, not much weight can be attached to the evidence of this witness, even though he is said to be the victim. I.O. has not been examined as such there is no evidence to show that for how many days P.W. 8 remain in custody of kidnappers, how he was rescued. Evidence of P.W. 8 is indicative of this fact that after recovery he was not produced before the court.
10. Evidence of prosecution witnesses is contradictory so far identification of appellant is concerned. There being no reason for not naming him, if he was known and if unknown, there being no occasion of identifying him, prior to his identification in court. The evidence is insufficient for conviction of the appellant.
11. In the given facts and circumstance and the evidence led by the prosecution, we do not find any reason to affirm the judgment and order of conviction passed by the trial court. We are, rather, of this view that this judgment and order and sentence awarded to the appellant are not sustainable. Accordingly, it is set aside. The appellant is in custody. He is directed to be released forthwith, if not wanted in any other case.
12. Considering the able assistance advance to the Court by Mr. Ranbir Singh, Amicus Curiae, he is entitled for one hearing fee and that will be paid by the Patna High Court Legal Services Committee.