JUDGMENT - TAHILRAMANI V.K., J.:---Through this appeal, the appellants are challenging the judgment and order dated 1-4-99 passed by the learned IInd Additional Sessions Judge, Kolhapur in Sessions Case No. 61 of 1998. By the said judgment and order, the appellants have been convicted for the offence punishable under section 364-A r/w section 34 I.P.C. and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/- i.d. to suffer R.I. for six months. 2. The facts which are evident from the evidence on record, are briefly stated as under :- The incident took place on 9-4-97 at Hupari, Taluka Hatkanangle, District Kolhapur. One minor boy viz. Sanjyot Satish Gajare (P.W. 10) was about 9 years old at that time. The said Sanjyots father was the nephew of the complainant Ashok Bhoje (P.W. 7). The father of the said Sanjyot was previously residing at Hupari. However, he shifted to Kagwad (Karnataka State) and therefore, Sanjyot and his sister Nikita were residing with Ashok Bhoje whom he regarded as a grandfather. Sanjyot was studying in an English School at Hupari. On 9-4-97, as usual, Sanjyot Gajare had left for his school in the morning at about 7.00 a.m. When Sanjyot was near the compound of the school, he was forcibly put in a car by appellant No. 1 Balaso Maruti Kale (original accused No. 1) and appellant No. 2 Anil Maruti Kale (Original accused No. 2). The appellant No. 2 Anil Kale threatened Sanjyot to kill him and Anil Kale was having a knife with him. They took the car in a field. In the field, Sanjyot was taken to one room where his hands and legs were tied with rope. Sanjyot was asked for the phone number of his house and Sanjyot gave the phone number. Thereafter, appellant Balaso Kale left the room and went away in a car. However, appellant No. 2 Anil Maruti Kale remained with Sanjyot inside the room. One adhesive tape was later applied to the mouth and eyes of Sanjyot. They were in the room till evening. Meanwhile, Ashok Bhoje had been to his shop at 10.00 to 10.30 a.m. and he returned back at about 12.00 to 12.30 p.m. from the shop. Nikita i.e. the sister of Sanjyot returned from school in the afternoon, however, Sanjyot did not return. They were in the room till evening. Meanwhile, Ashok Bhoje had been to his shop at 10.00 to 10.30 a.m. and he returned back at about 12.00 to 12.30 p.m. from the shop. Nikita i.e. the sister of Sanjyot returned from school in the afternoon, however, Sanjyot did not return. The complainant-Ashok Bhoje searched for Sanjyot, however, he did not find him and returned back to his house at about 3.00 p.m. Thereafter, he received one telephone call. The person on the phone informed Ashok Bhoje that they have kidnapped Sanjyot Gajare and he asked for ransom amount of Rs. 3 lacs and threatened to kill Sanjyot if the ransom amount is not paid. He also threatened the complainant not to inform to the police. The person on the telephone further informed that he should keep the ransom amount of Rs. 3 lacs ready and he will again give a telephone message as to where the amount is to be paid. After receiving the said telephone message, Ashok Bhoje narrated this incident to his friends. After discussion with his friends, Ashok Bhoje went to the Police Station and narrated the incident to the Police Officer on duty i.e. P.W. 14 Ashok A. Kalekar. At about the same time, P.S.I. Kalekar had received one telephone call from one Jaykumar Gath (P.W. 8) that one boy is kept in one room in the field adjoining his field. The person on telephone informed that he had heard wailing sound of a boy from that room. Thereafter, Ashok Bhoje, his friends alongwith Police Constable Nivrutti Mayekar (P.W. 11) went towards the house of Jaykumar Gath and alongwith Jaykumar Gath went to the said field. Jaykumar Gath pointed out the room where the boy was confined. When all of them reached near the room, they saw the original accused No. 3 Maruti Kale standing below one tree which was at a distance from the said room. The room was locked from outside. They broke open the lock and entered inside the room. Therein they found the kidnapped boy Sanjyot Gajare. The hands and legs of Sanjyot were tied. An adhesive tape was applied to his mouth and eyes. The appellant No. 2 i.e. original accused No. 2 Anil Kale was found standing in the room with a knife in his hands. They broke open the lock and entered inside the room. Therein they found the kidnapped boy Sanjyot Gajare. The hands and legs of Sanjyot were tied. An adhesive tape was applied to his mouth and eyes. The appellant No. 2 i.e. original accused