JUDGMENT Vinod Kumar Srivastava-III, J. – Both the connected appeals are arised out of the same judgment and order,therefore, both the appeals are being decided by a common judgement. 2. These appeals have been filed against the judgement and order dated 21.2.2005 passed by the Additional District and Sessions Judge/Special Judge (E.C. Act), District Gonda in Sessions Trial No. 190 of 2003 (State v. Amit Kumar Singh and another), whereby learned trial court has convicted the appellants Amit Kumar Singh and Mintu Singh @ Dhirendra Pratap Singh for the offence under section 363 Indian Penal Code (hereinafter referred to as I.P.C.) and sentenced each appellants to undergo five years rigorous imprisonment with a fine of Rs. 5,000/- and in default of payment of fine one year additional imprisonment and further convicted and sentenced under section 364-A, I.P.C. for life imprisonment with a fine of Rs. 5,000/- and in default of payment of fine one year additional imprisonment. However all the sentences have been ordered to run concurrently. Brief Facts 3. Brief facts giving rise to the present appeals are that on 13.2.2002 complainant Vinay Kumar Singh lodged a missing report Ex-Ka-4 with the police station Paraspur, District Gonda regarding his daughter Km. Shakshi Singh aged about ten years, who was student of Saraswati Sishu Mandir Paraspur. Thereafter on 19.2.2002 complainant Vinay Kumar Singh gave a written information Ex-Ka-1 to the Station Officer, P.S. Paraspur District Gonda stating therein that on 13.2.2002 Km. Harshita and Km. Sirshti of his family, who had also gone with Km. Shakshi Singh to the school have told that Km. Shakshi Singh had left the school on call of Amit Kumar Singh and gone with Amit Kumar Singh and Mintu Singh @ Dhirendra Pratap Singh. Amit Kumar Singh is the son of his brother-in-law (Sharu). On 14.2.2002 his brother-in-law (Sala) Jagdish Singh resident of Jagdishpur District Sultanpur told him on telephone that he has received a telephonic call from unknown person from Lucknow, who has told that Km. Shakshi Singh is in his custody and has demanded Rs. 3,50,000/- otherwise he has threatened to kill her. It is further stated that Amit Kumar Singh and Mintu Singh @ Dhirendra Pratap Singh have kidnapped her daughter for ransom, therefore, necessary action be taken. 4. Shakshi Singh is in his custody and has demanded Rs. 3,50,000/- otherwise he has threatened to kill her. It is further stated that Amit Kumar Singh and Mintu Singh @ Dhirendra Pratap Singh have kidnapped her daughter for ransom, therefore, necessary action be taken. 4. On the basis of written information Ex-Ka-1 of the complainant Vinay Kumar Singh an entry was made in G.D. dated 19.2.2002 at Rapat no. 12, Ex-Ka-5 and case was registered at case crime no. 46 of 2002 under Sections 364-A, 363, 366 I.P.C. and investigation started. 5. It further appears from the record that on 20.2.2002 some persons namely Chandra Prakash Singh, Suyra Bali Singh, Rana Pratap Singh, Satish Kumar Singh, Rajesh Kumar Singh and Satya Dev Singh caught the accused Amit Kumar Singh and Mintu Singh @ Dhirendra Pratap Singh and brought them to the police station Paraspur and Chandra Prakash recovered a nose pin of abdcutee Km. Shakshi Singh from the pocket of the coat of accused Amit Kumar Singh, regarding which recovery memo Ex-Ka-2 was prepared by the Investigating Officer. During the investigation both the accused persons were taken into police custody remand on 2.3.2002 by the Investigating Officer and on their pointing out Investigating Officer prepared site plan Ex-ka-7 regarding place of hide out, where the abdcutee Km. Shakshi Singh was kept and also prepared site plan Ex-Ka-8 in respect of place from where abductee was thrown into the river Gomti by the accused persons. The Investigating Officer also obtained receipt of telephone bills from various P.C.Os from where accused-persons used to call for ransom and prepared Fard Ex-Ka-9, Ka-10 and Ka-11. After completion of investigation, Investigating Officer Parsuram Dhoare (P.W.9) submitted charge sheet Ex-Ka 12 against both the accused appellants. 6. After committal proceedings, charges were framed against the accused-appellants Amit Kumar Singh and Mintu Singh @ Dhirendra Pratap Singh under Sections 363, 366, 364-A, I.P.C. 7. The prosecution has examined as many as nine witnesses out of which P.W.1 Ashotosh Singh, P.W.2 Vinay Kumar Singh, P.W.3 Chandra Prakash, P.W.4 Jagdish Singh, P.W.5 Shrishti Singh, P.W.6 Harsihita Singh, P.W.7 Shyam Nath Pandey are witnesses of facts and circumstances, while P.W.8 constable Dan Badhadur, P.W.9 Parsuram Dhoare, Investigating Officer are formal witnesses. The prosecution also relied upon the documents, which were marked as Ex-Ka 1 to Ex-ka 11. 8. The prosecution also relied upon the documents, which were marked as Ex-Ka 1 to Ex-ka 11. 8. After closure of the prosecution evidence, the statements of accused appellants were recorded under section 313 Criminal Procedure Code (hereinafter referred to as “Cr.P.C.”) and all the incriminating material/circumstances, were put to them one by one. They denied each allegations levelled against them and stated for false implication. 