Judgment : Per Amitav K. Gupta, J. Both the appeals are directed against the judgment and order of conviction dated 19.4.2003 and 22.4.2003 respectively passed by the learned 4th Additional Sessions Judge, FTC, Garhwa in Sessions Trial No.142 of 2002 arising out of Garhwa P.S. Case no.152/02 corresponding to G.R. No.574/02, whereby and whereunder the above named appellants have been convicted for the offence under Sections 364 A of the Indian Penal Code(IPC for short) and have been sentenced to rigorous imprisonment for life and a fine of Rs.5,000/-and in default thereof to undergo further simple imprisonment of six months. 2. Brief facts of the prosecution's case as per the written report of informant, Munnilal Sao (P.W.-1), is that on 21.7.2003 he and his brother, Mahaveer Sao (P.W.-3, the victim) were in their scrap (Kabari) shop. At 13:30 hrs. three accused viz. Chand Kureshi, Sajid and Vinod Ram entered the shop and after flashing their pistols, forcibly dragged P.W.-3 and made him sit in the Maruti Van bearing registration No.BR-15-5860. Two other persons were sitting one of whom he identified as Sanjay Gupta, but could not identify the other person. It is alleged that the accused persons kidnapped his brother Mahaveer Sao in the Maruti Van and took him to Ranka More. That they are professional criminals and they had earlier given threats and demanded rangdari (extortion money). It is alleged that they had kidnapped his brother (P.W.-3) for ransom and would kill his brother. 3. On the said information Garhwa P.S.Case No.152 of 2002 was instituted under Section 365, 364, 387 and 34 of the Indian Penal Code (for short IPC). During investigation the Police apprehended appellant/accused Chand Qureshi and one Bihari Ram and recovered victim Mahaveer Sao (P.W.-3). The confessional statement of the accused/ appellant Chand Qureshi was recorded thereafter the statement of the witnesses was recorded under Section 161 Cr.P.C. On completion of investigation, charge-sheet was laid under Section 364 A read with 34 of the IPC and cognizance was taken whereafter the case was committed to the Court of Sessions and was transferred to the court of IVth Addl. Sessions Judge. The appellants/accused faced trial for the charges under Sections 364/34 IPC. 4. The prosecution examined 13 witnesses viz. Sessions Judge. The appellants/accused faced trial for the charges under Sections 364/34 IPC. 4. The prosecution examined 13 witnesses viz. P.W. 1 Munilal sao, the informant; P.W.-2 Dharamraj Sao, P.W.-3, Mahabir sao (the victim), P.W.-4, Bandhupal, P.W.-5 Naresh Choudhary, P.W.-6, Brij Kishore Choudhary (a seizure list witness), P.W.-7-Dr. R.N. Singh Diwakar who has proved the injury report, exbt.2 of victim Mahabir Sao, P.W.-8-Surendra Prasad, police personnel, P.W.-9-Parshuram Dubey, a sub-inspector, P.W-10 Nandu Ram, Home Guard, P.W.-11-Laxman Jha, A.S.I.; P.w.-12-Paras Nath Singh, the owner of the alleged Maruti Van and P.W.-13, Upendra Singh, the investigating Officer. 5. The documents exhibited on behalf of the prosecution are;-Ext.-1, the written report of Munilal Sao, Ext. -2, the injury report of P.W.-3 ( the victim), Ext. 3, the signature and endorsement of P.W.-13 on Ext. 1, Ext. 4 is the formal F.I.R. and Ext.-5 is the confessional statement of appellant/accused Chand Qureshi. 6. On closure of the prosecution's case, statement of the accused/appellant was recorded under Sections 313 Cr.P.C. and the defence is of complete denial. 7. On behalf of the defence four witnesses have been examined viz. D.W.-1 Rajendra Singh, D.W.-2, Ramesh Pd. Gupta, D.W.-3, Mohd. Shahzad Khan and D.W.-4, Md. Shazid. 8. On the basis of the evidence and materials on record, the trial court convicted and sentenced the appellants by the impugned order and judgment. 9. Learned senior counsel, Sri A.K.Kashyap, on behalf of appellant Sanjay Gupta has assailed the impugned judgment inter-alia on the ground that the learned Court has not considered the fact that no overt act has been alleged against the appellant and the ingredients for the offence under Section 364A of the IPC is not made out against the appellant Sanjay Gupta. Learned senior counsel, Sri A.K.Kashyap, on behalf of appellant Sanjay Gupta has assailed the impugned judgment inter-alia on the ground that the learned Court has not considered the fact that no overt act has been alleged against the appellant and the ingredients for the offence under Section 364A of the IPC is not made out against the appellant Sanjay Gupta. If the prosecution case is presumed to be true