Point of law: Missing report –Kidnapping or abduction – Acquittal under -Appellant cannot be fastened with the liability for the offence under Section 364 and 368 of the I.P.C. merely because the child was recovered from the possession of the appellant.

JUDGMENT :

Hon'ble Ved Prakash Vaish,J.

1. This is a jail appeal sent by the appellant, namely, Dinesh, S/o Baijnath against the judgment and order dated 14th July, 2009 passed by learned Additional District and Sessions Judge, Lucknow in Sessions Trial No.587/08 whereby the appellant has been convicted for the offence under Sections 364 and 368 Indian Penal Code ('I.P.C.') and sentenced to undergo rigorous imprisonment for six years and to pay fine of Rs.5,000/-, in default of payment of fine to further undergo imprisonment for five months.

2. The facts of the case as unfolded by prosecution during trial are that complainant (who is father of the child) lodged a complaint that his son, namely, Akhilesh aged three years, resident of Munshipulia, D-Block, Indira Nagar, P.S. Ghazipur, Lucknow went missing from Munishipuliya Chauraha on 16.03.2008 at 08:45 P.M; he requested in his complaint that his son be traced and handed over to him. On the basis of said complaint, F.I.R. No.182 of 2008 bearing Case Crime No.421 of 2008 was registered at P.S. Ghazipur, District-Lucknow. On 22.03.2008, at about 05:00P.M., the child was recovered by police from the custody of the accused-appellant from Daliganj Railway Station; seizure memo was prepared and the accused-appellant was arrested for the offence under Section 364/368 I.P.C. On completion of investigation, chargesheet for the offences under Sections 364 and 368 I.P.C. was filed. After complying with the provisions of Section 207 Cr.P.C., the case was committed to learned Sessions Judge, Lucknow.

3. After hearing arguments on charge and considering record of the case, learned trial court found sufficient ground to proceed against the appellant-Dinesh for the offence punishable under Sections 364 and 368 I.P.C. and accordingly, charges were framed on 02.06.2008. The appellant abjured his guilt and claimed trial.

4. In order to prove its case, the prosecution examined as many as five witnesses. Shri Nandu (P.W.1) is complainant/ father of the child. He deposed that his son, namely, Akhilesh aged about three years went missing on 17.03.2008 at 08.:45 P.M.; he lodged a complaint with the police. He has proved the complaint as Ex.Ka.1. He also deposed that on 22.03.2008, his son was recovered from Daliganj Railway Station at 05:00 P.M. from the possession of the accused-Dinesh and the child was delivered to him; thumb impressions of the complainant and his wife were taken. P.W.2 is the mother of the child. She deposed that at the time of incident, her son's age was three years. Her son was missing about four to five months before making her statement and after six to seven days, his son was recovered from the possession of the accused-Dinesh at Daliganj Railway Station. P.W.3 is Rakesh Kumar Singh, Constable, P.S. Ghazipur, Lucknow. He deposed that on 22.03.2008, on the basis of information received from a secret informer, he along with S.I. Vijay Kumar Pandey went to Daliganj Railway Station; the child was recovered from the possession of the accused-appellant and thereafter the appellant was arrested. Seizure memo was prepared at the railway station, the same bears the signature of the appellant and the same is Ex. Ka.2. F.I.R. was written by constable Ashok Kumar Singh and the same bears signature of Ashok Kumar Singh, Constable which is Ex.Ka.3. G.D. in the aforesaid case was written and signed by Ram Prasad Chaudhary, Head Constable, the same is Ex.Ka.4. P.W.4 is Ashok Singh, Mohrir, P.S. Ghazipur, Lucknow. He deposed that on 17.03.2008, he received tehrir, on the basis of which, he recorded F.I.R. No.182 of 2008 having Case Crime No.421 of 2008 under Section 364 I.P.C., the same is Ex.Ka.3. P.W.5 is the Investigating Officer of the case, Vijay Kumar Pandey, P.S.Ghazipur, Lucknow. He deposed that on 16.03.2008, investigation of Case Crime No.421 of 2008 for the offence under Section 364 I.P.C. was handed over to him; he received information from a secret informer that a person was taking a