JUDGMENT P.K. Mohanty, C.J. (C.A.V.) - The present appeal is directed against the judgment of conviction dated 02.06.2005 and order of sentence dated 06.06.2005 passed by the learned 3rd Additional District & Sessions Judge, (F.T.C.), Dumka, in Sessions Case No. 347 of 2004/15 of 2005, arising out of Dumka (T) P.S. Case No. 153 of 2004, corresponding to G.R. No. 998 of 2004, whereby and where-under the learned 3rd Additional District and Sessions Judge, Fast Tract Court, Dumka, has convicted the appellant under section 364-A of the Indian Penal Code and sentenced him to undergo imprisonment for life and fine of Rs. 5000/- and in default of payment of fine he shall further undergo R.I. for two years. 2. The case of the prosecution, on the basis of the fardbeyan of Sanjay Kumar (P.W.1) is that on 29.09.2004 he had given information about the missing of his son Ankit Kumar. During the course of search he came to know that one unknown cyclist had taken Ankit Kumar for ransom. On the basis of the information an F.I.R. being Dumka (T) P.S. Case No. 153 of 2004 was registered under section 364(A) of the Indian Penal Code. In the course of investigation, the informant received demand of ransom, which was also reported to the police and then the police tracked the call and came to know that the call was from Kolkata. Thereafter, Dumka Police contacted the Kolkata Police and then Binay Kumar Sinha was arrested with Ankit from Hawrah. The police, after investigation, submitted charge sheet under section 364-A of the Indian Penal Code. Accordingly, cognizance was taken against the appellant and the case was committed to the Court of Sessions which was registered as S.C. No. 347 of 2004. 3. Charges were framed against the appellant on 17.01.2005 under section 364-A of the Indian Penal Code, to which the accused did not plead guilty and claimed to be tried. 4. Altogether 7 witnesses were examined on behalf of the prosecution in order to prove the charges framed against the accused-appellant. 5. After closure of the prosecution witnesses, the accused was examined under section 313 of the Code of Criminal Procedure. 4. Altogether 7 witnesses were examined on behalf of the prosecution in order to prove the charges framed against the accused-appellant. 5. After closure of the prosecution witnesses, the accused was examined under section 313 of the Code of Criminal Procedure. Thereafter, the learned Court, appreciating the evidence of the prosecution witnesses and the materials available on record, found the appellant guilty for the charge framed against him, recorded the judgment of conviction and order of sentence against the appellant which is under challenge in this appeal. 6. The learned counsel for the appellant submitted that the recovery of the boy with the appellant is not proved beyond the reasonable doubt. No police official of the Howrah Golabari Police station has been examined in this case to prove the arrest of the appellant along with the victim boy from Binod Lodge, Howrah. She further submitted that the statement of the victim boy that his father had come at 1.00 A.M. in the night on 03.10.2004 at the Golabari Police Station, Howrah stands falsified from the statement of the I.O., who states that he did not meet the victim''s father at Golabari Police Station, Howrah. She further submitted that no evidence has been adduced to prove that the appellant stayed with the victim at Rampur Hat, Mukherjee Lodge and Binod Lodge at Howrah. Further she argues that the prosecution has failed to substantiate the ingredients of section 364(A) of the Indian Penal Code as there is no evidence against the appellant that he had demanded any ransom. It is lastly argued that since the prosecution has miserably failed to establish the charge framed against the appellant, the appellant may be acquitted of the charge framed against him. 7. The learned Add. P.P. has opposed the argument advanced on behalf of the appellant and submitted that the prosecution has proved the charge framed against the appellant beyond all reasonable doubt. He further submitted that victim is the Star witness of the case, who categorically stated in his evidence about the happening of the incident. Although some witnesses have not been examined in this case, which cannot be said to be fatal for the prosecution because the relevant witnesses i.e. victim, I.O. and the informant have been examined in this case, who supported the prosecution case. 8. Although some witnesses have not been examined in this case, which cannot be said to be fatal for the prosecution because the relevant witnesses i.e. victim, I.O. and the informant have been examined in this case, who supported the prosecution case. 8. I have heard learned counsel for the parties and have gone through the entire records of this case including the lower Court records. 