JUDGMENT : Heard, learned counsel for the appellant, Mr. Ranjan Kumar Singh and Mr. P. K. Appu, learned Additional Public Prosecutor, appearing for the State. 2. The instant Criminal appeal is directed against the judgment of conviction and order of sentence, both dated 05.06.2004, passed by the learned Additional Sessions Judge, Fast Track Court No.II, Jamshedpur, in Sessions Trial No. 448 of 1999, whereby, the sole appellant Santosh Kumar Lal has been convicted for the offence committed and punishable under Sections 363 and 366 of the Indian Penal Code and awarded Rigorous imprisonment for three years. 3. The prosecution case, is based upon, fardbeyan of informant Mohan Kumar Roy (P.W.1) recorded by the Sub-Inspector of Police, Ranbir Minz of Bistupur Police Station recorded on 02.07.1999 at 13.30 hrs, at Jubli Park Jamshedpur, wherein the informant has stated, that at 7.15 A.M. in the morning, informant left his daughter, Sarswati Kumari aged about 7 years at Gujrati Sakchi Middle School, as she is studying in class-1 informant went to his work place near Sitla Mata Mandir. At around 1.00 P.M. he was informed, that his daughter Sarswati Kumari has been kidnapped by one boy, who has brought her at Jubli Park. Upon getting that information, the informant arrived at Jubli Park, where he saw that his daughter was crying and a boy has been caught by TISCO security guard and a large number of people were standing there. The informant has further stated that, his daughter has disclosed before him that at 12.00 in the noon, when she was waiting for her parent at the gate of her school, the appellant came there and asked her, that he would get her to her house. Upon denial, appellant forcibly took her on his motorcycle. The victim girl has made protest and also raised voice but her mouth was pressed by the appellant and she was taken on motorcycle to Jubli Park by threatened her with dire consequencs. The boy who has been apprehended by TISCO security guard, disclosed his name as Santosh Kumar Lal, son of Heera Lal, resident of Line No.8, House No.241, Kashidih, P.O. & P. S.-Sakchi, Town of Jamshedpur, District – Singhbhum (East). In the meantime, police also came there. 4. The boy who has been apprehended by TISCO security guard, disclosed his name as Santosh Kumar Lal, son of Heera Lal, resident of Line No.8, House No.241, Kashidih, P.O. & P. S.-Sakchi, Town of Jamshedpur, District – Singhbhum (East). In the meantime, police also came there. 4. On the basis of the fardbeyan of the informant, the Police instituted First Information Report bearing Sakchi P.S. Case No. 85 of 1999, dated 02.07.1999, under Sections 365 and 366A of the Indian Penal Code. 5. After investigation, the police submitted charge sheet vide charge sheet no. 67 of 1999, dated 31.07.1999, under Sections 365 and 366A of the Indian Penal Code against the sole accused Santosh Kumar Lal. 6. The cognizance of the offence has been taken vide order dated 08.08.1999 and the case has been committed to the Court of Sessions vide order dated 08.11.1999. 7. The learned trial Court has framed charge against the appellant on 16.07.2002, under Sections 366A and 365 of the Indian Penal Code, to which the appellant has pleaded his innocence and thus, he was put under trial. 8. The prosecution, in order to prove its case, has examined altogether five witnesses and three exhibits as documentary evidence on behalf of the prosecution. Mohan Kumar Roy, father of the victim, has been examined as P.W.1, Sarswati Kumari (victim) has been examined as P. W. 2, Udai Kant Mishra (security guard) has been examined as P.W. 3, Shambhu Prasad Roy (security guard) has been examined as P.W. 4 and Samant Kumar Das (constable) has been examined as P.W. 5. The signature of Mohan Kumar Roy(P.W.1) on the fardbeyan has been proved and marked as exhibit 1, signature of victim girl on fardbeyan has been proved and marked as exhibit 1/1, entire fardbeyan has been proved and marked as exhibit 1/2, signature of officer-in-charge on the formal first information report has been proved and marked as exhibt 2 and case diary has been proved and marked as exhibit 3. 9. After closure of the prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr.P.C., on 11.05.2004,to which appellant has pleaded his innocence and stated that he has been falsely implicated in the present case. 10. 9. After closure of the prosecution evidence, the statement of the appellant has been recorded under Section 313 Cr.P.C., on 11.05.2004,to which appellant has pleaded his innocence and stated that he has been falsely implicated in the present case. 10. After hearing learned counsel for the parties and on the basis of material available on 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 been preferred by the appellant before this Hon’ble Court, assailing the impugned judgment of conviction and order of sentence. 