Judgment S.N.Jha and B.N.P.Singh JJ. 1. This is a case of kidnapping of a 12 year old boy. But for the timely action of the Police anything could have happened to him. 2. Sujeet Kumar Singh of Village Ghenghta within Chapra Mufassil PS of Saran district was a student of Sadhu Lal Prithvichand High School, Karimchak, Chapra. In the evening he used to take lessons in Taikwando. On 8.11.95, as usual, he left for the school at 9.30 AM but did not return home till 6.30 PM. He usually returned by 5.30 PM. The members of the family started making search. His Uncle Capt. Sheoji Prasad met the Taikwando teacher, Md. Kaiser, at Chhota Telpa. He informed him that in the evening at about 4.30 PM he was seen near Giritola temple along with an unknown person in yellow shirt. Guddu alias Ganpat Kumar Singh, a co-villager and fellow student of the said School, informed him that Om Prakash Singh wearing yellow shirt had taken Sujeet Kumar Singh on a bicycle towards Suraj Mahal on the east of the school. When Guddu asked him to come along Sujeet stated that he would return after dropping Om-Prakash at Katharibag Mahabir Temple. Sujeet however did not return and he (Guddu) left the place. Sheoji Prasad thereafter contacted father of Om Prakash, namely, Bikrama Singh and they together started making search. In course of search they went to the house of a friend of Om Prakash (appellant Musa Rai) at Bara Telpa but could not find him there. However Vinay Ram who was present there informed him that Om Prakash Singh and Pintu Singh had arranged a Maruti Van for visiting Sonepur fair. On the basis of said information Sheoji Prasad contacted Awadhesh Kumar Singh, driver of the Maruti van. He informed that on 8.11.95 the Maruti van bearing registration no. BR 16B 1795 had been hired for three hundred rupees besides cost of petrol, for visiting Sonepur fair. The vehicle was booked by Om Prakash Singh and Pintu Singh. They first went to the house of appellant Shankar Singh. They took besides Shankar Singh one of his friend Srikant Singh in the vehicle and came to Chapra. At Chapra Shankar Singh and his friend went to jail to meet some friend there. Thereafter Om Prakash left the vehicle. Another person wearing blue shirt and black trouser joined the group. They first went to the house of appellant Shankar Singh. They took besides Shankar Singh one of his friend Srikant Singh in the vehicle and came to Chapra. At Chapra Shankar Singh and his friend went to jail to meet some friend there. Thereafter Om Prakash left the vehicle. Another person wearing blue shirt and black trouser joined the group. The vehicle thereafter went towards east at 4.30 PM. He was asked to stop the vehicle near Mahabir temple at Katharibag. After some time Om Prakash Singh came with a boy of 12 years on bicycle. The description of the boy tallied with his nephew Sujeet Kumar. Awadhesh informed that aforementioned persons wanted the boy to enter the vehicle but he did not agree and said that he will go home on his bicycle. Om Prakash thereafter took the boy towards east. At the instance of Pintu Singh, he (Awadhesh Singh) followed them in the maruti van. After they came on the Chapra Sonepur road and reached the Aerodrom gate he stopped the vehicle at the instance of the occupants. At that time it was 5.15 PM. The boy was forced to enter the van. The person in blue shirt and black trouser got down, took the bicycle and went away. Thereafter Awadhesh Singh took the vehicle to a place near Bara Gopal Station, dropped the occupants and after realising money returned home. 3. Having learnt about these events Sheoji Prasad made a telephonic call to Chapra Town Police Station at about 2.30 AM in the same night i.e. the night of 8/ 9.11.95 from the petrol pump at Telpa about kidnapping of his nephew Sujeet Kumar. On the basis of said information Station Diary entry was made at the Chapra Town PS and the Officer Incharge along with the police force rushed to the petrol pump for verification. They found Sheoji Prasad waiting. The fardbeyan of Sheoji Prasad was recorded at 3 AM. The investigation was entrusted to SI A.N.Tiwari. SI A.N.Tiwari first went to the house of Awadhesh Kumar Singh and after recording his statement left for Chanpurwa along with Awadhesh Kumar Singh and others. On way he picked up Janardan Prasad, uncle of Sujeet Kumar, and Anil Kumar, his cousin. They followed the police party on a motorcycle. The investigation was entrusted to SI A.N.Tiwari. SI A.N.Tiwari first went to the house of Awadhesh Kumar Singh and after recording his statement left for Chanpurwa along with Awadhesh Kumar Singh and others. On way he picked up Janardan Prasad, uncle of Sujeet Kumar, and Anil Kumar, his cousin. They followed the police party on a motorcycle. The police party followed by Janardan Singh and Anil Kumar reached the house of appellant Shankar Singh on pointing out by Awadhesh Kumar Singh. Sujeet Kumar was recovered from the house. We would refer to the manner of recovery a little later. After recovery, the appellants and other accused appellant Jitendra Rai alias Musa Rai who was described by his wearing apparel in the fardbeyan, was put on T.I.parade and identified amongst others by Awadhesh Kumar Singh. After completing the investigation and observing the required formalities the police submitted chargesheet against the appellants showing Pintu Singh and Srikant Singh as absconders. 