Rajesh Mahajan learned Amicus Curie who has been nominated by the Delhi High Court Legal Service Committee to argue the appeal on behalf of the appellant, it may be noted that Ram Chander PW-1 who is the father of the child kidnapped; namely Mukesh PW-2, while deposing in Court has not uttered any word of any threat conveyed to him pertaining to the kidnapped child of causing death or bodily injury to the kidnapped child.There is no reference in the testimony of Ram Chander of any conduct of the accused where from an apprehension would arise in the mind of Ram Chander that if ransom was not paid, his child would be hurt or killed.We note that Ram Chander has simply stated that when he received a call from the appellant he was told to bring money.With reference to the testimony of Ram Chander PW-1, Mukesh PW-2 and Raj Kumar PW-3, the learned trial Judge has returned a finding that the prosecution has successfully established that the appellant has committed the offence punishable under Section 364-A IPC.For the offence held committed by the appellant, he has been sentenced to undergo imprisonment for life and pay fine in sum of Rs. 1000/-; in default of payment of fine it has been directed that the appellant shall undergo RI for further six months.Conceding that there is no blemish in the testimony of Crl.738/2003 Page 1 of 10 PW-1 and PW-2, learned counsel for the appellant points out a serious procedural infirmity during conduct of trial which has considerable bearing on the testimony of Raj Kumar PW-3 and the commission of the offence punishable under Section 364-A IPC.738/2003 Page 1 of 103. To appreciate the submissions urged at the hearing of the appeal by Sh.He categorically stated that no specific amount to be paid as ransom was conveyed to him.The kidnapped child i.e. Mukesh PW-2 has simply stated that the appellant had kidnapped him and when he wept he Crl.738/2003 Page 2 of 10 was beaten.738/2003 Page 2 of 10Raj Kumar PW-3, who runs a milk dairy in front of the tea shop belonging to Ram Chander stated that at his telephone number 2634918 when ransom call was received by him to be conveyed to Ram Chander, he was categorically informed that the police should not be told anything, otherwise the kidnapped child would be killed.In the back drop of the evidence afore-noted, submission made by learned counsel for the appellant is that, as held in the decision reported as JT 2007 (5) SC 48 Vishwanant Gupta Vs.With reference to the testimony of PW-3, learned counsel points out that PW-3 was examined on 08.08.2002 and was partially cross-examined on said date.Counsel submits that as recorded by the learned trial Judge, since no further time was left on 08.08.2002, further cross- examination was deferred.On said date, Crl.Learned counsel points out that the appellant was in custody on 29.10.2002 and was produced before the Court from the police lock-up in the Court premises when the case was called.Counsel wonders as to how could the appellant go in the Court complex to search for his lawyer.With reference to the record, counsel draws our attention to the order dated 30.10.2002 which records that the accused told the Judge he was a poor man and that his counsel was not appearing and he be provided with the service of a counsel at the State expense.On the same date Sh.Sanjiv Goel, Advocate was appointed as Amicus Curie.Vide order dated 30.10.2002 the application was allowed and it was directed that PW-1 and PW-3 would be summoned for further cross-examination.738/2003 Page 3 of 10At this stage, we may note that PW-1 was not cross- examined on 29.10.2002 i.e. the date fixed for his cross- Crl.738/2003 Page 4 of 10 examination for the reason counsel for the accused was absent.738/2003 Page 4 of 10On 31.10.2002 PW-1 appeared and was cross-examined.Inspite of being served PW-3 did not appear.What has happened as a result of the afore-noted fact is that a valuable right of the accused to cross-examine PW-3 on a very vital aspect of the matter has been violated.First is to set aside the impugned judgment and remit the matter for further evidence with directions that Raj Kumar PW-3 be summoned and tendered for further cross-examination.The other is to close the chapter in the appeal noting that the appellant has Crl.As of today the appellant has served an actual sentence of 8 years 4 months and 20 days.738/2003 Page 5 of 10There was evidence of threat being given to the victim being put to death.738/2003 Page 8 of 10The conviction of the appellant for the offence punishable under Section 364-A IPC is set aside.The appellant is convicted for the offence punishable under Section 363 IPC.Since the appellant has undergone a sentence in excess of the prescribed period for the maximum term under Section 363 Crl.738/2003 Page 9 of 10 IPC, we direct that unless required to be kept in custody in some other case, the appellant be set free forthwith.738/2003 Page 9 of 10Copy of this order be sent to the Superintendent Central Jail, Tihar for compliance.PRADEEP NANDRAJOG, J SURESH KAIT, J JANUARY 06, 2010 'mr' Crl.738/2003 Page 10 of 10738/2003 Page 10 of 10

Sections cited: Section 363 in The Indian Penal Code