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These are the three criminal appeals aforementioned have been filed before this court challenging the judgement and order dated 14.10.2015 passed by the Additional Sessions Judge, Court No. 1 Hathras in S.T. No. 27 of 2015 (arising out of Case crime No. 207 of 2015) State Versus Sanjay and others, P.S. Sadabad district Hathras whereby the appellants have been convicted and sentenced to undergo 2 years R.I. with fine of Rs. 1,000/- each under section 147 I.P.C.; to undergo one year with fine of Rs. 1,000/- each under section 323 I.P.C.; to undergo 2 years R.I. with fine of Rs. 1,000/- each under section 504 I.P.C.; to under to 2 years R.I. with fine of Rs. 1,000/- each under section 506 I.P.C.; to undergo 3 years R.I. with fine of Rs. 2,000/- each under section 354-D I.P.C.; to undergo 1 month simple imprisonment with fine of Rs.5,00/- under section 341 I.P.C.; to undergo 7 years R.I. with fine of Rs. 10,000/- each under section 363 I.P.C.; to undergo 3 years R.I. with fine of Rs. 5,000/- each under section 11/12 Pocso Act and to undergo 5 years R.I. with fine of Rs. 20,000/- each under section 66/67 of I.T. Act and in default of payment of fine maximum six months additional sentence was ordered and all the sentences were directed to run concurrently.

I have heard Sri Dharmendra Singhal, Dri Devendra Dahma, Sri Gopal Das Srivastava for the appellants in connected appeals, Sri Ajatshatru Pandey for the informant, learned AGA for the State and perused the record.

Learned counsel for the appellants submits that the main grounds to assail of the impugned judgement of conviction and sentence is on three counts. Firstly, that the Investigating Officer has neither filed the charge sheet under section 363 I.P.C. nor the charge was framed by the court below under section 363 I.P.C. but the trial court illegally convicted the appellants under section 363 I.P.C. IPC. Secondly, no offence under section 66/67 of I.T. Act is made out against the appellants as Section 66 of the I.T. Act relates to the computer related offence and not by mobile or cellphone. It has not been specifically come in prosecution evidence that what obscene act are made during video clipping in the incident. Two video clipping show only simple marpit has been done by co-accused Dara Singh and Sanjay and no attempt of outrageously modesty or sexual harassment of the victim has been attempted or made. No injury was found on the body of either Dhirendra or on the victim. Thirdly, appellants Ravi and Ilu alias Ram Naresh alias Ram Naresh did not participate in the alleged crime but efforts was made to save the alleged victim and Dhirendra and no over act was assigned to them.

At this juncture, it is necessary to determine that the ratio laid down by Hon'ble Apex Court in the case of Narwinder Singh vs. State of U.P. 2011 (1) SCC (Crl) 601 is applicable in the fact and circumstances of the case as Trial Court has relied on this case law. In the case cited in Narwinder Singh, the charge was framed under section 304B IPC but conviction was made under section 306 IPC which is a minor offence in comparison to section 304B IPC and further the nature of the offence under both the sections are not distinct and different category whereas in the instant case the charge was framed under section 341 IPC but conviction was made under section 363 IPC which is a major and graver offence in comparison to offence under section 341 IPC and the trial court convicted the appellants under section 363 IPC for maximum punishment of seven years without complying the mandatory provision of sections 216, 217, 218, 221 and 222 Cr.P.C. The case law cited by the court is not applicable in the facts and circumstances of the present case as neither specific charge under section 363 IPC have been framed nor opportunity of hearing was afforded to the appellants and impugned conviction is unjustified in view of 464(1) Cr.P.C., as the same had occasioned failure of justice. Hon'ble Apex Court in Shaman Sahevsaheb M. Multtani vs. State of Karnataka, AIR 2001 SC page 921 in which the accused husband was charged for dowry of death of his wife, under sections 302 and 498A IPC, but offence of murder was not established against him, and hence he was acquitted for offences under those sections i.e. Sections 302, 498A IPC. His conviction under section 304B IPC without notice to him calling upon him to enter on this defence in respect of the offence under section 304B was unjustified in view of Section 464 (1) Cr.P.C. as the same had occasioned failure of justice. The accused in the instant case was called upon to defend only a charge under Section 302 IPC. Paras 13, 14, 15, 16 and 17 of the said judgement are as follows:

Moreover, the ingredients of section 361 IPC are lacking in the instant case as the prosecution has failed to establish that alleged victim girl was taken out of the keeping of her lawful guardian by appellants and nowhere it can be inferred that she was enticed, kidnapped or abducted or taken out in order to put her out of the keeping of her lawful guardian as admittedly the alleged victim themselves returned to their home and accused persons made no protest. Perhaps this was the reason that after investigation, charge sheet was not filed under section 363 IPC and even no charge of section 363 was framed during trial. Therefore, the charge under section 363 IPC against the appellants is not established and appellants are to be acquitted of the charge under section 363 IPC.