No. 2 Anil Kale was found standing in the room with a knife in his hands. Sanjyot was rescued from the room and thereafter, all of them went to the Police Station alongwith accused Anil Kale and Maruti Kale. Thereafter, the complaint of Ashok Bhoje came to be registered vide C.R. No. 17/97 at Hupari Police Station. After the completion of investigation, the charge-sheet came to be filed against the present appellants and their father original accused No. 3 Maruti Kale. 3. The case was committed to the Court of Sessions in the usual manner. The present appellants Balaso Kale and Anil Kale alongwith original accused No. 3 Maruti Kale were initially charged for the offences punishable under sections 364 r/w 34, 387 r/w 34, 342 r/w 34 and 506 (II) r/w 34 I.P.C. However, thereafter, the charge came to be altered to section 364(A) r/w 34 and section 342 r/w 34 I.P.C. The learned Advocate for the appellants stated that after the charge was altered, all the accused persons were given sufficient opportunity to again cross-examine the witnesses. All the accused persons pleaded not guilty to the said charges framed against them and claimed to be tried. 4. During the trial, the prosecution examined 16 witnesses. One of them being the kidnapped boy Sanjyot who is examined as P.W. 10. The learned trial Judge believed the evidence adduced by the prosecution and convicted and sentenced the appellants in the manner stated in para 1, hence, this appeal. It may be stated here that the original accused No. 3 Marutirao Kale who is the father of the present appellants came to be acquitted. The learned trial Judge was of the opinion that as the offence punishable under section 364(A) I.P.C. covers the ingredients of the offence punishable under section 342 I.P.C., therefore, there was no necessity to pass any separate conviction and sentence under section 342 I.P.C. in respect of the present appellants. 5. We have heard the learned Counsel for the parties and perused the entire material on record. 5. We have heard the learned Counsel for the parties and perused the entire material on record. After utmost circumspection, we have reached the conclusion that the appeal deserves to be allowed in respect of appellant No. 1 Balaso Kale. However, in our view, there is sufficient evidence on record which clinches the participation of appellant No. 2 Anil Kale in the crime. We shall first deal with the evidence which has been adduced against the appellant No. 2. 6. As far as the direct evidence is concerned, the prosecution has examined P.W. 10 Sanjyot Gajare. He is the boy who was kidnapped by the appellants, Sanjyot has stated that on 9-4-97, he was going to school. When he was near the school compound, the appellants put him into a car. Appellant No. 2 Anil Kale was having a knife with him and he threatened to kill Sanjyot. Sanjyot stated that he was taken in a car to a field and in the field, he was taken to a room. The hands and legs of Sanjyot were tied with rope. Then he was asked the phone number of his house and Sanjyot gave the said telephone number. Thereafter, an adhesive tape was applied to his mouth and eyes. He has stated that appellant No. 1 left the room and went away in a car and appellant No. 2 remained with him inside the room. He was inside the room upto evening. In the evening, his grandfather Ashok Bhoje (P.W. 7) as well as his friends and one Police Constable had been in the room where he was kept. His grandfather gave a call in his name to which he gave response. Then he heard the sound of opening of the door. His grand father took out the adhesive tapes which were applied on him and at that time he saw appellant No. 2 present there. 7. Nothing is elicited in the cross-examination of P.W. 10 Sanjyot Gajare to discard his testimony as far as appellant Anil Kale is concerned. From the evidence of this witness, it is established that on the date of the incident, appellant Anil Kale and one other person had taken him away in a fiat car to one room in a field where he was kept till he was rescued by his grandfather and the police. From the evidence of this witness, it is established that on the date of the incident, appellant Anil Kale and one other person had taken him away in a fiat car to one room in a field where he was kept till he was rescued by his grandfather and the police. The evidence of this witness is corroborated by the evidence of P.W. 7 Ashok Bhoje and P.W. 11 Nivrutti Mayekar and to a certain extent by P.W. 8 Jaykumar Gath. 8. As stated earlier, the complaint was registered on the