JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—Naje Alam, sole appellant is convicted for offences under Section 364, I.P.C. read with Section 3 (2)(v), S.C./S.T. Act and sentenced to undergo life imprisonment along with fine of Rs. 1,000/-, and in the event of default in depositing the fine, further imprisonment of one month, vide judgment and order dated 3.4.2006 passed by Additional District and Sessions Judge, Court No. 4, Bijnore in Session Trial No. 396 of 2005, State v. Naje Alam. 2. The incident is alleged to have taken place on 4.2.2005 at 4.30 p.m. in village Kanakpur Kala, Police Station Najibabad, District Bijnore. 3. According to the prosecution case, a written information was given on 6.2.2005 at Police Station Najibabad by Suresh son of Swaroop Singh, resident of village Kanakpur Khurd, Police Station Najibabad, District Bijnore. The scribe of written information is one Rajesh Singh, son of Hori Singh. This information dated 6.2.2005 Exb. Ka-1 was that daughter of Suresh, Km. Neelam aged about 13 years had gone to bring fodder (Chara) along with her sister Renu aged about 8 years, to his Chak on 4th February, 2005 at 4.30 p.m. The chak of Hasimuddin son of Chhote, resident of Kanakpur Kala is also situated nearby. Renu returned alone and told her mother that son of Hasimuddin, Naje Alam, appellant, has taken away Neelam forcibly. There was one lady in Naqab (Burka) along with him. Suresh tried to search for Neelam and when he could not trace her, information was given to the police. However, the first information report was registered only on 7.2.2005 at 12.25 a.m. lodged by Suresh and the scribe was Rajesh Singh son of Hori Singh. The report was registered at case crime No. 166 of 2005, under Section 364, I.P.C. read with Section 3 (2)(v) S.C./S.T. Act. 4. The prosecution has examined five witnesses. Suresh PW-1 is the first informant, Renu PW-2 sister of the victim, Rajo PW-3, mother of the victim, C-258 Shyam Lal PW-4 to prove the chik Exb. Ka-2, Radhey Mohan Bharadwaj PW-5 who investigated the case. PW-5 submitted the charge-sheet. One Shamim Ahmad was examined as DW-1 who was the village chowkidar. 5. Sri Mukhtar Alam learned counsel appearing on behalf of the appellant submitted that the admitted facts are that Smt. Rajo PW-3 was earlier married to one Ompal and victim Km. Ka-2, Radhey Mohan Bharadwaj PW-5 who investigated the case. PW-5 submitted the charge-sheet. One Shamim Ahmad was examined as DW-1 who was the village chowkidar. 5. Sri Mukhtar Alam learned counsel appearing on behalf of the appellant submitted that the admitted facts are that Smt. Rajo PW-3 was earlier married to one Ompal and victim Km. Neelam and her elder sister Kiran, were the two daughters born from the wedlock of Rajo and Ompal. It is an admitted fact that complainant Suresh was not father of the victim. Rajo had married with the complainant subsequently after the death of her first husband (father of the victim) Ompal and three daughters were born from the second marriage. The complainant (second husband of Rajo) was also married earlier with one Chhama who had given birth to one female child Pinki. The marriage of Rajo was performed after death of his first wife Smt. Chhama. Pinki is married but her husband has left her therefore, she is living with Suresh and Rajo. 6. The submission of learned counsel is that at the time of incident the appellant was juvenile. Connected criminal revision No. 722 of 2007 is against the order dated 7.2.2007 passed by the Additional Sessions Judge, Moradabad in Criminal Appeal No. Nil of 2007, Naje Alam v. State of U.P. dismissing the appeal at the stage of admission itself under Section 52 of Juvenile Justice Act, 2000. The appeal was preferred against order dated 10.1.2007 passed by the Juvenile Board holding that the age of revisionist was 18 years, 2 months 14 days at the time of incident. 7. Learned counsel has brought to our notice the statement of the accused Naje Alam recorded under Section 313, Cr.P.C. where he has given his age on the date of recording his statement i.e. 3.1.2006, as 18 years, and, therefore, the age of the appellant at the time of occurrence was obviously less than 18 years. However, the revision was not seriously pressed before us, we are not inclined to go in the question regarding age of the appellant and whether he was a juvenile or not at the time of the incident. We proceed to decide the appeal and examine the evidence on merit. 8. The first submission is that the conviction under Section 364, I.P.C. cannot be upheld since the ingredients of the offence are completely missing. We proceed to decide the appeal and examine the evidence on merit. 