11. Heard, learned counsel for the appellant, Mr. Ranjan Kumar Singh. Learned counsel for the appellant has submitted, that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellant has further submitted, that the judgment of conviction has been passed on the basis of sole testimony of the victim Sarswati Kumari (P.W. 2), aged about 7 years and before recording her evidence, court has not tested her competencey with regard to understanding of the questions put to her or giving answers to those questions as provided under section 118 of the Indian Evidence Act. Learned counsel for the appellant has further submitted, that both the security guards, namely Udai Kant Mishra and Sambhu Prasad Roy, who have been examined as P.W.3 and P.W.4 respectively and have not supported the prosecution version and thus they have been declared hostile by the prosecution. Learned counsel for the appellant has further submitted, that the neither the investigating officer nor the police officer, who has recorded the fardbeyan of the informant have been examined in this case. As such, serious prejudice has been caused to the appellant because of non-examination of the investigating officer, as the appellant could not get an opportunity to cross–examine the investigating officer to elucidate the fact, in order to prove his innocence. Learned counsel for the appellant has further submitted, that victim in her deposition as P.W. 2, has stated that, she has never disclosed the alleged occurrence before anybody, then how the informant knew about the entire incidence stated in the fardbeyan. Learned counsel for the appellant has further submitted, that victim in her deposition as P.W. 2, has stated that, she has never disclosed the alleged occurrence before anybody, then how the informant knew about the entire incidence stated in the fardbeyan. Learned counsel for the appellant has further submitted, that the independent witnesses present at the place of occurrence, except security guards have not been examined in this case nor the knife which was recovered from possession of the appellant, as alleged by the victim Sarswati Kumari has been produced in the court nor the same has been exhibited as Material exhibit and the security guards have also not supported the prosecution case and declared hostiled by the prosecution. Learned counsel for the appellant has further submitted, that motorcycle upon which the victim has been brought to the Jubli Park has not been seized by police and as such, on the basis of contradictory versions of disposition of P.W.1 (Mohan Kumar Roy), informant and P. W. 2 (Sarswati Kumari), victim, the conviction of the appellant cannot be sustained in the eyes of law. Learned counsel for the appellant has further submitted, that charge has been framed against the appellant under Sections 366A and 365 of the Indian Penal Code but the trial Court has convicted the appellant under Sections 363 and 366 of the Indian Penal Code, though the ingredients to constitute offence under the above sections are different and as such, the conviction of the appellant is not in consonance of the framing of charge. 12. Heard, Mr. P.K. Appu, learned Additional Public Prosecutor appearing for the State. Learned counsel for the State has submitted, that impugned judgment of conviction and order of sentence is well founded on the basis of material available on record and the learned trial Court has rightly convicted the appellant under Sections 363 and 366 of the Indian Penal Code. Learned counsel for the State has further submitted, that a minor girl who was coming out of her school has been kidnapped by the appellant from the lawful guardianship without consent of her parent and brought her to a lonely place at Jubli Park with some evil motive, but in the meantime security persons have intervened in the matter and caught hold of the appellant along with the victim and thereafter, informed Bistupur Police, under whose jurisdiction Jubli Park is situated. Thereafter, father of the victim, who is informant in this case, has been informed and he also came to Jubli Park and saw that the victim girl was crying and the appellant is in the custody of TISCO security guards.The appellant who was examined under Section 313 Cr. P.C. has not stated any specific reason as to why appellant has been implicated in this case, rather as per the statement recorded under Section 313 Cr.P.C. of the appellant, it appears that appellant was caught by the security guards with the minor girl (daughter of the informant), Sarswati Kumari, aged about 7 years and as such, learned trial Court has rightly passed the impugned judgment of conviction and ordre of esntence. Learned counsel for the State has further submitted, that non-examination of the investigating officer has not caused any prejudice to the appellant, as the appellant has not stated anything in his defence during his statement recorded under Section 313 Cr.P.C., rather the appellant has simlply stated that without any reason he has been falsly implicated in this case and as such, non-examination of the investigation officer has not caused any prejudice to the appellant. 