Judgment A.K.Sinha, J. 1. The sole appellant Bideshi Bhuian has preferred this appeal against the order of conviction and sentence dated 27.2.1996 passed by the VIth Additional Sessions Judge, Palamau, in Sessions Trial No. 354 of 1992 under Section 364 of the Indian Penal Code whereby and whereunder the learned Sessions Judge held the appellant guilty of offence under Section 364/34 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of nine years on that count. The accused-appellant was also charged under Section 302/201of the Indian Penal Code in the alternative but the learned Court below held in the impugned judgment that the charges under Sections 302/201 of the Indian Penal Code were not established against the appellant. 2. The facts relevant to this appeal are that on 21.3.1992 at 9 p.m. one Chandradeo Bhuian, a co-accused in the case who absconded in course of trial after being bailed out, went along with this appellant to the house of the informant, namely, Sagar Singh and asked about his mother, whereupon, the informant told Chandradeo Bhuian as to what business he has with his mother and when the talk was going on between the informant and Chandradeo Bhuian, the mother of the informant came out of the house. It is alleged that accused Chandradeo Bhuian and the appellant forcibly took away the mother of the informant towards the east of the house. The informant made search of his mother, but nobody from the village came to his help because the villagers used to call his mother as witch-craft. It is also alleged that a panchayati had taken place few days back and accused Chandradeo Bhuian had called the mother of the informant because of the former used to call her witch-craft. On the following day, the informant went to Chandradeo Bhuian and enquired from him the whereabouts of his mother, to which, he said that he knows nothing about her and he had not taken away his mother. The informant suspected that accused Chandradeo Bhuian along with the appellant kidnapped his mother with an intention to kill her and so he reported the matter to the officer-in-charge of Chattarpur PS. and on the basis of his written report the FIR (Exhibit-2) was lodged. The informant suspected that accused Chandradeo Bhuian along with the appellant kidnapped his mother with an intention to kill her and so he reported the matter to the officer-in-charge of Chattarpur PS. and on the basis of his written report the FIR (Exhibit-2) was lodged. The police took up the investigation into the matter and submitted charge-sheet in the case under Sections 364, 302, 201/34 of the Indian Penal Code, on the basis of which, learned Chief Judicial Magistrate took cognizance in the case and committed the case to the Court of Sessions and finally Sessions Trial No. 354 of 1992 was disposed of by the learned 6th Additional Sessions Judge, Palamau. 3. The prosecution examined altogether 11 witnesses in the case out of which PW 6 Suresh Singh, PW 7 Bhaw-sagar Singh and PW 3 Sagar Singh are the only eye-witnesses to the alleged occurrence and it is the admitted case that the aforesaid PWs are the full brothers. 4. PW 1 Sheo Nandan Singh, PW 2 Indradeo Singh, PW 3 Puran Yadav, PW 4 Ram Bilash Singh and PW 5 Moti Singh have been declared hostile since they did not support the prosecution version. PW 9 Manik Chand Ram is the chawkidar, who is not an eye-witness to the alleged occurrence but has been examined to say that on the alleged date of occurrence he was the chawkidar of village Kokaro and on the alleged date of occurrence Suresh Singh, PW 6 informed him that his mother has been taken away by Chandradeo Bhuian, and his brother-in-law without specifically naming the appellant. He has further deposed that PW 8 Sagar Singh had found certain clothes in course of search which he handed over to the I.O. PW 9 has identified the appellant as the brother-in-law of Chandradeo Bhuian. 5. Apart from the fact that PW 9 is a hear-say witness, his evidence does not inspire confidence to believe inasmuch as according to him, PW 6 Suresh Singh had informed him about the alleged occurrence on the same night, but his statement has been contradicted by none else than PW 6 himself, who has clearly admitted in his evidence that he had not informs about the occurrence to any body in the night and people came to know about the occurrence in the following morning. In view of the clear testimony of PW 6, the evidence of PW 9 that he was informed about the occurrence in the night not only stands contradicted, rather, does not deserve to be relied upon. The clothes said to have been handed over by PW 9 to the Sub-Inspector of Police have also not been produced in the Court nor the I.O. has been examined by the prosecution to corroborate the version of PW 9 regarding handing over of the cloths to him. 6. PW 10 Jagdish Narayan Prasad is the Sub-Inspector of Police, who did part investigation in the case by recording the statement of the appellant and co-accused Chandradeo Bhuian. He has admitted that he had not recorded statement of any prosecution witnesses. So, his evidence is of no help to the prosecution. 