JUDGMENT : M.K. MUDGAL, J. 1. By this judgment both the Criminal Appeal No. 190/2005 (Nanhe Singh S/o Vijay Singh and Makhan Rawat S/o Lakhan Rawat) and Criminal Appeal No. 227/2005 (Veeru alias Virendra S/o Umrao Singh) are being disposed of simultaneously by a common judgment. As the aforesaid appeals are arising out of the judgment dated 9-3-2005 passed by the Court of Vth Additional Sessions Judge and Special Judge (Dacoity Prabhavit Kshetra) Gwalior in Criminal Case No. 89/2003 convicting the accused persons under section 364-A of Indian Penal Code read with section 13 of the M.P.D.V.P.K. Act and sentencing them to undergo life imprisonment and to pay fine of Rs. 2000/- each, in default of payment of fine sentencing each accused one year with rigorous imprisonment. 2. Facts in brief of the case are that Lakhan Singh (PW-3) had gone to his tube well on 2-2-2003 at 10.00 P.M. where the accused Makhan, Nanhe Singh and Virendra arrived at and they forcibly took him away in the forest and assaulted by a butt of gun. When Lakhan screamed loudly which was heard by Mahendra Singh (PW-1) he went to search Lakhan but he did not find him thereafter a report Ex-P/1 on the same night was lodged by Mahendra Singh (PW-1) at Police Station Dabra where Crime No. 54/2003 under section 365 of Indian Penal Code was registered. Lakhan Singh returned after one month. His statement Ex-D/1 was recorded on 14-3-2003. As per his statement he was kidnapped by the accused persons and he was kept in the forest by the gang of dacoit Hazrat Rawat who and the accused demanded from him Rs. 5 lakhs as ransom for releasing him. During investigation statement of other witnesses were recorded. After investigation charge-sheet was filed before the trial Court. 3. The accused persons denying the charges had claimed to have been falsely implicated in the case. 4. The following questions arise for consideration in this appeal: “1. Whether Lakhan Singh (PW-3) was abducted by the accused persons for demanding ransom of Rs. 5 lakhs for releasing him? 2. Whether the findings of the lower Court are based on proper appreciation of the evidence?” 5. The learned counsel for the appellant submits that conviction and sentence passed by the lower Court are not based on proper reasonings. Whether Lakhan Singh (PW-3) was abducted by the accused persons for demanding ransom of Rs. 5 lakhs for releasing him? 2. Whether the findings of the lower Court are based on proper appreciation of the evidence?” 5. The learned counsel for the appellant submits that conviction and sentence passed by the lower Court are not based on proper reasonings. As in the FIR Ex-P/1 no demand of ransom has been mentioned by Mahendra Singh. Moreover as per Lakhan Singh's (PW-3) statement amount of Rs. 2,10,000/- was given by his father as ransom to the accused persons thereafter he was released but in police statement Ex-D/1 recorded under section 161 of Criminal Procedure Code the witness has not stated about the same. The counsel further submits that similarly Virendra Singh (PW-4) and Maharaj Singh (PW-5) have deposed in their statement that they had received a letter from dacoits therein Rs. 4 lakhs was demanded as ransom for releasing Lakhan. They gave Rs. 2,10,000/- to Hazrat and thereafter Lakhan was released. However neither the said letter was seized during investigation nor the witnesses have deposed in their statement recorded during investigation about paying Rs. 2,10,000/-. The learned counsel further submits that no demand was made on behalf of the accused persons as per statements of Lakhan Singh and Maharaj Singh made to the police and no amount was paid to the accused persons. In such a situation the trial Court has committed error in convicting the accused persons under section 364-A of Indian Penal Code. The learned counsel placing reliance on the judgment Malleshi vs. State of Karnataka, AIR 2004 SC 4865 has contended that for conviction under section 364 -A of Indian Penal Code the prosecution had to prove that the demand was conveyed to the family members of the abductee on behalf of the accused persons as ransom for releasing Lakhan but this case totally lacks the ingredients of section 364-A of Indian Penal Code in the evidence tendered by the prosecution. The learned counsel further submits that more or less only the accused persons could be convicted under section 365 of the Indian Penal Code and they are under trial since their arrest on 6-5-2003. The learned counsel further submits that more or less only the accused persons could be convicted under section 365 of the Indian Penal Code and they are under trial since their arrest on 6-5-2003. They have completed more than 10 years in the custody and so they may be released for they have already undergone the period of custody for the offence under section 365 of Indian Penal Code. 6. Refuting the arguments learned Public Prosecutor submits that there is sufficient evidence on record to convict the accused persons under section 364-A of Indian Penal Code as Lakhan Singh (PW-3) and his father Virendra Singh (PW-4) and his uncle Maharaj Singh (PW-5) have categorically deposed in their statements that the ransom of Rs. 5 lakhs was demanded from them, however, they gave Rs. 2,10,000/-to the accused persons and thereafter Lakhan was released by the accused persons from their unlawful custody. The learned Public Prosecutor further submits that the findings of the trial Court are based on proper reasonings and there is no need to interfere in the conviction and sentence passed by the trial Court. 