JUDGMENT : Sanjay K. Agrawal, J (1) This criminal appeal preferred by the appellant-accused under Section 374(2) of Cr.P.C. is directed against the impugned judgment of conviction and order of sentence dated 24.08.2015, passed by the Additional Sessions Judge, Baikunthpur, District Koriya in Sessions Case No.59 of 2014, whereby he has been convicted for offences: under Section 363 of IPC and sentenced to undergo 07 years’ rigorous imprisonment with fine of Rs.2,000/- and, in default of payment of fine, to further undergo additional rigorous imprisonment for 03 months; under Section 364 of IPC and sentenced to undergo life imprisonment with fine of Rs.2,000/- and, in default of payment of fine, to further undergo additional rigorous imprisonment for 03 months and also under Section 365 of IPC and sentenced to undergo 07 years’ rigorous imprisonment with fine of Rs.2,000/- and, in default of payment of fine, to further undergo additional rigorous imprisonment for 03 months (all the sentences are directed to run concurrently). (2) The case of the prosecution, in short, is that on 27.02.2014, at about 02:00 PM in the afternoon, in the backyard of the house of the complainant- Kumbhkaran (PW-02), the accused-appellant herein with the intent and object of committing murder, has abducted/kidnapped 02 years’ old minor victim, namely, Sunita from the lawful possession/guardianship of her mother- Anita (PW-01) and wrongfully confined her for the purpose of immoral trafficking and, thereby, he is said to have committed offences under Sections 363, 364, 365 & 370 of IPC and also under Section 18 of the Protection of Children From Sexual Offences Act, 2012 (for short the “Act of 2012”). (3) It is further case of the prosecution that on the date and time of the offence, while Anita (PW-01), in the backyard of her house at ‘chanabadi’ was feeding grams (chana) to her two year’s old daughter/victim- Sunita and rest of the family members had gone for taking bath, at that juncture, the accused-appellant herein armed with ‘lathi’/’tangi’ and bag came over there and forcibly took the victim- Sunita and ran away towards jungle area and, on hue and cry made by Anita (PW-01), nearby peoples/neighbours and her husband- Kumbhkaran (PW-02) came over the spot and they all tried to search the whereabouts of Sunita, but could not succeed. Thereafter, Kumbhkaran (PW-02) lodged report against some unknown person before the police, pursuant to which, police registered FIR (Ex.P/03) and wheels of investigation started running, in which, spot map was prepared vide Ex.P/01. The accused-appellant was arrested vide Ex.P/13 and his memorandum statement was recorded vide Ex.P/07. Pursuant to the memorandum statement of the appellant, ‘tangi’ and his clothes (i.e. shirt, ‘gamcha’ and lower) were seized vide Ex.P/08. Further, from the place of incident i.e. Shivpur Jungle area, one ‘lungi’ was also recovered vide Ex.P/05. The aforesaid seized articles were subjected to chemical examination vide Ex.P/09 and as per FSL report (Ex.P16), blood has been found on the clothes of the appellant (i.e. shirt, ‘gamcha’ and lower), seized pursuant to his memorandum statement. Test identification parade was also conducted vide Ex.P/02 in which, the mother of the victim, namely, Anita (PW-01) has identified the appellant herein to be the person who on the date of incident had forcibly took her daughter-Sunita (victim) and ran away towards the jungle area. Thereafter, statements of witnesses were recorded and after due investigation, the police filed charge-sheet against the appellant in the Court of Judicial Magistrate First Class, Manendragarh and, thereafter, the case was committed to the Court of Sessions for hearing and trial in accordance with law, in which the appellant/accused abjured his guilt and entered into defence by stating that he is innocent and has been falsely implicated. (4) The prosecution in order to prove its case examined as many as 08 witnesses and exhibited 16 documents, whereas the appellant-accused in support of his defence has not examined any witness, but exhibited 02 documents. (5) The learned trial Court after appreciating the oral and documentary evidence available on record, proceeded to convict the appellant only for offences under Sections 363, 364 & 365 of IPC and sentenced him as mentioned herein-above, against which this appeal has been preferred by the appellant-accused questioning the impugned judgment of conviction and order of sentence. (6) Mr. Awadh Tripathi, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offences under Section 363, 364 & 365 of IPC, as the prosecution has failed to prove the offences beyond reasonable doubt. (6) Mr. Awadh Tripathi, learned counsel appearing for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for offences under Section 363, 364 & 365 of IPC, as the prosecution has failed to prove the offences beyond reasonable doubt. He further submits that the test identification parade conducted vide Ex.P/02 is doubtful because even prior to that the accused-appellant was shown to Anita (PW-01) and till date, the dead-body of the victim-Sunita has not been recovered, thus, it cannot be said that the accused- appellant has killed her. He also submits that though as per FSL report (Ex.P/16), stains of blood has been found over the clothes (i.e. shirt, ‘gamcha’ and lower) seized pursuant to the memorandum statement of the appellant, but origin of the same is