7. PW 11 Rabish Kumar Singh is another I.O. in this case and he has proved the FIR (Exhibit-2) and has stated that the first I.O. was one Surendra Kumar Singh, who handed over the charge of the case to him and after taking charge he visited the place of occurrence. He has described the place of occurrence which is the house of the informant Sagar Singh situated at village Kokaro, PS. Chattarpur. He has further deposed that on 25.3.1992 Sagar Singh handed over the Sari and blouse of his mother which was seized and the seizure list (Exhibit-3) was prepared in presence of the witnesses. The attention of the I.O. was drawn to the statement made by PW 1 Sheonan-dan Singh, PW 4 Ram Bilash Singh, PW 5 Moti Singh and he stated that the aforesaid witnesses had stated before him that on getting information when they went to the house of the informant they learnt that accused Chandradeo Bhuian and Bideshi Bhuian took away the mother of the informant in the night.In the cross-examination, PW 11 has stated that he reached the place of occurrence on 22.3.1992 at 11.30 p.m. but did not record the evidence of any witness on that day. He has further stated that he had recorded the statement of Pyari Singh, Baijnath Singh and Deonandan Singh, but these witnesses have not been examined by the prosecution. PW 11 has further deposed that Sagar Singh had sent the clothes of his mother through the chaw-kidar and he had not sealed those clothes nor obtained signature of any witnesses. He has further stated that he had recorded the statement of Pyari Singh, Baijnath Singh and Deonandan Singh, but these witnesses have not been examined by the prosecution. PW 11 has further deposed that Sagar Singh had sent the clothes of his mother through the chaw-kidar and he had not sealed those clothes nor obtained signature of any witnesses. He admitted that those clothes are not present in the Court and in fact, the clothes belonging to the mother of the informant were not produced in the Court. The so-called clothes were recovered from a place situated in Garkari forest and the I.O. inspected that place on 25.3.1992 at 1.30 p.m. PW 11 has denied that Sagar Singh had stated before him that he along with his brother Bhavsagar Singh had gone to search their mother but he had stated that he along with the chawkidar had made search of his mother in the nearby locality. 8. As stated earlier, there are only three witnesses to the alleged occurrence and they are PW 6 (Suresh Singh), PW 7 (Bhavsagar Singh) and PW 8 (Sagar Singh), who are full brothers. According to the evidence of PW 6 (Suresh Singh), on the alleged date of occurrence at 9.00 p.m. accused Chandradeo Bhuian along with the appellant came to his house and asked about his mother, who came out of the house and the accused started taking away his mother by force and when he enquired as to why he is taking away his mother, the accused told him that how he is concerned with that he will take his mother to any place. Thereafter, the accused persons took away his mother. PW 6 has stated that he made search of his mother but could not get any trace of her. He has further deposed that the accused Chandradeo Bhuian used to call his mother as witch-craft and a panchayati had taken place four years before the alleged occurrence. In the cross-examination, PW 6 has admitted that the house of close relatives are situated besides his house. The house of Moti Singh, Kailash Singh, Deonandan Singh and Indradeo Singh are also situated by the side of his house. In the cross-examination, PW 6 has admitted that the house of close relatives are situated besides his house. The house of Moti Singh, Kailash Singh, Deonandan Singh and Indradeo Singh are also situated by the side of his house. He further stated that he did not raise any alarm in the alleged night of occurrence nor informed about the occurrence to anyone and the people came to know about the occurrence on the following morning and the police also came on the following morning and when the police came, then he informed about the occurrence to other villagers. He has further admitted that at the time of the occurrence all the brothers were also present at the door but they did not chase the accused and remained in the house itself and in the early hours of the morning, they went to the village chawkidar. 9. PW 7 (Bhavsagar Singh) has also made similar statement as that of PW 6 and he has also admitted in the cross-examination that he did not raise any alarm when the accused persons were taking away his mother, but he has contradicted the statement of PW 6 by stating that he had chaised the accused persons, who were about two miles away from them. This statement of PW 7 appears to be a white lie on the very face of it. This witness has further stated that the police came on the third day of the alleged occurrence and he had informed about the occurrence in the night as also in the following morning. In the same breath, he makes contradictory statement by stating that the police came after one day and then he says that the police came on the third day. It has been suggested to this witness that in order to grab the share of his mother, he has made her trace-less, which he denied. 10. In the same breath, he makes contradictory statement by stating that the police came after one day and then he says that the police came on the third day. It has been suggested to this witness that in order to grab the share of his mother, he has made her trace-less, which he denied. 