JUDGMENT : This appeal is directed against the judgment of conviction dated 22nd September, 2001 and order of sentence dated 24th September, 2001 passed by 7th Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No.106 of 1985 holding the accused Sudama Thakur and Shiv Kumar Thakur guilty for the charges under Sections 367 and 370 of the Indian Penal Code and convicted for the same. Accused Pannalal Bind was found guilty under Sections 374 and 323 of the Indian Penal Code but he was acquitted of the charges under Section 367 of the Indian Penal Code. The convicts Sudama Thakur and Shiv Kumar Thakur were found guilty under Sections 367 and 370 of the Indian Penal Code but they were sentenced under Section 367 of the Indian Penal Code. No separate sentence under Section 370 of the Indian Penal Code was awarded as a result convicts Sudama Thakur and Shiv Kumar Thakur were sentenced to undergo rigorous imprisonment for seven years each whereas convict Pannalal Bind was sentenced to undergo rigorous imprisonment for six month each under Sections 374 and 323 of the Indian Penal Code. Both the sentences shall run concurrently. The court further held that there is no need to impose any fine upon convict Sudama Thakur and Shiv Kumar Thakur under Section 367 of the Indian Penal Code. 2. The short fact of the case is that Officer-in-Charge of Patan Police Station registered a case under Section 363A IPC against Shiv Kumar Thakur, Sudama Thakur and Panna Babu on 26.03.1984 after recording the fardbeyan of Ganga Bhuiyan S/o Sukhdeo Bhuiyan resident of village Chhichhori P.S. Patan, District Palamau wherein it was alleged that two and half months before accused Shiv Kumar Thakur and his brother Sudama Thakur took away 1. Kodu Bhuiyan 2. Krishna Bhuiyan 3. Birendra Bhuiyan 4. Vikaram Bhuiyan, 5. Koilar Bhuiyan 6. Mogal Bhuiyan 7. Bholta, 8. Karikha Bhuiyan 9. Shyamdev Bhuiyan 10. Vijay Bhuiyan 11. Bachhan Bhuiyan 12. Nathu Bhuiyan, 13. Preman Bhuiyan 14. Ganesh Bhuiyan 15. Vinod Bhuiyan 16. Rajdhani Bhuiyan 17. Parmod Sah 18. Japta Mochi 19. Naresh Mochi, 20. Suresh Mochi 21. Jogan Mochi 22. Innar Mochi 23. Vinod Mochi 24. Ramadhar Mahto 25. Shivnath Thakur 26. Raghubans Mochi 27. Munni Mochi 28. Madan Mahra in the factory of Panna Babu resident of Mirzapur in the State of Uttar Pradesh for working as labourer. Vinod Bhuiyan 16. Rajdhani Bhuiyan 17. Parmod Sah 18. Japta Mochi 19. Naresh Mochi, 20. Suresh Mochi 21. Jogan Mochi 22. Innar Mochi 23. Vinod Mochi 24. Ramadhar Mahto 25. Shivnath Thakur 26. Raghubans Mochi 27. Munni Mochi 28. Madan Mahra in the factory of Panna Babu resident of Mirzapur in the State of Uttar Pradesh for working as labourer. Shiv Kumar Thakur disclosed that he was a Munsi in the factory of Panna Babu which was situated in village Belbariya, P.S. Chilku, District-Mirzapur (U.P.). The further case of prosecution is that when Ganga Bhuiyan, informant of this case and Banbari Bhuiyan went to see their sons in the factory of Panna Babu then they found that all the boys were knitting carpet. The health of the boys were found deteriorated. The boys told them that the foods are not provided in time. When the informant tried to take away his son, then Panna Babu told him that he can set the boy free after clearance given by Shiv Kumar Thakur who was maintaining their accounts. But Shiv Kumar Thakur did not permit informant to take away his son. The wages of boys were also unpaid. After investigation of the case, charge sheet under Sections 365, 367, 368, 374, 370, 323, 120(B) of the Indian Penal Code against all the accused persons were submitted. The defence took the plea of false implication in this case. The prosecution altogether examined 26 witnesses whereas defence has examined only one witness Sudama Thakur, who is also one of the accused in this case. The defence has also produced Attendance Register from January, 1984 to April, 1984 of the office of Veterinary Hospital, Bishrampur, District-Palamau marked as Ext.A, Certified copy of Judgment dated 29.05.1989 of Sessions Trial No.105 of 1985 of the Court of Additional District & Sessions Judge-VI, Palamau marked as Ext.B and Certified copy of Charge sheet of G.R. Case No.537 of 1984 marked as Ext.-C. The Court after due consideration of the evidences adduced in the case, held Sudama Thakur, Shiv Kumar Thakur and Pannalal Bind guilty and sentenced them accordingly. 3. It may be mentioned here that Babul Bind died during trial of this case whereas Mansa Ram was acquitted of the charges under Sections 367, 374 and 323 IPC 4. 3. It may be mentioned here that Babul Bind died during trial of this case whereas Mansa Ram was acquitted of the charges under Sections 367, 374 and 323 IPC 4. Learned Senior counsel appearing on behalf of the appellants submitted that during pendency of the appeal appellant no.1-Sudama Thakur died in the month of January, 2013 and in his place the legal heirs of appellant no.1 was ordered to be substituted. Therefore, besides the heirs of appellant no.1, Shiv Kumar Thakur and Pannalal Bind are pursuing the appeal. 