not proved beyond reasonable doubt and as the appellant was brutally beaten by the police, the possibility of his blood stains on the said clothes, cannot be ruled out. Hence, the present appeal deserves to be allowed and the appellant is liable to be discharged/acquitted from the charges under Sections 363, 364 & 365 of IPC by giving him the benefit of doubt. (7) Per-contra, learned State counsel supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He also submits that apart from the test identification parade, there was dock identification of the accused by Anita (PW-01). Further at the instance of the appellant, his clothes (i.e. shirt, ‘gamcha’ and lower) were seized, in which, as per FSL report, blood stains were found. The appellant has not offered any satisfactory explanation in his statement recorded under Section 313 of CrPC as to how blood stains were found on his clothes (i.e. shirt, ‘gamcha’ and lower). As such, the learned trial Court has rightly convicted the appellant for the offences under Sections 363, 364 & 365 of IPC. Thus, the present appeal deserves to be dismissed. (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. As such, the learned trial Court has rightly convicted the appellant for the offences under Sections 363, 364 & 365 of IPC. Thus, the present appeal deserves to be dismissed. (8) We have heard learned counsel for the parties, considered their rival submissions made herein-above and went through the records with utmost circumspection. (9) The appellant herein was initially charged for offences under Sections 363, 364, 365, 370 of IPC and, for violating Section 16 (Explanation-3) of the Act of 2012, also charged under Section 18 of the Act of 2012, alleging that he, on 07.02.2014, at about 02:00 PM, at Village Shivpur, in the backyard of the house of Anita (PW- 01), kidnapped the minor girl- Sunita, aged about 02 years, while she was playing in the custody of her mother- Anita (PW-01) in order to commit her murder or to keep her wrongfully as a slave by use of force and, thereby, committed the aforesaid offences. However, the learned trial Court upon appreciation of the oral and documentary evidence available on record, only convicted the appellant for offences under Sections 363, 364 & 365 of IPC and for the rest of the offences, he has been acquitted. As such, the appellant has questioned his conviction under Sections 363, 364 & 365 of IPC before us by way of this appeal. However, the conviction of the appellant is for offence under Section 364 of IPC for which he has been awarded imprisonment for life by the learned trial Court. Section 364 of IPC provides as under: “364. Kidnapping or abducting in order to murder.— Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with 1[imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.” (10) An offence under Section 364 of IPC has two essential ingredients: (i) the accused kidnapped or abducted any person and (ii) such kidnapping or abduction was committed so that, (a) such person may be murdered; or (b) may be put in a danger or being murdered. As such, to establish an offence under Section 364 of IPC it must be proved that a person charged with the offence had the intention at the time of the abduction that the person abducted would be murdered or would be so disposed of as to be put in danger of being murdered. In fact, Section 364 IPC is mainly a case of enhanced punishment for a particular type of abetment of murder and the enhanced punishment will be applicable even though the murder is not committed in consequence of the abduction. (11) In the instant case, the learned trial Court relying upon the testimonies of Anita (PW-01) [mother of the minor-Sunita] as well as her husband- Kumbhkaran (PW-02) [father of the minor- Sunita] and that of Sukhraniya (PW-04) and also on the basis of the test identification report (Ex.P/02), wherein the appellant has been identified by Anita (PW-01), has found proved and established that it is the appellant who on the date and time of the offence has kidnapped the minor- Sunita, aged about 02 years, and flee towards the jungle area and till date the minor-Sunita could not be traced out and proceeded to convict him for offence under Sections 363, 364 & 365 of IPC by acquitting him for the remaining offences. As such, in view of the finding recorded by the learned trial Court that the minor- Sunita was kidnapped from the custody of her mother- Anita (PW-01), which is duly proved by the statements of Anita (PW-01), Kumbhkaran (PW-02) and Sukhraniya (PW-04) and also on the basis of the test identification report (Ex.P/02) whereby the appellant has been identified by Anita (PW-01), it was for the appellant/abductor to explain as to how he dealt with the abducted minor and, in absence of such explanation, the Court has to draw inference against the appellant. (12) In the matter of State of W.B. v. Mir Mohammad Omar and others, (2000) 8 SCC 382 : AIR 2000 SC 2988 , their Lordships of Supreme Court have held that important task for prosecution to establish the offence under Section 364 of IPC is to demonstrate that abduction of a person was for murdering him and observed as under: “13. Section 364 IPC says, whoever abducts any person "in order that such person may be murdered or disposed of as to be put in danger of being murdered" he commits the offence punishable under the Section. So the important task of the prosecution was to demonstrate that abduction of Mahesh was for murdering him. Even if the murder did not take place, the offence would be complete if the abduction was completed with the said objective. Conversely, if there was no such objective when the abduction was perpetrated, but later the abductors murdered the victim, Section 364 IPC would not be attracted, though in such a case the court may have to consider whether the offence of culpable homicide (amounting to or not amounting to murder) was committed. 