10. PW 8 (Sagar Singh), who is the informant has also stated that on the alleged date of occurrence at 9.00 p.m., while he was present in his house, accused Chandradeo Bhuian and Bideshi Bhuian came to his house and asked him to call his mother and on hearing the noise, his mother came out of the house and the accused persons started forcibly taking away his mother and when he enquired as to the reasons of taking away his mother, they said that they will take her. He has further deposed that the accused persons also took away his tangi, although there is no such case in the FIR. PW 8 has stated that Chandradeo Bhuian used to call his mother as witch-craft for which, a panchayati had taken place and he had search his mother along with Bhavsagar Singh and in course of search, he found torn pieces of sari, saya and blouse belonging to his mother which he handed over to the police and the police had prepared a paper on which he gave his thumb-impression. In the cross-examination, PW 8 has stated that he had handed over the clothes to the police after four days in the village itself, but PW 11 has contradicted his statement by saying that the informant had sent the clothes to him through the chawkidar. He has further stated that after recovery of the clothes, he had informed the fact of recovery to Indradeo Singh, Shivnan-dan Singh, Ram Bilash Singh and Moti Singh, but these witnesses have not supported the statement of PW 8. PW 8 has clearly admitted in his cross-examination that when the accused persons were taking away his mother, he had not raised any alarm nor he immediately chased the accused persons and he started making chase of the accused after one hour and during this one hour, he had not informed about the occurrence to any villager. PW 8 has clearly admitted in his cross-examination that when the accused persons were taking away his mother, he had not raised any alarm nor he immediately chased the accused persons and he started making chase of the accused after one hour and during this one hour, he had not informed about the occurrence to any villager. He has further admitted that he could not get grace of his mother in the night hour and so, he returned back and even after return to his home, he did not inform to any villagers about the alleged occurrence, rather, in the following morning, he had informed about the occurrence to Indradeo Singh (PW 2), Sheonandan Singh (PW 1), Ram Bilash Singh (PW 4) and Moti Singh (PW 5), who have been declared hostile by the prosecution and in their evidence the aforesaid PWs did not support the prosecution version that the accused persons of this case had taken away the mother of the informant and they also stated that the informant had not told them that his mother was taken away by the accused persons. PW 8 has then stated that all the four brothers were present in the house when the alleged occurrence took place, but in spite of that, they could not stop the accused persons from taking away their mother. PW 8 has denied that he had executed any affidavit before Notary on 28.7.1992. He has also denied to have made statement in the affidavit that the accused Bideshi Bhuian had no hand in kidnapping of his mother. 11. The defence has filed the affidavit (Exhibit-A), which has been proved by DW 1 (Rabindra Prasad), who is an Advocate. He has deposed that the informant Sagar Singh came to him for executing an affidavit which was typed by one Ghuran Ram, on his dictation and he took the deponent Sagar Singh to Surendra Prasad, Notary Public where the deponent Sagar Singh put his DTI in presence of the Notary Public after understanding the contents of the affidavit and he identified his LTI and the Notary public also signed in proof of the affidavit (Exhibit-A). In the cross-examination, DW 1 has stated that he personally knew Sagar Singh and has denied the suggestion that he had no knowledge of the affidavit. 12. In the cross-examination, DW 1 has stated that he personally knew Sagar Singh and has denied the suggestion that he had no knowledge of the affidavit. 12. The contents of the affidavit (Exhibit-A) goes to show that the informant made statement in the affidavit to the effect that on the alleged date of occurrence, it was Chandradeo Bhuian, who went to his house and took away his mother and accused Bideshi Bhuian, who happens to be the sala of the accused Chandradeo Bhuian, was going to his house through the way and when he was trying to rescue his mother, he had also gone along with him up to some distance but when Chandradeo Bhuian did not release his mother and gave threats to him, he returned back to his house and the accused Bideshi Bhuian has got no hand in the alleged kidnapping of his mother. 13. The learned Counsel appearing for the appellant strenuously argued before that apart from the fact that the informant executed affidavit (Exhibit-A), in which he clearly stated that the accused Bideshi Bhuian (appellant) had no hand in the alleged kidnapping of his mother, it is significant that according to the prosecution story and the evidence of the eye-witnesses, namely, PWs 6, 7 and 8, the informant along with his other three brothers were present in the house when the alleged occurrence of kidnapping took place and no attempt was made by the four brothers to rescue their mother, which appears to be highly improbable and cannot be believed. It was next argued that it is also not worth belief that the informant and his brothers did not raise any alarm when the accused persons were taking away his mother in the night hours. In the normal course, they must have raised alarm and must have tried to rescue their mother. There is nothing in the FIR to show that the accused persons were armed with any fire-arm or any weapon, due to which, they were terrorised and due to fear, they did not try to rescue their mother. Admittedly, the accused persons were two in numbers, whereas, the informant and his brothers were four in numbers and they could have easily rescued their mother and that would have been their normal course of conduct. Admittedly, the accused persons were two in numbers, whereas, the informant and his brothers were four in numbers and they could have easily rescued their mother and that would have been their normal course of conduct. That apart, it was expected that when the accused persons were taking away the mother of the informant, they should have raised alarm and it has come in evidence that house of many persons are situated in the nearby locality and on hearing alarm those persons must have come out and the informants