JUDGMENT I.A. Ansari, J. 1. This is an appeal against the judgment and order, dated 31.8.1996, passed by the learned Sessions Judge, Barpeta, in session case No. 277 95, convicting the accused appellants under Section 366/34 IPC and sentencing the accused/appellant No. 1 to undergo rigorous imprisonment for two years with a fine of Rs. 1000 and in default of payment of fine, the accused appellant No. 1 shall undergo further rigorous imprisonment for three months and sentencing the accused appellant No. 2 to undergo rigorous imprisonment for one year and a fine of Rs. 500 and in default, rigorous imprisonment for a further period of three (3) months. 2. The case against the accused, as unfolded at the trial, may, in brief, be stated as follows: The informant, namely, Ranjit Roy's minor daughter, Baby Rani Roy @ Silu, was found missing from her house in the evening of 9.11.1986 from the Village Kalpani at Barpeta Road. After three days of unsuccessful search, the informant lodged, on 12.11.1986, a written Ejahar (Ext-1) alleging, inter alia, that Ishahaque Ali (i.e., accused-appellant No. 1) had Kidnapped informant's said daughter. Treating this Ejahar as First Information Report, Barpeta Road P. S. Case No. 207/86 under Section 366 IPC was registered against the accused appellant No. 1. During the course of the investigation, Smt. Silu was recovered, on 23.12.1986, from a house at Village Khuta bagara, District Dhubri, On her receovery so made, Smt. Silu's statement under Section 164Cr.PC was recorded and she was also medically examined. On completion of investigation, police submitted charge sheet under Section 366/376 IPC against the accused-appellant No. 1. 3. During trial, charges under Sections 366 and 376 IPC were framed against accused-appellant No. 1, but the appellant No. 1 pleaded not guilty thereto. During the course of the trial, the appellant No. 2 was made co-accused in the case by the learned trial Court in exercise of its powers under Section319 Cr.PC and a charge under Section 366 read with Section 34 IPC was framed against her, but she pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 5 (five) witnesses. The accused appellant were then, examined under Section 313 Cr.P.C. In their examinations aforementioned, the appellants denied that they had committed the offences alleged to have been committed by them, the case of the defence being that of total denial. 4. In support of their case, prosecution examined altogether 5 (five) witnesses. The accused appellant were then, examined under Section 313 Cr.P.C. In their examinations aforementioned, the appellants denied that they had committed the offences alleged to have been committed by them, the case of the defence being that of total denial. No evidence was however, adduced by the defence. 5. On completion of the trial, learned Sessions Judge found both the accused guilty of the offence under Section 366 read with Section 34 IPC and convicted them accordingly and passed sentences against them as hereinabove indicated. Hence, this appeal. 6. I have perused the materials on record including the impugned judgment. I have heard Mr. B. Banerjee, learned Addl. Public Prosecutor appearing on behalf of the respondent. 7. The main point, which falls for determination in the present appeal, in this : Whether the findings of guilt arrived at by the learned trial Court are justified on the basis of the evidence on record or not. 8. Upon hearing the learned counsel for the parties and on perusal of the materials on record, what catches the eye, most prominently, is that non of the five witnesses examined by the prosecution was an eye witness to the alleged occurrence of kidnapping of Smt. Silu. This position is not disputed before me. The learned Sessions Judge, however, relied on the statement of Smt. Silu recorded under Section 164 Cr. PC, wherein she had alleged to the effect that she had been kidnapped by accused appellant No. 1 with the aid and support of accused-appellant No. 2. The learned Sessions Judge also relied upon evidence of PW-1, i.e., father of the victim, who claimed that on recovery of his daughter, Silu, she told him that it was accused Ishahaque, who had kidnapped her. 9. In view of the fact that Smt. Silu had not been examined as witness at the trial, the evidence given by her father (PW-1) as to what she had reported to him was nothing but hearsay evidence, which the learned trial Court ought to have kept excluded from the purview of its consideration. Surprisingly enough, this is the piece of evidence on which the learned trial Court appears to have heavily relied for coming to the conclusion that the accused-appellants had kidnapped Silu. Surprisingly enough, this is the piece of evidence on which the learned trial Court appears to have heavily relied for coming to the conclusion that the accused-appellants had kidnapped Silu. This apart, the statement of Smt. Silu recorded under Section 164 Cr.PC was only a previous statement and could not have been treated as substantive evidence against the accused. Learned trial Court, however, relied on such previous statement for the purpose of founding conviction of the accused. If the evidence given by PW-1 as to what his daughter, Silu, had reported to him with regard to the occurrence is kept excluded him the purview of this Court's consideration, as we must do, and if the statement of Smt. Silu is not treated as substantive evidence, as we must do, there remains really nothing in the evidence on records to fast on any of the present two appellants with the alleged offence of kidnapping. 10. Because of what has been pointed out above, it is abundantly clear that there is not even an iota of substantive evidence on record, far less credible evidence, to hold that the present appellants were responsible for the alleged offence of kidnapping of Smt. Silu from the house of her father. Hence, the conviction and sentences passed against the accused appellant must fail. 11. In the result, and for the reasons discussed above, the appeal succeeds. The impugned judgment and order are hereby set aside. The accused appellants are held not guilty of the offence under Section 366 IPC and they are accordingly acquitted of the same. 12. Bail bonds of the accused are cancelled and their sureties are discharged. Send back the case records with a copy of this judgment and order. Appeal succeeds