4. At the trial which followed the prosecution examined 12 witnesses to prove its case. The witnesses amongst others are Guddu aiias Ganpat Kumar Singh who was examined as PW 1, Awadhesh Kumar Singh examined as PW 3, Janardan Singh and Anil Kumar examined as PWs. 8 and 9. The informant, Capt. Sheoji Prasad, was examined as PW 10 while the victim boy Sujeet Kumar was examined as PW 6. The Magistrate who conducted the T.I. parade namely Sri Arun Kumar Chaturvedi was examined as PW 2 while the Investigating Officer, SI Amar Nath Tiwari was examined as PW 11. Other witnesses examined include PW 4 Mani Lal Prasad from whose shop the cycle of the victim boy was recovered and PW 5 Shailesh Kumar owner of the maruti van, who turned hostile. The appellants did not examine any witness in their defence. At the end of the trial the appellants were convicted under Section 364 A of the Penal Code and sentenced to imprisonment for life and fine of Rs, 1000/- each in default whereof rigorous imprisonment for one year. Appellant Jitendra Rai alias Musa Rai was also convicted under Section 379 of the Penal Code but no separate sentence was awarded to him thereunder. 5. Appellant Jitendra Rai alias Musa Rai was also convicted under Section 379 of the Penal Code but no separate sentence was awarded to him thereunder. 5. It would appear that material witnesses on whose evidence result of this case depends are PW 1 Guddu alias Ganpat Kumar Singh, a co-villager and also school-mate of the victim boy, PW 3 Awadhesh Kumar, driver of the maruti van who witnessed the entire occurrence, and PW 6 Sujeet Kumar Singh, the victim boy himself. Besides them evidence of PW 8 Janardan Singh and PW 9 Anil Kumar is also relevant on the point of recovery of the victim boy from the house of appellant Shankar Singh. Another witness whose evidence may require specific mention is PW 4 Mani Lal Prasad on the point of recovery of the bicycle belonging to the victim from his house. 6. We will first notice the victims version. Sujeet Kumar Singh stated in his evidence that the school classes were over by 4 PM. He thereafter waited for half an hour for the Taikwando Instructor Md Kaiser. As the Instructor did not turn up he left for home by bicycle. After he covered distance of 20-25 yards his co-villager appellant Om Prakash Singh met him. He made a request to drop him near Mahabir Asthan, Katharibag. Sujeet Kumar was not inclined to oblige. He said that he had to go home by a different route via Telpa but on the insistence of Om Prakash he agreed to drop him near Mahabir Asthan at Katharibag. He sat on the frame of the bicycle while Om Prakash started paddling. When they came near Giritola Mandir, on way to Mahabir temple, he met Md Kaiser, the Taikwando teacher, and told him that as he was having headache he would not take the lesson on that day. Further ahead he met Guddu alias Ganpat Kumar Singh. On being asked he told him that he would return home after dropping Om Prakash. After proceeding further, near Mahabir Asthan, Om Prakash took the bicycle to a maruti van which was standing at Mahabir Asthan from before. Om Prakash asked the driver of the maruti van to take him (Sujeet) to his house but he declined to go home by maruti van saying that he would go home by the bicycle because he had also to consult Dr. Om Prakash asked the driver of the maruti van to take him (Sujeet) to his house but he declined to go home by maruti van saying that he would go home by the bicycle because he had also to consult Dr. Pathak whose clinic was situate on the way. Om Prakash told him (Sujeet Kumar) that he would also go along with him to his cycle shop. Sujeet and Om Prakash thereafter proceeded further on the bicycle paddled by Om Prakash. After they crossed Gandhi Chowk, the Police Lines and the clinic of Dr. Pathak (who was not present at the clinic) they came near the Aerodrom crossing. There he (Om Prakash) stopped the bicycle and within minutes the maruti van which was following them also stopped. There were four occupants of the maruti van besides the driver. After the van stopped Om Prakash gave a call to Pintu Singh by name. Pintu Singh caught hold of collar of Sujeet, pointed revolver to his ear