Judgment This is an appeal initially preferred by the two appellants, the husband and wife, against their conviction for the offence punishable under Sections 363 and 366A/34 of the Indian Penal Code and both were sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/-, in default whereof, simple imprisonment for six months and on realization of the fine by them it is to be paid to the victim as awarded by Additional Sessions Judge, Fast Track Court No. – VII, Purnia on 24th day of March, 2007 in Sessions Trial No. 583 of 1996 / Trial No. 211 of 2006 arising out of Sadar P.S. Case No. 349 of 1995. 2. As regard to appellant no. 1, namely, Biso Choudhary, there was an intimation about his death and for the confirmation of the same a report was called for vide earlier order dated 20.10.2011, in compliance whereof, report bearing Letter No. 240 dated 16.12.2012 (kept at Flag ‘A’) was received from the Superintendent, Special Central Jail, Bhagalpur, confirming the death of appellant no. 1 on 16.01.2008 and the appeal with respect to him stands abated. Now the matter shall proceed only for solitary surviving lady appellant, namely, Tara Devi. 3. The prosecution case as reveals from the written application of P.W.-7, Md. Hanif (father of the victim girl) dated 05.10.1995 is that his minor daughter Nazma @ Guria, aged about 13 years has been missing from 11.00 a.m. on 30.09.1995, wherein, initially there was an impression of her being in neighbourhood, but when she did not return even by 7-8 p.m. hectic search was started, which went in vain. However, on 05.10.1995 one Munna (P.W.-4) a neighbour intimated that he had seen the daughter of the informant going in a Auto Rikshaw with one Balia, who used to stay with deceased appellant no. 1 and other two named accused persons, namely, Pappu and Kurban had also been residing there with him, but Balia and Kurban disappeared. On basis of such information the informant raised finger against these two appellants having doubt of their involvement in disappearance and kidnapping of his daughter. And, on basis of the above information the case was instituted and charge-sheet was submitted against appellant no. 1 and one Pappu. The investigation was kept pending against appellant no. 2 and other two named accused persons, Balia and Kurban. And, on basis of the above information the case was instituted and charge-sheet was submitted against appellant no. 1 and one Pappu. The investigation was kept pending against appellant no. 2 and other two named accused persons, Balia and Kurban. Subsequently, supplementary charge-sheet was submitted indicating remaining two absconders, giving rise to two session’s trial bearing Nos. 583 of 1996 and 202 of 2000, which were amalgamated. In the meantime, co-accused, Pappu Mishra absconded and trial against the two appellants only proceeded during which prosecution has examined altogether seven witnesses and produced solitary documentary evidence Exhibit-1, “The statement of Nazma Khatoon @ Guria @ Shakila under Section 164 of the Code of Criminal Procedure in Sadar P.S. Case No. 349 of 1995”. 4. On the other hand, on behalf of the appellants there is neither any documentary nor any oral evidence and on considering the materials available the trial court convicted and sentenced the appellants in the manner aforementioned. 5. It is contended on behalf of the appellant that the prosecution has not been able to establish the involvement of the appellants in the case rather they have falsely been implicated only due to business rivalry taking undue advantage of alleged disappearance etc. of the victim and contrary to their own statement as made in written application they produced the witnesses and even the informant also made statement during trial and also influenced the victim for not explaining anything. Further, neither the Doctor nor the Investigating Officer has been examined also causing serious prejudice. On the other hand, the counsel representing the State supported the findings of the court below and submits that the victim’s statement alone is sufficient to uphold the conviction and sentence of the surviving appellant. 6. Out of total seven prosecution witnesses, P.W.-4, Munna, is the person on whose information the case was instituted naming the appellants and other accused persons, but he has except stating that he could see the victim on Auto Rikshaw along with two-three persons going towards station, has identify none else than the victim and five-six days thereafter while her parents were in search he intimate the same thing. Since, this witness is not declared hostile on any portion the very source of information indicating implication of the appellants goes away. 7. P.Ws.- 1, 2 & 3, namely, Md. Alauddin, Md. Ajamal and Md. Since, this witness is not declared hostile on any portion the very source of information indicating implication of the appellants goes away. 7. P.Ws.- 1, 2 & 3, namely, Md. Alauddin, Md. Ajamal and Md. Shakur, are the persons close to the informant’s family have come to say about the occurrence and based their statements on the information given by the informant (P.W.-7) and his wife (P.W.-5) that the victim was on the fateful day called for surviving appellant through her son (neither named accused nor appeared as witness) and she sent her with three absconding accused persons and was subject to sexual assault etc. during her period of captivity for more than a week. But, apart from the fact as emerged from the cross-examination that they did not made any such statement before police during investigation, they appear to be hear say witnesses, but also not stating prosecution version in original rather speak developed version. 