7. In support of the case, the statements of eight witnesses were got examined by the prosecution in this case. The abductee Lakhan Singh (PW-3) has deposed in his statement that on 2-2-2003 at 10 P.M. he had gone to his tube well where the three accused namely Makhan, Nanhe Singh and Virendra reached the spot carrying guns. They forcibly took him away into the forest thrashing him with the butt of their guns. He was kept in the forest by the accused in Hazrat Rawat dacoit's gang. The total number of dacoits were seven whose names were Hazrat Rawat, Virendra Singh, Nanhe Singh, Makhan Singh, Kamal Singh Rawat and Ramesh Jha. The witness has further stated that he was familiar with their names as they were calling one another by names. He was tied with a chain in the night. They used to prepare their meals in the forest where he was detained. The witness has further stated that one more captive named Laxman Singh resident of village Birkheda was brought after a fortnight. The witness further deposed that the accused forced him to write a letter for ransom demanding of Rs. 8 Lakhs from his family members. He was released by them after getting Rs. 2,10,000/- as a part of ransom. 8. The witness has further stated that one more captive named Laxman Singh resident of village Birkheda was brought after a fortnight. The witness further deposed that the accused forced him to write a letter for ransom demanding of Rs. 8 Lakhs from his family members. He was released by them after getting Rs. 2,10,000/- as a part of ransom. 8. The witness was cross-examined on behalf of the accused. A few omissions have been brought on record in Paras 5 and 6 but they have no significance as these omissions have cropped in the statement given by the witnesses during the cross-examination. In Para 8 of the statement, it has come on record that no identification parade of the accused was got conducted during investigation by this witness but it does not affect the credibility of the witness regarding his abduction by the accused as he had been in their captivity for a long time and during this period he became familiar with their names as well as their identity. 9. The statements of Mahendra Singh (PW-1), Virendra Singh (PW-4) the victim's father and Maharaj Singh (PW-5) the victim's uncle evidently corroborate the facts of Lakhan Singh's abduction. The FIR Ex-P/1 was lodged by PW-1 without any delay in this regard. Although there is no eyewitness in this case except Lakhan Singh, the victim yet his very statement is enough to believe the story of abduction by the accused. Besides, there has been no animosity between the accused and the victim before this incident, owing to which, there was no reason with the witness for implicating the accused falsely in this case. Thus, the statement of Lakhan Singh appears to be convincing and genuine regarding his abduction by the accused. 10. The question before the Court is whether the demand of ransom was conveyed by the accused to the family members of the victim and whether or not it materialised. To prove the offence under section 364-A of Indian Penal Code, it is necessary that the prosecution has to establish that the demand of ransom was conveyed to the victim's family members as held in Malleshi vs. State of Karnataka (supra) as under:- “12. To attract the provisions of section 364-A what is required to be proved is: (1) that the accused kidnapped or abducted the person. (2) kept him under detention after such kidnapping and abduction. To attract the provisions of section 364-A what is required to be proved is: (1) that the accused kidnapped or abducted the person. (2) kept him under detention after such kidnapping and abduction. (3) that the kidnapping or abduction was for ransom......” 11. In Para 7 of Lakhan Singh's (PW-3) statement, the witness has deposed that he got in his statement recorded in the police statement Ex-D/1 that a letter was got written from him by the accused to his family members for the demand of ransom of Rs. 8 lakhs and he has further stated in his statement that the amount of Rs. 2,10,000/- was given by his family members to the accused. After getting the said amount he was released by them. The witness has further stated that he cannot say why these facts have not been recorded by the police in his statement Ex-D/1 given by him to the police. The witness has further deposed in his statement that he had not got D to D, Y to Y, R to R in his statement Ex-D/1 recorded wherein the facts stated are that Lakhan Singh having removed the blindfold from his eyes fled away from the captivity of the accused during the night when the accused were sleeping and the amount of Rs. 2,10,000/- as ransom was also not given to the accused. Similarly in Para 4 of the statement (Ex-D/2) of Maharaj Singh (PW-5) uncle of Lakhan Singh, the same contradictions have been brought on record that Lakhan Singh was released after giving the ransom amounting to Rs. 2,10,000/-. 12. The learned counsel for the accused has strenuously contended that all the three witnesses Lakhan Singh (PW-3), Virendra Singh (PW-4) and Maharaj Singh (PW-5) had not got recorded in their statement to the police during investigation under section 161 of the Criminal Procedure Code recorded by the Investigating Officer Shri Ranvijay Singh Bhadoriya (PW-7) and Shri R.S. Senger, Sub Inspector (PW-8) since the story of giving ransom of Rs. 2,10,000/- to the accused has been newly introduced in the Court during the recording of statement. Their statement ought not to have been believed by the trial Court as those statements are based on afterthought. 