JUDGMENT : Heard, Mrs. Anuradha Sahay, learned Amicus Curiae appearing for the appellant and Mr. Ananda Kumar Pandey, learned Additional Public Prosecutor, appearing for the State. 2. The instant Criminal appeal is directed against the judgment of conviction dated 05.04.2003 and order of sentence dated 07.04.2003 passed by the learned Additional Sessions Judge, Fast Track Court-III, Gumla, in Sessions Trial No. 244 of 2002, whereby the sole appellant, Raju @ Asgar Khan has been convicted by the learned trial court for the offence committed and punishable under Section 363 of the Indian Penal Code and awarded rigorous imprisonment for 5 years and a fine of Rs.1000/- and in case of default of payment of fine to further undergo rigorous imprisonment for two months. 3. The prosecution case is based upon written report of one Ratia Oraon (P.W.4), before Officer In-Charge, Gumla Police Station, on 18.07.2002, alleging therein that, his daughter Santi Kumari, aged about 9 years had gone to school along with his son Basant Kumar, aged about 5 years, in the morning. She did not return home till 4 P.M., upon which the informant left the Rest house in search of his children and came on road, where one Fakira Oraon came near him on a cycle and told that one unknown person, in intoxicated condition, was fleeing towards the new police line building, which is under construction, along with his daughter Santi Kumari and some villagers were chasing the accused. On this information informant also chased the accused. The accused was caught hold by the villagers. Informant's daughter was also found with the accused person. In the mean time, police party also reached there and apprehended the accused. 4. On the basis of the written report of informant, the Police instituted First Information Report bearing Gumla P.S. Case No. 134 of 2002, dated 18.07.2002, under Section 366A of the Indian Penal Code, against Raju @ Asgar Khan. 5. After investigation, the police submitted charge sheet vide charge sheet no. 213 of 2002, dated 19.09.2002, under Section 366A of the Indian Penal Code against the accused person. 6. The cognizance of the offence has been taken vide order dated 09.10.2002 and the case has been committed to the Court of Sessions vide order dated 23.10.2002. 5. After investigation, the police submitted charge sheet vide charge sheet no. 213 of 2002, dated 19.09.2002, under Section 366A of the Indian Penal Code against the accused person. 6. The cognizance of the offence has been taken vide order dated 09.10.2002 and the case has been committed to the Court of Sessions vide order dated 23.10.2002. The learned trial Court has framed charge against the appellant/accused person on 03.01.2003, under Section 366A of the Indian Penal Code, to which the accused person has pleaded his innocence and thus, he was put under trial. 7. The prosecution, in order to prove its case, has examined altogether five witnesses and also exhibited a number of documentary evidence. Basant Oraon (son of the informant and brother of the victim) has been examined as P.W.1, Santi Kumari (victim and daughter of the informant) has been examined as P.W.2 , Rohini Orain (eye witness and known person to the victim) has been examined as P.W.3, Ratia Oraon (father of the victim) has been examined as P.W.4, Anil Kumar Khalkho (investigating officer of this case) has been examined as P.W.5. 8. Apart from the oral evidence, prosecution has also adduced documentary evidence. The signature of Ratia Oraon (P.W.4), on the fardbeyan, has been proved and marked as exhibit 1, the formal First Information Report has been proved and marked as exhibit 2. Both exhibits have been proved and marked as exhibits without any objection from the appellant side. 9. After closure of the prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr. P. C. on 11.03.2003, where appellant/accused has denied about the occurrence and claimed to be innocent. 10. After hearing the parties and on perusal of record, learned trial Court has passed the impugned judgment of conviction and order of sentence. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, the present criminal appeal has preferred by the appellant, assailing the impugned judgment of conviction and order of sentence, before this Hon’ble Court. 11. Heard, Mrs. Anuradha Sahay, learned Amicus Curiae, appearing for the appellant has submitted, that impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Mrs. 11. Heard, Mrs. Anuradha Sahay, learned Amicus Curiae, appearing for the appellant has submitted, that impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Mrs. Anuradha Sahay, learned Amicus Curiae appearing for the appellant has further submitted, that without certifying that child witnesses are competent to answer the queries and without discharged duty under Section 118 of the Indian Evidence Act, the learned trial Court has examined the child witnesses and as such, the evidence of P. W.1 and P. W. 2 are not in consonance with the legal provision, as provided under Section 118 of the Indian Evidence Act. Mrs. Anuradha Sahay, learned Amicus Curiae appearing for the appellant has further submitted, that P.W.3 (Rohini Orain), claimed herself to be eye witness to the occurrence, but her presence has not been proved by the informant Ratia Oraon (P.W.4.). Learned Amicus Curiae appearing for the appellant has further submitted, that appellant has not committed any offence as he was not in a condition to commit offence, since as per the prosecution case he was in a drunken state and as such, the appellant may be acquitted by this Hon’ble Court extending benefit of doubt. Learned Amicus Curiae appearing for the appellant has further submitted, that Kakira Oraon, resident at village-Chandouli, who has informed the appellant about taking of his daughter by unknown person, has not been examined in this case and thus the appellant has been prejudiced because of non-examination of Kakira Oraon, under aforesaid background appellant may be acquitted. 