JUDGMENT : G.B. Shah, J. 1. As both these appeals arise out of the same judgment and order, with the consent of learned advocates appearing for the respective parties, they were heard together and are being decided by this common CAV judgment. 2. Criminal Appeal No. 1487 of 2013 filed by the original accused Nos. 1 and 2 and Criminal Appeal No. 774 of 2014 filed by the original accused Nos. 3 and 4 arise out of judgment and order dated 15-5-2013 passed by the learned 8th Additional Sessions Judge, Vadodara, in Sessions Case No. 170 of 2009 whereby original accused were convicted and sentenced to suffer a combined RI for ten years and to pay fine of Rs. 100/-, in default, to suffer further SI for three months for the offence punishable under sections 365 and 367 read with section 114 of IPC. Accused were given benefit of set off for the period undergone in jail. 3. Short facts of the case of the prosecution are that on 30.10.2009 at about 5.30 p.m., accused No. 1-Shanabhai Ghanshyambhai Nayak, in connivance with accused No. 2-Bhailalbhai Shabhayibhai Nayak, No. 3-Gangaben Bhailalbhai Shabhayibhai Nayak and No. 4-Savitaben Girishbhai Shanabhai Nayak, kidnapped the son-Ujjwal aged four years and the daughter-Vaishaliben @ Kunjalben of brother-in-law of the original informant when they were playing in front of the Alipura Khodiyar Mata Mandir and performed black magic on them. With the said allegation, a complaint was lodged against the accused persons. In pursuance of the said complaint, investigation started and as there appeared prima facie case against the accused, charge sheet was filed against the accused persons. 4.1 As the offence was triable exclusively by Court of Sessions, the learned Magistrate committed the cases to the Court of Sessions. Thereafter charge was framed against the accused which was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused. 4.2 To prove the guilt against the accused, prosecution examined following witnesses: Sr. No. Name of Witness Exh. Thereafter charge was framed against the accused which was read over and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. Hence, the prosecution was asked to prove the guilt against the accused. 4.2 To prove the guilt against the accused, prosecution examined following witnesses: Sr. No. Name of Witness Exh. No. 1 Arun Harshadbhai Trivedi Panch 12 2 Manharba Bharatsinh Lakod 15 3 Hemlataben Jaydipsinh Lakod 16 4 Vijaybhai Sevaklal Darji, Panch 17 5 Ganpatsinh Pruthvisinh Lakod 18 6 Dinesh Gajanandbhai Panchal 19 7 Jaydipsinh Bharatsinh Rathod complainant 21 8 Baldevsinh Ganpatsinh Lakod 23 9 Ajitsinh Govindsinh Lakod 24 10 Vijaysinh Arjunsinh Lakod 25 11 Bhailalbhai Dashrathbhai Barai 26 12 Girishbhai Shanabhai Nayka 27 13 Narottambhai Bhanubhai Baria 56 14 Vaishali Shelendrasinh Ranadarbar victim 58 15 Ranjitsinh Govindbhai, P.C. 60 16 Pratapsinh Mansinh Damor, P.I. 62 17 Ashokbhai Valabhai Katkar, I.O. 67 4.3 The prosecution also relied on following documentary evidence: Sr. No. Description Exhibit No. 1 Panchnama of surname of the accused 13 2 Panchnama of scene of offence 14 3 Complaint 22 4 Note as to registration of offence 61 5 Yadi sent for mobile call details 63 6 Mobail call details from 1-1-09 to 31-10-09 68 4.4 After filing of closing pursis by the prosecution, further statements of accused under Sec. 313 of Cr.P.C. were recorded wherein they pleaded that false case has been filed against them. On conclusion of trial and upon hearing the learned advocates appearing for the respective parties, impugned judgment and order, as aforesaid in the earlier part of this judgement, was delivered by the trial court giving rise to the present appeals. 5. Heard learned advocates, Mr. P.V. Patadiya, for original accused Nos. 1 and 2, Mr. Vipul B. Sundesha for Mr. P.P. Majmudar for original accused Nos. 3 and 4 and learned Additional Public Prosecutor, Mr. K.L. Pandya, for the State in both the appeals. 6. As far as accused No. 1-Shanabhai Ghanshyambhai Nayak is concerned, it is to be noted that as such, after he was released on furlough, he jumped furlough and did not surrender till date and remained absconded. In this connection, Mr. 3 and 4 and learned Additional Public Prosecutor, Mr. K.L. Pandya, for the State in both the appeals. 6. As far as accused No. 1-Shanabhai Ghanshyambhai Nayak is concerned, it is to be noted that as such, after he was released on furlough, he jumped furlough and did not surrender till date and remained absconded. In this connection, Mr. Patadiya drew attention of this Court on the judgment reported in2016(2) G.L.H. Page 128 in the case of Nirav Devnarayan Shukla v. State of Gujarat and submitted that though held by the Full Bench, even in case of absconding accused, this Court can proceed with the final hearing more particularly when the learned advocate is ready to proceed with the case on merits. 