CRIMINAL APPEAL No.171 OF 1993(SJ) *** Against the judgment and order dated 15th May, 1993 & 17th May, 1993, passed by the 2nd Addl. Sessions, Judge, East Champaran, Motihari,in Sessions Trial No. 412/106 of 1991. *** SHANKAR PASWAN S/o Yadunandan Paswan …Appellant Versus STATE OF BIHAR …Respondent *** For the appellant : Md. Faiz Ahmad, Advocate. For the State : Mr. Jharkhandi Upadhyaya, APP *** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH *** Anjana Prakash, J. The appellant has been convicted for the offence under section under section 363 of the Indian Penal Code and sentenced to rigorous imprisonment for six years by the 2nd Additional Sessions Judge, East Champaran, Motihari, by judgment and order dated 15.5.1993 and 17.5.1993 respectively in Sessions Trial No.412/106 of 1991. 2. The case of the prosecution is that Arbind aged about 12 years had gone to attend the marriage ceremony to Chiraiya chowk. However, after fourteen days when he did not return the informant went to find out from his relative about him and then in course of looking for him Birmohan Rai informed the informant that he had seen the present appellant with his son near the jail. Thereafter, the alleged kidnapped boy was recovered and details of the kidnapping was given out by him saying that demand of rupees twenty thousand or two bighas of land was being made from him. After investigation, chargesheet was submitted against the present appellant and charges were framed for the offence under sections 364, 367, 370 and 171 of the Indian Penal Code but he was acquitted of the said 2 charges and convicted for the offence under section 363 of the Indian Penal Code and sentenced as above. 3. The prosecution to prove its case examined seven witnesses out of whom PW1 is a formal witness and PW 2, the father of the kidnapped boy and PW 3, the uncle of the kidnapped boy are on the factum of the alleged kidnapping. PW 6 is the kidnapped boy himself who was aged about 12 years at the time of occurrence. The rest of the witnesses are formal in nature, whereas, PW 7 is the Investigating Officer of the case. 4. Before going into the prosecution case, it would be relevant to state as to what the accused in his statement under section 313 CrPC has stated by way of explanation. The appellant in his statement under section 313 CrPC stated that he had met the victim boy at Chatauni Chowk, who had been injured and so, he gave him first aid. Then, he took the victim boy to his sister and then Areraj where the boy told him to take him to his uncle’s house at Jatiaahi and when they were going they were caught by the informant and framed in the case of kidnapping. 5. Looking into the evidence of the prosecution case, the court below has concluded that there was no material which was essential to prove the case under sections 364, 367, 370 of the Indian Penal Code which could not be established against the appellant. Therefore, the appellant had been acquitted of the said charges. However, the court was of the opinion that the boy being a minor and there being no consent of parents for taking him along with him the essential ingredients under section 363 of the Indian Penal Code was made out and, therefore, convicted the present appellant under the said score. 6. While going through the evidence of PW 6 Arbind Kumar, it appears that he himself conceded that he along with the present appellant went to various places and it is on his request that he was being taken to his maternal uncle’s house in course of which the present appellant was arrested. No doubt, the 3 consent of minor would be of no avail but in the facts and circumstances of the case it would assume important since “removing” by the appellant from the lawful guardianship has not been proved by the prosecution. Merely, accompanying and thereafter the alleged statement about the visit to various places would definitely not make out a case punishable under section 363 of the Indian Penal Code and in my opinion, the prosecution has failed to prove its case beyond all reasonable doubt and appellant deserves to be acquitted. 7. In the result, the appeal is allowed and conviction and sentence of the appellant is set aside. The appellant is on bail. He is discharged from the liabilities of his bail bond. (Anjana Prakash, J.) Patna High Court, Patna. Dated the 3rd November, 2009 NAFR/ JA/-