information given by Ashok Bhoje (P.W. 7). As per the deposition of Ashok Bhoje, Sanjyot had gone to school, however, he did not return back at the usual time. Hence, Ashok Bhoje made enquiries regarding Sanjyot at school and with his friends, however, he was not found. Thereafter, Ashok Bhoje returned back to his house at about 3.00 p.m. Thereafter, he received a telephone call. The person who had telephoned informed Ashok Bhoje that he had kidnapped Sanjyot and he insisted for a ransom amount of Rs. 3 lacs. The said person also gave threats that if the ransom amount was not given, he will kill Sanjyot. The said person also threatened Ashok Bhoje not to inform the police. Lastly, the person informed that he should keep the ransom amount ready and the said person will again telephone and inform as to where the ransom amount is to be paid. After discussion with his friends, Ashok Bhoje approached the Police Station and narrated the incident to the Police Head Constable Ashok Kalekar (P.W 14). At the same time, a telephone call was received at the Police Station. The person who had called the Police Station informed that one boy was kept in one room in the field adjoining his field. The person who telephoned the police also informed that he heard wailing sound of a boy inside that room. The said information was given by one Jaykumar Gath (P.W. 8). Thereafter, Ashok Bhoje alongwith his friends and Police Constable Nivrutti Mayekar (P.W. 11) went to the house of Jaykumar Gath who took them to the said field and pointed out the room from a distance. That room was locked from outside and one Maruti Kale (original accused No. 3) was found standing under a tree at some distance from the room. That room was locked from outside and one Maruti Kale (original accused No. 3) was found standing under a tree at some distance from the room. They asked Maruti Kale for the key of the lock whereupon he stated that he did not have the key with him. Hence, the lock of the room was broken. The complainant Ashok Bhoje saw that his nephew was inside the room. His hands and legs were tied with a rope and an adhesive tape was applied to his mouth and eyes. He also saw appellant No. 2 Anil Maruti Kale present in the room and he was having a knife with him. They untied the ropes and took out the adhesive tapes, thereupon Sanjyot disclosed that while he was going to school, accused Anil Kale and one other person forcibly took him in their car. Anil Kale threatened to kill him if he shouted and he was compelled to sit between the seats inside the car. Thereafter, he was taken in a field and confined in a room. 9. Though witness Ashok Bhoje has been cross-examined at length, nothing has been brought out in the cross-examination so as to disbelieve this witness. From the evidence of this witness, it is seen that when they broke into the room where Sanjyot was kidnapped and confined, the appellant No. 2 Anil Kale was standing in the said room with a knife in his hand. 10. Nivrutti Mayekar P.W. 11 was a Police Constable working at Hupari Police Station. The complainant Ashok Bhoje alongwith this witness had gone to the field where Sanjyot was kidnapped and kept. He has stated that at about 5.30 p.m., one Ashok Bhoje had come to the Police Station and informed that his nephew Sanjyot was missing. He also informed about telephone message which he had received asking for ransom amount and giving the threat. At that time, one telephone message was received at the Police Station from one Jaykumar Gath (P.W. 8) who disclosed that one boy was kept in a room situated in the land adjoining his land and asked to send police. Head Constable Kalekar (P.W. 14) directed this witness i.e. Police Constable Nivrutti Mayekar to go to the spot. Thereafter, Mayekar left for the field and he was accompanied by Ashok Bhoje. Jaykumar Gath pointed out the room from some distance. Head Constable Kalekar (P.W. 14) directed this witness i.e. Police Constable Nivrutti Mayekar to go to the spot. Thereafter, Mayekar left for the field and he was accompanied by Ashok Bhoje. Jaykumar Gath pointed out the room from some distance. Thereafter, the deposition of this witness is similar to that of P.W. 7 Ashok Bhoje. Thus, the testimony of this witness brings out the fact that when they broke into the room where Sanjyot was kidnapped and confined, appellant No. 2 Anil Kale was present in the room with a knife in his hand. 11. We found the testimony of witness Nivrutti Mayekar to be totally reliable and trustworthy and we see no reason to discard the testimony of this witness. 