J U D G M E N T

Per Ananda Sen, J. Today this appeal was listed for consideration of bail plea of the appellant after suspending the sentence.

2. Learned counsel appearing for the appellant argued the entire case on merits. He has taken this Court through the First Information Report, in details and also through the evidence of all the 7 (seven) witnesses and also the documents, which have been exhibited. He submits that from the evidence on record and from the materials no case under Section 364 of the Indian Penal Code is made out. He submits that the basic ingredients of Section 364 of the Indian Penal Code, i.e., “kidnapping” or “abduction” is missing in this case. Thus, even if the deceased was murdered later, the offence of Section 364 of the Indian Penal Code cannot be attracted. He submits that the instant Sessions Trial No.377 of 2012 was only under Section 364 of the Indian Penal Code and case under Section 302 has been initiated in the State of West Bengal where the body was found. On this ground, he prays for bail.

3. Learned A.P.P. for the State admits that this trial is only under Section 364 of the Indian Penal Code and the case under Section 302 of the Indian Penal Code is being tried in the other State, i.e., West Bengal where the body was found, being Bara Bazar Police Station Case No.52 of 2012.

4. Considering the arguments of the appellant and the State, wherein they have argued each and every point and taken us through all the evidence, we feel that the entire appeal can be heard finally at this stage.

Further, this appeal has already been admitted for final hearing and the Trial Court Record is already with us and both the State and the Appellant have submitted that they are well equipped with all the documents including the depositions and other materials and they are ready to assist this Court for final hearing.

5. Considering the aforesaid fact, we have taken up this case for final hearing and thus, we are proceeding accordingly.

6. The appellant has preferred this appeal against the judgment of conviction dated 8th September, 2023 and order of sentence dated 13.09.2023 passed by the Additional Session Judge-II, East Singhbhum at Jamshedpur in Sessions Trial No.377 of 2012, whereby the appellant has been convicted for offence punishable under Section 364 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for 10 (ten) years and fine of Rs.50,000/- and in default of payment of fine to undergo further rigorous imprisonment of 01 (one) year.

7. Learned counsel for the appellant submits that the only material to convict this appellant under Section 364 of the Indian Penal Code is that two witnesses had stated that they had seen the deceased along with another in a three wheeler (auto rickshaw / tempo), which was being driven by this appellant. He argues that even if this statement has any evidentiary value, though he denies, in view of the evidence of the investigating officer, this cannot be taken to be a sufficient evidence to convict the appellant under Section 364 of the Indian Penal Code. He submits that the Investigating Officer has given a categorical statement before the Court that none of the witnesses had disclosed before him during investigation that they had seen the deceased in a tempo, which was being driven by this appellant. As per him, in view of the statement of the Investigating Officer, the evidence of witnesses, who had made the statement that they had seen the appellant with the deceased gets demolished. He argues that save and except the aforesaid material, there is no other material to convict the appellant under Section 364 of the Code of Criminal Procedure. He lastly submits that admittedly, the appellant in this case, has not been tried and convicted under Sections 302/201/34 of the Indian Penal Code.

8. Learned A.P.P. for the State submits that two witnesses have categorically stated that they had seen the appellant in company of the deceased and they were i