then at best the appellant is liable of the offence under Section 365; that the Court below failed to appreciate the fact that the first information report is antedated; that the trial Court should have taken into account that Bihari Ram, the driver of the said vehicle, who was arrested on the spot has not been examined and an adverse inference should be drawn against the prosecution case; that no independent witnesses have been examined and the court below failed to appreciate that the appellant did not have any common intention with other co-accused for kidnapping or abducting the victim for ransom; that the appellant has no criminal antecedent and the judgment and order of conviction if fit to be set aside. 10. Learned counsel, Sri A.K. Chaturvedi, on behalf of appellant Chand Qureshi has contended that the learned trial Court has erred in law by not considering the fact that there is material contradictions in the testimony of the witnesses. The P.Ws – 1, 2 & 3 are related and highly interested witnesses which creates a doubt regarding the credibility of the prosecution case; that the independent witnesses, P.W.-4 and P.W.-5, who are residents of Chappardaga where Chand Qureshi was arrested, have not supported the prosecution case and P.W.-6 the seizure list witness has categorically stated that nothing was recovered from the accused persons. That the police had taken the signature of the appellant/accused on blank paper; that the learned trial court should have considered the fact that the appellant who is also running a shop of scrap material had earlier given information to the police that the victim (P.W.-3) used to keep stolen articles for which a case was lodged and P.W.-3 being aggrieved had implicated the appellant in a false and fabricated case; that D.W.-3 and D.W.-4. have testified about this fact; that except P.Ws. 1, 2 & 3 i.e. victim’s brother and victim and police personnel no other independent witnesses have supported the case of the prosecution. have testified about this fact; that except P.Ws. 1, 2 & 3 i.e. victim’s brother and victim and police personnel no other independent witnesses have supported the case of the prosecution. It has been urged by the learned counsel that in view of the material contradictions in the prosecution's case the impugned judgment is fit to be set aside and the appellant ought be acquitted of the charges. 11. On the other hand the learned A.P.P. has contended that P.W. -1-the informant, P.W. -3-the victim and P.W. 13-Investigating Officer as well as other witnesses have supported the fact that these appellants were present in the Maruti Van which was used to kidnap Mahabir Sao (P.W. -3), brother of the P.W.-1; that the doctor found injury which was inflicted by accused Chand Qureshi on the head of the victim; that the appellants were chased by the police and appellant, Chand Qureshi had fired from the pistol and the said pistol along with a spent cartridge and three live cartridges were recovered from the possession of the appellant Chand Qureshi; that the appellant has criminal antecedents and is named accused in three cases namely, (i) Garhwa P.S. Case No.22/99 under Section 341, 323, 324 of the IPC, (ii) Garhwa P.S. Case No. 147/2000 under Section 302/120B of the IPC and 27 Arms Act and (iii) Garhwa P.S.Case no.126/02 under Section 399, 402 of the IPC and Garhwa P.S.Case no.153/02 under Arms Act and 307 of the IPC. Learned A.P.P. has submitted that P.W.-12, the owner of the Maruti Van bearing no. BR-15-5860 has supported the fact that the driver Bihari Ram told him that the vehicle was taken on hire and was used for kidnapping. That in view of the material evidence on record the impugned judgment requires no interference and the appeal is fit to be dismissed. 12. Having heard the submissions of the counsels, now it has to be determined whether the impugned judgment is sustainable in law or on facts in view of the material evidence on record. 13. That in view of the material evidence on record the impugned judgment requires no interference and the appeal is fit to be dismissed. 12. Having heard the submissions of the counsels, now it has to be determined whether the impugned judgment is sustainable in law or on facts in view of the material evidence on record. 13. The prosecution case, as per the written report of P.W.-1, is that he along with P.W.-3 were sitting in the kabari shop when the appellant Chand Qureshi along with Sajid and Binod Ram entered and after flashing their pistols dragged and forcibly made P.W.