JUDGMENT : AMIT B. BORKAR, J. By this appeal, accused No. 1 challenges judgment and order dated 4-12-2017 passed by the Additional Sessions Judge, Nagpur in Sessions Trial No. 412/2014, whereby the appellant is convicted and sentenced in the manner stated herein below :- (i) Under section 364-A read with section 34 of the Indian Penal Code to undergo imprisonment for life and to pay fine of Rs. 15,000/- and in default to suffer further rigorous imprisonment for a period of one year. (ii) Under section 363 read with section 34 of the Indian Penal Code to undergo imprisonment for 7 years and to pay fine of Rs. 3,000/- and in default to suffer further rigorous imprisonment for a period of six months. 2. The prosecution case in short is as under :- Sau. Vandana Manoj Vairagade (PW1) lodged report with Police Station Ajni, Nagpur on 27-6-2014 (Exh.26) alleging that accused No. 1/appellant is good friend of her husband- Manoj Vairagade (PW5), as they were classmates at Nagpur. Accused No. 1-Atul Kate is husband of accused No. 2-Vishakha Kate and both are residing at Goa. It is alleged that accused Nos. 1 and 2 came to Nagpur before 15 days prior to the date of incident. It is alleged that on 24.06.2014, accused Nos. 1 and 2 had been to the house of Vandana (PW1) and Manoj (PW5) for dinner. Thereafter again on 27-6-2014 at 2 p.m., accused Nos. 1 and 2 had been to the house of Vandana (PW1) and Manoj (PW5). On that day accused Nos. 1 and 2 requested Vandana (PW1) to allow her 10 month old daughter – Shrushti for joy ride. Inspite of resistance of Vandana (PW1), accused Nos. 1 and 2 took minor child- Shrushti with them for purchase of clothes and eatables and left the house of Vandana (PW1). Accused Nos. 1 and 2 failed to come back even after lapse of considerable time. Therefore, Vandana (PW1) contacted her husband- Manoj (PW5) at 4.35 p.m. but, Manoj (PW5) failed to receive the said call. Thereafter, Manoj (PW5) called back Vandana (PW1). She disclosed the incident of taking daughter-Shrushti by accused Nos. 1 and 2. Manoj (PW5) therefore, rushed to his home and tried to search accused Nos. 1 and 2 along with his minor daughter Shrushti. It is alleged that Vandana (PW1) and Manoj (PW5) tried to contact accused Nos. Thereafter, Manoj (PW5) called back Vandana (PW1). She disclosed the incident of taking daughter-Shrushti by accused Nos. 1 and 2. Manoj (PW5) therefore, rushed to his home and tried to search accused Nos. 1 and 2 along with his minor daughter Shrushti. It is alleged that Vandana (PW1) and Manoj (PW5) tried to contact accused Nos. 1 and 2 on their cell phones but, cell phones of accused Nos. 1 and 2 were switched off. Vandana (PW1) therefore, lodged report with Police Station, Ajni, Nagpur on 27-6-2014, which was registered as Crime No. 196/2014 under sections 363 read with section 34 of the Indian Penal Code. 3. On the basis of oral report lodged by Vandana (PW1), Bajrangsingh Salunke (PW14), Police Inspector, deputed teams of police personnel to search minor girl- Shrushti and accused Nos. 1 and 2. On 29-6-2014, at about 9 a.m., Prakash Ghodge (PW11), Police Constable, who was on duty at Dhamangaon Railway Station, while inspecting Gondwana Express at Dhamangaon had suspicion on one male and female carrying one boy aged 12 years and one girl aged 10 months. Prakash Ghodge (PW11) enquired with them and got to know their names are Atul Kate and Vishakha Kate. Prakash Ghodge (PW11) searched accused No. 1- Atul Kate and found an amount of Rs. 23,722/- along with one SIM card of Airtel Company and ATM card of Union Bank of India in his possession. Prakash Godge (PW11) forwarded the said information to Gajendrasingh Parihar (PW12), who was working as Police Sub-Inspector, R.P. F. Pulgaon. He seized articles i.e. cash, ATM card and SIM card in presence of panch- Prasana Mundada (PW10) and one Rajesh Deotale. Bajarangsingh Salunke (PW14), Police Inspector of Ajni Police Station, Nagpur recorded statement of Manoj (PW5). On 29.06.2017, accused Nos. 1 and 2 were arrested by preparing arrest panchnama (Exh.17) at Police Station, Ajni, Nagpur. Police carried out the investigation. The Investigating Officer recorded statements of the witnesses and also took print-out of the messages from cell phone of Manoj (PW5) allegedly sent by accused- Atul Kate and seized cell phone of Manoj (PW5). The Investigating Officer after completion of the investigation filed charge-sheet with Additional Chief Judicial Magistrate, Nagpur and the case was thereafter committed to learned Additional Sessions Judge, Nagpur as offence under sections 363 and 364-A of the Indian Penal Code are exclusively triable by the Court of Sessions. 4. The Investigating Officer after completion of the investigation filed charge-sheet with Additional Chief Judicial Magistrate, Nagpur and the case was thereafter committed to learned Additional Sessions Judge, Nagpur as offence under sections 363 and 364-A of the Indian Penal Code are exclusively triable by the Court of Sessions. 