JUDGMENT : Heard learned counsel for the appellant and learned Addl. P.P. for the State. 2. This appeal is directed against the Judgment of conviction and Order of sentence dated 20.12.2005 passed by the Additional Sessions Judge-I, Sahibganj, in Sessions Trial No.37 of 2004 whereby and where under, the appellant has been held guilty for the offence punishable under section 363 of the Indian Penal Code and has been sentenced to undergo R.I. for 3 years. 3. The case of the prosecution in brief as mentioned in the written report submitted by the informant - Babulal Kewat is that on 30.08.2003, when the informant and his wife returned home in the evening, they found that their son Bharat Kumar aged about 12 years was missing from their house. During the course of the search of their son, they were informed by co-villagers that on that day at 10.00 a.m., their son-Bharat Kumar along with other boys of their village namely Arun Kewat and Manoj Kewat were seen boarding green coloured 407-bus from their village namely Simaldab and the bus proceeded towards Barhait. The informant further came to know that Sanjay Kewat aged about 12 years, Jitendra Kewat aged about 10 years of village Kundali P.S. Barhait were also taken away in the same bus from Kundali More. On reaching the Kundali village, the informant came to know that co-accused namely Sukhiya Thakur is involved in sending children to different places to be engaged as labourers. The informant visited the house of Sukhiya Thakur at Babupur village but did not find Sukhiya Thakur in his house. On 13.09.2003, the informant found Sukhiya Thakur in his house. On being enquired, Sukhiya Thakur told the informant that he along with the appellant of this appeal have carried away the children to Delhi and further engaged them to work as labourers and thereafter the informant submitted the written report to the police basing upon which Barhait P.S. Case No.61 of 2003 was registered and police took up investigation of the case. 4. After completion of investigation, police submitted charge-sheet for the offence punishable under Sections 363A/34 of the Indian Penal Code. Upon commitment of the case to the Court of Session, charge for the offence punishable under sections 363A/34 of the Indian Penal Code was framed against the appellant and the co-accused Sukhiya Thakur. 4. After completion of investigation, police submitted charge-sheet for the offence punishable under Sections 363A/34 of the Indian Penal Code. Upon commitment of the case to the Court of Session, charge for the offence punishable under sections 363A/34 of the Indian Penal Code was framed against the appellant and the co-accused Sukhiya Thakur. The accused-appellant pleaded not guilty to the charge, he was put to trial. In support of its case, the prosecution altogether examined 13 witnesses besides proving the documents. But no evidence was adduced on behalf of the appellant-accused in his defence. 5. Out of 13 witnesses examined by the prosecution, P.W.1-Maini Devi, is the wife of the informant – Babulal Kewat and the mother of the alleged kidnapped boy Bharat Kumar Kewat. P.W.-2 Padmawati Devi is the mother of kidnapped boy Manoj Kumar and P.W.3-Lukhiya Devi is the mother of other kidnapped boy Arun Kewat. These three witnesses have stated that the co-accused namely Sukhiya Thakur, who is the resident of village Babupur took away the sons of these three witnesses to Delhi for engaging them to work as labourers by enticing them but as the sons of these three ladies were not properly fed and they were not paid wages by the persons with whom they were engaged to work as labourers, they fled away from the places, where they were engaged to work and narrated the facts to their mothers being these three witnesses and these three witnesses along with others took the co-accused Sukhiya Thakur to police station and entrusted him to the police. While the co-accused Sukhiya Thakur was taking the victim boys to Delhi, the present appellant also accompanied them. They have also stated that as told to them by their sons, when the victim boys were playing in the field, Sukhiya Thakur came there and after enticing the boys for accompanying him, ultimately took them to Delhi, by persuading them not to consult their parents before accompanying him to Delhi. Sukhiya Thakur forcibly made the victim children board the bus at Simaldab More. 6. P.W.4-Bharat Kewat is one of the victim boys and he is the son of the informant. Sukhiya Thakur forcibly made the victim children board the bus at Simaldab More. 6. P.W.4-Bharat Kewat is one of the victim boys and he is the son of the informant. P.W.4 has stated that on the relevant date of occurrence, when he was playing in the village field along with other victims namely Manoj Kewat and Arun Kewat along with other boys at about 08:00 A.M. Sukhiya Thakur came and asked them to accompany him. P.W.4 has also stated that they reached the Jasidih Railway Station at night and stayed at the Jasidih Railway Station throughout the night. On the next morning they boarded the train for Delhi. In the train, the appellant - Ataulla Momin accompanied them while