9. The accused-appellant Amit Kumar Singh has stated in his statement under section 313 Cr.P.C. that property of his uncle Shiv Kumar Singh had been purchased by Surya Bali Singh, a friend of prosecution witness Chandra Prakash, which was strongly objected by the accused appellant and his father. Under the influence and pressure of Surya Bali Singh, Chandra Prakash Singh and complainant have falsely implicated him. Surya Bali Singh also wanted to get remaining property of Shiv Kumar Singh but the same was purchased by his mother through sale deed, therefore, Surya Bali Singh and his friend had enmity with him. 10. The accused appellant Mintu Singh @ Dhirendra Pratap Singh has asserted in his statement under section 313 Cr.P.C. that he is the relative of Amit Kumar Singh, therefore, he has been falsely implicated. 11. The accused-appellants were called upon to enter into defence, but the accused-appellants did not produce any oral evidence and only appellant Amit Kumar Singh produced two documents per list 47 Kha i.e. copy of Khatauni relating to Shiv Kumar Singh and photocopy of sale deed executed by Shiv Kumar Singh in favour of Smt. Ram Lali Devi. 12. Learned trial court after appreciating all the evidences and submissions made by the public prosecutor and defence counsel convicted and sentenced the appellants as has been referred to herein above. 13. It is also pertinent to note here that the appellants have been acquitted for the offence charged under section 366 I.P.C. 14. Feeling aggrieved the accused-appellants have filed these appeals separately. 15. We have heard the submissions made by Shri Raj Baksh Singh, learned counsel for the appellant Amit Kumar Singh, and Shri Anil Kumar Pandey, learned counsel for the appellant Mintu Singh alias Dhirendra Pratap Singh and Shri M.Y. Ansari, learned A.G.A. for the State along with Shri Sushil Kumar, learned counsel for the complainant and also scrutinised the oral and documentary evidence available on record. Submissions and conclusions 16. Submissions and conclusions 16. The learned counsels for both the appellants did not assail the order of conviction and sentence of the accused-appellants passed under Section 363 I.P.C. before this court whereby both the appellants have been convicted and sentence to undergo five years rigorous imprisonment with a fine of Rs. 5,000/- and in default of payment of fine one year additional imprisonment. Therefore, order of conviction and sentence passed by the learned trial court under section 363 I.P.C. against both the appellants is confirmed. 17. The learned counsels for both the appellants only submitted to the court regarding order of conviction and sentence passed under section 364-A, I.P.C. whereby appellants have been convicted and sentenced for life imprisonment with fine of Rs. 5,000/-. Learned counsels for the appellants argued that abductee has not been recovered and demand for payment of ransom is also not proved by any cogent and reliable evidence. The learned counsels for the appellants further contended that on the basis of prosecution evidence available on record, utmost prosecution case falls under the purview of Section 364 I.P.C. and accused-appellants may be convicted and sentenced for the same. 18. The learned counsels for the appellants also submitted that accused-appellants have been in jail for about 14 years, as the appellant Amit Kumar Singh is stated to be in jail since 20.2.2002, while appellants Mintu Singh alias Dhirendra Pratap Singh was in jail from 20.2.2002 to 29.10.2004 and presently in jail from date of conviction i.e. 21.2.2005, therefore considering the period of about 14 years languishing in jail of the appellants, sentence awarded to them be reduced to the period already undergone under section 364 I.P.C.. 19. Learned A.G.A. for the State refuted the submissions advanced by the learned counsels for both the appellants and pleaded that order of conviction and sentence against the appellants under section 364-A, I.P.C. is based on sufficient and reliable evidence, therefore submissions of learned counsels for the appellants are not tenable. 20. In view of the rival submission made by the learned counsel for the parties, only point for determination arises that whether the prosecution case comes within the ambit of section 364 I.P.C. and appellants may be convicted and sentenced for the same. 21. The ingredients for commission of offence under section 364 and 364-A, I.P.C. are different. 20. In view of the rival submission made by the learned counsel for the parties, only point for determination arises that whether the prosecution case comes within the ambit of section 364 I.P.C. and appellants may be convicted and sentenced for the same. 21. The ingredients for commission of offence under section 364 and 364-A, I.P.C. are different. The offence under section 364-A, I.P.C., kidnapping for ransom is serious in nature and punishment prescribed for the crime is death or imprisonment for life and also payment of fine . In order to prove the offence under section 364-A, I.P.C. Hon'ble Supreme Court in case of Suman Sood alias Kamal Jeet Kaur v. State of Rajasthan, (2007) 5 SCC 634 has led down in paragraph-57 as under : - “57. Before the above section is attracted and a person is convicted, the prosecution must prove the following ingredients : (1)The accused must have kidnapped, abducted or detained any person ; (2) He must have kept such person under custody or detention ; and (3) Kidnapping, abduction or detention must have been for ransom.” 