6.1 On going through the judgment delivered in Nirav Devnarayan (supra) relied on by the learned advocate, Mr. Patadiya, as there appeared substance in his submission, he was permitted to make submissions inspite of the fact that original accused No. 1 still remained absconding. 6.2 Mr. Patadiya submitted that the impugned judgment and order of conviction and sentence is contrary to law and evidence on record. He further submitted that there are infirmities and major contradictions in the evidence of prosecution witnesses about the place of commission of alleged offence. He further submitted that motive in the commission of offence has not been proved by the prosecution as the accused did not demand any ransom money. Conviction of the accused No. 1 was based solely upon the deposition of P.W. No. 7-Vijaybhai Sevaklal Darji, who is the close friend of the complainant and who lastly saw the accused No. 1 with the children, however, according to him, his evidence does not inspire confidence inasmuch as there are major contradictions about the place from where the alleged offence was committed. He further submitted that except the evidence of P.W. No. 7-Vijaybhai Sevaklal Darji, there are no other independent evidence or material on record supporting the case of the prosecution and therefore, benefit of doubt ought to have been given in favour of the accused. He also submitted that as the case against the accused has not been proved by the prosecution beyond reasonable doubt, the accused ought to have been acquitted of the charges levelled against them. 7. Mr. Vipul Sundesha, while supporting the submissions made by the learned advocate, Mr. He also submitted that as the case against the accused has not been proved by the prosecution beyond reasonable doubt, the accused ought to have been acquitted of the charges levelled against them. 7. Mr. Vipul Sundesha, while supporting the submissions made by the learned advocate, Mr. Patadiya, submitted that except the statements of co-accused, there are no admissible evidence against the accused Nos. 3 and 4. He also submitted that even identification of the accused is not done in accordance with law as the witnesses have seen the accused before giving the depositions. Had the evidence of witnesses been appreciated in proper perspective, it would have known that there is no case against the accused and therefore, a serious error has been committed by the trial court in convicting the accused. 8. Learned APP, Mr. Pandya, submitted that considering the oral as well as the documentary evidence on record, the case against the accused has been proved by the prosecution beyond reasonable doubt and the accused were rightly convicted and sentenced and therefore, no leniency should be shown towards the accused. 9. I have gone through oral as well as documentary evidence on record together with the impugned judgment and order. 10. It appears that the trial court has discussed the evidence in great detail by elaborate reasons. 11. As far as original accused No. 1-Shanabhai Ghanshyambhai Nayak is concerned, it appears from the evidence on record that he has played active role in kidnapping the children and case against him has been proved by the prosecution beyond reasonable doubt through the oral and the documentary evidence more particularly the evidence of the complainant-P.W. No. 7-Jaydipsinh Bharatsinh Rathod and other witnesses. 12. The complainant has deposed at Exh. 21 that on 30.10.2009 when he was in his shop, his mother-Manharba-P.W. No. 2 had informed that at 5.30 p.m., when the children were playing in the society, they went missing and therefore, they along with neighbours went in search. As they could not be traced out, Bodeli Police Station was informed about the same. At that time, one Vijaybhai Sevakram Darji-P.W. No. 4 of their village informed them that a person aged 20 years with blue colour shirt and white pant was going with small children towards Alikherva Road. As they could not be traced out, Bodeli Police Station was informed about the same. At that time, one Vijaybhai Sevakram Darji-P.W. No. 4 of their village informed them that a person aged 20 years with blue colour shirt and white pant was going with small children towards Alikherva Road. They, therefore, made a search the whole night and in the morning at 7.30 p.m., the children were found out at Dhanakiya Village along with accused No. 1-Shanabhai Nayak. He has proved his complaint at Exh. 22. When he was cross-examined, nothing contrary has been found shaking the case of the prosecution. 13. The evidence of aforesaid witness is supported by the evidence of P.W. No. 2-Manharba Bharatsinh Lakod. She has deposed that on 30.10.2009 at about 6 or 7 p.m. when the children went missing while playing near Khodiyar Mandir, it was informed by one Vijaybhai Darji that a person was going with the children. She has also informed that information of missing of children was given to Bodeli Police Station. 