13. It is true that the said letter regarding ransom was not seized by the police during investigation. 2,10,000/- to the accused has been newly introduced in the Court during the recording of statement. Their statement ought not to have been believed by the trial Court as those statements are based on afterthought. 13. It is true that the said letter regarding ransom was not seized by the police during investigation. It is also evident from the previous statement of the witnesses PW-3, PW-4 and PW-5 that the facts regarding demand of the ransom as well as payment of ransom of Rs. 2,10,000/- to the accused have not been stated therein. Owing to which, the statements of the witnesses cannot be relied upon. As held by this Court in Guddu vs. State of M.P. 2000 (2) MPWN 162 and Laxmi Bai vs. State of M.P. 2000 (2) MPWN 101 . According to the said judgments if a material fact is found missing in the police statement recorded under section 161 of the Criminal Procedure Code and the said fact is deposed later by a witness in the statement given in the Court, it would be deemed afterthought and cannot be relied upon for conviction. In view of the aforesaid facts, in the instant case the findings given by the trial Court in Paras 14 to 21 regarding the demand and payment of ransom have not been found properly appreciated of the evidence by the trial Court. Hence, conviction under section 364-A of Indian Penal Code cannot be maintained in the instant case. 14. It would be relevant to mention here that the story narrated by the said witnesses regarding the demand and payment of ransom of Rs. 2,10,000/- also appears to be plausible otherwise there was no reason for the accused to have kept Lakhan Singh in their captivity for more than a month. In order to reap Kudos for their gallantry the police appear to have taken the credit of Lakhan Singh's release from the captivity of the accused for reasons better known to them and on account of this it is inferred that the police have not conducted proper investigation of the case. It is also true that a witness has no direct control on what is being recorded in the statement during investigation by the police. 15. It is also true that a witness has no direct control on what is being recorded in the statement during investigation by the police. 15. Considering the aforesaid statements of PW-3, PW-4 and PW-5, it is difficult for the Court to hold that the demand of ransom was made by the accused from the family members of Lakhan Singh for his release from their captivity. Thus, the findings of the trial Court holding the accused guilty under section 364-A of the Indian Penal Code cannot be sustained. But as discussed earlier, there is sufficient and convincing evidence on record to hold the accused convict under section 365 of the Indian Penal Code. Resultantly, all the three accused Nanhe Singh, Makhan Singh, Veeru alias Virendra are hereby acquitted under section 364-A of Indian Penal Code, however, they are convicted under section 365 of Indian Penal Code. Besides, the accused were members of Hazrat Rawat dacoit's gang, hence they are also held guilty under section 11/13 of the M.P.D.V.P.K. Act. 16. So far as sentence is concerned under section 365 of the Indian Penal Code maximum sentence is provided up to seven years. As the accused have been in jail since their arrest on 6-5-2003 i.e. for more than 10 years, no further sentence is required to be awarded to the accused in this case. Therefore, partly allowing the appeal, converting the conviction under section 364-A of the Indian Penal Code into section 365 of the Indian Penal Code read with section 11/13 of the M.P.D.V.P.K. Act and the further sentence is not being awarded to the accused as they have already been served sentence in jail a period more than 10 years. Hence, no further sentence is required to be imposed on the accused. Consequently, it is ordered that if the accused are not required in any other case they be released forthwith. The super session warrant be sent to the concerned trial Court and Chief Judicial Magistrate for compliance the order and a certified copy of the judgment be also sent to the concerned Superintendent of Jail for necessary compliance. 17. It is also necessary to mention here that the Investigating Officers PW-7 and PW-8 have not conducted the investigation properly. If the investigation had been carried out properly the result would have been different. They had hidden the real story of ransom for exhibition their gallantry as discussed earlier. 17. It is also necessary to mention here that the Investigating Officers PW-7 and PW-8 have not conducted the investigation properly. If the investigation had been carried out properly the result would have been different. They had hidden the real story of ransom for exhibition their gallantry as discussed earlier. Their act comes under the purview of dereliction of duty, hence appropriate action is required against them. Therefore copy of the judgment along with the trial Court judgment as well as statement of PW-7 and PW-8 be sent to the Director General of Police Bhopal for necessary action.