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6. After completion of the prosecution evidence on 15.01.2014 the appellants were questioned with incriminating circumstances and evidences brought during the trial against the appellants in which they claimed as if they were falsely Patna High Court CR. APP (DB) No.306 of 2015 dt.18-04-2019 implicated however from the defence side no evidence either oral or documentary has been brought on record.

7. Sri Sanjay Kumar Singh, learned counsel appearing on behalf of the appellant in Cr. Appeal (D.B.) No. 306 of 2015 after placing entire evidence has argued that prosecution though has not established its case beyond reasonable doubt, the learned trial judge has incorrectly passed judgment of conviction and sentence. It has been argued that it is case of the prosecution that prior to the date of occurrence earlier twice the appellants hiring vehicle of P.W. 13 with him as well as his driver (P.W. 10) had visited tourist places in Bodh Gaya. On third occasion it was alleged that the owner of the vehicle was kidnapped however neither the driver of the vehicle i.e. P.W. 10 nor owner of the vehicle, who is the victim (P.W. 13) disclosed name of either of the accused persons involved in the crime. He submits that it appears to be improbable that though the driver and owner of the vehicle were in association with the accused persons, were not aware about the name of either of the accused persons. This circumstance categorically creates serious doubt on the prosecution case. Learned counsel for the appellant in support Patna High Court CR. APP (DB) No.306 of 2015 dt.18-04-2019 of his submission has placed reliance on a Division Bench judgment of this court reported in 2005 (4) PLJR 460 (Md. Mobin Ali @ Moquim Ali vs. The State of Bihar). He submits that in a case of remaining in captivity for about seven days none disclosure of name of accused persons was considered as fatal for the prosecution case and as such in this case also, it has been argued that non disclosure of name of either of the accused persons by the driver or victim may be treated as fatal for the prosecution case. Sri Sanjay Kumar Singh, learned counsel for the appellant has further argued that if for the time being it is assumed that it was a case of kidnapping, in any event prosecution has not been able to establish its case as if kidnapping was done for the purposes of ransom and as such the learned trial judge has incorrectly convicted the appellant for the offence under Section 364(A) of the I.P.C. There are serious lapses of ingredients for application of Section 364(A) of the I.P.C. Alternatively it has been argued that hardly it can be a case under Section 365 of the I.P.C. for commission of which maximum sentence prescribed in the I.P.C. is seven years imprisonment. It has further been argued that prosecution has not brought on record Patna High Court CR. APP (DB) No.306 of 2015 dt.18-04-2019 any material to show as to whether the victim was confined in a room or hut or not, and as such, he submits that there was no case of application of even Section 365 of the I.P.C. It has also been argued by learned counsel for the appellant that despite the fact that formal F.I.R. was drawn on 25.10.2008 without any plausible reason or explanation the F.I.R. in the court was received on 28/10/2008 which also creates doubt on the prosecution case. It has further been argued that during investigation or even during the trial prosecution has not brought on record any paper of the vehicle which was said to be taken away by the accused persons nor the title of the vehicle has been established.

8. Sri Bikramdeo Singh, learned counsel assisted by Sri Narendra Kumar, learned counsel for the appellants in Cr. Appeal (D.B.) No. 909 of 2014 (Munnilal Mahto & Anr. versus The State of Bihar) in furtherance of the submission made by Sri Sanjay Kumar Singh, learned counsel for the appellant in Cr. Appeal (D.B.) No. 306 of 2015 has emphasized that in any event it was not a case of kidnapping for ransom since during entire evidence nothing has been brought on record to show as to whether purpose for Patna High Court CR. APP (DB) No.306 of 2015 dt.18-04-2019 kidnapping was ransom and in that situation instead of convicting the appellants under Section 365 of the I.P.C. the learned trial judge has incorrectly passed judgment of conviction under Section 364-A of the I.P.C. He submits that in the evidence basic ingredients of Section 364-A of the I.P.C. is missing since nothing has been brought on record regarding demand for ransom nor prosecution has made out a case that the victim was coerced or threatened for his death. So far the case of Munnilal Mahto (appellant no. 1 in Cr. Appeal (D.B.) No. 909 of 2014) is concerned, it has been argued that only evidence against this appellant has been brought on record by the prosecution that while the victim was kidnapped and in captive this appellant was providing meal to him and as such it can be inferred that appellant was not knowing regarding the kidnapping of the victim and as such his judgment of conviction and sentence is liable to be set aside.

