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45. After considering the prosecution evidence and defence version, the trial Court convicted and sentenced the accused Nadeem and Mazhar for the offence under Sections 364A, 379 & 411 I.P.C. and acquitted them of the charges under Section 328 I.P.C. as the prosecution has failed to prove its case for the said offence.

46. Being aggrieved by the impugned judgment and order passed by the trial Court, by which the accused/ appellants have been convicted and sentenced, they have preferred the instant appeal.

55. Therefore, the prosecution case with respect to the offence under Section 328 I.P.C. could not be proved by the prosecution by the cogent evidence, hence, the trial Court has acquitted the appellant for the offence under Section 328 I.P.C.

56. Learned counsel for the appellants besides the above arguments has lastly argued that even if the prosecution case is taken at its face value, the conviction of the appellants under Section 364A I.P.C. is not sustainable in the eyes of law and the case would not travel beyond Section 365 I.P.C. He further argued that the appellants have been convicted for life imprisonment under Section 364A I.P.C. and have served out about 9 years in jail and the maximum punishment provided under Section 365 I.P.C. is 7 years and, therefore, the appellants be released by modifying/altering their conviction and sentence under Section 365 I.P.C. from Section 364A I.P.C. as the prosecution has failed to establish that the child was abducted by the two appellants for payment of ransom.

59. Per contra, learned A.G.A. on the other hand, has vehemently opposed the arguments advanced by the learned counsel for the appellants and submitted that the appellant no.1 Nadeem was arrested by the police on 17.4.2011 and from his possession a motorola mobile phone belonging to the informant Shahabuddin was recovered and further he also confessed that the said mobile phone belonged to the informant Shahabuddin whose son was abducted by him along with his companion Mazhar, he further disclosed to the police that he can get the child recovered along with the accused Majahar. On the information given by the appellant Nadeem, the police reached to the house at Delhi and recovered the abductee child along with the accused Mazhar who was arrested by the police of police station Jagatpuri, Delhi and both the accused along with the abductee child were brought to the police station Jagatpuri, Delhi, thereafter an information was given by the police of the said police station to the concerned police station at Bulandshahr and the police of the concerned police station at Bulandshahr further took PW1 along with them and reached the police station Jagatpuri where they saw that the accused Mazhar who claimed himself to be the Alam, had visited his house on the day of the incident and identified him. PW1 further stated that it was he who had taken over his son in the night of 15/16.4.2011.The child was thereafter handed over to PW1 by the police of police station Jagatpuri, Delhi and the accused were brought from Delhi on transit remand to Bulandshahr and the case was converted from the offence under Section 363 I.P.C. to 364A I.P.C. and further offence under Sections 328, 379, 411 I.P.C. was also added in the present. After investigation the police submitted charge sheet for the offence under Sections under Sections 364A, 379, 411 328 I.P.C. and the accused were put to trial. He further argued that as the abductee child has been recovered from the possession of the appellant Mazhar on the information given by the appellant Nadeem from whom motorola mobile phone was recovered and from the said mobile phone a demand of ransom of Rs.5 lacs was made by the accused on the other mobile phone of PW1, as has been stated by PW1 and PW2 before the trial Court, hence, the trial Court has rightly convicted and sentenced the appellants for the offences in question.

62. During the course of investigation, the case was converted under Section 364A I.P.C. from Section 363 I.P.C. and offences under Sections 328, 379, 411 I.P.C. were added and after the investigation PW7 submitted charge sheet for the offene under Sections 364A, 379, 328, 411 I.P.C and the accused were put to trial who denied the charges and stated that in order to save the accused Chand, they have been falsely implicated in the present case by the informant PW1 Shahabuddin in collusion with the police.