-3 sit in the Maruti Van in which appellant Sanjay Gupta and one unidentified person were also seated. However, P.W.-1 in his testimony in court deposed that he alongwith P.W.-3 and the staff of his shop viz. Basant Sao and Jadunandan Sao were in the shop and there were other persons also present there. Apparently, P.W.1 has not mentioned the names of the staff in the written information as deposed by him in the court. It is alleged in the written report that the appellant Chand Qureshi and Binod Ram and Sajid had entered the shop and after flashing their pistols had forcibly taken his brother. But in his deposition he has stated that Chand Qureshi came and called his brother. Thereafter he heard shouts of this brother and on coming out of his shop, he saw his brother being taken away in the white coloured Maruti Van and he had seen a revolver in the hand of Chand Qureshi and also seen appellant Sanjay Gupta, Binod Ram and one another person in the said vehicle. At this juncture, it is relevant to point out that he has not deposed that Sajid and Binod Ram had accompanied the appellant Chand Qureshi or they had flashed their pistols and dragged P.W.-3 to the Maruti Van, on the contrary he has deposed that Chand Qureshi came and called his brother. P.W.-1 has developed a new story in his deposition by stating that the appellants were demanding Rs. 5 lakhs as extortion money, which has not been mentioned by him in the written report. 14. P.W.-2 is another brother of P.W.-1 and he has deposed that he was loitering near the shop when he saw his brother i.e. P.W.-3 being taken away in a Maruti Van and his brother was shouting. 5 lakhs as extortion money, which has not been mentioned by him in the written report. 14. P.W.-2 is another brother of P.W.-1 and he has deposed that he was loitering near the shop when he saw his brother i.e. P.W.-3 being taken away in a Maruti Van and his brother was shouting. P.W.-2 deposed that he had seen 3-4 persons but he identified appellant Chand Qureshi and had seen pistols in the hand of 3 persons but this has not been testified by P.W.-1. P.W.-2's testimony shows that he had seen injury on the head of P.W.-3 but this has not been stated by P.W.-1 who had come out of the shop on the shouts of P.W.-3. Neither has P.W.-1 testified regarding presence of P.W.-2 near the shop. 15. The presence of P.W.-2 near the shop becomes doubtful for the reason that had P.W.2 been present near the shop, it was but natural for P.W.-1 to ask P.W.-2 to accompany him to the police station or to remain in the shop but P.W.-1 has not deposed about the presence of P.W.-2 at the place of occurrence either in the written information or in the deposition in the court. 16. P.W.-3, the victim has deposed that he alongwith P.W.-1 and the staff viz. Basant Sao and Jadunandan Sao were present at the shop and at that time appellant Chand Qureshi came and told him that he had some work with him. He came out of the shop and proceeded towards the gate. That Chand Qureshi asked him to come forward whereupon he asked Chand Qureshi to speak out whatever he had to say and at that time Chand Qureshi caught his hand and pointed a pistol on his head. Thereafter appellant Chand Qureshi dragged and hit him on the head with his pistol butt due to which he sustained injury on his head. 17. On scrutiny of the evidence of P.Ws.1, 2 & 3 it is abundantly clear that P.W.-1, as noted above has given a different version vis a vis his statement in the F.I.R. Moreover, P.W.-1 has not testified that he had seen his brother being assaulted on the head by Chand Qureshi or the injury on the head of P.W.-3. 17. On scrutiny of the evidence of P.Ws.1, 2 & 3 it is abundantly clear that P.W.-1, as noted above has given a different version vis a vis his statement in the F.I.R. Moreover, P.W.-1 has not testified that he had seen his brother being assaulted on the head by Chand Qureshi or the injury on the head of P.W.-3. P.W.-2 has also not stated that he had seen the assault by Chand Qureshi and he has admitted that his brother had told him that he was assaulted on the head. His testimony is that P.W. 3 had told him that P.W. -3's two tooth was broken. P.W.-2 had only identified Chand Qureshi. The presence of P.W.-2 as evidenced from the testimony of P.W-1 is highly doubtful at the place of occurrence. It is noticed that the testimony of P.Ws. 1, 2 & 3 are inconsistent and contrary to the narration in the written information regarding the genesis and manner of occurrence. 