9. Sri Sachidanand Chaudhary, learned counsel assisted by Sri Lovekush Kumar, learned counsel for the appellant in Cr. Appeal (D.B.) No. 44 of 2015 (Umanath Tiwari versus The State of Bihar), even though most of the Patna High Court CR. APP (DB) No.306 of 2015 dt.18-04-2019 grounds has already been taken by learned counsels in other two appeals, has argued in detail as if the prosecution has falsely implicated the appellant. At the very outset he submitted that in the case there were only two material witnesses. Those were P.W. 10 -Mantu Kumar (driver of the vehicle) and P.W. 13 - Sanjeet Prakash (the victim); otherwise according to Sri Chaudhary, learned counsel for the appellant other witnesses are only formal in nature or witnesses to the seizure list. Despite the fact that in a case of such nature particularly kidnapping for ransom evidence on each point has got much relevance for testing the case, but to the reasons best known to Sri Chaudhary, he has harped only upon as if only two witnesses were material witnesses in the present case oblivious of the fact that in the case witnesses who were present near the Barabar Hills from where the victim was finally taken away to another district- Chapra, those witnesses have supported the prosecution case. Similarly two witnesses hails from a village Bhatkeshari which was the village in the district at Saran (Chapra) where the victim finally after fleeing away from the clutches of the accused persons had firstly arrived and from the said village with the help of those Patna High Court CR. APP (DB) No.306 of 2015 dt.18-04-2019 witnesses had telephonically informed his parents, even those witnesses, as per Sri Chaudhary, were considered as formal witness. We are of opinion that such submissions are required to be noticed only for its rejection. Sri Chaudhary has further argued that test identification parade or T.I. chart has got only corroborative value and he has argued that unless the prosecution establishes its case there was no relevance for noticing the T.I. chart. He further submits that P.W. 10 (driver) who participated in the test identification parade though had identified three accused persons and he deposed the same during the trial, during evidence he failed to identify the accused persons who were in dock and as such, according to Sri Chaudhary, in such situation there was no relevance for test identification parade. He has also drawn our attention to paragraph 16 of the cross examination of P.W. 10 and submits that this witness in his evidence has stated that at the time of test identification parade Police was with him and under pressure of Police identification was done and as such according to him no reliance can be placed on T.I. chart. He further submits that so far appellant- Umanath Tiwari is concerned, though prosecution has established that he Patna High Court CR. APP (DB) No.306 of 2015 dt.18-04-2019 accompanied the victim up to Barabar Hills there is no other evidence on record to show that he participated in subsequent action or not. According to Sri Chaudhary none bringing on record any evidence showing participation of the appellant after the episode of Barabar Hills the appellant was not required to be held guilty as if he was also one of the members of the kidnapping party. This submission is also required to be noticed for its rejection. Moreover in case of kidnapping it is not necessary for the prosecution to bring on record evidences showing that right from the very beginning one had participated till the end. If it is a case of kidnapping for ransom in such situation possibility of involvement of number of groups may not be ruled out. At least in the present case learned counsel for the appellant has admitted that there is evidence that appellant -Umanath Tiwari was one of the companions with the victim along with other accused persons from Gaya to Barabar Hills since during the trial evidence has been brought on record that while accused persons, who were four in number which includes the appellant- Umanath Tiwari, reached near Barabar Hills with driver and the victim they left the driver and vehicle and victim with four kidnappers visited Patna High Court CR. APP (DB) No.306 of 2015 dt.18-04-2019 Barabar Hills and after about ten minutes one of the associates from amongst four returned back and provided Frooti containing sedative to P.W. 10 (driver of the vehicle). After consuming the same he felt drowsiness and became unconscious in between 12.00-1.00 and he remained unconscious up to 4.00 P.M. when only he was awaken by some other person. This circumstance is itself enough to establish that appellant -Umanath Tiwari was active member in kidnapping of the victim. Sri Chaudhary has also argued that in the evidence it has come that about one month back from the date of occurrence the appellants had hired the vehicle of P.W. 13 and visited tourist spots and thereafter on one another occasion also he had come and it was the third occasion when the victim was finally kidnapped. He submits that since the victim was in continuous touch with the appellants and their other associates, there was every possibility of knowing the name of the accused persons, but neither in the F.I.R. nor during investigation either of the two witnesses i.e. P.W. 10 or P.W. 13 had disclosed the name of any of the accused persons. He further submits that during the trial evidence has been brought on record that while the victim Patna High Court CR. APP (DB) No.306 of 2015 dt.18-04-2019 was in captive of the accused persons one Manoj Singh had indicated that he will demand Rs. 10 lakhs as ransom but nothing has been brought on record that the appellant/ Umanath Tiwari had demanded any ransom or not. He further submits that the said Manoj Singh has not been charge sheeted or put on trial along with the appellants. He reiterated that the prosecution has failed to establish the purpose of kidnapping and as such there is no application of Section 364-A of the I.P.C. He has also placed reliance on a judgment of the Hon'ble Supreme Court reported in 2008(2) PLJR (SC) 12 Suman Sood @ Kamal Jeet Kaur vs. State of Rajasthan and has referred to paragraph no. 63 and 67 of the judgment which is quoted hereinbelow:-

25. On perusal of entire evidence as discussed hereinabove it is evident that prosecution has established its case beyond all reasonable doubts. However, at the time of argument Sri Sachchidanand Chaudhay, learned counsel for the appellant in Cr. Appeal (D.B.) No. 44 of 2015 Umanath Patna High Court CR. APP (DB) No.306 of 2015 dt.18-04-2019 Tiwari versus The State of Bihar, had repeatedly emphasized that this appellant was identified as companion of other accused and his role was only up to Barabar Hills from Gaya so he may not be shown as involved in the case of kidnapping for ransom. He has reiterated that after Barabar Hills nothing has been indicated as to whether this appellant remained with the victim or he demanded any ransom. He submits that in absence of establishing a case of demanding ransom there was no case of application of Section 364-A of the I.P.C. Similarly Sri Bikramdeo Singh, learned counsel appearing in Cr. Appeal (D.B.) No. 909 of 2014 so far appellant no. 1 - Munnilal Mahto is concerned, has emphasized that his role in the case was shown only to the extent of providing food / meal to the victim (P.W. 13) while he was under captivity and since prosecution has not brought any evidence that he was involved in the demand for ransom he too was not required to be held guilty under Section 364-A of the I.P.C.