JUDGMENT Hon’ble Shri Narayan Shukla, J.—Heard Mr. Sriprakash Dwivedi holding brief of Mr. Anand Kumar Singh, learned counsel for the appellant as well as Mr. Nagendra Bahadur Singh, learned Additional Government Advocate for the State. 2. The present appeal has arisen out of judgment and order dated 30.6.2006 passed by Special Judge, Gangsters and Anti-Social Activities, (prevention) Act, in GST No. 59 of 2003 (State v. Arun Kumar), whereby the learned Sessions Judge, convicted the appellant under Section 364-A Indian Penal Code and sentenced to undergo imprisonment for life and imposed fine of Rs. 20,000/- in default further simple imprisonment of six months and also convicted under Section 2 (Kha) and Section 14 read with Section 3 of U.P. Gangsters and Anti-Social Activities (Prevention) Act and sentenced to ten years’ rigorous imprisonment and imposed fine of Rs.10,000/- in default to go further additional simple imprisonment for three months. All the sentences were directed to run concurrently. 3. The case of the prosecution in nutshell is that one Sri Girija Saran Parashar, son of Deen Dayal Parashar, R/o Chamdhawala Kasba, Police Station Shaidabad, District Hatrash, lodged First Information Report to the effect that Arun Kumar son of Kripal Singh, R/o Hamir, Post Kamlapur, District Sitapur had been servant of his younger brother Hari Om Parashar for about one year, but before six months he had returned to his home. On 28.7.2002, he had come to Sadabad and told that he had come to visit for two to four days, since he had come to his friend, who was residing at Agra. He has stated that yesterday on 30.7.2002 at about 6 p.m. accused-appellant had walked out with his nephew Magan @ Dipesh to visit a shop, but when he did not return till eight hours, he as well as his family members searched out them, but they could not find their clue, till morning of the date of lodging a First Information Report, then he suspected that Arun (accused) had kidnapped Magan son of his brother and may cause his death. 4. On the basis of the aforesaid information, police was set in motion and they proceeded to search out the accused. 4. On the basis of the aforesaid information, police was set in motion and they proceeded to search out the accused. They reached on the way of Raitha after three kilometers by motor vehicle and stopped their vehicle at that place and proceeded on foot for about half kilometer, then they saw that one Maruti Van was parked in a Mango grove. The police made an effort to encircle then. They tried to run away, however, Police succeeded to catch hold three of them but five other miscreants succeeded to run away. The child (Magan Parashar), who was aged about three years old, was recovered from their custody. His father identified his son. The child was also identified by his father PW-2. The accused persons namely Arun Singh son of Kripal Singh Yadav, R/o Hamirpur, Police Station Kamlapur, District Sitapur, Jagdamba Prasad @ Jogi son of Daya Ram Kurmi R/o Khamariya, Police Station Parashrampur, District Basti and Rizwan son of Suleman Pathan R/o Nakhasa, behind Prakesh Cinema Police Bazar District Lucknow were arrested. They also told the names of co-accused, who had run away, they were named as Ankush, Amit, Sunil, Ankit and Dhunak. They accepted their guilt of kidnapping of Magan Parashar. They also told that the motive for kidnapping the child was to get ransom. 5. The accused/appellant was charged by the Sessions Judge for commission of offence punishable under Section 364 A as well as Section 2 (Kha) and Section 14 read with Section 3 of U.P. Gangsters and Anti-Social Activities (Prevention) Act 1986. 6. Giriraj Saran Parashar, who was informant, was examined as PW-1. In his deposition he supported the prosecution case. He stated that accused-Arun Kumar was employed as a house servant by his brother Hari Om Parashar till December 2001. After some time he left over the job and again returned on 28.7.2002 at the same place. On 30.7.2002 he went towards shop with his nephew, but thereafter he did not return. Ultimately, on 31.7.2002 he lodged First Information Report for kidnapping of this nephew. In cross-examination he reiterated his deposition made in examination-in-chief. Hari Om parashar father of the child was examined as PW-2 he deposed some additional statement that Arun Kumar had ranged up him personally from Agra as well as from Lucknow also and demanded Rs. 25 lakhs as ransom, in default he threatened to kill his son Magan. In cross-examination he reiterated his deposition made in examination-in-chief. Hari Om parashar father of the child was examined as PW-2 he deposed some additional statement that Arun Kumar had ranged up him personally from Agra as well as from Lucknow also and demanded Rs. 25 lakhs as ransom, in default he threatened to kill his son Magan. PW-2 accepted his demand, then Arun Kumar had called him at the place, where the amount of ransom of Rs.25 lakhs/- had to pay. On 9.8.2002, he informed the Superintendent