mother could have been easily saved but no alarm was raised by the informant or his brothers, which creates doubt regarding the prosecution story. The learned Counsel further argued before me that the informant did not make any attempt to inform the matter to the police on the same night and it is not worth belief that the informant and his brothers would sit tight for the whole night and in the following morning also they did not go the police station to inform about the occurrence and when the police came to their door, they narrated about the alleged occurrence. So, all these circumstances speak a volume of doubt about the prosecution story. It was further submitted that corups delicti was never recovered by the police till the submission of the charge-sheet and simply on the basis of some torn pieces of clothes belonging to the mother of the informant, the police reached to the conclusion that she has been murdered, although the police visited the place where the pieces of clothes were found but did not find any clue regarding the murder of the informants mother and it is all the move surprising that without getting any positive evidence regarding the murder of the informants mother, the police submitted charge-sheet in the case under Sections 302/201 of the Indian Penal Code against the accused persons, which is manifestly wrong and illegal. The learned Counsel submitted that the learned Court below did not hold the appellant guilty of offence under Section 302/201 of the Indian Penal Code and the appellant was rightly acquitted of the alternative charge under Section 302/201 of the Indian Penal Code and the learned Court below has found that there is no reliable evidence of murder. The learned Counsel submitted that the learned Court below did not hold the appellant guilty of offence under Section 302/201 of the Indian Penal Code and the appellant was rightly acquitted of the alternative charge under Section 302/201 of the Indian Penal Code and the learned Court below has found that there is no reliable evidence of murder. So, one part of the prosecution story that the informants mother was killed has been disbelieved by the learned Trial Court, but it is surprising that even after disbelieving the story of murder, the learned Court below convicted the appellant under Section 364 of the IPC on unreliable evidence of PWs 6, 7 and 8. The learned Counsel, therefore, submitted that in any view of the matter, the learned Court below should have acquitted the appellant by giving benefit of doubt to him. The learned Counsel also pointed out the contradictions occurring in the evidence of PWs 6, 7 and 8 which have been referred to above. 14. 5 The submission advanced by the learned Counsel for the appellant carries much for in it. I also find that it is quite unnatural and not worth belief that the two accused persons will go the house of the informant and in presence of four brothers will be able to take away their mother by force and the brothers will remain silent spectator and will not make any attempt either to rescue their mother or to chase the accused persons. It is also not worth belief that the informant or his brothers will not raise alarm when the accused persons were taking away their mother. They should have raised alarm and if they would have raised alarm, the accused persons would not have succeeded in taking away their mother. No explanation whatsoever has been given by the informant as to why they did not raise any alarm. There is nothing either in the FIR or in the statement of the witnesses which may show that the informant or his brother were bettered to raise alarm or to chase the accused persons. Therefore, the story depicted in the FIR looks highly doubtful and it can not be said that the prosecution had proved the charge under Section 364 of the IPC against the appellant beyond all reasonable doubt. Therefore, the story depicted in the FIR looks highly doubtful and it can not be said that the prosecution had proved the charge under Section 364 of the IPC against the appellant beyond all reasonable doubt. That apart, it would be found that DW 1 proved the affidavit (Ex-hibit-A), executed by the informant himself wherein he clearly stated that the appellant had no hand in the alleged kidnapping of his mother. DW 1 is the Advocate, who had drafted the contents of the affidavit and helped the informant in getting the affidavit executed before the Notary Public. The evidence of DW 1, therefore, cannot be disbelieved and in this view of the matter also, it can be said that the accused appellant is innocent and had not committed the offence of kidnapping for which he stood charged. 15. I am, therefore, of the view that the learned Court below should have taken into consideration the circumstances enumerated above and he should have at least given the benefit of doubts to the accused-appellant instead of convicting him under Section 364, IPC by holding that the prosecution has proved the charge under Section 364, IPC against him beyond all reasonable doubts which appears manifestly wrong and illegal. 16. Regard being had to the facts and circumstances of the case, I hold that the prosecution had not proved the charge under Section 364, IPC against the accused-appellant beyond-all reasonable doubts. 17. I, therefore, give the benefit of doubts to the accused-appellant and hold him not guilty of the charge-levelled against him and acquitted him of the same. Accordingly, the order/ judgment of conviction and sentence proved by the learned Court below Sessions Trial No. 354/92 are hereby set aside. 18. In the result, the appeal is allowed. The accused appellant is directed to be set at liberty forthwith, if not wanted in any other case.