P. K. BHASIN, J. ( 1 ) THE appellant Shabnam has challenged her conviction under Sections 363/364-A/34 ipc by the learned Additional Sessions judge, Delhi vide his judgment dated 24. 3. 2003 and also the sentence imposed on her vide order dated 26. 3. 2003 in sessions Case No. 78/02 pertaining to FIR no. 234/98 registered at Bara Hindu Rao police station on 5. 10. 1998. ( 2 ) THE prosecution case is that the appellant and her husband used to visit the complainant's house and during those visits they used to take his five years old son faizul Rehman (the kidnapped child) for outing. On 4. 10. 1998, the appellant and her husband went to the house of the complainant and the husband of the appellant told the complainant that he needed Rs. 1,000/- because his pocket had been picked. Since at that time the complainant did not have that much money with him he told them that he would try to arrange the money after some time and then he left his house for some work. The complainant's wife also left the house leaving faizul Rehman in the company of Nafisa, the complainant's sister-in-law. When after some time the complainant came back to his house he did not find his son Faizul rehman. The complainant's sister-in-law informed him that the appellant and her husband had taken away Faizul Rehman for outing but had not come back. After waiting for some more time the police was informed by the complainant and he expressed his suspicion that the appellant and her husband had kidnapped his son. On the basis of that report the police registered an FIR under section 363 IPC. On 5. 10. 1998, the appellant's husband is alleged to have made a telephone call which was heard by one iqbal (PW-4) demanding ransom of rs. 35,000/- for the release of the kidnapped child Faizul Rehman. On 7. 10. 1998, the other son of the complainant also received a telephone call from the appellant's husband, Anwar when again demand of rs. 35,000/- was made as ransom for the release of the kidnapped child. The appellant's husband allegedly informed on phone that he would be available at ghariwala Park near ISBT, Delhi and that the complainant should reach there with the money. 35,000/- was made as ransom for the release of the kidnapped child. The appellant's husband allegedly informed on phone that he would be available at ghariwala Park near ISBT, Delhi and that the complainant should reach there with the money. That information was passed over to the police which, in turn, formed a raiding party to apprehend the culprit. As per the further prosecution case, when the raiding party reached the fixed place along with the complainant the appellant's husband was noticed there by the complainant and as per the prior instructions given to him he gave a signal to the raiding party. Appellant's husband Anwar was apprehended and it is the prosecution case that he informed the police during his interrogation that the kidnapped child was with his wife, the present appellant, and that they were available at a nearby place at Chandagi Ram Akhara. On the basis of that information given by the appellant's husband the raiding team reached Chandagi Ram Akhara and there the present appellant was apprehended. At that time the kidnapped child was also with her who was then handed over to the complainant. The appellant and her husband were arrested. In due course the police filed a charge sheet in court against the present appellant and her husband but since by that time she had jumped bail granted to her the case could not proceed against her and so she was declared a proclaimed offender by the learned magistrate. Thereafter the case was committed to Sessions Court for the trial of appellant's husband only. After the trial he was convicted under Sections 363/364-A/34 ipc vide judgment dated 25. 01. 2001 in sessions Case No. 19/2000 by an Additional sessions Judge, Delhi. It appears that the present appellant was later on apprehended on 19. 1. 2002 and in due course she was also tried by Sessions Court and, as noticed already, she was also convicted under sections 363/364-A/34 IPC. She was sentenced to life imprisonment under section 364-A/34 IPC and also to pay fine of Rs. 1,000/- and for her conviction under section 363/34 IPC she was sentenced to three years rigorous imprisonment besides fine of Rs. 500/ -. Substantive sentences of imprisonment were directed to run concurrently. Feeling aggrieved she has filed this appeal. She was sentenced to life imprisonment under section 364-A/34 IPC and also to pay fine of Rs. 1,000/- and for her conviction under section 363/34 IPC she was sentenced to three years rigorous imprisonment besides fine of Rs. 500/ -. Substantive sentences of imprisonment were directed to run concurrently. Feeling aggrieved she has filed this appeal. ( 3 ) WE have heard the learned counsel for the patties and with their assistance have also gone through the evidence relied upon by the prosecution as well as the trial court for convicting the appellant. In order to establish its case the prosecution had examined 11 witnesses in all. The appellant had pleaded false implication when she was examined under Section 313 Cr. P. C. The complainant (PW-1) has deposed that on the day of the occurrence the appellant along with her husband had come to his house and informed that his pocket had been picked and asked for Rs. 500/- but he was not in a position to pay the same. He further deposed that he went to the market for some work and his wife had also gone to doctor to take medicines for his daughter who was sick. His sister-in-law (Sali) Nafisa and his son Faizul Rehman were at home and when he returned after 3/4 hours he did not find the appellant and her husband anwar and his son was also not present. Nafisa told him that Anwar and Shabnam had taken his son for outing. He further deposed that he searched for his son till 4. 