12. The evidence of the above two witnesses is corroborated by the evidence of Jaykumar Gath (P.W. 8) who had given the telephone call to the Police Station and informed that one boy is kept confined in a room in the field which was adjoining his field and he had heard the sound of wailing from the room. Jaykumar Gath has pointed out the room and Sanjyot was found in the said room. It was possible that in the afternoon when Sanjyot was given his tiffin to eat, he had wailed and this witness had heard him. We do not find anything in the deposition of this witness to render him untrustworthy. In fact, none of these witnesses had any enmity or grudge against the accused persons nor was there any reason for these witnesses to falsely involve the accused persons. 13. The testimony of Sanjyot Gajare is not only corroborated by the evidence of P.W. 7, Ashok Bhoje and P.W. 11 Nivrutti Mayekar but it is also corroborated by the medical evidence. Immediately after Sanjyot was rescued and taken to the Police Station, the complaint of Ashok Bhoje was recorded and Sanjyot was sent to the Primary Health Centre, Hupari for examination and treatment. The Doctor Nandkumar Banage (P.W. 1) has examined Sanjyot. He has found the following injuries on the person of Sanjyot. 1) Minor abrasions (scratch mark) contusion of ½ c.m. x ½ c.m. left and right wrist, 2) Minor abrasion, scratches, contusion 1 c.m. x ½ c.m. on left and right leg (foot) and 3) Scratch mark at the base of neck ½ c.m. x ¼ c.m. on the base of neck. 1) Minor abrasions (scratch mark) contusion of ½ c.m. x ½ c.m. left and right wrist, 2) Minor abrasion, scratches, contusion 1 c.m. x ½ c.m. on left and right leg (foot) and 3) Scratch mark at the base of neck ½ c.m. x ¼ c.m. on the base of neck. The doctor has stated that the injuries are possible due to rope (article 2) shown to him. 14. Thus, as far as appellant No. 2 Anil Kale is concerned, the evidence of Sanjyot (P.W. 10), Ashok Bhoje (P.W. 7) and Mayekar (P.W. 11) clearly brings out his involvement in the crime. However, the case of appellant No. 1 is not the same and we shall shortly advert to the evidence against him. 15. The learned Advocate for the appellants has submitted that the statement of Sanjyot was not recorded on the very same day i.e. on 9-4-97 but it was recorded only on the next day. He has contended that Sanjyot being the main person, his statement ought to have been recorded on the very same day and recording the said statement on the next day raises suspicion in the mind that the appellants have been falsely implicated in the present case. In this connection, it is to be noted that Sanjyot is a young boy of hardly 10 years of age. He had gone through a traumatic experience. When he was rescued from the room in the field, at the very place, he had disclosed to the police and his grand father about the details of the incident. The complaint has been registered on the information given by P.W. 7 Ashok Bhoje. In the said complaint, it is clear that it has been lodged on the basis of the information given by Sanjyot in respect of the incident. The appellant No. 2 Anil Kale was found standing in the said room with a knife and he was apprehended at the spot. From the evidence of the Investigating Officer, Dilip Gole (P.W. 16), it is seen that after Sanjyot, Ashok Bhoje and others came to the Police Station, Sanjyot was immediately sent to the Primary Health Centre for examination and treatment. Thereafter, the Investigating Officer has recorded the complaint on the information given by P.W. 7 Ashok Bhoje. From the evidence of the Investigating Officer, Dilip Gole (P.W. 16), it is seen that after Sanjyot, Ashok Bhoje and others came to the Police Station, Sanjyot was immediately sent to the Primary Health Centre for examination and treatment. Thereafter, the Investigating Officer has recorded the complaint on the information given by P.W. 7 Ashok Bhoje. The Investigating Officer has specifically stated that thereafter, he was busy with the investigation of this case i.e. recording of various panchanamas, etc. by which time, it was very late in the night and hence, on that date, he did not record any further statements. We have also noticed that F.I.R. in this case is around 8.20 p.m. and thereafter, four panchanamas were drawn until late in the night on the very same day. In our opinion, looking to the facts that the complaint was lodged by Ashok Bhoje on the basis of the incident narrated by Sanjyot, we do not think that recording of the statement of Sanjyot on the next day or even thereafter would prove fatal to the prosecution case in any manner. 