18. As per the F.I.R, it is P.W-1's statement that the three accused persons forcibly dragged his brother on the point of pistol and made him sit in the Maruti Van, whereas P.W.-3 has deposed that the accused persons threw him on the back seat of Maruti Van and at that time his legs were jutting out of the vehicle. P.W.-3's testimony is that at Majhiao More, the accused pulled his leg inside the vehicle and shut the door, but P.Ws. 1 and 2's have not deposed that the Maruti Van fled away and P.W.-3's legs wae jutting out of the Maruti Van on the contrary their testimony is that the appellants made his brother sit in the Van. P.W.-2's testimony is that he had seen three persons armed with pistol but P.Ws 1 & 3 have not corroborated his testimony. P.W.-2 deposed that his brother was shouting when the accused persons were taking him in the van whereas P.W.-3 has stated that when he started shouting the accused persons closed his mouth and pushed him into the Van. And when he shouted again, one of the accused inserted a finger in his mouth. P.W.-2 deposed that his brother was shouting when the accused persons were taking him in the van whereas P.W.-3 has stated that when he started shouting the accused persons closed his mouth and pushed him into the Van. And when he shouted again, one of the accused inserted a finger in his mouth. P.W.-3 in cross examination, in para-24 has contradicted his own statement that on the day of occurrence, except for P.W.-1, no one else was present in the shop and he has also stated that when he was taken out by appellant Chant Qureshi, P.W.-1 was not present in the shop. In para-35 he has admitted that he does not know who assaulted with pistol on his head and in this way he has contradicted his own statement. 19. P.Ws.-1 and 3 have deposed regarding the presence of staff Basant Sao and Jadunandan Sao who were present in the shop but there is no explanation as to why the prosecution has not examined the said two staff and this creates a doubt regarding the veracity of the prosecution's case. 20. P.W.-3's testimony in cross-examination is that the place where the occurrence took place is desolate and a vacant field whereas P.W.-2, in cross-examination, has stated that a crowd of 500 people had gathered comprising of the shopkeepers and pedestrians. P.W.-1, in cross-examination in para-4 and 5 has stated that there are 10-15 shops near his shop. P.W.-2 in para-5 of his cross-examination has deposed that at the time of occurrence, Arjun a staff of the shop, was with him. The prosecution not examined Arjun Kumar. In para -8 P.W.-2 deposed that about 500-1000 people move around at any time on the said road. The testimony of P.Ws.'s 1, 2, and 3 are inconsistent regarding the vicinity and habitation near the shop. It is pertinent to point out that P.W.-1 in cross-examination (para-27 & 28) has testified that when Chand Qureshi came and called his brother and his brother followed Chand Qureshi then he had not seen any pistol in the hands of Chand Qureshi and this testimony of P.W.-1 creates a doubt regarding the credibility of the prosecutions case and the trustworthiness of P.W. -1. 21. 21. P.W.-3 in cross-examination in para-44, 45 has admitted that he was taken on the vehicle through the main road and there are thousands of shops and residential house situated between Raka and Shahjar. That when they reached Chapardaga, he walked along with the accused for half a kilometer on mud road whereas P.W.-11, the investigating officer has deposed that the Maruti Van stopped at Chapardagga and four persons came out of the said van dragging the victim whereupon they chased and surrounded the criminals. That the accused persons left the victim and started fleeing away but as noticed, P.W.-3 has stated that the appellants made him walk for half a kilometer whereafter all the accused started fleeing away and the police chased Chand Qureshi for about 1k.m. P.W.-9 deposed that he saw the appellant Chand Qureshi and three other persons dragging the victim from the vehicle. That Chand Qureshi fired when the officer-in-charge ran to apprehend them and when the officer-in-charge fired in return the Chand Qureshi surrendered. He has deposed that P.W.-13, P.W.-8 and the armed forces had chased and apprehended the appellant after a chase of 200-250 yards whereas P.W.-3 had deposed that the police chased the appellant for 1 K.M. 22. P.W.-9 has admitted in cross-examination that earlier too he had deposed in 2-3 cases on behalf of the police. This statement of P.W.-9 shows that he is a stock witness of the police and the credibility of his evidence is doubtful. 23. P.W.