4. The charges were framed against accused Nos. 1 and 2, which were explained to them in vernacular and for which they pleaded not guilty. The defence of accused were of total denial and false implication. 5. The learned Sessions Judge by order dated 24.11.2016 separated trial of accused No. 1-Atul Kate from trial of accused No. 2-Vishakha Kate, as accused No. 2 was absconding. 6. After recording evidence adduced by the prosecution, and after hearing learned Advocates for the parties, the learned Trial Judge convicted accused No. 1 in the manner stated in paragraph No. 1 above. 7. We have perused depositions of the prosecution witnesses; material exhibits tendered and proved by the prosecution; statements of the respondents recorded under section 313 of the Code of Criminal Procedure and the impugned judgment. After thoughtfully reflecting over the matter, we are squarely satisfied that the present Criminal Appeal deserves to be partly allowed by convicting the appellant under section 363 of the Indian Penal Code and acquitting him of charge under section 364-A of the Indian Penal Code. 8. Shri A. K. Bhangde, learned Advocate for the appellant submits that the prosecution has failed to prove its case beyond reasonable doubt. The evidence adduced by the prosecution is full of inconsistency, contradictions and major improvements. He submitted that Apex Court in recent judgment dated 28-6-2021 in the case of Shaik Ahmed vs. State of Telangana, Criminal Appeal No. 533/2021 has reiterated three essential ingredients of section 364-A of the Indian Penal Code. The evidence of the prosecution lacks second ingredient, namely threat by the accused to cause death or hurt by accused or his conduct gave rise to a reasonable apprehension that accused may be put to death or hurt the victim. He submitted that Manoj (PW5) has made improvement as regards the incident of transaction and the amount of ransom. He submitted that the deposit of amount by Dhananjay Chopde (PW7) in the account of accused No. 2 is not linked with either the demand of the accused or the directions from Manoj (PW5). He submitted that Manoj (PW5) has made improvement as regards the incident of transaction and the amount of ransom. He submitted that the deposit of amount by Dhananjay Chopde (PW7) in the account of accused No. 2 is not linked with either the demand of the accused or the directions from Manoj (PW5). He submitted that electronic evidence produced by the prosecution in the form of Call Details Record (CDR) and text messages are inadmissible in evidence in view of absence of certificate under section 65-B(4) of the Evidence Act. 9. Per-contra, Shri S.S. Doifode, learned A.P.P. for State invited our attention to the evidence of Vandana (PW1) and Manoj (PW5) to prove ingredients of section 363 of the Indian Penal Code. He placed reliance on Article-A, which is the text of SMS, by which the accused No. 1 has threatened to throw away minor girl- Shrushti. He submitted that Dhanjay Chopde (PW7) had deposited part of the amount of ransom demanded by accused No. 1 and accused called upon Manoj (PW5) to pay the remaining amount of ransom at Railway Station, Dhamangaon, where he was arrested. 10. We have reflected over the submissions of learned Advocate for the parties. The first offence alleged against the appellant-accused No. 1 is under section 363 of the Indian Penal Code, which is as under :- 363. Punishment for kidnapping. - Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 11. The essential ingredients of offence of kidnapping of minor from lawful guardian are :- (i) the victim should be minor; (ii) that the minor was taken or enticed away; (iii) that the minor was in the keeping of his or her lawful guardian; and (iv) that the guardian did not consent to his or her removal. 12. The prosecution, in order to prove ingredients for offence under section 363 of the Indian Penal Code has examined Vandana (PW1), mother of minor victim, who had lodged the First Information Report. Vandana (PW1) in her evidence stated that accused No. 1 being friend of her husband for 20 years had come for having dinner with their family. The accused no 1 was residing at Goa. Vandana (PW1) further stated that after 2 days, accused Nos. Vandana (PW1) in her evidence stated that accused No. 1 being friend of her husband for 20 years had come for having dinner with their family. The accused no 1 was residing at Goa. Vandana (PW1) further stated that after 2 days, accused Nos. 1 and 2 again came to her house and told Vandana (PW1) that they are taking her younger daughter- Shrushti to purchase a frock for her and also to provide some chocolate to her. Vandana (PW1) further stated that she resisted for taking away minor- Shrushti for the reason that Shrushti does not remain with any person for longer period but, the accused insisted for taking her away with them saying that they will take a round