and dragged him inside the van shutting his mouth by the other hand. One of the occupants who was wearing blue shirt and black trouser got down from the maruti van, took the bicycle on the direction of Om Prakash, who called him by name Musa. Om Prakash thereafter sat on the front seat by the side of the driver. He raised the volume of the cassette player and asked Pintu Singh to close the mouth of Sujeet Kumar and after thus gagging his mouth by a wrapper the maruti van moved and kept moving for half an hour. After it was stopped the occupants got down and Sujeet Kumar was also forced to get down. They removed the wrapper from his face. Sujeet Kumar found that the place was lonely and part of an orchard. The driver of the maruti van thereafter took away the vehicle. Before that he was paid some money by Om Prakash. Om Prakash, Pintu Singh and Shankar Singh took out their pistol and threatened to kill him if he would make any noise. Srikant Singh also threatened likeway brandishing dagger. They took him towards north on a Kachchi road. Sujeet could identify the place as the platform of Bara Gopal Railway Station by reading its name on the platform. He was detained for half an hour on the platform. By that time darkness had set in. Srikant Singh also threatened likeway brandishing dagger. They took him towards north on a Kachchi road. Sujeet could identify the place as the platform of Bara Gopal Railway Station by reading its name on the platform. He was detained for half an hour on the platform. By that time darkness had set in. Om Prakash covered his face by towel and took him to another place. After half an hour walk, the towel was removed. He found himself in the courtyard of a house. A lady was there. Om Prakash told Shankar Singh that they would secure Rs. 4 lacs as ransom from the guardian. Shankar Singh stated that ransom letter should be sent. They were discussing that if money is not paid he would be killed. He was kept confined in a room. Srikant was keeping guard outside. In the early morning a lady came and took him to Banswari about 5-7 laggies away from the house. At that point of time he noticed policemen flashing their torch. Seeing the police he mustered courage and rushed towards them, disclosed his identity and thus came out of the clutches of the kidnappers. The police took him in protective custody. He also found Janardan Singh and Anil Kumar, his uncle and cousin respectively, in the company of the policemen. The Police arrested Shankar Singh and Srikant Singh. The Police also took his statement. He was thereafter taken to the police vehicle where he saw the driver of the maruti van. He was thereafter taken to police Station where he found his uncle Sheoji Prasad. He later gave statement before the Magistrate on the next day. 7. Having narrated the sequence of events coming from the mouth of the victim boy we would now refer to the evidence of the driver of the maruti van PW 3 Awadhesh Kumar Singh. According to him on the date of occurrence- i.e. 8.11.95 the maruti van bearing no. BR 16B 1795, of which he was driver, was hired for Rs. 300/- besides cost of fuel, for the whole day by Om Prakash for visiting Sonepur fair. Advance of Rs. 100/- was paid. At 9.45 AM after the vehicle came he took its charge and Om Prakash sat on it. They first drove to the Power House where they picked up Pintu Singh.They then came to Agrawal Petrol Pump, took petrol and proceeded towards Sonepur. Advance of Rs. 100/- was paid. At 9.45 AM after the vehicle came he took its charge and Om Prakash sat on it. They first drove to the Power House where they picked up Pintu Singh.They then came to Agrawal Petrol Pump, took petrol and proceeded towards Sonepur. However they went to Village Chanpurwa. There they went to the house of Shankar Singh. They met another friend of Shankar Singh namely Srikant Singh. They together sat on the Chauki in front of the house and started gossiping in low voice which he could not hear. Meanwhile the mother of Shankar Singh served some food. At about 2.30 PM they went to Chapra Jail. Shankar Singh went to see his brother who was prisoner in that jail. All of them went inside the Jail and they remained inside till 4.15 PM. After they came out Om Prakash asked Pintu Singh to reach Katharibag. Others took their seat in the maruti van. Om Prakash did not sit. He (the witness) came to Sahebganj Chowk where they ate some food on Sonarpatti road. He was then asked to drive the vehicle to Katharibag. When he came near Mahabir Asthan at Katharibag he was asked to stop the vehicle. They kept waiting for some time. Om Prakash came there on a bicycle with a boy of 12-13 years age. Om Prakash stated that the boy was indisposed and wanted him to sit in the maruti van but the boy did not agree. Om Prakash then suggested that he