JUDGMENT : Hon'ble Arvind Kumar Mishra-I,J. 1. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgement and order of conviction dated 23.12.1985 passed by the IVth Additional Sessions Judge, Gorakhpur, in Sessions Trial No. 323 of 1984 - State of Uttar Pradesh Vs. Subedar Premi and others, arising out of Case Crime No.38 of 1982, Police Station- Chauri Chaura, District- Gorakhpur, under Sections 363, 368, 366 I.P.C., whereby, the appellant has been convicted under sections 363, 368, 366 and sentenced to five years R.I., five years R.I. and 7 years R.I., respectively. All the sentences have been ordered to run consecutively. 2. Heard learned counsel for the appellant and Sri B.D. Nishad, learned AGA for the State and perused the record of this appeal. 3. Facts of this case, as discernible from the record, appear to be that informant- Vishwnath son of Khelawan resident of Varahi Police Station- Chauri- Chaura, district Gorakhpur, lodged a written report at police station- Chauri Chaura on 4.3.1982 at 3.00 P.M. regarding disappearance of his minor grand-daughters (two victim are daughters of Ram Chandra) by some unknown person on 2.3.1982 around 10.00 A.M. It was alleged, inter alia, that on 2.3.1982 at about 10.00 A.M. victim-girls Dhekari, and Muniya (both daughters of Ram Chandra) and Meera (daughter of Bhanumati widow of Ganesh) had gone to work in the sugar-cane field of Sardar Nagar Farm, lying in Ayodhya Chak, disappeared from there and did not return till the evening. On search being made, it transpired that some one has enticed them away. The informant is grand-father of the two kidnapped girls, namely, Dhekri and Muniya. It was requested that report be lodged and appropriate action be taken. This written report is Ext. Ka-2. 4. The Investigation took place and the victim Meera d/0 Ganesh Harijan was recovered on 4.5.1982 from the house of another co-accused Subedar s/o Shri Pancham Lal r/o Firozpur, Police Station Tirwa, district Farrukhabad. The recovery memo is Ext. Ka.-1. 5. Record shows that medical examination of victim Meera d/o Ganesh was conducted by Dr. Madhu Bala of Women's Hospital Gorakhpur, on 8.5.1982 at 02.30 P.M., wherein Vaginal smear was taken and sent for pathological examination to district Hospital for knowing presence of spermatozoa and also referred to the Radiologist, District Hospital- Gorakhpur, and also for X-ray examination for determination of age. Madhu Bala of Women's Hospital Gorakhpur, on 8.5.1982 at 02.30 P.M., wherein Vaginal smear was taken and sent for pathological examination to district Hospital for knowing presence of spermatozoa and also referred to the Radiologist, District Hospital- Gorakhpur, and also for X-ray examination for determination of age. This medical examination report is Ext. -Ka.-5. 6. Similarly, radiological test was conducted on 10.5.1982 at District Hospital, Gorakhpupr, Ext. Ka.-6. The genuineness of the aforesaid medical examination reports was admitted to the defence, therefore, the same were exhibited and its formal proof was dispensed with. 7. The investigating Officer recorded the statement of witnesses and also prepared site plan of the place, from where recovery of the victim was effectuated. The document pertaining to the same, is Ext. Ka.-4. The genuineness of this document is also admitted to the defence. 8. The accused was arrested on 4.5.1982 by the Investigating Officer. The Investigating Officer also recorded the statement of the accused and after completing the investigation submitted the charge sheet Ext. Ka.-7. The genuineness of this document is also admitted to the defence. 9. Thereafter, the case of the appellant was committed to the Sessions court Gorakhpur, where the case was allotted Sessions trial no. 323 of 1984 and transferred for conduction and disposal of trial to the court of IV Addl. Sessions Judge, Gorakhpur, who heard both the sides on point of charge, and after being satisfied about existence of prima facie case against the appellant, charged him under section 363, 366, 368, 376 I.P.C. and the charge was read over and explained to the accused, who abjured the charges and claimed to be tried, whereupon, the prosecution was asked to adduce its testimony. In turn, the prosecution produced 4 witnesses of fact, whose sketch is being narrated herein below. 10. Meera PW-1 is the victim. She has partially supported the prosecution version and has turned hostile on point of rape by the accused. Baburam P.W. 2 is witness of fact of recovery of victim Meera (Exhibit Ka-1). He has not supported the factum of recovery and has turned hostile. Ram Chandra P.W. 3 is father of the two missing girls Dhekari and Muniya. He has supported the contents of first information report. P.W. 4 Vishva Nath is the informant of this case. He has proved lodging of the information. 11. He has not supported the factum of recovery and has turned hostile. Ram Chandra P.W. 3 is father of the two missing girls Dhekari and Muniya. He has supported the contents of first information report. P.W. 4 Vishva Nath is the informant of this case. He has proved lodging of the information. 11. Since the validity of the prosecution papers were not disputed by the defence, therefore, formal proof of the same was dispensed with and these papers were exhibited by the trial court. 12. Thereafter evidence for the prosecution was closed and statement of accused recorded under section 313 Cr.P.C. wherein reason for implication has been ascribed to be enmity and collusion by the police. 13. No evidence, whatsoever, was led by the defence. 14. The case was heard on merit by the learned trial Judge who after appraisal of facts and circumstances and evaluation of the evidence of the case, returned aforesaid finding of conviction against the appellant and sentenced the appellants under the aforesaid sections of 3e63, 366 and 368 IPC. 15. Consequently, this appeal. 