9. The prosecution in order to substantiate the charges levelled against the appellant, has examined altogether seven witnesses. P.W.1 Sanjay Kumar Sinha is the informant of the case. He deposed that on 29.09.2004 victim Ankit Kumar had gone to school but did not return. On the same day at about 6.00 P.M. He lodged Sanha to the police. During the course of search, one Ashish Mishra told that the victim was taken by one unknown cyclist. Thereafter, he lodged F.I.R.. He proved the fardbeyan as Exhibit-1 and signature on the fardbeyan as Exhibit-2. On 02.10.2004 the kidnapper demanded ransom of Rs. 3 lakhs on telephone which was informed to the police. On 03.10.2004 the police informed that the victim has been recovered from the kidnapper who was the tutor of the victim. The victim was handed over to him in court on 04.10.2004. During the cross-examination he deposed that the accused was giving tuition to the victim at home. He had informed to the police about the demand of ransom on telephone. He did not say as to whether this appellant demanded ransom or not. P.W.2 Parvati Devi is the mother of the victim. She deposed that on 29.09.2004 the victim had gone to the school but he did not return. She further deposed that son of Mishra Jee stated that one Cyclist had taken the victim. P.W.3 Rinku Kumar is the uncle of the victim. He deposed that Ashish Mishra had told that the victim has been taken by a cyclist. On 02.10.2004 the victim was recovered from Howrah and he was handed over in Court on 04.10.2004. P.W.4 Ankit Kumar Singh is the victim of the case. He deposed that when he was standing with Ashish Mishra, Binnay Sir came and informed him that his mother has fallen from roof and his father has met with an accident and further told to go with him. P.W.4 Ankit Kumar Singh is the victim of the case. He deposed that when he was standing with Ashish Mishra, Binnay Sir came and informed him that his mother has fallen from roof and his father has met with an accident and further told to go with him. Binay Sir took him to Suman Hotel, Dumka and thereafter took him to Rampur Hat in a Maruti car. Thereafter, they went to Mukherjee Lodge in a Rickshaw. He stayed there overnight. On Friday at about 7.30 A.M. they took him to Railway station and went to Howrah and stayed in Binod Lodge, where the name of Binay was mentioned as Ramesh and the name of victim was written as Vijay. During cross examination he deposed that Binay Sir had neither beaten him nor threatened him at Dumka. Binay Sir had not confined him in room for whole day. When Binay Sir used to go out of the lodge, he used to instruct him to close the door. He further deposed that on 01.10.2004 Binay Sir had beaten him and also threatened him but he did not raise hulla. When his father came at Howrah he stayed with his father. P.W.5 Maheshwar Singh is the investigating officer of the case. He proved the Station Diary Entry No. 832 dated 29.09.2004, which is marked as Exhibit-3. He further proved the F.I.R. and his signature on the F.I.R., which are marked as Exhibits-4 and 5. He further deposed that during the course of investigation the informant informed him on telephone that demand of ransom of Rs. 3 lakhs came from the kidnapper. Thereafter, his phone numbers were put on surveillance and he came to know that the phone call had come from a P.C.O. of Kolkata. The S.P. Howrah was requested by the S.P. Dumka to keep watch over the P.C.Os. The present witness proceeded to Kolkata and S.P. Dumka informed him on mobile that the victim is kept at Golabari P.S. where the victim and the kidnapper was handed over. He proved the call details printout taken from P.C.O. which have been marked as Exhibits 5 to 5/3. During the cross-examination he deposed that he did not meet the informant at Golabari police station. P.W.6 Partho Mandal is the manager of Mukherjee Lodge, Rampur Hat. He deposed that visitor Vijay Kumar Sah had come to his lodge to stay. He proved the call details printout taken from P.C.O. which have been marked as Exhibits 5 to 5/3. During the cross-examination he deposed that he did not meet the informant at Golabari police station. P.W.6 Partho Mandal is the manager of Mukherjee Lodge, Rampur Hat. He deposed that visitor Vijay Kumar Sah had come to his lodge to stay. He proved the entry at serial no. 18 of the register which is marked as Ext.6. He further says that the visitor also stayed in the hotel in the next day which is entered at serial no.7 which is marked as Ext.