from nearby square. Thereafter, accused Nos. 1 and 2 did not turn up for considerable period and therefore, she called her husband Manoj (PW5) and informed him about the incident of taking away of her infant daughter. Manoj (PW5) tried to contact accused No. 1 on his cell phone but, his cell phone was switch off. 13. Manoj (PW5) in his evidence stated that his wife Vandana (PW1) called him telephonically and informed that accused Nos. 1 and 2 have taken away their minor daughter- Shrushti and have not returned back. Manoj (PW5) therefore, came to his house and searched accused Nos. 1 and 2 and his daughter. Since, Manoj (PW5) could not find them, he along with his wife Vandana (PW1) went to the Police Station for lodging the report. Manoj (PW5) made several attempts to contact accused No. 1 on his cell phone but, the cell phone of accused No. 1 was switched off. It is stated that friend of Manoj, Rajesh Naidu (PW3) tried to contact accused No. 1 on his mobile and Rajesh Naidu (PW3) had talk with him and accused No. 1 told Rajesh Naidu (PW3) that accused No. 1 wants to talk with Manoj (PW5). It is stated by Manoj (PW5) that accused No. 1 informed him that his minor daughter was with him and accused No. 1 was in need of Rs. 50,000/-. Manoj (PW5) stated that accused No. 1 told him that he will supply account number to him to deposit an amount of Rs. 50,000/- in the said account, otherwise he will not handover his daughter- Shrushti. 50,000/-. Manoj (PW5) stated that accused No. 1 told him that he will supply account number to him to deposit an amount of Rs. 50,000/- in the said account, otherwise he will not handover his daughter- Shrushti. Manoj (PW5) further stated that he received one message on his cell phone giving details of account number of accused No. 2 in Union Bank of India. Manoj (PW5) further stated that he received call from accused No. 1 that his minor daughter is safe in the custody of accused No. 1 and he will hand over her after receiving an amount of Rs. 50,000/-. It is stated that on the next day, he received a message from the accused No. 1 that if he does not deposit the amount in the account of the accused, the accused will throw his daughter. It is stated that Dhananjay Chopde (PW7) deposited an amount of Rs. 30,000/- in the account of accused No. 2. It is further stated that he received a call from accused No. 2 that he has to come at Akola Railway Station with remaining amount of Rs. 20,000/-, otherwise she will not handover his daughter. 14. The prosecution has placed on record arrest panchnama (Exh.21), which shows that the appellant was arrested on 29-6-2014 at 19.30 hours. The place of arrest was shown as Ajni Police Station. 15. Prakash Godge (PW11) stated that during checking of the Train, he noticed one male and female in suspicion circumstances. He identified both the accused in the Court. He found one 12 year old male child and one 10 month old girl child along with accused Nos. 1 and 2. He enquired with the accused about the girl child. He also enquired names of the accused and it was told to him that their names were Atul Kate and Vishakha Kate. They told Prakash Godge (PW11) that they have kidnapped girl child from Nagpur and she is daughter of Manoj (PW5). Prakash Godge (PW11) therefore, informed PSI Gajendrasingh Parihar (PW12) about accused Nos. 1 and 2. Prakash Godge (PW11) conducted search of accused persons and he found an amount of Rs. 23,772/- in cash, one SIM card of Airtel company and ATM card of Union Bank of India. 16. Prakash Godge (PW11) therefore, informed PSI Gajendrasingh Parihar (PW12) about accused Nos. 1 and 2. Prakash Godge (PW11) conducted search of accused persons and he found an amount of Rs. 23,772/- in cash, one SIM card of Airtel company and ATM card of Union Bank of India. 16. The evidence brought on record by the prosecution in the form of statements of Vandana (PW1), Manoj (PW5) and Prakash Godge (PW11) that accused No. 1 took away minor child of Vandana and Manoj on 27-6-2014 without consent of them and accused No. 1 was found on 29-6-2014 along with minor child of Vandana at railway station Dhamangoan proves beyond doubt that the accused No. 1 had taken away minor daughter of Vandana (PW1) and Manoj (PW5) from their lawful guardianship without their consent. In our opinion, therefore, the learned Trial Court was justified in convicting accused No. 1-appellant for the offence punishable under section 363 of the Indian Penal Code. 17. The next offence allegedly committed by accused No. 1 is under section 364-A of the Indian Penal Code, which reads as under :- 364-A. 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 intergovernmental organisation 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. 18. 