22. Admittedly during the trial appellants have not been charged for the offence under section 364 I.P.C. which is lesser offence. Whether the modification of conviction and sentence for lesser offence is permissible, in this regard Hon'ble Supreme Court in the case of Anil alias Raju Namdev Patil v. Administration of Daman & Diu, Daman and another, (2006) 13 SCC 36 has led down the legal principles. The relevant paragraph-54 of the judgement is as under : - “54. The propositions of the law which can be called out from the aforementioned judgements are : (i) The appellant should not suffer any prejudice by reason of misjoinder of charges. (ii) A conviction for lesser offence is permissble. (iii) It should not result in failure of justice. (iv) If there is a substantial compliance, misjoinder of charges may not be fatal and such misjoinder must be arising out of mere misjoinder to frame charges. 23. As per the legal principle led down by the Hon'ble Supreme Court in aforementioned cases, it is well settled that demand of ransom must be proved for conviction and sentence under section 364-A, I.P.C. and accused can be convicted and sentenced for lesser offence, though the charge for the same was not framed initially during the trial. 24. 23. As per the legal principle led down by the Hon'ble Supreme Court in aforementioned cases, it is well settled that demand of ransom must be proved for conviction and sentence under section 364-A, I.P.C. and accused can be convicted and sentenced for lesser offence, though the charge for the same was not framed initially during the trial. 24. In the light of aforesaid submissions and settled legal propositions, present case requires to be considered. 25. The admitted facts of the present case are that the ransom has not been demanded directly from the complainant Vinay Kumar Singh (father of the abductee) by the appellants and no ransom has been paid by the complainant and abductee Km. Sakshi Singh has not been recovered. It is also admitted facts that appellant Amit Kumar Singh is the son of 'Sahru' (brother-in-law) of the complainant and P.W.4 Jagdish Singh is the 'Sala' (brother-in-law) of the complainant and as such they happens to be relative to each other. 26. As per the prosecution story mentioned in the First Information Report ransom was demanded by some unknown person on telephone from Jagdish Singh (P.W.4). resident of District Sultanpur, who happens to be 'Sala' (brother-in-law) of the complainant but during the trial Jagdish Singh (P.W.4) has stated that on 14.2.2002 appellants Amit Kumar Singh and Mintu Singh alias Dhirendra Pratap Singh had phoned him that Sakshi Singh was in their custody and demanded ransom of Rs. 3,50,000/- and threatened to kill her if ransom was not paid, which is contradictory from the first version of the First Information Report. 27. Therefore, it appears that there is embellishment on material fact in the oral evidence of P.W.4 Jagdish Singh, which seems to be after thought. It also appears that statement of Jagdish Singh (P.W.4) is not corroborated by any other reliable and relevant evidence. The prosecution has also not produced owner of the P.C.O. from where the telephone calls were allegedly made for ransom. In these circumstances testimony of P.W.4 Jagdish Singh is not reliable and dependable. 28. After having considered all the relevant evidence and facts and circumstances of the case in its entirety, we are of the view that prosecution has not produced any cogent and reliable evidence to prove the fact of demand of ransom and has failed to prove the allegation that ransom was demanded by the appellants. 28. After having considered all the relevant evidence and facts and circumstances of the case in its entirety, we are of the view that prosecution has not produced any cogent and reliable evidence to prove the fact of demand of ransom and has failed to prove the allegation that ransom was demanded by the appellants. Therefore, the appellants could not have been convicted and sentenced under section 364-A, I.P.C. and, therefore, the submission of the learned counsel for the appellants that offence committed by the appellants comes within the ambit of section 364 I.P.C. is acceptable and accused-appellants ought to have been convicted and sentenced under section 364 I.P.C. instead of section 364-A, I.P.C. 29. In view of the aforesaid discussions and legal propositions, we accordingly convert the conviction and sentence of the accused-appellants from 364-A, I.P.C to section 364 I.P.C. Since the accused-appellants have already undergone about fourteen years in jail,therefore, it would be appropriate to sentence each of them for fourteen years imprisonment, the period already undergone by them, with a fine of Rs. 5,000/- and in default of payment of fine, three months additional imprisonment. Final Order 30. For the aforesaid reasons, both the appeals are partly allowed. 31. The order of conviction and sentence recorded under Section 363 I.P.C. against both the appellants Amit Kumar Singh and Mintu Singh alias Dhirendra Pratap Singh by the learned trial court is upheld. 32. Both the accused-appellants Amit Kumar Singh and Mintu Singh alias Dhirendra Pratap Singh are further convicted under section 364 I.P.C. and each of them are sentenced to fourteen years imprisonment, the period already undergone with fine of Rs. 5,000/- and in default of payment of fine, three months additional imprisonment. 33. All the sentences of both the appellants shall run concurrently. 34. Let a copy of this judgment be sent to the learned Sessions Judge, Gonda for ensuring compliance. Appeals Partly Allowed.