would go by bicycle and others would follow. Thereafter Om Prakash took the bicycle and along with the boy moved ahead. The vehicle followed them. Near Aerodrom crossing Pintu Singh asked him (PW 3) to stop the vehicle by the side of the bicycle. As soon as the vehicle stopped Pintu Singh opened the rear door, pointed the revolver on the boy and dragged him inside. Shankar Singh who was also having pistol in his hand stood on the rear gate. At this point of time he (the witness) switched off the engine of the vehicle. However Om Prakash pointed revolver towards him and asked him to move the vehicle as per their direction test he would be killed. Shankar Singh who was also having pistol in his hand stood on the rear gate. At this point of time he (the witness) switched off the engine of the vehicle. However Om Prakash pointed revolver towards him and asked him to move the vehicle as per their direction test he would be killed. Om Prakash Singh, Pintu Singh, Shankar Singh and Srikant drove in the maruti van with the boy while Musa Rai who was in the van from before got down and took away bicycle of the boy. The witness further stated that after driving for some time when the vehicle reached Musepur Chowk he was asked to take left turn. When they came near Bara Gopal Railway Station all of them got down along with the boy. Face of the boy was covered by a piece of cloth and he was paid balance amount of Two hundred rupees and asked to leave the place. Before he left the place he was threatened to death if he dared to disclose the incident to anybody. The witness further stated that about 10-30 PM. in the same night about 20-25 persons came along with Vijay Rai who had got the vehicle hired by Om Prakash. Sheoji Prasad was one of them. He persuaded him to disclose the entire story telling him that the boy was still traceless. He then narrated the incident. At about 4.15 AM in the early morning the Police came there. He made statement before the Police. The Police Party took him in the Police Jeep to the house of Shankar Singh. On his pointing out from some distance the Police party encircled the house, went inside and recovered the boy and also arrested Shankar Singh and Srikant Singh from the house. Awadhesh Kumar further stated that he had identified Musa alias Jitendra Rai at the T.I. parade. 8. PW 1 Guddu Kumar alias Ganpat Kumar Singh stated in his evidence that he was a student of the same school as Sujeet Kumar. He was also his co-villager. On the date of occurrence i.e. 8.11.95 after the school hours when he was returning from Sarkari Bazar where he had gone to buy vegetables, he met Sujeet Kumar sitting on a bicycle with Om Prakash Singh near Sura} Mahal. He was also his co-villager. On the date of occurrence i.e. 8.11.95 after the school hours when he was returning from Sarkari Bazar where he had gone to buy vegetables, he met Sujeet Kumar sitting on a bicycle with Om Prakash Singh near Sura} Mahal. He enquired from Sujeet Kumar as to whether he would like to return home back upon which Sujeet Kumar stated that he would soon be back after dropping Om Prakash Chacha near Mahabir Temple at Katharibag. He waited for a while but Sujeet Kumar did not return. He (the witness) thereafter returned home. At about 7 PM Sheoji Prasad came to him and enquired about the whereabouts of Sujeet Kumar. He told him that he had seen him with Om Prakash Singh. 9. From the resume of the evidence of the three witnesses mentioned hereinabove it would appear that evidence of all of them is fully consistent and corroborative of each other. As per the earliest version of the informant he learnt about the incident from PW 1 Guddu alias Ganpat Kumar Singh, PW 3 Awadhesh Kumar Singh and Md Kaiser, the Taikwando teacher. Though Md Kaiser was not examined to corroborate the informants version, considering the sequence of evidence it is amply proved that the victim boy while returning from the school was kidnapped by the accused persons in a planned manner. The victim was seen, apart from Md Kaiser, by Guddu alias Ganpat Kumar Singh which finds corroboration from the evidence of Awadhesh Kumar Singh besides the victim boy himself. 10. It was submitted on behalf of the appellants that conviction under Section 364A of the Penal Code cannot be sustained in absence of any positive evidence on the point of ransom which is an essential ingredient of the offence prescribed under Section 364A of the Penal Code. Elaborating the point it was submitted that neither in the fardbeyan of the informant which is based on the declaration made by PW 1 and PW 3, amongst others, nor in the statement of the victim boy himself before the Police or the Magistrate, there was mention of any demand for ransom, It was submitted that normally kidnapping for ransom is followed by such demand but there is no allegation that any such demand was made improbabilising the prosecution case that the kidnapping was for ransom. We do not find any substance in the contention. We do not find any substance in the contention. 