Vidya Nand vs State

J.C. Mishra, J.—Heard Sri Kamal Krishna, learned Counsel for the revisionist and learned Additional Government Advocate.

This revision has been filed against the judgment and order, dated 1884 passed by the Additional Sessions Judge, Hamirpur partly allowing the appeal setting aside the conviction and sentence awarded by the Assistant Sessions Judge, Hamirpur for the offence punishable under Section 363,1.P.C. while maintaining the conviction and sentence under Section 368, IPC.

The learned Counsel for the revisionist contended that the Assistant Sessions Judge had acquitted the coaccused Smt. Sharda and Smt. Bhagwati for offences punishable under Section 363/368,I.P.C. In appeal the learned Additional Sessions Judge set aside the conviction and .sentence awarded to the revisionist under Section 363,I.P.C. Thus the case of kidnapping was not proved. The learned Counsel for the revisionist contended rightly that in case the offence of kidnapping punishable under Section 363, I.P.C. was not proved the accused could not be convicted under Section 368, I.P.C.

Section 368, I.P.C. provides that whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.

To constitute an offence under Section 368, I.P.C. the prosecution must establish that the person in question has been kidnapped. Unless a person is kidnapped the accused will have no occasion to know that the said person had been kidnapped. Unless knowledge about kidnapping can be imputed to the accused he cannot be said to have committed the offence punishable under Section 368, I.P.C.

The learned Additional SessionsJudge has not recorded any finding that the prosecutrix had been kidnapped. In absence of this essential ingredient offence under Section 368,1.P.C. cannot be said to have been committed by the revisionist.

The revision is allowed. The conviction and sentence awarded by the Additional Sessions Judge by his judgment and order, dated 1884 is set aside. The revisionist is on bail. He need not surrender to his bonds, which are cancelled. The sureties stand discharged.

Revision allowed.