Vipul M. Pancholi, J. – Both these appeals are filed under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) by appellants/convicts against judgment of conviction and order of sentence dated 20.05.2016, passed by learned Additional District & Sessions Judge-11, Muzaffarpur in Sessions Trial No.934/14, arising out of Saraiya P.S. Case No.216/14 by which both the appellants have been convicted under Section 364A read with 34 of the Indian Penal Code and sentenced to undergo imprisonment for life and fine of Rs.25,000/- each and, in default of payment of fine, the appellants shall suffer RI for one year.

2. The prosecution case, in brief, is as under: –

Informant, Mantu Singh has given a written complaint to the SHO of Saraiya Police Station stating therein that on 17.06.2014 between 12:00 – 01:00 in the night, his son, aged about 7 years, was kidnapped when he was sleeping with his grandmother. When the mother of the informant woke up at 01:00 in the night, she did not find her grandson and she informed the informant and they started searching for the boy. The informant alongwith villagers also started to make search for the boy and informed the police. The police came and they also tried to search the victim boy.

3. Heard Mr. Radha Mohan Singh, learned counsel for the appellant in Criminal Appeal (DB) No.589 of 2016, Mr. Aaruni Singh, learned counsel for the appellant in Criminal Appeal (DB) No.785 of 2016, and Mr. Sujit Kumar Singh and Mr. Satya Narayan Prasad, learned APP’s. for the respondent- State in both the appeals.

4. Learned Advocates appearing for the appellants would mainly submit that in the FIR lodged by the father of the victim, PW-1, he has not given the names of the present appellants. However, on the basis of the so called confessional statement of one of the accused, another accused was arrested and it is alleged that the victim boy was recovered from the hut of accused Tarkeshwar Ram. It is submitted that with a view to prove the relevant and important aspect, it was the duty of the prosecution to examine the Investigating Officer and the victim boy. However, in the present case, the prosecution did not examine both the aforesaid important witnesses, as a result of which the appellants/accused have lost opportunity to cross-examine the aforesaid important witnesses. It is further submitted that while passing the impugned order of conviction against the appellants, the Trial Court has relied upon the case diary and the reference has also been made with regard to CDR, however, CDR is not exhibited. Further, the Trial Court has committed an error while referring the case diary and that too when the Investigating Officer has not been examined by the prosecution. Learned Advocates further submit that the Trial Court has also simply placed reliance upon the statement of the victim which was recorded under Section 164 of the Code. However, thereafter the boy was not presented for the purpose of cross-examination before the Trial Court.

5. The learned Advocates would further submit that even while recording the statement under Section 164 of the Code, the concerned Magistrate has also not put question to the victim with a view to ascertain whether the said victim boy is in a position to narrate the correct facts or not. It is further submitted that the victim was found, as per the case of the prosecution, on 22.06.2014, however, the informant and the other relatives met the said victim boy in the police station and thereafter the boy was taken to the concerned Magistrate after a period of two days, i.e., on 24.06.2014 for the purpose of recording his statement under Section 164 of the Code and, therefore, there are all chances that during the period of two days, the informant and other relatives may have tutored the said victim. It is further contended that appellant Suresh Sahni has falsely been implicated as he was a tenant and there was rent dispute between the informant an