12. Learned counsel for the State Mr. Anand Kumar Pandey, Additional Public Prosecutor has submitted, that impugned judgment of conviction and order of sentence is well found and based on the material available on record and as such, learned trial court has rightly passed the impugned judgment of conviction and order of sentence. Learned counsel for the State, Mr. Anand Kumar Pandey has further submitted, that victim Santi Kumari, who has been examined as P.W.2, has supported the prosecution case and apart from the P. W.2 (Santi Kumari), P. W. 1 (Basant Kumar), who was the younger brother of the victim, has been tested by the learned trial Court before his examination and found that child witness is competent to give evidence in this case, who has also supported the prosecution case. The eye witness, Rohini Orain (P.W.3) has also claimed that she has seen this appellant taking away the minor girl child of the informant aged about 9 years. Ratia Oraon who has been examined as P. W. 4 (farther of the victim), has categorically stated that, when his daughter and son did not return from school at appropriate time i.e. 4 P.M., he got worried and subsequently, he got an information, that his daughter has been taken away by an unknown person. Thereafter, he chased him along with co-villagers and in the meantime police also came and with help of police, the accused/appellant was apprehended. The accused/appellant has sustained some injury on the head when he was chased. He disclosed his name, as Raju @ Asgar Khan and also disclosed his address. But no satisfactory explanation was given by the appellant, that why he has taken the daughter of the informant without having any right over the same. Anil Kumar Khalkho, investigating officer of the case, has been examined as P.W.5. This witness has also supported the prosecution case and has admitted, that the accused was apprehended by the police party along with co-villagers. 13. Heard, Mrs. Anuradha Sahay, learned Amicus Curiae appearing for the appellant and learned counsel for the State, Mr. Anand Kumar Pandey, Additional Public Prosecutor and from perusal of the record, i.e. First Information Report, framing of the charge, evidence of five witnesses, exhibits and the statement of the appellant recorded under Section 313 of Cr.P.C. and impugned judgment of conviction and order of sentence, this Court is of the opinion that, the statement of Santi Kumari (P.W.2) and Basant Oraon (P.W.1) are sufficient for convicting the appellant. Both minor witnesses have been tested by the learned trial Court and after being satisfied, learned trial court has certified that they are competent to be examined in the Court. Learned trial Court has examined both the witnesses and they have supported the prosecution case. The compliance under Section 118 Indian Evidence Act, has been established by the learned trial Court. The appellant has never doubted about the credential of the minor witnesses before the learned trial Court and as such, such arguments cannot be allowed at this stage without any cogent reason. The compliance under Section 118 Indian Evidence Act, has been established by the learned trial Court. The appellant has never doubted about the credential of the minor witnesses before the learned trial Court and as such, such arguments cannot be allowed at this stage without any cogent reason. This court has further found that, Rohini Orain (P.W.3) is an independent witness and she has seen the appellant, taking away minor girl child of Ratia Oraon (P.W.4), (father of the victim) and has apprehended the accused along with police party and co-villagers. The appellant was arrested along with girl child, but he could not explained the reason, why he has taken the girl child along with him. The investigating officer has been examined as P.W.5, who has supported the prosecution case. 14. Under the aforesaid circumstances, the ingredients to constitute an offence under Section 363 of the Indian Penal Code has been found in this case. Section 359 defines kidnapping. As per Section 359 of the Indian Penal Code, kidnapping is of two kinds kidnapping from India and kidnapping from lawful guardianship. From perusal of the definition under Section 359 of the Indian Penal Code this court is of the opinion that since appellant has not explained the reason for his false implication in his statement recorded under Section 313 Cr. P. C and under what legal right appellant has taken the daughter of the informant, it is proved that daughter of the informant has been kidnapped by the appellant from the lawful guardianship, when the daughter of the informant was coming to her house after attending the school. Without permission of the legal guardianship, the appellant has kidnapped the minor girl child. The learned trial Court has rightly convicted the appellant under Section 363 of the Indian Penal Code, though charge has been framed under Section 366A of the Indian Penal Code. No prejudice has been caused to the appellant because of conviction under Section 363 of the Indian Penal Code where charge has been framed under Section 366A of the Indian Penal Code. No prejudice has been caused to the appellant because of non-examination of the Kakira Oraon, resident of village Chandouli, who has informed the informant about the kidnapping of the victim girl child by an unknown person. 15. No prejudice has been caused to the appellant because of non-examination of the Kakira Oraon, resident of village Chandouli, who has informed the informant about the kidnapping of the victim girl child by an unknown person. 15. Under the aforesaid circumstance and the discussions made herein above, the impugned judgment of conviction dated 05.04.2003 and order of sentence dated 07.04.2003, passed by learned Additional Sessions Judge, Fast Track Court-III, Gumla, in Sessions Trial No. 244 of 2002, is hereby upheld and affirmed. 16. In the result, the instant criminal appeal stands dismissed. 17. The appellant who is on bail, his bail bonds, is hereby cancelled. The appellant is directed to appear before the Court below to serve out the rest of the sentence, as awarded by learned trial court, failing which, the learned trial court will take all coercive steps for securing appearance of the accused/appellant, so as to serve out rest of the sentence. 18. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once. 19. Before parting with the judgment, this Court appreciates the assistance rendered by Mrs. Anuradha Sahay, learned Amicus Curiae. The Member Secretary, JHALSA, is directed to release the amount of remuneration to Mrs. Anuradha Sahay, learned Amicus Curiae within a period of four weeks from the date of receipt of a copy of this judgment. 20. Let a copy of this judgment be communicated to the Member Secretary, JHALSA for needful.