16. Learned counsel for the appellant has claimed that victim Meera has not supported the prosecution story. She was major. She herself has deposed her age between 20-25 years. She was not minor and her testimony on record indicates that two missing girls, namely, Dhekari and Muniya d/o Ram Chandra were sent back to their home by the appellants, thereafter, he does not know their whereabouts. Learned counsel for the appellant further stressed that P.W. 2 Baburam, who is the witness of recovery of the victim (Meera) in question, has not supported the factum of recovery. The entire testimony of victim Meera, itself, exonerated the appellant from all charges, but court below did not take note of this particular aspect. Therefore, conviction recorded by the trial court is absolutely illegal and erroneous in the eyes of law. 17. Learned A.G.A. has supported the conviction on the ground that it is admitted position that two the girls, namely-Dhekari and Muniya are still missing and they were lastly seen with the appellant on a rickshaw and testimony in this regard, is clinching and its source is none other than the victim of the same incident i.e. Meera. Lastly, he submits that conviction of the appellant recorded by the trial court is just finding and no interference is required. 18. Also considered the rival submissions. Lastly, he submits that conviction of the appellant recorded by the trial court is just finding and no interference is required. 18. Also considered the rival submissions. 19. No doubt PW-1 has not testified on fact of sexual assault alleged to have been committed on this witness. On that factual aspect she has turned hostile. But this Court is not concerned with any issue like sexual assault. Here the point in issue is kidnapping of the two girls in all. No doubt, Meera-PW-1 was above 18 years of age on the date of the incident, whereas, Muuniya and Dhekri, as per testimony on record, were well below 18 years of age i.e. both were minors on the date of incident. Both were hardly 9 years and 12 years of age, respectively. 20. Bare perusal of testimony of Meera PW-1 on page 13 is indicative of fact that accused joined Meera at Railway Station, Lucknow, and from there they came over to Kanpur and he resided with the girls whole night at Kanpur and the next day, he made to sit his own wife and child with P.W.-1 in one rickshaw, whereas, that person along with the two girls, sat on another rikshaw. At this stage that person has been identified by P.w.-1 Meera in trial court as Krishna Murari. Thus, his identification is complete. Thereafter, she ( P.W.-1) has testified that the accused lagged behind her rickshaw and reached station when she did not find Munia and Dhekri she resided in the house of accused for ten days and used to ask about the whereabout of the two girls, then accused told her that he has sent them back to home. This unimpeachable testimony stares into the face of the accused-appellant. He owes an explanation for sudden disappearance of the two minor girls. 21. Perusal of testimony of P.W. 1 Meera reflects that Krishna Murari along with the two missing girls- Dhekari and Muniya- proceeded in one Rickshaw and P.W. 1 Meera was made sit on another Rickshaw and when she (victim- Meera) asked whereabouts of the two girls, Krishna Murari (accused) did not reply satisfactorily, but stated that they have been sent to their home. Krishna Murari- appellant was apprehended by the police during the course of investigation wherein also, he could not give any proper explanation, either as to how he sent the two minor girls back to their home or whereabouts of the two girls. Factum of sudden disappearance of the two girls on a rickshaw while the accused was accompanying them (on the rickshaw) stood proved by the innocuous testimony of P.W.1 (Meera). Now the burden of proof to prove whereabouts of the two missing minor girls exclusively lies on the accused. 22. Such being the factual position, it is incumbent upon the appellant to give specific reply/explanation in respect of whereabouts or well being of the two victim girls whom he kidnapped on a rickshaw. There is no evidence or circumstance pointing to the fact that the two girls were ever seen in company of any other person after their disappearance with the appellant on rickshaw. In absence of any explanation about, whereabouts of the two missing girls, it is obvious that after their kidnapping, the disappearance of the two girls has been caused and managed by the appellant and the appellant alone. Imputation of causing disappearance under aforesaid specific situation solely rests upon the appellant and he is under bounden duty to explain fact about disappearance (of the girls) and a legal burden is cast upon him under Section 106 of the Indian Evidence Act to give satisfactory explanation and in absence of any worthy explanation, penal liability has to be fastened on him. 23. Genuineness of the relevant prosecution papers have been admitted to the defence. While scrutinising the material on record, the trial court was basically guided by the testimony on record and has rightly convicted the appellant under sections 363, 368, 366 I.P.C. and looking to the magnitude of the offence committed under aforesaid sections, rightly sentenced the appellant to under go five years R.I. under sections 363, 368 I.P.C. and seven years R.I. under section 366 I.P.C. Finding of conviction cannot be interfered. Insofar as factum of nature of sentence awarded being consecutive is concerned, it can be conveniently contemplated that in this case two minor girls have been caused to disappear on a rickshaw, therefore, the appellant should not be given any latitude as that would adversely affect interest of justice. Insofar as factum of nature of sentence awarded being consecutive is concerned, it can be conveniently contemplated that in this case two minor girls have been caused to disappear on a rickshaw, therefore, the appellant should not be given any latitude as that would adversely affect interest of justice. Sentence for causing disappearance of two minor girls (in 1983) and till now their whereabouts is not known, that way, sentence awarded is proportionate to the offence committed. Therefore, sentence awarded, being consecutive, is justified and condign. For the aforesaid reasons the appeal lacks merit and the same is dismissed. 24. The appellant was admitted to bail by this Court at the stage of admission on 1.1.1986. His bail bonds are cancelled. He be taken into custody forthwith to serve out the sentence so imposed upon him by the trial court. 25. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.