-10 has deposed that he was travelling along with P.W.-8 and when they reached Karagaon, a person was caught. He has deposed that they had taken their position at a distance of about 2 k.ms. and he did not hear any gun shots. In cross-examination he has testified that he had not seen as to who was apprehended. 24. P.W.-13 the investigating officer has deposed that he chased the criminals and the victim and ordered the forces to cordon off the criminals, whereupon the criminals set free the victim. P.W.-13 deposed that the victim disclosed the names of the accused persons whereas P.W.8 has deposed that he identified one of the criminals as appellant Chand Qureshi. P.W.-13 has deposed that he asked the victim to stay put and he chased the criminals but this has not been corroborated by P.W.-8. P.W.-13 deposed that the victim disclosed the names of the accused persons whereas P.W.8 has deposed that he identified one of the criminals as appellant Chand Qureshi. P.W.-13 has deposed that he asked the victim to stay put and he chased the criminals but this has not been corroborated by P.W.-8. P.W.-13 deposed that he had given a warning to Chand Qureshi to stop or else he would shoot him whereupon Chand Qureshi fired at him and thereafter he also fired from his service revolver. P.W.-8 has not testified regarding giving of warning by P.W.-13 to the appellant. P.W.-13 has also deposed that in the meantime, the armed forces loaded their guns and ordered Chand Qureshi to stop or else he would be shot. But the testimony of P.W.-13 has not been supported by P.W.-8 or P.W.-10. Rather P.W.10 has stated that they had taken their position at a distance of about 2 k.ms and he did not hear any gun shots. 25. P.W.-13 deposed that on the sound of firing and the commotion, lots of people of the locality came to the place of occurrence, but P.W.-3 the victim has not deposed about the presence of villagers, on the contrary his testimony in cross-examination is that there is no village in the vicinity of the place from where the police recovered him. P.W.-3 has deposed that police had told him that the village is called Chapardagga. 26. P.W.-9's testimony is that he was standing near the police vehicle and P.W.-8 has deposed that the vehicle was parked at a distance of about 500 yards and if such testimony is to be believed then P.W.-9 could not possibly have witnessed the firing from pistol by the appellant/accused. 27. P.W.-3, during cross-examination in para 27 and 28 has deposed that the appellant had called him from the shop and he had gone out 6-7 yards outside the gate. Thereafter he had talk for some minutes. The Maruti Van was parked 10 yards to the south. That the appellant Chand Qureshi had called his associates and he saw two persons coming armed with pistol. He tried to flee away but they caught him and Chand Qureshi had pointed the pistol on his temple but as discussed above P.W. -3 admitted that he does not know who assaulted him with the pistol. That the appellant Chand Qureshi had called his associates and he saw two persons coming armed with pistol. He tried to flee away but they caught him and Chand Qureshi had pointed the pistol on his temple but as discussed above P.W. -3 admitted that he does not know who assaulted him with the pistol. P.W.-3 in his examination-in-chief has stated that the accused had closed his eyes by tying a gamcha and in cross-examination, in para-81, he has stated that appellant Chand Qureshi had removed the handkerchief by which he was blindfolded and he had disclosed to the police about the handkerchief by which he was tied but he cannot say whether the police had taken the handkerchief. The testimony of PW-3 of being blindfolded cannot be believed because in cross-examination he has testified describing the route on which he was taken. He testified that he had given the blood-stained clothes to the police at the police station but P.W.-13 has not stated about seizure of any bloodstained clothes. 28. P.Ws. 4, 5 have been declared hostile. P.W.-6 has stated that the police had taken his signature on the seizure list and in cross-examination he has stated that nothing was recovered from the possession of the accused. 29. P.W.-7, Dr. R.N. Singh Diwakar, has proved the injury report and found lacerated wound 1” x 1/4” x 1/4” on right parietal region of the scalp. In cross-examination he has admitted that the said injury is superficial in nature and it can be self-inflicted. 30. In view of the deposition of the doctor, testimony of P.W.