5. Assailing the judgment, learned Senior counsel submitted that the trial court has failed to consider the ingredient of kidnapping as no case is made out in the facts and circumstance as alleged in this case. The court below has failed by not relying on the statement of P.Ws. 16, 18, 21 and 23 who have stated that the boys have gone to Belbariya (Mirzapur) to learn the art of weaving carpet and this act is not an offence under those Sections. The court below has also failed to consider that the witnesses have contradicted other material particulars. He further submitted that there is absence of mens rea as the case was lodged after two and half months when the boys went to Belbariya alongwith the appellants. The court below has convicted the appellants under Section 374 of the IPC even though no such charge was proved. The trial court has also not taken care that in Belbariya (Mirzapur) there was a Police station and houses of several other persons but no complain or report were lodged by any of the boys, who were said to be captive and ignored the stand of the defence that boys had gone there to learn the art of weaving. Therefore, the judgment of conviction is vitiated and not in accordance with provisions of law. 6. The court below has failed to consider the fact that the boys were not taken by the appellant rather they had themselves went there for getting training of carpet weaving with the consent of their guardians and there was no ill-treatment with any of them. Out of 26 witnesses, 15 witnesses have been tendered by the prosecution and three witnesses have been declared hostile by the prosecution, whereas P.W. 10 is a formal witness who has proved the FIR. Out of 26 witnesses, 15 witnesses have been tendered by the prosecution and three witnesses have been declared hostile by the prosecution, whereas P.W. 10 is a formal witness who has proved the FIR. Counsel for the appellant further submitted that in that circumstance only P.W.1-Banbari Bhuiyan, P.W.2-Sanan Bhuiyan, P.W.4-Suresh Mochi, P.W.7-Lallu Mochi, P.W.11-Mohan Bhuiyan remained, on whose evidence the prosecution found the appellants guilty. Apart from that, order of conviction is bad in law in as much as that the Informant and Investigating Officer of this case has not been examined and the fardbeyan has not been exhibited whereas the FIR has been marked as Ext.1 through a formal witness P.W.-10. He relied on a decision rendered in the case of Karam Singh Munda Versus State of Bihar (Now Jharkhand) reported in 2017 (1) JLJR 672 and submitted that due to non-examination of the Investigating officer it cause prejudiced to the defence. Therefore, the appellants are entitled to get benefit of doubt. 7. Learned Senior counsel submitted that there is no evidence that these minor children were kidnapped from the lawful guardianship. No force was applied so there is no question of going against their will. Therefore, requirement of Section 374 IPC is not applicable against the appellant no.3. He also submitted that due to non-examination of the Doctor, quantum of causing hurt could not be assessed on oral statement that they were beaten, conviction without corroboration under Section 323 IPC would be bad in law. He also submitted that some of the witnesses P.W.2- Sanan Bhuiyan and P.W.7- Lallu Mochi were not named in the list of victim neither in fardbeyan nor in the charge then how their evidence could be relied upon. Besides that non-examination of Investigating Officer also render their evidence irrelevant to this case. Lastly, he submitted that the formal charge is not in accordance with law as the persons named therein “and other victims” is missing. Therefore, the formal charge on this account is also defective. The statement of accused recorded under Section 313 Cr.P.C. is also not fulfilling the need of the Section. Since all children had gone to learn the art of weaving in the factory of appellant no.3 and no force was applied nor any guardian came forward to say that his ward has been enticed away without their consent. The statement of accused recorded under Section 313 Cr.P.C. is also not fulfilling the need of the Section. Since all children had gone to learn the art of weaving in the factory of appellant no.3 and no force was applied nor any guardian came forward to say that his ward has been enticed away without their consent. He further submitted that some adverse condition may be there at the work place but nobody has approached the nearest Police station either by the victim children or their guardians when informant visited the work-place of appellant no.3. The case was lodged at Patan Thana, Daltonganj and not at Mirzapur in the State of U.P. where the children were alleged to have been kept under the condition of slavery. 8. Mr. Ravi Prakash, learned A.P.P. appearing on behalf of State submitted that all the three convicts have been rightly convicted on the basis of evidence of victims and are all along found consistent. So far non-supply of proper food, long working hours coupled with torture, the convicts have connived with each other and took the victims for being employed in a carpet factory and made them slave. The victims persons belong to poor family and have been duped and deprived of their salary also. When the guardians reached and found the deteriorating physical condition of their wards, prayed for release of children from the captivity then money was demanded for release of children which is sufficient to cause conviction in the present case. He also submitted that there may be some minor contradictions and non- examination of Investigating Officer and Doctor which will not prejudice the case of prosecution. The non-mentioning of the name of victim in the FIR will not cause prejudice as these convicts were also involved in similar nature of cases, although they were acquitted as would appear from the Ext.B (Judgment of Sessions trial No.105 of 1985). 