11. As indicated above, there is positive evidence of none else than the victim boy that after he was taken to the house of Shankar Singh and kept confined there the accused persons started discussing the prospects of securing four lacs rupees as ransom. It is true that no ransom note was sent to the victims family but this was apparently because the accused persons hardly got time to make such demand. As seen above, the victim boy was taken to Shankar Singhs house in the late evening of 8.11.95. In the wee hours the Police raided the house and recovered him, which suggests that there was hardly any time to the accused persons to send any ransom note. According to us no inference can be drawn if immediately after the kidnapping ransom is not demanded. Some time, experience shows, ransom demand is made after days of occurrence. In the instant case the situation did not arise. 12. It is also true that the victim did not refer to any ransom demand in his statement before the Police or before the Magistrate. Understandably, he must have been in a state of shock, having faced trauma of kidnapping, remained under shadow of death on the point of revolver and pistol. He cannot be expected to be in a sound state of mind to make a detailed statement regarding all aspects of the case before the Police or the Magistrate. As far as the fardbeyan is concerned, it should be kept in mind that the statements therein were based on disclosures made by PW 1 and PW 3 amongst others. PW 3 had merely seen the act of kidnapping. It was not expected of him to state the motive of the crime and therefore if the (sic) cannot be said that the kidnapping was not for ransom. In fairness to the prosecution it may be stated that the informant had nevertheless expressed an apprehension at the end of his fardbeyan that the kidnapping was possibly for ransom. 13. Though a vague suggestion has been made about enmity between the informant and Shankar Singh nothing has been brought on record to indicate any kind of hostility to the extent that the accused persons would kidnap his nephew. 13. Though a vague suggestion has been made about enmity between the informant and Shankar Singh nothing has been brought on record to indicate any kind of hostility to the extent that the accused persons would kidnap his nephew. There being conclusive evidence on the point of kidnapping, if they intended to kill the victim boy on account of possible enmity between Shankar Singh and informant, nothing prevented the accused persons from accomplishing the object inasmuch as the victim boy was in their custody for a long time-since the evening of 8.11.95 for the whole night. The motive therefore in the facts and circumstances must have been ransom. The evidence of the victim boy merely corroborates the apprehension expressed by the informant in the fardbeyan. We therefore do not find any substance in the contention that conviction of the appellants under Section 364A IPC cannot be sustained on account of lack of evidence on the point of ransom. 14. Submissions were also made regarding non-examination of the Taikwando teacher Md Kaiser Vinay Kumar who had arranged maruti van and parents of the victim boy. It was submitted that no independent witness of the informants place or the place from where the victim boy was recovered, was examined in the case. Submission was also made about non-seizure of the maruti van. These submissions have been noticed only to be summarily rejected, for, as already mentioned above, evidence of witnesses on record conclusively proves that the accused persons in a pre-planned manner kidnapped Sujeet Kumar Singh for ransom. It may be recalled that the maruti van was professedly hired for taking the accused persons to Sonepur fair. They kept custody of the maruti van since 9.45 AM, kept roaming from one place to another and in the process collected other accused but never bothered to go to Sonepur to see the fair. The object evidently was to kidnap the boy after the school hours. Om Prakash being a co- vitlager apparently was in know of the routine of the victim. After moving from one place to another he along with others reached the place which fell en route. It is evident from the evidence of the victim boy that after he had covered a distance of 20- 25 yards he was accosted by Om Prakash. After moving from one place to another he along with others reached the place which fell en route. It is evident from the evidence of the victim boy that after he had covered a distance of 20- 25 yards he was accosted by Om Prakash. Though Om Prakash had hired the