Judgment ( 1. ) THE appellant has assailed his conviction for offence punishable under Section 364-A of the IPC and the sentence of imprisonment for life and fine of Rs. 10,000/- awarded thereunder vide judgment dated 12-3-2004 of the learned Additional Sessions Judge, Garoth (District Mandsaur) in Sessions Trial No. 164/2002. ( 2. ) THE appellant was indicted for the said offence read with Section 34 alongwith the acquitted accused Brijrajsingh s/o Jaswantsingh on the allegation that on 16-5-2002 at about 6 PM he had kidnapped Devendra with a view to obtain ransom of a sum of Rs. 50,000/ -. According to the prosecution, (P. W. 7) Devendra s/o Gajraj and (P. W. 8) Brijrajsingh had gone to see the village fair on 16-5-2002 but he was found missing. Search was instituted but to no result. Ultimately the matter was reported by Jaswantsingh (P. W. 2) at Police Station, Shamgarh vide Ex. P-l where case of missing person was recorded by (P. W. 1) Suresh Babu and the matter was handed over for investigation to (P. W. 13) Bherusingh. During search, statements of Jaswantsingh, Mohansingh, Ummedsingh and Ramsingh and others were recorded but subsequently when statement of Jaswantsingh (P. W. 2) was recorded, it revealed that the minor was in the custody of the accused who was seeking ransom. Accordingly, offence under Section 364-A vide Ex. P-10 was registered. ( 3. ) DURING investigation, (P. W. 2) Jaswantsingh, who knew the accused got him arrested on 22-7-2002. At the instance of the accused, the child was recovered from (P. W. 14) Gangabai. Upon collection of the evidence, specially with reference to the documentary evidence as alluded to by (P. W. 9) Shivlal, (P. W. 16) Rakesh Patidar, and the other evidence collected by (P. W. 18) Amit Choudhary with regard to the demand of ransom and reasonable apprehension that the kidnapped boy could be caused harm on failure of the payment, the accused was prosecuted alongwith the co-accused Bherusingh. On being charged for the said offence, though the accused abjured his guilt and stated that he had been falsely implicated, the accused was convicted and sentenced as hereinabove stated while the co-accused was acquitted. It is this conviction and sentence that has been assailed by the accused in this appeal. ( 4. ) THE prosecution examined in this case, in all, 18 witnesses. It is this conviction and sentence that has been assailed by the accused in this appeal. ( 4. ) THE prosecution examined in this case, in all, 18 witnesses. Insofar as the evidence of kidnapping of (P. W. 7) Devendra is concerned, apart from the testimony of his father and grant father, there is direct testimony of Devendra. (P. W. 7) Devendra has deposed that on the date of the incident, two months seven days prior to the date of his deposition, he had gone to the village fair for which his grand father had given him a tenner. He had met the accused there who had inquired about his father but when he had told him that he was driving a tanker, the accused had suggested that he would take him back. Accused had then taken him to the Railway Station stating that his maternal uncle was arriving by train. When the train arrived, he offered him a Samosa and water was given by Ballu. At night, he boarded the train and went to Ratlam. At Ratlam, they hired a Maruti for which the accused paid ten rupees. They stayed there and had their meals. The next day again he took him by bus to the house of Gangabai where he stayed till he was reseued vide Panchnama Ex. P-7. The testimony of (P. W. 7) is corroborated by (P. W. 4) Roopsingh to the extent that (P. W. 7) was initially missing and was thereafter recovered by the Police. (P. W. 8) Brijrajsingh @ Suresh, father of the kidnapped child has also deposed that when the child was not seen, they started receiving telephone calls from one Vikramsingh demanding one lac and threatening whether they wanted the child or his dead body. ( 5. ) FROM the above evidence it is amply borne out that Devendra was taken away from the custody of his lawful guardian by the accused without his due permission. It has come on record that Devendra was hardly 7 or 8 years old at the time of the commission of the offence and was a minor under 16 years of age. He was taken out from his lawful guardian without the consent of the guardian. It is, therefore, clear that an offence of the discretion of kidnapping from lawful guardianship as defined in Section 361 stood committed by the appellant, ( 6. He was taken out from his lawful guardian without the consent of the guardian. It is, therefore, clear that an offence of the discretion of kidnapping from lawful guardianship as defined in Section 361 stood committed by the appellant, ( 6. ) THE question that now arises for our consideration is whether the appellant can be held guilty for offence punishable under Section 364-A of the IPC for which he has been convicted and sentenced. Section 364-A of the IPC reads as under: 364-A. Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or cause hurt or death to such person in order to compel the Government or any foreign State or international inter-Governmental organisation or and the other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine. ( 7. ) IN order that a person is held guilty for commission of the offence described under Section 364-A it should be shown that the person who has kidnapped any person, keeps such person in detention after kidnapping or abduction and threatens to cause death or hurt to such person or by his conduct gives rise to a reasonable apprehension that such person may be put to death or caused hurt. Even cases where death or hurt is caused in order to compel any other person to do or abstain from doing any act or to pay ransom, the act would be covered. Thus, it is obligatory in the case of demand of ransom to prove that not only ransom was demanded but reasonable apprehension that such person would be put to death or hurt was created or such apprehension was created to compel any other person to act or abstain from doing any act or to pay ransom. ( 8. Thus, it is obligatory in the case of demand of ransom to prove that not only ransom was demanded but reasonable apprehension that such person would be put to death or hurt was created or such apprehension was created to compel any other person to act or abstain from doing any act or to pay ransom. ( 8. ) THE prosecution has mainly examined (P. W. 4) Roopsingh, (P. W. 8) Brijrajsingh @ Suresh, (P. W. 9) Shivlal and (P. W. 16) Rakesh Patidar in order to prove its case that there was a demand of ransom and, therefore, the accused had committed offence punishable under Section 364-A. (P. W. 4) Roopsingh grand father of the kidnapped child has made only a vague statement that a telephone came to the house of Ajjubhai (P. W. 3) and when Brijrajsingh @ Suresh (P. W. 8) spoke to the person, a demand of Rs. One lac was made. (P. W. 8) Brijrajsingh also made the same statement. (P. W. 9) Shivlal, though a Panchayat Secretary, claims to have a STD Booth. He has stated that accused Surendrasingh used to come to his shop from where he had dialed a number of Shamgarh which he did not strictly remember. Thereafter a person had come to inquire and he had told him that his son had been kidnapped. Nothing can be said on the basis of the vague testimony of Shivlal that the accused had dialed the telephone number of (P. W. 3) Ajjubhai. (P. W. 16) Rakesh Patidar has deposed that on his request that he should keep a track of the incoming calls he had kept record of call which had come. He thus referred to a Register but no such document has been produced on record. ( 9. ) FROM the above testimony of the witnesses and the prosecution evidence, it is clear that apart from making vague assertion that a telephone call had been received in the house of (P. W. 3) Ajjubhai and a demand of Rs. one lac had been made, nothing has been shown to indicate that the caller was the accused and the demand was made by him. one lac had been made, nothing has been shown to indicate that the caller was the accused and the demand was made by him. While in a case of kidnapping one has tendency to jump to the conclusion that a person would kidnap for some purpose presumably for demand of ransom, in a case where the prosecution alleges commission of an offence under Section 364-A of the IPC, it is for the prosecution to satisfy that there was a demand of ransom money and that the other conditions contained in the said provision were satisfied. In the case in hand, apart from vague assertions, nothing has been brought on record in discharge of this onerous obligation of the prosecution. The prosecution has only succeeded in proving Kidnapping described in Section 361 made culpable in Section 363 of the IPC. Under these circumstances, the conviction of the appellant under Section 364- A cannot be sustained. However, the offence punishable under Section 363 of the IPC stands duly proved against the appellant. ( 10. ) ACCORDINGLY, the appeal partly succeeds. While the conviction of the appellant under Section 364-Aof the IPC and the sentence of imprisonment for life and fine of Rs. 1,000/- awarded thereunder is set-aside, he is convicted under Section 363 of the IPC and sentenced to RI for seven years and fine of Rs. 1,000/ -. In default of payment of fine, the appellant shall undergo further RI for six months.