30 p. m. and when his son could not be traced till mid night he lodged a report with the police. He further deposed that on 5. 10. 1998 he received a telephone call from anwar who demanded Rs. 35,000/- or rs. 75,000/- and he also told him to reach bawani Mandi in Rajasthan. That call was heard by his friend Iqbal Ahmed (PW-4 ). He along with the police went to the Bawani mandi but could not trace the accused. On 7. 10. 1998 his son Sabihul Rehman informed him that he had received a telephone call from Anwar asking for ransom of Rs. 35,000/-for the release of Faizul Rehman and that he (the complainant) should reach Ghariwala park, ISBT with the money. He along with the police went to the Bawani mandi but could not trace the accused. On 7. 10. 1998 his son Sabihul Rehman informed him that he had received a telephone call from Anwar asking for ransom of Rs. 35,000/-for the release of Faizul Rehman and that he (the complainant) should reach Ghariwala park, ISBT with the money. He then went on to depose that he along with the police officials reached at Ghariwala Park at about 5. 00 p. m. and at about 5. 30 p. m. or 5. 45 p. m. Anwar was seen coming and he gave a signal to the police and then Anwar was apprehended by the police. The child was with accused Shabnam and the child was handed over to him. He also deposed that the accused did not tell anything in his presence. ( 4 ) AS far as the evidence of PW-1 is concerned the same is of no use for the prosecution because Nafisa who had informed PW-1 that the appellant and her husband had taken away the kidnapped child has not been examined. ( 5 ) THE prosecution is also relying upon the evidence of recovery of the child from the custody of the appellant. In this regard, the witnesses are PW-1, the complainant, pws 7, 10 and 11 all of whom are police officials. There is no doubt that as far as these police witnesses are concerned they claimed that after the arrest of the appellant's husband he had made a disclosure statement and then at his instance the kidnapped child was recovered from the appellant herein. However this part of the prosecution evidence, we feel, does not appear to be reliable one since the complainant himself has categorically claimed in his chief-examination itself that the accused had not told anything in his presence. Although he was cross-examined by public prosecutor but in that cross-examination this part of the statement of the complainant was not challenged has being incorrect. We are, therefore, of the view that this part of the prosecution case regarding recovery of the kidnapped child from the possession of the appellant on the basis of the disclosure statement of her husband becomes doubtful. There is another reason also for doubting the recovery of the child from the appellant's custody. We are, therefore, of the view that this part of the prosecution case regarding recovery of the kidnapped child from the possession of the appellant on the basis of the disclosure statement of her husband becomes doubtful. There is another reason also for doubting the recovery of the child from the appellant's custody. We find from the cross-examination of PW-7 Constable satish that he had stated that accused Anwar was standing alone with the child while the prosecution case was that the kidnapped child was recovered from the custody of the present appellant. ( 6 ) LEARNED counsel for the appellant has submitted that the only incriminating circumstance against the appellant was the recovery of the kidnapped child from her custody but that circumstance was not put to her when she was being examined under section 313 of the Code of Criminal procedure. We have gone through the entire statement of the appellant recorded under Section 313 Cr. P. C. and find that in fact this circumstance of recovery of the kidnapped child from the custody of the appellant was not put to her. It is now well settled that no incriminating circumstance which is not put to an accused when examined under Section 313 Cr. P. C. can be used for convicting the accused. Therefore, in the present case the learned trial court was wrong in using the evidence of recovery of the kidnapped child from the appellant's custody against her while finding her guilty. ( 7 ) FOR the foregoing reasons, we allow this appeal and set aside the judgment dated 24. 3. 2003 as well as the order on sentence dated 26. 3. 2003 in Sessions Case No. 78/02 'state Vs. Shabnam'. The appellant shabnam stands acquitted of all the charges framed against her and she is ordered to be released from jail forthwith, if not required to be detained in any other case.