travelling to Delhi. At Delhi, they were taken to a place namely Kodara by bus and these accused persons handed over P.W.4 and other victims to one Dharmendra and the appellant and the co-accused - Sukhiya Thakur after receiving money from Dharmendra returned. P.W.4 has further stated that thereafter Dharmendra engaged the victims in the houses of different families to work with them. The P.W.4 was engaged by one Satwant. Satwant was not providing him sufficient food but the P.W.4 continued to work there for fifteen days. When the P.W.4 asked for wages from his employer, his employer told that money has already been paid to the appellant and the co-accused-Sukhiya Thakur. P.W.4 also stated that he managed to flee away from his place of engagement after one month and after reaching his house, narrated the whole story to his father. In his cross-examination, he has stated that he was not knowing the appellant and the co-accused prior to the occurrence and that he is a student of Class-VIII. In paragraph no.12 of his cross-examination, he has stated that Sukhiya Thakur did not took him forcibly but took him by enticing. 7. P.W.5-Arun Kewat is another victim. He has also deposed like the P.W.4. He stated that at the time of occurrence, he was playing in the field along with P.W.4, Manoj and some other boys. He has further stated that in the meantime the co-accused - Sukhiya Thakur came there and asked them to accompany him to Delhi. Sukhiya Thakur allured them that they will be paid Rs.1,200/- per month besides food and clothes. He has further stated that in the meantime the co-accused - Sukhiya Thakur came there and asked them to accompany him to Delhi. Sukhiya Thakur allured them that they will be paid Rs.1,200/- per month besides food and clothes. P.W.5 further stated that Sukhiya Thakur get them boarded into a green coloured Maxi - 407 vehicle. On the way Sukhiya Thakur also took up Sanjay and Jitendra of Kundali village. They were taken to Jasidih Railway Station through Godda. In his cross-examination he has stated that when he asked for wages from his master at Noida, his master at Noida told him that the contractor i.e. co-accused - Sukhiya Thakur took away money from his master. 8. P.W.6 - Sanjay Kewat is another victim. He stated that he along with other boys after being picked up from Simaldab and Kundali More were taken to Godda and from Godda they were taken to Deoghar Railway Station. From there they were taken to Saharanpur. From Saharanpur they were taken to Delhi and from Delhi they were taken to Kodara village and they were sold there by the appellant and the co-accused - Sukhiya Thakur. They were thereafter handed over to one Dharmendra and Dharmendra later on engaged them at different places. The master of the P.W.6 was making him do the work of soil cutting and throwing away cow dung. P.W.6 also worked in sugarcane field. After working for three months when the P.W.6 demanded his wages from his master, he was told that the appellant and the co-accused - Sukhiya Thakur has sold them to his master and the appellant and co-accused - Sukhiya Thakur have realized the money for the services to be rendered by the P.W.6. In his cross-examination, he has stated that other victims of the case namely Arun Kewat, Bharat Kewat and Manoj Kewat were also inside the vehicle when he boarded the said vehicle at Kundali More. He was not knowing the accused-appellant prior to the occurrence. They were sitting at Kundali More from 07:30 A.M. to 10:00 A.M. To a question from court, the P.W.6 has answered that only the co-accused - Sukhiya Thakur was with them when they were sitting there. In paragraph no.22 of his deposition he has stated that the appellant came to Kundali More with a small bus at 09:30 A.M.. 30 to 40 passengers were present inside the bus. In paragraph no.22 of his deposition he has stated that the appellant came to Kundali More with a small bus at 09:30 A.M.. 30 to 40 passengers were present inside the bus. The accused-appellant was the owner of the said bus. The bus remained for about five minutes at Kundali More. In paragraph no. 23, he has stated that the victims were made to board the bus on being threatened at the point of arms but again said they were put inside the bus by pulling their hands and they disclosed to the passengers of the bus that they were taken to Delhi for being engaged as labourers. They were threatened by both the appellant and the co-accused not to get down from the bus and to a question from court, he answered that they were threatened to be assaulted if they get down from the bus. In paragraph no.36 of his cross-examination, he has stated that the talk of purchasing and selling of the victims did not take place in their presence. The victims came to know in the house of Dharmendra that they have been sold. 9. P.W.7-Rathwa Kewat is the father of Sanjay Kewat and Jitendra Kewat. He has stated that on return of his sons, he came to know from them that the co-accused-Sukhiya Thakur took the victims to Godda, Saharanpur and Delhi. He did not identify the appellant-accused who was present in the court. 