8. The first submission is that the conviction under Section 364, I.P.C. cannot be upheld since the ingredients of the offence are completely missing. The second argument is that information was given by the police regarding the fact that the victim Km. Neelam was missing (Lapata) on 10.2.2005 which is Paper No. 8/1. The document was placed before us from the trial Court’s record. Name of the accused is not mentioned, besides paper No. 8/9 is the question and answer from the landlord of the appellant at Jalandhar to establish that the appellant had not gone to the place where he used to live at Jalandhar with any girl. Further, first information report is considerably delayed though the first informant came to know about the involvement of the appellant on that very day i.e. 4th February, 2005 at 4.30 p.m. from his younger daughter Renu. It was only after two days written information was given on 6.2.2005 but first information report was registered only on 7.2.2005 at 12.25 a.m. It is further submitted that the prosecution itself has failed to prove its case beyond doubt and on its own admission the first information report was registered under Section 364, I.P.C. as well as under the provisions of S.C. & S.T. Act. He was given Rs. 50,000/- by the Government and also admitted the advertisement (Ishtehar) issued by the police station which is Paper No. 8/1. The issuance of advertisement (Ishtehar) regarding missing (Lapata) of Km. Neelam is also admitted by the investigating officer. The second investigating officer Ajay Kumar Singh has not been examined by the prosecution. It is also submitted that PW-2 is child witness and bare reading of her statement makes it evident that she is a tutored witness. Various contradictions have been pointed out by the learned Counsel. 9. Learned A.G.A. has also been heard at length. He disputed the argument of the learned counsel Sri Mukhtar Alam appearing for the appellant. He has supported the prosecution case and submits that there is no reason to disbelieve the prosecution evidence only because the first informant has taken Rs. 50,000/- from the Government in lieu of his lodging of first information report under Section 364, I.P.C. read with Section 3 (2)(v) of S.C./S.T. Act. 10. He has supported the prosecution case and submits that there is no reason to disbelieve the prosecution evidence only because the first informant has taken Rs. 50,000/- from the Government in lieu of his lodging of first information report under Section 364, I.P.C. read with Section 3 (2)(v) of S.C./S.T. Act. 10. Before proceeding to record the finding on merit of the appeal, we are of the view that since the Criminal Revision No. 722 of 2007 has not been pressed seriously, we do not propose to send the accused for re-trial by the juvenile Court. Learned counsel has placed decision in support of his contention that determination of date of birth under the U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004. Rule 22 of the Model Rules under the said Act, provides that the date of birth is to be evaluated as per education certificate and only in the event the same is not found genuine, then recourse to medical evidence should be taken. This view was expressed by the learned Single Judge in the case of Devendra @ Chintu v. State of U.P., 2006 (3) JIC 118 (All). 11. The Juvenile Board as well as Appellate Court declined to look into educational certificate on account of the reason that since the matter has been referred for considering whether the appellant was juvenile or not by the High Court, and the Board was required only for compliance of the order of the High Court. Therefore, the case does not fall within the category of Section 52 of the Juvenile Justice Act. Learned counsel has placed reliance on the decision of the Apex Court in the case of Santenu Mitra v. State of West Bengal, 1998(37) ACC 678. 12. However, since we are not inclined to examine the question of age of the appellant whether he is 18 years or below 18 years on the date of occurrence, we refrain to give our opinion and any decision on the aforesaid finding the Criminal Revision No. 722 of 2007 is dismissed without any further reference as infructuous. 13. After taking into consideration the arguments of the learned counsel as well as the evidence on record, it cannot be denied that the first information report is considerably delayed though the information was given by Renu P.W. 2 on 4.2.2005 at 4.30 p.m. itself. 13. After taking into consideration the arguments of the learned counsel as well as the evidence on record, it cannot be denied that the first information report is considerably delayed though the information was given by Renu P.W. 2 on 4.2.2005 at 4.30 p.m. itself. There is no allegation in the F.I.R. also regarding the ingredients of Section 3(2)(v) S.C./S.T. Act. Not even whisper of any allegation whatsoever to constitute an offence under the said Act is visible. The very opening sentence of the F.I.R. states that the first informant belongs to scheduled caste (Chamar) thereafter he has narrated the fact of missing of his daughter which is sufficient to come to an irrefutable conclusion that F.I.R. was lodged only with the sole intention of extracting some money in lieu of lodging the report. The second accused is an unknown lady clothed in Naqab appears to have been introduced with an obvious reason since there were two girls together therefore a single boy of tender age cannot be expected to wield enough pressure and abduct a girl without any resistance or hue and cry. The police has neither made any effort to look for the lady or question Km. Renu regarding the details about the veiled lady. On the contrary, P.W. 1 states in his cross-examination that he had given written report on 6.2.2005 itself where he had stated that he worked with one Thekedar Mustakim resident of Rani Kota where his work was of breaking stones. He came to know about the incident while he was working with the Thekedar through his Munsi Dharmvir, that telephonic message was received from his house. However, he admits that he had informed the police regarding involvement of Alimuddin in abduction of Km. Neelam. Alimuddin was previous Pradhan. The police used to call him for