8. P.W.-5, Nasima Khatun (mother of the victim girl), likewise, P.Ws.- 1, 2 & 3 comes to say that on the fateful day at about 11.00 a.m. while she was in the hotel with the victim, one Rajesh (son of the appellants) came there calling the victim and as her mother was calling she (the victim) went with him, but never returned and on the same evening when she contacted the appellants and their family, but they bluntly refused about any knowledge as regard to her daughter. During the search P.W.-4 made and gives the information about the victim with absconding accused persons, Kurban, Balia and Pappu and, thereafter, her husband instituted the case and nine-ten days thereafter her daughter, the victim, could be recovered from Katihar, but apart from her statement contrary to prosecution version rather contrary to statements of P.W.-4 i.e. source of information about the victim being with three absconding accused persons etc. More so, had this witness being mother of the victim was aware of her going to the appellants on call, which was bluntly refused. It was the normal conduct to intimate the police immediately, but even if on the ground of family prejudice etc., it is not proper to immediately institute a case. More so, had this witness being mother of the victim was aware of her going to the appellants on call, which was bluntly refused. It was the normal conduct to intimate the police immediately, but even if on the ground of family prejudice etc., it is not proper to immediately institute a case. It must have been stated in the earliest version made before the police by the informant (P.W.-7), who is none else than the husband of this witness, but by none doing so, it is difficult to rely upon the statement of this witness. P.W.-7, Md. Hanif (father of the victim girl), likewise, his wife (P.W.-5) also stated the same thing and on same ground his testimony is also not acceptable. 9. Now comes P.W.-6, Nazma Khatun @ Guria (victim), who at the time of examination on 21.02.2004 said to be aged about 20 years comes with the version that she was called by the surviving appellant through her son Rajesh and when she visited there found all the five named accused persons and the lady appellant entrusted her to go with absconding accused Balia. Initially, she was not ready, but subsequently proceeded along with the absconding accused and deceased appellant at Purnia station where she was provided sweets and thereafter travelled in a train and the absconding accused Balia kept her at his sister’s house for about seven days and committed sexual assault etc. Thereafter, brought her to his maternal grand mother’s house from where she was recovered and brought to court and hospital where medical examination etc. and recording of her statement under Section 164 of the Code of Criminal Procedure was done, marked as Exhibit-1. In cross-examination she states that the hotel of her father and the appellants are at a distance of ten steps and earlier she was never called for by Rajesh, whereas, according to her mother (P.W.-5) it was regular affairs. Further, she states that both the hotels are good running and always there was gathering of customers, but while she was boarded in Auto Rikshaw she raised no alarm rather prior to that up to Khuskibag Chowk she came at foot, but since having no chance she could not intimate her mother. Further, she states that both the hotels are good running and always there was gathering of customers, but while she was boarded in Auto Rikshaw she raised no alarm rather prior to that up to Khuskibag Chowk she came at foot, but since having no chance she could not intimate her mother. Further, in paragraph-12 she states that while she was coming back from Katihar to Purnia on recovery she meet with her parents at the house and, thereafter, proceeded to police station where her parents went in the morning. This gives a room to learned counsel representing the appellant to submit that this is why she has named the appellants in the manner tutored by the parents, who by the time developed their case and likewise stated during trial taking undue advantage of her alleged disappearance with the absconding but known accused. 10. The way the prosecution has developed the case and the statement of the victim recorded under Section 164 of the Code of Criminal Procedure by the police etc. only after her meeting with parents, the submission on behalf of the appellant of their false implication due to business rivalry cannot be ruled out. More so, failure of prosecution to examine the Investigating Officer and Doctor both also causes serious prejudice to the defence since the statement of the witnesses examined during trial with changed version towards which attention was drawn could not be tested and verified. Even on the age and alleged miseries faced, the Doctor could have not been able to throw light, but no such vital evidences were produced rather for the reasons best known withheld. 11. The facts and circumstances discussed above clearly indicate that the prosecution has not been able to establish the involvement of the appellants or commission of any crime by them. Hence, the conviction and sentence respectively dated 24.03.2007 and 26.03.2007 of the appellants (rather now only surviving appellant) as recorded by the trial court is not at all sustainable, consequently, it is set-aside. The appeal is hereby allowed. The solitary appellant above named is set free from the liability of bail-bond furnished on her behalf. Appeal allowed.