10. P.W.8-Babulal Kewat is the informant of the case. On being proved by him, his signature on the written report was marked Ext.2. He has neither stated anything against the accused-appellant nor identified him in the court though he was present in the court. In paragraph no.5 of his cross-examination P.W.8 stated that his son informed him that the co-accused-Sukhiya Thakur took his son to Delhi. Since his son faced hardship at Delhi, he somehow managed to flee away from there. 11. P.W.9 - Shiv Charan Kewat, P.W.10-Jyotish Kewat and P.W.11-Janta Mohali have not supported the case of the prosecution and were declared hostile. 12. P.W.12 - Ravindra Kumar, is the Judicial Magistrate, who recorded the statement under section 164 Cr.P.C. of the victim boys Bharat Kewat, Arun Kewat and Sanjay Kewat which were marked as Ext.3, 3/1 and 3/2 respectively. 13. P.W.13 - Prem Ranjan Oraon is the I.O. of the case. 12. P.W.12 - Ravindra Kumar, is the Judicial Magistrate, who recorded the statement under section 164 Cr.P.C. of the victim boys Bharat Kewat, Arun Kewat and Sanjay Kewat which were marked as Ext.3, 3/1 and 3/2 respectively. 13. P.W.13 - Prem Ranjan Oraon is the I.O. of the case. He has stated about the investigation done by him in the case. He has proved the endorsement on the written report which was marked as Ext.4 and also proved the formal F.I.R. which was marked as Ext.5. He has described the places of occurrence at Simaldab and Kundali More with their boundaries. In paragraph no.5 of his deposition, he has categorically stated that only the co-accused - Sukhiya Thakur took the victims in the 407 vehicle. 14. After closure of the evidence, the statement under section 313 Cr.P.C. inter-alia of the accused-appellant was recorded by the learned court below wherein, he denied the circumstances appearing in evidence against him. The learned court below, after taking into consideration the evidences thus available in record, convicted the appellant and co-accused for the offence under section 363 of the Indian Penal Code and sentenced them to undergo R.I. for a period of three years. 15. Mrs. Abha Verma, learned counsel for the appellant submitted that the learned court below failed to consider the evidence in record in its proper perspective and also failed to take note of the fact that the allegation is against the co-accused Sukhiya Thakur only and the P.W.-6 even went to the extent of deposing that the appellant-accused was the owner of the bus and the appellant-accused came with the bus which was also carrying about 30-40 passengers in which the alleged victims were carried to Godda, on the way to Delhi. Learned counsel for the appellant further submitted that the learned court below failed to take note of the fact that even the Investigating Officer has categorically stated that it is the co-accused Sukhiya Thakur who took the alleged victims from Simaldab and Kundali and there is absolutely no evidence that the appellant was present either at Simaldab or Kundali from where as per the prosecution case, the victims were taken away from the guardianship of their parents after being enticed away by the co-accused Sukhiya Thakur. Learned counsel for the appellant further submits that there is absolutely no admissible evidence in record regarding the age of the alleged victims and in the absence of any evidence regarding their age, there is no material in the record to suggest that they were under the age of 16 years. More so, when the P.W.-6, one of the victims, has categorically stated that his age was 19 years and in his statement recorded under Section 164 Cr.P.C., his age has been assessed as 20 years though he himself stated his age to be 19 years. Drawing attention of this Court to Ext. 3 which is the statement recorded under Section 164 Cr.P.C. of the alleged victim-Bharat Kewat, who is the P.W.4, learned counsel for the appellant submits that the leaned Magistrate has assessed his age to be 16 years. Hence, it is submitted that the learned court below ought to have held that there is no admissible evidence in the record that the alleged victims were minors under 16 years of age as admittedly the alleged victims are male. It is further submitted by the learned counsel for the appellant that there being no evidence in record that the accused appellant has any role in the alleged act of taking away or enticing of the alleged victims, hence the learned court below ought to have held that the evidence in the record is insufficient to bring home of the charge punishable under Section 363 of the Indian Penal Code against the appellant-accused. It is further submitted by the learned counsel for the appellant that the only evidence that has come against this appellant accused is, as stated by some of the witnesses that the appellant accused was with the co-accused Sukhiya Thakur while the alleged victims were taken to Delhi and that he also travelled with the alleged victims to Delhi in the train and that the masters of the alleged victims told the victims that they have paid the money in respect of the wages of the alleged victims to the appellant accused also but it is further submitted that none of the masters of the alleged victims have been examined as witnesses in the case nor the P.W.6 has ever stated that the alleged act of purchasing or selling of the alleged victims took place in their presence and the statement made by the co-accused while being in custody of the police is itself insufficient to bring home the charge for the offence punishable under Section 363 of the Indian Penal Code against the appellant accused. Hence, it is submitted that this is a fit case where the appellant accused be acquitted of the charges by at least giving him the benefit of doubt. 