questioning and send him back. He is unable to give any details regarding the persons who were trying and help him to trace out the girl whereas a suggestion was given to him that Neelam had run away from her house on account of constant quarrel in the family. The statement of P.W. 1, therefore does not appear to be convincing and sufficient to uphold the conviction specially when we are conscious of the fact that the victim Neelam was not his own daughter and he had taken his own sweet time in going to the police. The statement of P.W. 1, therefore does not appear to be convincing and sufficient to uphold the conviction specially when we are conscious of the fact that the victim Neelam was not his own daughter and he had taken his own sweet time in going to the police. Besides the fact that advertisement (Ishtehar) published on 10.2.2005 was only regarding missing of Neelam. It does not appear that any effort was made by the police to arrest the accused promptly though he had got the information immediately. The contradiction already discussed above in the statement of the P.W. 1 makes him an unreliable witness. The greed of money was the only prompting factor for lodging the F.I.R. We have also examined the evidence of Renu as well as P.W. 3 Rajo which do not inspire confidence. Site plan was prepared on pointing out of P.W. 2 but there is no Chak of Naje Alam or Hasimuddin which is the prosecution case and the reason for the accused appellant to be present. This fact is also admitted by the Investigating Officer Radhey Mohan Bharadwaj P.W. 5. According to the Investigating Officer, appellant was only arrested on 16.2.2005 and thereafter once again on 17.2.2005 the police went to Jalandhar to look for the victim Neelam, but she was not traceable. The admission by the Investigating Officer that it had issued Ishtehar and the word ‘Lapata’ (missing) was mentioned, go a long way to establish that till 10.2.2005 the police was under an impression that she is missing and she was not kidnapped. The Investigating Officer has though half heartedly tried to show that the word ‘Lapata’ is analogous to word kidnapping’. The Investigating Officer has specifically denied the fact that Suresh complainant had expressed his doubt about involvement of Alimuddin/Hasimuddin. He has contradicted the statement of P.W. 1 and only admits that Alimuddin was questioned regarding the missing girl. Alimuddin and Hasimuddin having been interrogated is mentioned in the case diary. He had interrogated the previous Pradhan only because he belonged to different religion. Besides, the aforesaid circumstance which is far from sufficient for coming to conclusion regarding involvement of the accused appellant and to hold him guilty, we are of the view that conviction under Section 364, I.P.C. cannot be upheld whatsoever. Section 364 is as quoted below : “364. He had interrogated the previous Pradhan only because he belonged to different religion. Besides, the aforesaid circumstance which is far from sufficient for coming to conclusion regarding involvement of the accused appellant and to hold him guilty, we are of the view that conviction under Section 364, I.P.C. cannot be upheld whatsoever. Section 364 is as quoted below : “364. Kidnapping or abducting in order to murder.—Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with [imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” 14. Neither the first information report nor the statement of witnesses of fact establishes the ingredients of Section 364, I.P.C. There is not even whisper in the entire record that the victim was kidnapped with intention to murder. No motive was attributed for murder. No circumstance has been highlighted by the prosecution and no other reason has been given by the learned Sessions Judge for recording conviction under Section 364, I.P.C. On the contrary, it is apparent that the complainant has no relation with the victim, his lackadaisical attitude for the missing girl is more than enough to hold that complainant’s interest did not lie in tracing the girl but obviously elsewhere. Admittedly the purpose stood fulfilled before the trial could be concluded. The first informant having accomplished his mission was no more interested in the case. This is eloquent on a bare perusal of the half hearted evidence during trial. We do not find the evidence convincing to uphold the appellant’s conviction. The overall assessment of the oral as well as documentary evidence is not clinching to hold him guilty. In fact the prosecution has miserably failed to prove its case beyond doubt. We are of a considered opinion that this appeal deserves to be allowed and the judgment of the Court below is liable to be quashed. 15. In the circumstances, the appeal is allowed and the judgment and order dated 3.4.2006 passed by the Additional District and Sessions Judge, Court No. 4, Bijnor is set aside. The appellant is acquitted from the charges under Section 364, I.P.C. read with Section 3(2)(v) S.C./S.T. Act, Police Station Najibabad, District Biinor. The appellant is in jail. 15. In the circumstances, the appeal is allowed and the judgment and order dated 3.4.2006 passed by the Additional District and Sessions Judge, Court No. 4, Bijnor is set aside. The appellant is acquitted from the charges under Section 364, I.P.C. read with Section 3(2)(v) S.C./S.T. Act, Police Station Najibabad, District Biinor. The appellant is in jail. He shall be released forthwith. ———