34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody.” (13) Similarly, in Sucha Singh v. State of Punjab, (2001) 4 SCC 375 , the Supreme Court held that it is abductor who can inform the Court as to what happened to the deceased after he or she was abducted and observed as under: “15. The abductors alone could tell the court as to what happened to the deceased after they were abducted. When the abductors withheld that information from the court there is every justification for drawing the inference, in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murderers of the deceased. 19. The abductors alone could tell the court as to what happened to the deceased after they were abducted. When the abductors withheld that information from the court there is every justification for drawing the inference, in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murderers of the deceased. 19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.” (14) In the instant case, it is only and only the appellant who has special knowledge as to what happened to the minor- Sunita or when she parted from his company, but he failed to explain the same in his statement recorded under Section 313 of CrPC. However, fact remains that till date, the body/dead-body of minor- Sunita could not be traced out. (15) In the event of murder of an abducted person, either by direct or presumptive evidence, an inference of murder can safely be drawn in respect whereof, it would not be necessary to prove the corpus delicti. In the matter of Ramjee Rai and others v. State of Bihar, (2006) SCW 4816, their Lordships of the Supreme Court held that “now it is trite law that corpus delicti need not be proved. Discovery of the dead-body is a rule of caution and not the law. In the event, there exists strong circumstantial evidence, a judgment of conviction can be recorded even in absence of the dead-body.” Thus, in the instant case, it has been proved by way of statements of Anita (PW-01), Kumbhkaran (PW-02) and Sukhraniya (PW-04) and also on the basis of the test identification report (Ex.P/02) that the appellant herein kidnapped the minor-Sunita and failed to explain in his statement recorded under Section 313 of CrPC as to what happened to minor- Sunita or when she parted from his company and till date minor- Sunita could not be traced out. Therefore, both the ingredients of Section 364 of IPC are made out as the appellant committed kidnapping of minor-Sunita so that she could be murdered or would be so disposed of as to put her in danger of being murdered as her corpus delicti could not be recovered till date and, therefore, the learned trial Court is absolutely justified in convicting the appellant for offence under Section 364 of IPC. However, the appellant’s conviction for offences under Sections 363 and 365 of IPC could not be made out as kidnapping of minor- Sunita is covered by Section 364 of IPC. (16) For offence under Section 364 of IPC, the appellant has been sentenced to undergo imprisonment for life by the learned trial Court. Section 364 of IPC provides that “whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine”. The Supreme Court in the matter of Badshah and others v. State of U.P., AIR 2008 SC (Supp) 1476 confirmed the sentence of rigorous imprisonment for 07 years to the accused persons therein for having committed offence under Section 364 of IPC. Similarly, the Supreme Court in Jhapsa Kabari and others v. State of Bihar, (2001) 10 SCC 94, while the accused persons were found to be guilty of kidnapping of the deceased (a three year old child) from the lap of his mother, maintained their conviction and sentence of 10 years’ rigorous imprisonment for offence under Section 364 of IPC. (17) Bearing the principles of law laid down by their Lordships of the Supreme Court in the matter of Badshah (supra) and Jhapsa Kabari (supra), in the instant case since the offence under Section 364 of IPC has clearly been established against the appellant by the prosecution beyond reasonable doubt for kidnapping 02 years’ old minor- Sunita from lap of her mother- Anita (PW-01), we hereby award him sentence of 10 years’ rigorous imprisonment for having committed offence under Section 364 of IPC instead of life imprisonment so awarded by the learned trial Court, however, the fine sentence and default stipulation imposed by the learned trial Court for the said offence shall remain intact. The conviction and sentences of the appellant for the remaining offences, i.e. under Sections 363 & 365 of IPC, awarded by the learned trial Court are hereby set aside, as the same is not well founded in view of the discussion made herein above. (18) This criminal appeal is party allowed to the extent indicated herein-above. (19) Let a certified copy of this order alongwith the original record be transmitted to the trial Court concerned as well as to the Superintendent of Jail where the appellant is languishing for necessary information and action, if any.