9. Considering the above submission of parties and on scrutiny of the evidence adduced on behalf of the prosecution as well as the defence, it would appear that out of 26 witnesses 15 witnesses have been tendered by the prosecution in which most of the witnesses were victim boy. Three witnesses have been declared hostile by the prosecution and they have not supported the case of the prosecution. Three witnesses have been declared hostile by the prosecution and they have not supported the case of the prosecution. In absence of non-examination of Investigating Officer the contradictions could not have been taken from him. Even the informant Ganga Bhuiyan not deposed before this Court. Ganga Bhuiyan and Banbari went to the factory of Panna Babu. Appellant no.3 herein but nearest police station were not approached rather they choose to file the case after they returned and lodged case at Patan Thana in the District of Daltonganj. Only Banbari was examined as P.W.1. He has named Shiv Kumar Thakur-appellant no. 2 that he took his son Shyamdeo and employed in the factory of Panna Babu. During cross-examination he replied that Shiv Kumar Thakur appellant no.2, who had stated that he will be taken to carpet weaving work at Mirzapur where foods are also provided and on this promise he has taken my son but he was tortured there. In Paragraph 13, he had stated that he alongwith Ganga Bhuiyan had approached Patan Thana and with the help of Patan Police children who were lodged at Mirzapur, could be released. The other witnesses P.W.2-Sanam Bhuiyan, P.W.4-Suresh Mochi and P.W.7-Lallu Mochi, all could be categorized as child witness. P.W.4-Suresh Mochi named Sudama Thakur for the first time though the other witnesses namely P.W.1, P.W.2, P.W.7 and P.W.11 on whose deposition the conviction was held have not named Sudama Thakur. So this part of evidence remained uncorroborated. Sudama Thakur was examined as D.W.1 being one of the accused who has proved Ext.A, the attendance register to show that he was all along present at work place. Sudama Thakur was a peon in Veterinary Hospital, Bishrampur and Ext.A shows his attendance to the period between January, 1984 to April, 1984. ******* 10. The court below arrived at a finding and held the appellants guilty under Sections 364 (sic-374?) and 367 IPC. Although the charge under Section (sic – 374?) 364 IPC was not framed. P.W.10-Damodar Mahto has proved formal FIR as Ext.1 but fardbeyan is not brought on record. The charge were framed by mentioning the name of children but the word “other victims” were missing. So those prosecution witnesses were not named in the charge namely P.W.2-Sanan Bhuiyan, P.W.4-Suresh Mochi, P.W.7-Lallu Mochi. The prosecution has heavily relied on their evidence which cannot be accepted. 11. The charge were framed by mentioning the name of children but the word “other victims” were missing. So those prosecution witnesses were not named in the charge namely P.W.2-Sanan Bhuiyan, P.W.4-Suresh Mochi, P.W.7-Lallu Mochi. The prosecution has heavily relied on their evidence which cannot be accepted. 11. Prosecution has proceeded on the premise that children were taken away without the consent of their guardian but the evidences have been adduced that the guardians were knowing his engagement of their sons with the factory of appellant no.3. The child witnesses who were released from Belbaria, Mirzapur most of them not supported the prosecution version therefore, the prosecution choose to tender those witnesses. 12. This Court in Karam Singh Munda Versus State of Bihar (Now Jharkhand) (supra) has held:- “The I.O. has not been examined in this case and no other witness has named the appellant. In our considered view the defence has been vitally prejudiced by non-examination of the I.O. in this case, and even otherwise it is not safe to rely on the evidence of the sole eyewitness, who had taken the deceased with him, and who himself is an accused in a murder case. In the facts, of this case we are of the considered view that the appellant is entitled to get benefit of doubt.” The court below has discarded the plea of defence that the children went there to learn the art of weaving carpet as baseless because appellant no.3- Pannalal Bind had no institute for imparting training in the skill of weaving carpet. The Guardians were had full knowledge about employment of their wards at Mirzapur. The non – examination of Investigating Officers has adversely affected the case. Moreover, the victims who have been caused hurt were not medically examined nor any injury report has been brought on record. Therefore, the conviction under Section 323 IPC cannot be held as proved. 13. Under these circumstances, it would be appropriate that convicts may be extended the benefit of doubt. 14. The judgment of conviction dated 22nd September, 2001 and order of sentence dated 24th September, 2001 passed by 7th Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No.106 of 1985 is set aside. 15. In the result, this appeal is allowed.