16. The learned Advocate for the appellants has further contended that P.W. 7 Ashok Bhoje was accompanied by some of his friends and the said persons have not been examined. In our view, examination of the said witnesses would only lead to reproducing of the evidence which has already been given by Ashok Bhoje and examination of such witnesses would not have achieved any purpose as they would not have taken the prosecution case any further. The prosecution has already examined one witness on the point and hence, it was not necessary to examine more witnesses on the same aspect. 17. The learned Advocate for the appellants has thereafter submitted that the missing report/or complaint relating to the kidnapping of Sanjyot which was given by Ashok Bhoje earlier at the Police Station has not come forward. Thus, the prosecution has suppressed the said report/complaint and due to this, an adverse inference ought to be drawn against the prosecution. In this context, it would be pertinent to see the evidence of P.W. 11 Police Constable Nivrutti Mayekar. Thus, the prosecution has suppressed the said report/complaint and due to this, an adverse inference ought to be drawn against the prosecution. In this context, it would be pertinent to see the evidence of P.W. 11 Police Constable Nivrutti Mayekar. He has specifically stated that when Ashok Bhoje informed him that his nephew was kidnapped, at that time, the telephone message was received from Jaykumar Gath (P.W. 8) informing that one boy was kept in a room adjoining to his land and asked to send the police. Hence, complaint of Ashok Bhoje was not reduced into writing at that time, but this witness alongwith Ashok Bhoje and other persons went to the house of Jaykumar Gath who took them to the said field and pointed out the room. Looking to these facts, we are of the opinion that in the said circumstances, it was more natural for all of them to rush to the field rather than to sit down in the Police Station and reduce the complaint into writing. The complainant would obviously be anxious to rush to the field and so would the police. In view of the categorical statement of P.W. 11 that the complaint was not reduced into writing at that time, there is no question of the prosecution suppressing any such complaint or missing report. Thus, there is no merit in the say of the learned Advocate for the appellants. 18. The learned Advocate for the appellants has contended that no evidence has been brought forward by the prosecution as to from where the telephone call was made and in such case, it cannot be believed that the boy was kidnapped and the call for ransom amount was made by the accused. In our opinion, it was not necessary for the prosecution to prove from where the telephone call was made as the evidence of P.W. 7 Ashok Bhoje is on record to show that he received a telephone call informing him that Sanjyot had been kidnapped and the caller had asked for ransom amount of Rs. 3 lacs and gave threats that if the same was not paid, Sanjyot would be killed. 19. 3 lacs and gave threats that if the same was not paid, Sanjyot would be killed. 19. In respect of the appellant No. 2 Anil Kale, the learned Advocate has submitted that it is the defence of appellant No. 2 that he had gone into the room in the field after removing some tiles on the roof in order to rescue the boy. He has brought to our notice that 2/3 tiles were missing from the roof and he submitted that it is from the gap in the tiles in the roof that the appellant No. 2 had entered into the room and it was in these circumstances that he was found in the room when the police and others broke into the room. However, in view of the categorical statement of P.W. 7 and P.W. 11 that when they broke into the room, appellant was standing with a knife in his hand and in view of the evidence of Sanjyot that Anil Kale was the same person who had kidnapped him in the car and thereafter, he kept him in the room in the field, this defence taken by appellant No. 2 cannot be believed. 