JUDGMENT Mandhata Singh, J.-Prosecution case initiated on written complaint of one Sonamati Devi Devi, in brief is that on 29.7.1984 at about 11.00 a.m. accused appellants taken away Lakhendra Paswan aged about 11-12 years who is traceless till today. Really she found her son missing from the house. she waited for 3-4 days. thereafter she went to accused persons enquired about her son but they did not disclose his whereabout rather abused her. Again she went to appellants with some villagers who gave threatening about filing of case then a time of 15-20 days was requested but of no consequence rather an assurance was given about his appearing after Dasehra. Accused appellants were found absent from their house at the same time informant knew about criminal activity of accused appellants that they were involved in kidnapping of boys and girls. It was told by villagers about watching the victim to the house of appellant No.1. 2. After concluding the trial, the case is ended in conviction under Section 363 of the Indian Penal Code. 3. Learned counsel for the appellants submits that appellant No. 1 Yugal Thakur has died during the pendency of the appeal. An affidavitted petition is there on record to the above effect. As such, his (appellant's) case stands abated. 4. In all nine witnesses are examined in the case. They are PW 1 Janak Paswan, PW 2 Ramcharitar Bhagat, PW 3 Sona Devi, PW 4 Maithur Bhagat, PW 5 Ramdeo Paswan. PW 6 Amiri Paswan, PW 7 Ramdeo Paswan. PW 8 Satya Narain Kunwar and PW 9 Md. Shamim. Of them. PWs 4, 5 and 6 are hostile witnesses to state nothing in favour of prosecution case rather they are stating about watching Lakhendra at his house if may not be taken for informant's accusation then also may not be taken to favour the prosecution case. PW 9 is a formal witness, PWs 7 and 8 are I.Os of the case. Only three of the witnesses are material on the point of taking place of the incident and all the three have categorically stated about taking place of the incident that all the accused appellants came to the victim boy while he was playing with a boy Arjun and daughter of Ramdeo and on pretext of ailment of his maternal grand father took him with them. Of them, PW 3 is not an eye witness rather she received information from PW 1 and PW 2. PWs 1 and 2 are specific on the point that they saw coming of the accused appellants to the boy while he was playing with above Arjun and daughter of Ramdeo and taking him away with them on the pretext that his maternal grand father was ill. 5. One thing is admitted to the parties that earlier to the incident a sale deed was executed by the said victim Lakhendra in favour of some of the appellants that was not being accepted by Lakhendra or his family members on the ground that Lakhendra was minor at that time and force was used to get the same executed rather that has been only shown reason behind the kidnapping. Age of victim Lakhendar is challenged. Apart from material appeared in the case, parties have adduced evidence on this point that is judgment of title suit No. 160/63 of 1986/92 (exhibit-4). P.Ws 1, 2 and 3 are also there to state the age of victim and on this point they have been cross-examined, something has appeared also according to accused appellants to belie the statement made by the prosecution witnesses. They can be discussed if needed in case material appeared in the case leads to kidnapping. 6. Kidnapping is challenged on the ground that force never was used in kidnapping rather all the accused appellants came to the victim boy while he was playing with Arjun and daughter of Ramdeo and took away on the pretext that his maternal grand father was ill. specifically it is said that there could be no occasion about coming of five accused appellants. if that is taken in consideration then boy and girl playing with the victim should be examined really P.Ws 1 and 2 were at their door which was at some distance as appeared in statement of PW 1. Non-examination of these witnesses, in my view, is a death blow for prosecution case specifically in the circumstance that differences/enmity was there in between the parties. Apart from it incident took place in the month of July and complaint petition is filed in the month of October, 1984. In the complaint petition explanation is given that disappearance of victim was avoided as there could be no reason to disbelieve that he would not come back. Apart from it incident took place in the month of July and complaint petition is filed in the month of October, 1984. In the complaint petition explanation is given that disappearance of victim was avoided as there could be no reason to disbelieve that he would not come back. thereafter accused appellants were approached, assurance on their behalf were given for the first time of 15-20 days. thereafter of Dasehra and then they disappeared from the house which appears not acceptable. 7. After having considered the evidence on record and the material recorded by the trial Court. the appeal is allowed. The judgment and order passed in Sessions Trial No. 10 of 1991 by 3rd Additional Sessions Judge. Motihari, East Champaran is set aside. Accordingly, accused appellants are acquitted of their respective charges, discharged from the liabilities of their bail bonds and set at liberty. 8. Copy of judgment along with lower Court records be sent back to the trial Court forthwith. Appeal allowed.