The accused is entitled to the benefit of doubt when two possibilities are available, one favoring the prosecution and the other benefiting the accused.

JUDGMENT :

Heard learned counsel for the parties.

2. The instant appeal is directed against the judgment of conviction and order of sentence, both dated 16.02.2004, passed by learned Additional District and Sessions Judge-VIII, Dhanbad corresponding to S.T. No.248 of 2002; whereby the appellants have been convicted for the offence under Section 364/34 of the IPC and sentenced to undergo R.I. for a period of Three years with a fine of Rs.2000/- each and in default of payment of fine, further to undergo S.I. for Six months.

3. The brief fact of the case is that on 03.08.2001, Bhagirath Mahato son of the informant-Gujar Mahato was kidnapped by the appellants due to reason that 10 decimals of land owned by one Bhikhu Mahato was purchased by informant son in October, 2000. The appellant No.1 was also negotiating to purchase the said land for lesser consideration. The appellants put pressure upon the son of the informant to reconvey the same or face consequences. Hence appellants along with 10 associates kidnapped Bhagirath Mahato in presence of his wife and son.

4. At the outset, learned Amicus for the appellants submits that as per counter affidavit filed by the learned counsel for the State it reveals that the appellant no.2 Rama Mahato had died during pendency of this appeal i.e., on 23.05.2008, as such this appeal may be dismissed against him.

In view of the aforesaid fact, this appeal is hereby dismissed as abated against appellant no.2-Rama Mahato and is being heard only on behalf of appellant no.1.

5. Learned Amicus assailed the impugned judgment on the following grounds:

(i) The informant who is father of the victim is not a trustworthy witness, inasmuch as, in paragraph 7 & 13 he has categorically stated that at about 5 O’ clock his son was recovered by police and he was along with police to reach the hill area, whereas the I.O.-P.W-8 has categorically stated at paragraph 13 that during recovery informant was not with them, thus the deposition of the informant becomes untrustworthy and must have been done with ulterior motive in the background of the fact that there was a land dispute between the informant side and the appellants.

(ii) He further submits that if we take the deposition of the victim, it would transpire that he has been badly beaten by the appellants but for the reason best known to the prosecution, he was not examined by any doctor or if at all he has been examined; no doctor has been examined by the Court so as to corroborate the version of beating.

(iii) As a matter of fact it was only due to fight between two groups for the reason that 10 decimal of land owned by the Bhiku Mahato was purchased by the informant’s son and the appellant no.1 also negotiating to purchase the said land for lesser consideration.

Relying upon the aforesaid submission, he prays for acquittal of the surviving appellant.

6. Learned APP opposed the prayer for acquittal and submits that the learned trial court has not committed any error in convicting the appellants.

7. Having heard learned counsel for the parties and after going through the judgment and the lower court records, it appears that prosecution did not examine Bhikhu Mahato from whom the land was purchased to prove the lis regarding the alleged land casts a doubt on the genesis of the said occurrence.

It further transpires that there is vital contradiction in the deposition of prosecution witness P.W 5, who stated in para 7 and 13 of his deposition that at about 5 o clock his son was recovered by police and he was along with the police at that time. However, P.W. 8 the Investigating Officer in para 13 of his cross-examination stated that during recovery of victim the informant was not with them. He further stated that due to police raid Bhagirath Mahato freed himself from the clutches of alleged criminals and reached before them. In para 16 of his deposition, he stated that that they did not apprehend the alleged criminals since they were at the top of pahari.

Though P.W.