20. The learned Advocate for the appellant has contended that adhesive tape was put on the mouth and eyes of Sanjyot when he was kept in the room and accused No. 1 had left the room soon thereafter. The learned Advocate has submitted that appellants No. 1 and 2 were identified by the witnesses in a test identification parade and there are several lacunae as far as the parade is concerned and hence, it would be highly unsafe to rely upon the identification of the appellants by any of the witnesses. He has pointed out that there were only 7 dummies in the parade and all the three accused persons i.e. original accused Nos. 1, 2 and 3 were put in the parade. Accused No. 3 was 55 years of age and accused Nos. 1 and 2 were around 20 years of age. Moreover, he has contended that there was delay in conducting the Test Identification Parade. The appellants were arrested on 9-4-97 and the parade was held only on 16-5-97 and there is no explanation for the delay in conducting the parade. Accused No. 3 was 55 years of age and accused Nos. 1 and 2 were around 20 years of age. Moreover, he has contended that there was delay in conducting the Test Identification Parade. The appellants were arrested on 9-4-97 and the parade was held only on 16-5-97 and there is no explanation for the delay in conducting the parade. Moreover, Sanjyot (P.W. 10) has specifically stated that when he had gone for the parade, he was called by the police so also his grandfather was called by the police to the other room. 10-15 persons were present in that room and he identified all the accused persons in that room. Thus, it was urged that police personnel were not excluded from the parade proceedings. Thus, he submitted that looking to all these lacunae, the identification of the accused cannot be relied upon. We find some merit in the above contention as far as the appellant No. 1 is concerned. 21. As far as the case of appellant No. 2 Anil Kale is concerned, even if there are various lacunaes in the parade and the parade is vitiated, the same would not affect the case of the prosecution in relation to appellant No. 2. Sanjyot had sufficient time to see the appellant No. 2. Moreover, when the police and the complainant Ashok Bhoje entered into the room where Sanjyot was confined, appellant No. 2 was found in the said room with a knife in his hand. Thus, Anil Kale was caught red handed, thereafter he was apprehended and taken to the Police Station, in such case no identification parade was necessary. Thus, even if the identification parade is excluded, it would not affect the prosecution case as far as Anil Kale is concerned. 22. The case of appellant No. 1 stands on a very different footing. As far as appellant No. 1 Balaso Kale is concerned, he was not present when the police alongwith P.W. 7 Ashok Bhoje broke into the room where Sanjyot was kidnapped and confined. According to Sanjyot, he was one of the persons who had forced him to sit in the car and thereafter, he was brought to the farm where he was kept in the room. Sanjyot has stated that soon thereafter, appellant No. 1 left the room. According to Sanjyot, he was one of the persons who had forced him to sit in the car and thereafter, he was brought to the farm where he was kept in the room. Sanjyot has stated that soon thereafter, appellant No. 1 left the room. Appellant Balaso Kale was not caught red-handed by the police with a knife in his hand like Anil Kale. The car journey was not a very long one, therefore, during the journey there was not that much opportunity for Sanjyot to observe Balaso Kale. Moreover, soon after they reached the room Balaso Kale went away. In such case, an identification parade was necessary as far as Balaso Kale was concerned. In such case, the various lacunae in the parade would affect the identification of Balaso Kale. There is no other material which connects Balaso Kale with this crime. Hence, Balaso Kale deserves to be given the benefit of doubt. 24. As observed above, there is sufficient evidence to prove that the appellant No. 2 Anil Kale is guilty of the offence punishable under section 364-A I.P.C. In the result, we pass the following order :- "The judgment and order of conviction and sentence of the appellant No. 2 Anil Kale for the offence punishable under section 364-A I.P.C. recorded by the learned IInd Additional Sessions Judge, Kolhapur in Sessions Case No. 61 of 1998 is confirmed. The appeal is dismissed qua appellant No. 2. The appellant No. 2 is in jail and shall serve out the sentence. The order of conviction and sentence of the appellant No. 1 for the offence punishable under section 364-A r/w 34 I.P.C. and sentence of imprisonment for life and fine of Rs. 1000/- i.d. to suffer R.I. for six months is set aside and he is acquitted therein. It is further directed that the fine, if any, paid by the appellant No. 1 shall stand refunded to him. The appellant is in jail and shall be released forthwith unless required in some other case. The appeal is partly allowed. -----