13. Heard, learned counsel for the appellant, Mr. Ranjan Kumar Singh and learned counsel for the State, Mr. P. K. Appu, Additional Public Prosecutor and perused the records, i.e First Informant Report, framing of the charge, evidence of five prosecution witnesses, exhibits of the prosecution side and the statement of the appellant recorded under Section 313 Cr. P. C. as well as the impugned judgment. This Court has scrutinized the evidence of the prosecution witnesses. It appears to the Court that, the child witness, Sarswati Kumari (P.W. 2) aged about 7 years at the time of occurrence, has given evidence in consonance with the prosecution case. This Court has further scrutinized the evidence of Mohan Kumar Roy (P.W.1), his fardbeyan and the evidence of the Sarswati Kumari (P.W.2), and came to the conclusion that there is no contradiction in the evidence of these two witnesses as submitted by the learned counsel for the appellant except minor contradictions in illustrating the fact, which may be caused in ordinary course by any person, but the crucks of the matter are same.This Court has perused the evidence of P.W.2 Sarswati Kumari who is a minor girl. Evidence of P.W.2 Sarswati Kumari is consistent to the prosecution case, as she has categorically stated that, she came to the gate of her school, after the school is over at 12.00 noon and was waiting for her parent, in the meantime the appellant came there and asked her to come with him so that appellant took her to her house, upon which the victim refused. Thereafter, the appellant had forcibly taken the victim on his motorcycle and took her to the Jubli Park, under threat of knife. The victim along with appellant were caught by the security guards, on brawl raised by the victim. Later on police was also informed. Her father was also informed and thereafter, her father came there and lodged the First Information Report. The defence has cross-examined the victim, a minor child but could no elucidate any fact to disbelieve the prosecution case or to dispel the evidence of P.W.2. This Court has also found that, non-examination of the investigating officer has not caused any serious prejudice to the appellant, as evidence is consistent, that appellant has been taken into custody along with victim by the security guards, who were deputed at Jubli Park, and information of the same was also given to the local police and the father of the victim. From the evidence and trend of the cross-examination, this Court is of the view that, appellant has kidnapped the victim. Kidnapping has been defined under Section 361 of the Indian Penal Code. Nothing has been brought on record from the defence side that appellant was lawful guardian of the minor victim girl. Section 361 of the I.P.C. read as follows:- “whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person form lawful guardianship.” This Court has also found that, fardbeyan has been duly proved by the prosecution and the evidence of P.W.1(Mohan Kumar Roy) and P.W.2(Sarswati Kumari) are consistent to each other. These evidences are sufficient to convict the appellant for commission of an offence punishable under Sections 363 and 366 of the Indian Penal Code. These evidences are sufficient to convict the appellant for commission of an offence punishable under Sections 363 and 366 of the Indian Penal Code. The argument of learned counsel for the appellant that the charge has been framed under Sections 365 and 366A of the Indian Penal Code but the trial Court has convicted the appellant under Sections 363 and 366 of the Indian Penal Code, which is not sustainable in the eyes of law, is not acceptable to this Court. In view of Section 222 Cr.P.C. which read as follows:- (1) when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he is not charged with it. (3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied. Under the aforesaid background as discussed above this Court is satisfied with the impugned judgment of conviction and order of sentence both dated 05.06.2004 passed by the learned Additional Sessions Judge, Fast Track Court No.II, Jamshedpur, in Sessions Trial No. 448 of 1999 arising out of Sakchi P.S. Case no. 85 of 1999 corresponding to G.R. No 1138 of 1999, is hereby upheld and affirmed. 14. In the result, the instant criminal appeal stands dismissed. 15. 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 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. 16. Let L.C.R. along with a copy of this judgment be sent to the court concerned at once.