ORAL JUDGMENT :

1. The criminal appeal is arising out of the judgment of conviction and sentence dated 21.09.2004, on the file of the Learned Additional Sessions Judge, FTC-V, patna, in Sessions Trial No. 776 of 1996, arising out of Patliputra P.S. Case No. 167 of 1995, wherein the appellants were convicted for the offences punishable under Section 363 read with Section 34 of the Indian Penal Code (hereinafter referred as I.P.C.), and were sentenced to undergo rigorous imprisonment for a period of five years along with fine of Rs. 1000/- and in default of payment of fine to suffer rigorous imprisonment for three months each. Further, the appellants were convicted for the offences punishable under Section 365 r/w 34 of I.P.C. and were sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 1000/- and in default of payment of fine, to undergo rigorous imprisonment for three months each. All the sentences were ordered to run concurrently.

2. Heard the arguments for the Learned counsel for the appellants, Mr. Anirudh Kumar Sinha and the Learned Additional Public Prosecutor for the State, Mrs. Anita Kumari Singh. Perused the record.

3. The case of the prosecution, is that one Sun Bahadur/informant preferred his fardbeyan dated 05.09.1998 at about 08:00 P.M. before the Station In-charge, Patliputra Police Station. The contents of the fardbeyan disclose that on 05.09.1995 at about 07:00 A.M., the informant’s son, Mukesh Kumar, student of 10^th class, aged about 14 years, went to his school, i.e., Modern Sainik School, New Patliputra Colony, Patna. He was wearing a half shirt and full pant of white colour, and his height was approximately 4 feet 9 inches. The informant had gone to his duty at the bank. At around 2:30 P.M., his relative, Tuntun Kumar Thapa/P.W.1, brought an envelope and informed him, that his son has been kidnapped. The envelope contained an anonymous letter addressed to the informant’s wife, Mira Devi, instructing her to reach Devi Talkies, Bokaro, within three days with a ransom amount of Rs. 1.5 lakhs, along with a threat that, if she informed anyone or the police, her son’s life would be taken away. Further, the fardbeyan disclose that the school dismissal time was 1:15 P.M. As soon as he received the letter, the informant informed his wife. In turn, she went to the school and came to know that her son attended all the classes.

4. Basing on the fardbeyan of informant, initially, FIR was lodged against unknown persons vide Criminal Case No. 167 of 1995 on the file of Patliputra Police Station for the offences punishable under Section 363 of I.P.C. Later, at the requisition of the Investigating Officer, Section 364 of the I.P.C. was added on 21.10.1995. During the course of investigation, the police recorded the statements of the prosecution witnesses. Further, the victim boy was brought to the house of the informant, by the grandmother of appellant no. 2.

5. On completion of the investigation, police laid charge-sheet against both the accused under Sections 364 of I.P.C. On 19.02.1998, the trial Court framed charge against both the appellants for the offences punishable under Section 364(A) r/w 34 of the I.P.C. The charges were read over and explained to both the appellants, for which they pleaded not guilty and claimed to be tried.

6. During the course of trial, the prosecution has examined altogether eight witnesses i.e., P.Ws. 1 to 8, and marked three documents as Exhibits. The name and details of P.Ws. and list of exhibits are as follows:-

7. On completion of the examination of the prosecution witnesses, the accused/appellants were examined under