maruti van which was at his disposal he requested Sujeet Kumar to drop him at Mahabir Asthan at Katharibag and insisted upon him to doing so. He initially made attempt to get the boy in the vehicle on his own but after he declined, Om Prakash did not leave him; in stead, he insisted on being dropped at Mahabir Asthan though maruti van was following him. As soon as he reached a suitable place, the van was stopped on the direction of the accused persons near the bicycle and at that point of time the boy was forcibly dragged inside. His face was covered by a piece of cloth so that he could not identify the place or places before he was finally taken to the house of Shankar Singh from where he was finally recovered. In our opinion the prosecution has fully proved the case and there is no scope for taking a different view. 15. On behalf of Jitendra alias Musa Rai however it was submitted that the evidence of record would suggest that other appellants along with Pintu Singh and Srikant had already finalised their plan of kidnapping the boy and there is nothing on record to suggest that Jitendra Rai alias Musa Rai was in know of the said plan. He referred to the evidence of the driver Awadhesh Kumar Singh and submitted that from the evidence it would appear that hardly any conversation took place amongst the accused person in the presence of this appellant. At one stage, in the chain of occurrence the appellant was asked to bring some foodstuff from the hotel. Considering that this appellant joined the group at late stage it cannot be said that he had any hand in the kidnapping of the victim boy. 16. While considering the case of Jitendra Rai alias Musa Rai it appears that the fact which stares at him is that after the victim boy was forcibly taken inside the maruti van it was he who took the bicycle to the cycle shop of PW 4 Mani Lal Prasad. 16. While considering the case of Jitendra Rai alias Musa Rai it appears that the fact which stares at him is that after the victim boy was forcibly taken inside the maruti van it was he who took the bicycle to the cycle shop of PW 4 Mani Lal Prasad. Initially Jitendra Raj alias Musa Rai told Mani Lal Prasad to keep the bicycle for some time but on the next day he told him that he (Manilal) could purchase the bicycle himself or get it sold. Apparently he had come to know that the conspiracy had been unearthed, the victim boy had been recovered and the accused persons had been arrested. This was enough to convince him that it was end of the story so far kidnapping of Sujeet Kumar was concerned, and that is why he asked Mani Lal Prasad to either buy the bicycle himself or get it sold to someone. 17. Thus while we are inclined to agree with the Counsel for appellant Jitendra Rai alias Musa Rai that in the absence of positive evidence, it may not be conclusively said that he was party to the kidnapping of the victim boy for ransom and therefore he may be given the benefit of doubt so far the offence under Section 364A IPC is concerned, he can not go scot free. It may be recalled that he has further been convicted under Section 379 of Penal Code. The bicycle admittedly belonged to Sujeet Kumar Singh and the manner in which he was forcibly taken inside the Maruti Van, in his presence, should have made him aware of the implications of the crime. His act of taking the bicycle at the instance of Om Prakash Singh cannot be said to be innocent act. After all, he did not claim the bicycle, and had contacted Mani Lal Prasad to keep custody of the bicycle for some time, and the next day asked him to buy the same or get it sold. These facts are enough to sustain the conviction under Section 379 IPC. However, it appears that he has already suffered incarceration for more than five years which is more than the maximum sentence awardable under that Section. In that view of the matter he is entitled to instant release. 18. These facts are enough to sustain the conviction under Section 379 IPC. However, it appears that he has already suffered incarceration for more than five years which is more than the maximum sentence awardable under that Section. In that view of the matter he is entitled to instant release. 18. In the facts and circumstances, thus we set aside the conviction of the appellant Jitendra Rai alias Musa Rai under Section 364A of the Penal Code and direct that he be released from custody forthwith if not wanted in any other case. His appeal (Cr. Appeal No. 365/99) is accordingly partly allowed. The appeals of Shankar Singh and Om Prakash Singh (Cr. Appeal no. 328/99 and 345/99) are however dismissed. They are on bail. They are directed to surrender to custody to serve remainder of the sentence within one month, failing which the trial court will take the required steps to apprehend them for serving the sentence.