14. The aforesaid version is also supported by the testimony of P.W. No. 4-Vijaybhai Sevaklal Darji. He is the person who has last seen the accused No. 1-Shanabhai with the children. He has deposed that on 30.10.2009, when he was roaming at about 8 p.m., he saw a person aged about 20-22 years with blue colour shirt and white pant going with two children, a boy and girl aged about 4 years, towards Alikherva Road. He has further deposed that on reaching Village, he saw people gathered there as son-Ujjwal of Jaydipbhai and daughter-Vaishali of brother-in-law of Jaydipbhai went missing. At that time, he told them that he saw a person going with two children towards Alikherva and he also accompanied the village people in search of the children. 15. The testimonies of aforesaid witnesses also get support from the versions of P.W. No. 5-Ganpatsinh Pruthvisinh Lakod, P.W. No. 6-Dinesh Gajanandbhai Panchal, P.W. No. 8-Baldevsinh Ganpatsinh Lakod, P.W. No. 9-Ajitsinh Govindsinh Lakod and P.W. No. 10-VIjaysinh Arjunsinh Lakod. 16. Other witness examined by the prosecution is Police Inspector-P.W. No. 16-Pratapsinh Mansinh Damor, who was In-Charge Police Officer at Bodeli Police Station. He is the person, who drew panchnama of arrest of accused No. 1-Shanabhai. He identified the accused No. 1 in Court and supported the complaint. 17. 16. Other witness examined by the prosecution is Police Inspector-P.W. No. 16-Pratapsinh Mansinh Damor, who was In-Charge Police Officer at Bodeli Police Station. He is the person, who drew panchnama of arrest of accused No. 1-Shanabhai. He identified the accused No. 1 in Court and supported the complaint. 17. Another witness examined by the prosecution is the Investigating Officer-P.W. No. 17-Ashokbhai Valabhai Katkar, who took over investigation from P.I.-P.W. No. 16-Pratapsinh. He has admitted in his cross-examination that involvement of other three accused in the case in question has been revealed upon interrogation of accused No. 1 and offence punishable under sections 365 and 367 read with section 114 of IPC was reported. 18. From the evidence of aforesaid witnesses, the case against the accused No. 1 of kidnapping the children has been proved by the prosecution beyond reasonable doubt and therefore, I am of the opinion that the trial court was completely justified in convicting him for the offence punishable under sections 365 and 367 read with section 114 of IPC. His conviction and sentence are, therefore, required to be upheld. The learned advocate, Mr. Patadiya for appellant-original accused No. 1 vehemently submitted that if panchnama of the place from where accused had allegedly remained in the field whole night along with children would have been carried out, further muddamal like empty liquor bottle etc. could have been found out. In my view, enough trustworthy evidence have been forthcoming on the record and if at all the said panchnama had not been carried out, then also, in my view, it is in no way prejudicial to accused No. 1. As stated hereinabove, original accused No. 1 remained absconding after being released on furlough and hence, non-bailable warrant is required to be issued against the said original accused No. 1 till he is arrested by the concerned police officials. 19. So far as original accused Nos. 2, 3 and 4 are concerned, the case against them has not been proved for the offence punishable under section 367 of IPC read with section 114 of IPC but offence punishable under section 365 read with section 114 of IPC has been proved by the prosecution through the oral as well as the documentary evidence. Therefore, conviction of the accused Nos. Therefore, conviction of the accused Nos. 2, 3 and 4 for the offence punishable under section 365 of IPC read with section 114 of IPC is required to be upheld. 20. Thus, both these appeals are partly allowed. Impugned judgment and order of conviction and sentence dated 15-5-2013 passed by the learned 8th Additional Sessions Judge, Vadodara, in Sessions Case No. 170 of 2009 qua original accused No. 1 for the charge under sections 365 and 367 read with section 114 of IPC is hereby confirmed. As he is absconding, non-bailable warrant is hereby issued against him till he is arrested by the concerned police officials. Yadi to this effect be forwarded to the concerned trial court as well as the concerned Police Station. 21. As far as original accused Nos. 2, 3 and 4 are concerned, they are acquitted for the charge under section 367 read with section 114 of IPC. However, their conviction for the charge under section 365read with section 114 of IPC is upheld and each of them is hereby ordered to undergo rigorous imprisonment for seven years with fine of Rs. 100/-, in default, to undergo further simple imprisonment of three months. They are reported to be in jail and hence, they are directed to undergo the remaining period of sentence. The impugned judgment and order is accordingly modified to the aforesaid extent. Remaining part of the impugned judgments shall remain unaltered. Records and proceedings shall be sent back forthwith to the trial court.