Conviction under Section 363 for kidnapping established, while acquittal under Sections 366A and 120B upheld due to lack of evidence for conspiracy and illicit intent.

JUDGMENT :

Pradeep Kumar Srivastava, J.

Heard learned counsel for appellants Mr. Arvind Kr. Choudhary as well as learned Additional Public Prosecutor appearing for the State Mrs. Vandana Bharti.

2. Criminal Appeal No. 327 of 2006 is directed against the judgment and order of conviction and sentence dated 28.02.2006 and 03.03.2006 passed by Additional Sessions Judge, Fast Track Court No. II, Deoghar (hereinafter call it as impugned order), whereby and whereunder, the appellants have been convicted for committing offence under Section 363 of the I.P.C. and sentenced to undergo R.I. for five years along with fine of Rs.5000/- each with default stipulation.

3. Against the same judgment, Criminal Revision No. 332 of 2006 has also been preferred by the informant which was admitted for hearing along with Cr. Appeal No. 327 of 2006. In the Criminal Revision, there is prayer for setting aside the impugned judgment and order dated 28.02.2006 to the extent of acquittal of opposite party nos. 2 – 8 and acquittal of present appellants for the offence under Section 366A and 120B of the I.P.C. which has been proved beyond doubt.

FACTUAL MATRIX

4. Factual matrix giving rise to this appeal is that on 28.12.1997 at about 06:00 PM informant’s daughter aged about 15 years (victim girl) went to discharge nature’s call outside the house, but she did not return till 07:00 PM, then his father Haribol Mahto (Informant) and other family members started searching her in the neighbourhood. The present appellants used to visit his daughter frequently and talk her at the time of watching television in his house and on the basis of suspicion present appellants and other family members namely Diwakar Das, Sibiya Devi, Baldeo Rai, Kanti Devi and Nirmal Pujhar were made accused in the F.I.R. which was registered for the offence under Sections 363 , 366A and 120B of the I.P.C.

5. After completion of investigation, charge-sheet was submitted against seven accused persons for the aforesaid offences and after completion of trial other accused persons were acquitted from the charges by giving benefit of doubt, but present two appellants were held guilty and sentenced for the offence under Section 363 of the I.P.C. and sentenced to undergo R.I. for five years along with Rs.5,000/- each with default stipulation which has been assailed in this appeal.

6. Learned counsel for the appellants has submitted that the appellants have been erroneously convicted without cogent and reliable evidence. There is no evidence against the appellants that they have enticed or taken away the minor daughter of the informant. There are several self- contradictory evidence of witnesses. It has rightly been disbelieved by the concerned trail court and the appellants were acquitted under Sections 366A and 120B of the I.P.C., but without framing any charge, appellants have been convicted for the offence under Section 363 of the I.P.C. which is not sustainable under law and fit to be set aside.

In the alternative, it is submitted that both the appellants have surrendered before the Judicial Magistrate, First Class on 27.02.1998 and vide order dated 29.01.1999 passed in Cr. Miscellaneous Petition No. 24779 of 1998 by the Honb’le Patna High Court they were directed to be released by furnishing the bail bond and were released on 03.02.1999 bail as such remained in custody about one year and have sufficiently been punished. Appellants are also ready to deposit the fine amount awarded by the concerned trial court if not so deposited. Hence, sentence of the appellants may be reduced to imprisonment a