-6/1. He further deoposed that a child was also with the visitor. He did not identify the accused in dock. P.W.7-Sayad Rafiqul Islam is the manager of Binod Lodge, Howrah. He produced the photo copy of entry regarding the persons stayed from 01.10.2004 to 02.10.2004. He deposed that the name of the visitor stayed at Room No. 12 is Vinay and they were two persons. He identified the accused in the dock. 10. After analyzing the entire evidence available on record and going through the facts of this case including the Lower Courts record, I find that the victim has been examined as P.W.4. He stated that he was taken by this appellant to Rampur Hat in a Maruti car. Thereafter, they went to Mukherjee Lodge in a Rickshaw. He stayed there at night. On Friday at about 7.30 A.M. they took him to Railway station and went to Howrah and stayed in Binod Lodge. From his evidence, it is clear that one Ashish Mishra was also standing with the victim, when this appellant requested the victim to accompany with him. This Ashish Mishra has not been examined in this case. Ashish Mishra could have been the best independent witness to depose whether this appellant had taken away the victim or not. In his cross-examination, the victim has stated that, this appellant, while staying in Howrah used to go out of the lodge, but did not confine the victim in a room nor did he lock the room from outside. He further stated that he was beaten and was threatened and was asked not to raise hulla while staying in Howrah. P.W.1, who is the informant of this case, says that he received call demanding ransom of Rs. 3 lakhs. He further stated that he was beaten and was threatened and was asked not to raise hulla while staying in Howrah. P.W.1, who is the informant of this case, says that he received call demanding ransom of Rs. 3 lakhs. Surprisingly the identity of the person, who demanded ransom has not been disclosed. 11. The conviction is under section 364(A) of the I.P.C. For better appreciation, it is necessary to quote section 364(A) of the Indian Penal Code: " 364A.-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 organization 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." 12. To attract section 364-A of the Indian penal Code, a person has to be kept in detention and there should be threat to cause death or hurt to such person, or by the conduct of the kidnapper there should be reasonable apprehension that kidnapped person may be put to death or hurt in order to compel the Government or any person to do or abstain from any doing any act or to pay ransom. 13. From the evidence it is clear that the victim was not put under fear of death by any person. Whether the appellant demanded ransom or not is also not clear from the evidence of the prosecution witnesses. None of the witness took the name of the appellant as the person who demanded ransom. Thus I find that the prosecution case is not proved beyond doubt. 14. Section 313 of the Code of Criminal Procedure is a very important provisions of law, which has to be followed strictly. The prosecution cannot utilize the circumstances, which appears against the accused, if the same is not explained to him under Section 313 of the Code of Criminal Procedure. 14. Section 313 of the Code of Criminal Procedure is a very important provisions of law, which has to be followed strictly. The prosecution cannot utilize the circumstances, which appears against the accused, if the same is not explained to him under Section 313 of the Code of Criminal Procedure. From perusal of the statement of this appellant recorded under section 313 Cr.P.C., it is clear that many of the circumstances were not put to the appellant. The fact of taking a boy to Howrah, at first in a cycle and then with help of Maruti car to Rampur Hat and then to Howrah has not been put to the accused. Neither the fact of recovery of the victim boy from the alleged possession of the appellant and demand of ransom was also not put to the accused. Thus, I find that examination of the accused under section 313 of the Cr.P.C. was absolutely perfunctory and is against the principle of fair trial. 15. Thus, in the cumulative effect of the above position, I find that the prosecution has failed to prove the charge framed against the appellant under section 364-A of the Indian Penal Code. 16. Thus, this appeal stands allowed. The impugned judgment of conviction dated 02.06.2005 and order of sentence dated 06.06.2005 passed by the learned 3rd Additional District & Sessions Judge, (F.T.C.), Dumka, in Sessions Case No. 347 of 2004/15 of 2005, arising out of Dumka (T) P.S. Case No. 153 of 2004, corresponding to G.R. No. 998 of 2004 is hereby set aside. The appellant, who is in jail, is set at liberty forthwith, if not wanted in any other case. Ananda Sen, J. - I agree.