-3, the victim, that he had sustained gaping bleeding wound on his head due to assault by the butt of the pistol stands falsified as in his cross-examination, has stated that his clothes were soaked in blood whereas the Doctor has testified that the injury was superficial in nature. 31. P.W-8 has deposed that when they reached Chapardagga village, they saw 4 criminals coming out of the Maruti van and dragging P.W. -3. That P.W.-1 was with them. That they chased the criminals whereupon the appellant Chand Qureshi fired pistol shots on them whereupon the officer-in-charge also fired from his service revolver and in the meantime, the victim was set free. That the appellant surrendered and from his possession, one country made pistol and 3 live cartridges of 8 mm. That P.W.-1 was with them. That they chased the criminals whereupon the appellant Chand Qureshi fired pistol shots on them whereupon the officer-in-charge also fired from his service revolver and in the meantime, the victim was set free. That the appellant surrendered and from his possession, one country made pistol and 3 live cartridges of 8 mm. was recovered from his shirt pocket which was seized in presence of P.W.-6 and one Chotan Kumar Ravi. However, P.W.-6 has stated that nothing was recovered from the possession of the accused. In cross-examination he has stated that the jeep was 500 yards away from where they apprehended the appellant Chand Qureshi. He does not remember whether the seized pistol and cartridges were sealed. 32. P.W.-10, Nandu Ram has stated that he had accompanied P.W.-8 and he heard that one person was caught and from him a pistol was recovered. He has stated that they had taken their position at a distance of 2 kms and did not hear the gun-shots. In cross-examination he has stated that he did not see who was caught and what was recovered. In this way he has contradicted the statement of P.W.-8, because P.W.-8 in cross-examination has stated that P.W.-10 was accompanying them at that time. 33. P.W.-11, Laxman Jha has admitted that for the recovery of the arms Garhwa P.S. Case No. 153 of 2002 was instituted of which he is the investigating officer. His evidence is of no help to the prosecution in this present case. 34. P.W.-12 is the owner of the Maruti Van BR-15-5860. He has deposed that he read in the newspaper that some criminals had used his vehicle for kidnapping a person and the driver Bihari Ram told him that the van was taken on hire by some person. He has not named any of the accused. 35 P.W.-13 Upender Singh has stated that P.W.-1 had given the information regarding forcible kidnapping of P.W.-3 by the accused persons on the point of pistol. That he along with the police personnel had chased the Maruti van and at Chapardagga, had seen 4 persons dragging the victim. Thereafter they had tried to cordon the accused from 2 sides whereupon the accused persons freed the victim and ran away. That he along with the police personnel had chased the Maruti van and at Chapardagga, had seen 4 persons dragging the victim. Thereafter they had tried to cordon the accused from 2 sides whereupon the accused persons freed the victim and ran away. That as soon as he reached there, he saw the victim soaked in blood and the victim disclosed the names of the appellant and other accused. That he asked the victim to stay put, and he gave a warning to the appellant to stop or else he would shoot whereupon the appellant fired at him and then he opened fired from his service revolver. That the police personnel pointed their guns and asked the appellant to surrender or else he would shoot. Thereupon the appellant surrendered. That they had also apprehended the driver of the Maruti van and a separate case was lodged for arms act. 36. On perusal of the testimony of P.W.-1 in cross-examination he has stated that the police had chased and caught and brought the appellant Chand Qureshi and he had not seen the police snatching the pistol from the hands of the appellant Chand Qureshi. 37. Suggestion have been given to P.W.-1 that the appellant/Chand Qureshi has been falsely implicated as he was instrumental in pointing out regarding the shady business dealings of P.W.-3 and the recovery of stolen articles from the shop of P.W.-3. P.W.-3 has stated that 1-2 months prior o the occurrence, a bomb was thrown on his shop and there used to be telephone calls by persons who said they were men of Chand Qureshi and in cross-examination he has stated that he had lodged a case for the said occurrence but he does not know who were the accused persons in that case. He has admitted that he had not lodged any case with respect to demand of extortion money by the appellant neither does he have any knowledge of demand of extortion by appellants. He has admitted that earlier a case was lodged against him and some articles were seized from his shop for which he could not show the papers. D.W.