of Police, Maha Maya Nagar, who deputed some police officers to go with him. They reached the place indicated by the accused Arun. P.W-2 identified the accused in the Court. In his cross-examination, he deposed that Arun had been his house servant, he used to drop his child from school to home and home to school as well as to carry food for them. He further stated that on the arrest of the accused no weapon was recovered from their possession in his presence. Shri Vijay Kapil Inspector, Special Branch Intelligence Agra, was examined as PW-3, he had recovered the child from the possession of the accused and he certified the recovery memo. Shri Narayan Kumar in-charge Inspector, Maina Area Kotwali, District Muradabad was examined as PW-4, he was leading the search team. He had certified the recovery of the child from the possession of the accused. Constable Ravindra Singh was examined as PW-5, he had proved the chick First Information Report. 7. In the statement recorded under Section 313 Cr.P.C. the accused had pleaded not guilty and stated that he was deputed to work as house servant in the house of Hari Om Parashar by one Minister and since Mr. Parshar had been taking the entire work of his house including dirty work, he left away the job, but he was turned back with assurance that now no dirty work would be taken from him but again the same thing was repeated, therefore, he left away the job finally. He stated that he was falsely implicated in the case. 8. Parshar had been taking the entire work of his house including dirty work, he left away the job, but he was turned back with assurance that now no dirty work would be taken from him but again the same thing was repeated, therefore, he left away the job finally. He stated that he was falsely implicated in the case. 8. Learned counsel for the appellant has submitted that the statement of all the witnesses do not reveal that any transaction of ransom had taken place, rather the child was detained for few days and thereafter he was released, therefore, in absence of completion of transaction of ransom the accused could not be held guilty for commission of offence under Section 364-A. He further stated that it is not a case of prosecution that the child while he was in possession of the accused was tortured in any manner. It is also not a case of prosecution that the accused had intention to cause hurt or death to the child. It is further stated that it could be said to be a simple case of kidnapping for wrongful confinement for which the accused could be awarded the punishment under Section 365 of the Indian Penal Code. In support of his submission he cited the case of Mahesh and Other v. State of U.P., 2016(8) ADJ 580 . He further submitted that the investigating officer has failed to figure any telephone numbers which could have connected the accused and the father of the child to establish the factum of ransom. Moreso, he has also not placed any evidence regarding discussion happened between the accused and the father of the child with regard to the ransom. 9. Per contra, learned Additional Government Advocate has submitted that from the statement of witnesses, it is proved that the accused had demanded ransom and at his instance. PW-2, father of the child, had reached the place alongwith police force as well as money demanded by the accused, where the child was recovered from the custody of the appellant. 10. He stated that the arguments raised by the learned counsel for the appellant that no ingredients for commission of offence under Section 364-A was available, are wholly absolutely unsustainable. 11. We have heard the learned counsel for the parties as well as perused the record of the Court below. 12. 10. He stated that the arguments raised by the learned counsel for the appellant that no ingredients for commission of offence under Section 364-A was available, are wholly absolutely unsustainable. 11. We have heard the learned counsel for the parties as well as perused the record of the Court below. 12. The accused is in jail since more than 15 years. Therefore, the ingredients of threatening to cause death or hurt to the child are missing. No ransom was paid. No weapon was recovered from his possession nor had any of the witnesses stated that from the date of kidnapping to the date of recovery of the child he was tortured, rather PW-2 had stated that it was a first offence to be committed by him, while he was in service in his house. 13. Therefore, we are of the view that it is a fit case to be covered under Section 365 I.P.C. and accordingly, we convict the appellant under Section 365 I.P.C. and award the sentence to 7 years, in default to pay fine of Rs.10,000/- 14. We are informed that the accused had already undergo the period of sentence awarded by this Court above. Therefore, the appellant/accused deserves to be released from jail. 15. Accordingly the appeal is allowed partly. 16. Let the copy of this order alongwith lower Court record be sent to the concerned Court for its compliance.