18. In view of the judgment of Apex Court in the case of Skaik Ahmed (supra), the essential ingredients of offence under section 364-A of the Indian Penal Code, which the prosecution is required to prove are as under :- (i) Kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction; and (ii) threatens to cause death or hurt to such person, or by his conduct gives rise to a resonable apprehension that such person may be put to death or hurt or; (iii) causes hurt or death to such person in order to compel the Government or any foreign State or any Governmental organization or any other person to do or abstain from doing any act or to pay a ransom. 19. From the discussion made above, we have no hesitation to hold that first ingredient of offence of kidnapping is proved by the prosecution. The second ingredient regarding threat to cause death or hurt or conduct of accused giving rise to reasonable apprehension that victim may be put to death or hurt, in our opinion, the prosecution has failed to prove the said ingredient. To prove the ingredient of threat caused by the accused, the prosecution has produced electronic evidence in the form of text message (Article A) that in case of failure to deposit the amount, accused No. 1 will throw daughter of Manoj (PW5). Manoj (PW5) in his evidence stated that accused No. 1 sent him text message that in case of failure to deposit the amount, he will throw his daughter- Shrushti. Except this statement in the testimony of Manoj (PW5), there is no evidence on record to prove ingredients of threat or reasonable apprehension of causing hurt to the victim. The prosecution has brought on record the text of the SMS sent to Manoj (PW5) to prove threat given by accused No. 1. The print out of the text of the SMS (Article A) being electronic evidence, it was necessary for the prosecution to produce certificate as contemplated under section 65-B(4) of the Evidence Act. The electronic evidence produced by the prosecution in the form of SMS between Manoj (PW5) and accused No. 1 is not supported by certificate under section 65-B(4) of the Evidence Act. The electronic evidence produced by the prosecution in the form of SMS between Manoj (PW5) and accused No. 1 is not supported by certificate under section 65-B(4) of the Evidence Act. The prosecution has failed to bring on record either the primary evidence of electronic certificate in the form of text SMS or secondary evidence of electronic evidence by producing on record certificate as contemplated by section 65-B(4) of the Evidence Act. Therefore, print out of the text of the SMS (Article A) being electronic evidence is inadmissible in evidence. There is no evidence on record to show that amount of Rs. 30,000/- deposited by Dhananjay Chopde (PW7) was at the instance of Manoj (PW5). There is no suggestion given by the prosecution to that effect. Manoj (PW5) in his evidence has not stated that he had asked Dhananjay Chopde (PW7) to deposit an amount of Rs. 30,000/- in the account of accused No. 2- Vishakha. Since, the prosecution has failed to prove Article-A, which was the only evidence to prove ingredient No. (ii) of section 364-A of the Indian Penal Code, we are satisfied that the prosecution has failed to prove essential ingredients of section 364-A of the Indian Penal Code. We are, therefore, of the view that the Trial Court was not justified in convicting the appellant for offence punishable under section 364-A of the Indian Penal Code. We, therefore, acquit the appellant of charge of offence punishable under section 364-A of the Indian Penal Code. 20. We, therefore, pass the following order :- (i) The Criminal Appeal is partly allowed. (ii) Judgment and order of conviction dated 4-12-2017 passed by learned Additional Sessions Judge, Nagpur in Sessions Trial No. 412 of 2014 convicting the appellant for offence punishable under section 363 read with section 34 of the Indian Penal Code and sentencing him to suffer 7 (seven) years imprisonment and to pay fine Rs. 3000/- is hereby confirmed. (iii) Judgment and order of conviction dated 4-12-2017 passed by learned Additional Sessions Judge, Nagpur in Sessions Trial No. 412 of 2014 convicting the appellant for offence punishable under section 364-A read with section 34 of the Indian Penal Code and directing him to suffer imprisonment for life and to pay fine Rs. 15,000/- is hereby quashed and set aside. (iii) Judgment and order of conviction dated 4-12-2017 passed by learned Additional Sessions Judge, Nagpur in Sessions Trial No. 412 of 2014 convicting the appellant for offence punishable under section 364-A read with section 34 of the Indian Penal Code and directing him to suffer imprisonment for life and to pay fine Rs. 15,000/- is hereby quashed and set aside. (iv) Appellant-Atul s/o Anantrao Kate, is acquitted of offence punishable under section 364-A read with section 34 of the Indian Penal Code. (v) The appellant who is in jail, if he has already undergone jail imprisonment of 7 (seven) years and he has paid fine amount Rs. 3000/- and if he is not required in any other offence, he be set at liberty forthwith. The Criminal Appeal is partly allowed and disposed of accordingly.