-3 has stated that the appellant had helped in recovery of illegal articles from the shop of the victim. 38. He has admitted that earlier a case was lodged against him and some articles were seized from his shop for which he could not show the papers. D.W.-3 has stated that the appellant had helped in recovery of illegal articles from the shop of the victim. 38. From the testimony of the witnesses it emerges that P.W-1 in his testimony in court has come out with a new story regarding the manner of occurrence vis a vis made by him in the written information. P.W.-1 in cross-examination admitted that he had given the written information after the arrest of accused Chand Qureshi. This testimony of P.W.-1 creates a doubt about the FIR being ante-dated and having been lodged subsequently. It is necessary to point out that in the F.I.R. at column-10 the recovery of Br-15-5860 Maruti Van, white colour has been noted and the same has been subsequently struck off. This lends credence to the fact that the written information was lodged after the arrest of the accused and the FIR is ante-timed. P.W.-3 in cross-examination admitted that his statement was recorded at the residence of the SP and subsequently he has stated that his statement was recorded at the police station. 39. On analysis of the evidence of the witnesses it is notice that there are glaring inconsistencies and infirmities apparent in the testimony the witnesses. 40. Having discussed the evidence now the question to be determined is whether the act of the appellants will make them liable for the offence under Section 364A of the Indian Penal Code and will it amount to demand “to pay ransom” as stipulated under Section 364A. For better appreciation it is necessary to refer to Section 364 A which reads as follows :- “Kidnapping for ransom, etc. -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 causes hurt or death to such person in order to compel the Government or [any foreign State or international inter-governmental organisation or any 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.”. Thus the basic ingredient for liability under the section is kidnapping or abduction with the intention to demand ransom. For the purposes of payment of ransom, it is evident that a demand has to be made and communicated. Thus unless the price of release or retrieval is made the question of paying a ransom would not arise. 41. In the instant case, as per the written report of P.W. -1, it is alleged that the accused earlier, on several occasions, had given threats and demanded rangdari (extortion money). In his deposition in court P.W.-1 deposed that they were demanding Rs.5 lakhs as rangdari tax and prior to this occurrence, he had paid Rs.30,000/-out of fear to appellant Chand Qureshi on the instruction of his brother. That he had given this information to the police, in the written report. Apparently P.W.-1 has embellished and made improvement in his deposition vis-a-vis the written statement while deposing in the Court, because there is no whisper in the written report regarding the demand of rangdari of Rs. 5 lakhs or the payment of Rs.30,000/-made by him to the appellant Chand Qureshi. 42. Likewise P.W.-2 has stated that the accused had kidnapped his brother for payment of rangdari of Rs.5 lakhs. In cross-examination in para-28 he has stated that P.W.-3 disclosed to him that he was kidnapped by the accused for ransom of Rs. 5 lakhs as discussed but presence of P.W.-2 at the place of occurrence is doubtful. 43. P.W.-3, the victim, deposed that the accused persons told him to pay Rs. 5 lakhs and they had earlier also demanded Rs.5 lakhs on phone and due to nonpayment of the said amount, they had kidnapped him. That earlier also he had paid rangdari through his brother. 44. P.W.-1 in cross-examination in para-49, and 50 has stated that he does not know the day or date when Rs. 30,000/-was given and the money was not paid in his presence. In this way he has made a statement inconsistent to his earlier testimony and has not supported the testimony of P.W. -3. P.W. -1 deposed that he heard talks going on in the house regarding the payment of money but he cannot say the day or date of such talk. 45. In this way he has made a statement inconsistent to his earlier testimony and has not supported the testimony of P.W. -3. P.W. -1 deposed that he heard talks going on in the house regarding the payment of money but he cannot say the day or date of such talk. 45. P.W.