16. Learned Addl. P.P. on the other hand submitted that the material witnesses of the prosecution being the P.W.1 to P.W.8 have categorically stated about the involvement of both, the appellant and the co-accused Sukhiya Thakur of enticing and taking away the alleged victims to Delhi and having sold them and as is evident from the fact that the P.W.4 was a student of class-VIII and the P.W.5 was a student of class-IV is itself sufficient to establish that they were minors and they were taken from the lawful guardianship of their parents without their consent. It is further submitted that the evidence in the record being sufficient to establish the charge for the offence punishable under Section 363 of the Indian Penal Code against the appellant accused and the learned court below having been rightly convicted and sentenced the appellant accused for the offence punishable under Section 363 of the Indian Penal Code, this appeal being without any merit be dismissed. 17. 17. Having heard the submissions made by the learned counsel at the bar and after going through the evidence in record, both, oral and documentary, I find that there is absolutely no direct evidence in the record that the appellant accused at any point of time did any overt-act of omission or commission to suggest that he was instrumental in either enticing or forcibly taking away the alleged victims from the lawful custody of their parents rather the evidence in this respect is specifically against the co-accused Sukhiya Thakur. The name of the appellant accused is associated in the occurrence for the first time when he came with the alleged Maxi-407 vehicle in which the alleged victims were transported from Simaldab More and Kundali More but the evidence of P.W.6 shows that the appellant-accused was the owner of the said vehicle and that at the time of boarding of the alleged victim in the said vehicle, they were 30-40 other passengers which indicates that the appellant accused cannot be saddled in any criminal liability for the act of transporting the alleged victims in a transport vehicle of which he was the owner in which before the boarding of alleged victims 30-40 passengers were also being transported. There is absolutely no evidence in record that at that point of time or anytime thereafter, the appellant accused was aware that the alleged victims were enticed or forcibly taken away from the custody of the lawful guardianship of their parents, before the alleged victims boarded the said vehicle. I also find that there is no specific evidence in record regarding the age of the victims. Since, admittedly the minor victims were the student of school, it is not forthcoming that why the documents regarding their date of birth as available in school record were not brought in record. There is no direct evidence that money was ever taken by the appellant-accused from the employers of the alleged victims. It remains inexplicable why the prosecution did not examine the said employers of the alleged victims to establish the fact that they paid money to the appellant-accused persons. There is absolutely no doubt that the alleged employers were the best witnesses to prove the factum of entrustment of the money, if any, to the appellant-accused on account of selling or engaging the alleged victims with them. 18. There is absolutely no doubt that the alleged employers were the best witnesses to prove the factum of entrustment of the money, if any, to the appellant-accused on account of selling or engaging the alleged victims with them. 18. In view of the discussion made above, I have no hesitation in holding that the evidence in record is insufficient to establish the charge for the offence punishable under Section 363 of the Indian Penal Code against the appellant accused beyond all reasonable doubt and this is a fit case where the appellant accused be acquitted by giving him the benefit of doubt. 19. Accordingly, the appellant accused Ataur Rahman @ Ataulla Momin @ Ataur is acquitted of the charge punishable under Section 363 of the Indian Penal Code, by giving him the benefit of doubt and the impugned judgment of conviction and order of sentence dated 20.12.2005 passed by the Additional Sessions Judge-I, Sahibganj, in Sessions Trial No.37 of 2004 being not sustainable in law is set aside. The appellant is on bail. In view of his acquittal, he is discharged of his liabilities of bail bonds. 20. Let the Lower Court Record be sent back to the court below along with a copy of the Judgment forthwith. 21. In the result, this appeal is allowed.