-3 in para 18, 19, 21 has admitted that he knew the appellant Chand Qureshi since the time he has been staying in Garhwa and prior to the occurrence no maarpeet (assault) had taken place with him. He had no relationship with Chand Qureshi, prior to the occurrence. This statement of P.W. -3 falsifies his testimony that earlier Rs.30,000/-was paid as extortion money. As per para-25, 26, 27, 28, 29 and 30, 31 of the cross-examination he has testified that he had gone when Chand Qureshi had called him to have some talks and they had talks for 2 or 3 minutes and when the talks were taking place between him and the appellant Chand Qureshi, P.W.-1 was not present. In para-91, 92 he has admitted that he had not filed any case for demand of extortion money against Chand Qureshi and he does not know whether there was any case lodged earlier against appellant Chand Qureshi for rangdari. 46. On analysis of the evidence of P.Ws. 1, 2 and 3, it is evident that P.W.-1 has contradicted his own statement by stating that the money was not paid by him and he does not know the day and date of payment of money. P.W.-3 has likewise not testified that he had filed any case of extortion against the appellant rather Chand had called him and he had gone and had talks with him and he has not testified about payment of Rs. 30,000/-earlier. P.Ws. 1 & 3 have not testified about the presence of P.W.-2 at the time of occurrence. 47. Thus in view of the infirmities and inconsistencies in the testimony of P.Ws-1 & 3 the factum that demand of ransom was made by the appellant is not substantiated and neither P.Ws.1 and 2 have supported the testimony of P.W.-3 that earlier also Rs.5 lakh was demanded on phone. 47. Thus in view of the infirmities and inconsistencies in the testimony of P.Ws-1 & 3 the factum that demand of ransom was made by the appellant is not substantiated and neither P.Ws.1 and 2 have supported the testimony of P.W.-3 that earlier also Rs.5 lakh was demanded on phone. Thus, in the absence of any corroborative evidence and in absence of any material, it is held that the prosecution has failed to bring on record that any demand for ransom was made on the family of the victim or the informant. 48. There is no explanation by the prosecution as to why Basant Sao and Jadunand Sao the staff of the shop of P.Ws-1 & 3 were not examined when it is admitted by P.Ws 1 & 3 that the staff were present at the time of occurrence. Bihari Ram the driver of the Maruti Van who is alleged to have been arrested by the police on the same day has neither been made an accused nor has the prosecution examined him as a witness. The examination of Bihari Ram would have revealed the actual state of affairs but withholding of such an important witness creates a doubt regarding the credibility of the prosecution's case and an adverse inference is drawn against the prosecution. The admission of P.W.-1 that the written information was lodged by him after the arrest of appellant Chand Qureshi reveals that the FIR was ante-timed and the mentioning of seizure of Maruti van in column 10 of the FIR, as noticed above, supports the fact that the FIR is ante-timed. 49. In view of the discussion made above and the infirmities and inconsistencies in the testimony of the witnesses, it is held that the prosecution has miserably failed to establish the charge under Section 364 A read with 34 of the Indian Penal Code against the appellants/accused namely, Chand Qureshi and Sanjay Gupta and they are acquitted of the charge. Accordingly the judgment and order of conviction dated 19.4.2003 and 22.4.2003 respectively passed by the learned 4th Additional Sessions Judge, FTC, Garhwa in Sessions Trial No.142 of 2002 arising out of Garhwa P.S. Case no.152/02 corresponding to G.R. No.574/02 is hereby set aside. 50. Accordingly the judgment and order of conviction dated 19.4.2003 and 22.4.2003 respectively passed by the learned 4th Additional Sessions Judge, FTC, Garhwa in Sessions Trial No.142 of 2002 arising out of Garhwa P.S. Case no.152/02 corresponding to G.R. No.574/02 is hereby set aside. 50. The appellant Sanjay Kumar Gupta is on bail and he is discharged of the liabilities of the bail bonds and appellant Chand Qureshi is directed to be released forthwith from jail custody if not wanted in any other case. 51. In the result both the appeals are hereby allowed.