JUDGMENT Madan B. Lokur, J.
1. These are two appeals both of which are directed against the judgment and order dated 29th June, 2001 passed by the learned Additional Sessions Judge in Sessions Case No. 59/1999. Both the Appellants were convicted of an offence of kidnapping a girl for ransom under Section 364A of the Indian Penal Code (for short IPC) read with Section 34 thereof and Section 365, that is, kidnapping or abducting a minor with intent to secretly and wrongfully confine such minor read with Section 34 of the IPC.
2. On the evening of 21st February, 1999, Richa, a girl who was then aged about 5 years, was playing along with some children in a vacant plot behind her father's house. Later in the evening, some children told Richa's father Santosh Aggarwal, PW-1 that his daughter had been taken away by someone. Santosh Aggarwal went to search for Richa and met a groundnut seller living in the neighborhood by the name of Manish, PW-2 and he confirmed that two boys had taken Richa away.
3. On this basis, Santosh Aggarwal lodged a complaint with the police and investigations into an offence under Section 365 of the IPC were conducted by ASI Mohan Singh (PW-7) who took necessary steps but without any immediate or apparent success.
4. On 23rd February, 1999, Santosh Aggarwal received a ransom letter allegedly written by one Sher Singh demanding a ransom of Rs.10 lakhs for the return of Richa. The ransom note Exhibit P-1 is important because it gives the location where the ransom was to be delivered, that is, near the jungles of Gola Ghat (near Lal Kuan, District Nainital, UP) and that the ransom was to be delivered on the 7th day of the kidnapping, that is, on 27th February, 1999.
5. On receipt of the ransom note, Santosh Aggarwal informed the police who formed a party and left for Gola Ghat in search of the child. The party (which included Santosh Aggarwal) left Delhi on 25th February and spent the night in District Rudrapur (UP). The next morning, the party contacted the police post in Dineshpur, District Rudrapur and constable Manoj Kumar, PW-9 accompanied the party to Gola Ghat.
6. At Gola Ghat the police party broke up into three groups. One group remained near the dry bed of the river where Santosh Aggarwal was required to be present as per the ransom note. One party went inside the jungle and the third party went across the dry river.
7. After some time, Ajay, one of the Appellants before us, came out of the jungle and was arrested on being identified by Santosh Aggarwal. It is not clear whether Ajay came out of the jungle as a result of the police party that went into the jungle or whether he come out on his own. But the fact remains that he was apprehended near the Gola Ghat jungle. On interrogation, he stated that the child Richa had been kept in the house/jhuggi of one Paritosh Bala, PW-10 near Dineshpur chowki. The police party then went to the house/jhuggi of Paritosh Bala and found Richa there along with some other children. The house/jhuggi of Paritosh Bala was identified by Ajay while Richa was identified by her father Santosh Aggarwal. The child Richa was then sent for a medical examination and fortunately it was confirmed that she was neither molested nor subjected to any ill-treatment. The role played by Ajay is quite clear from the evidence on record.
8. While the police party was returning from the house/jhuggi of Paritosh Bala they met Vijay, the other Appellant on Rudrapur Road. Vijay was identified by his brother Ajay and was thereupon apprehended. Vijay made a disclosure statement to the effect that the frock that Richa was wearing when she was kidnapped in Delhi was lying in the Gola Ghat jungle. Vijay was then taken to that area where he led the party to the recovery of frock that the child had been wearing in Delhi.
9. During investigations, the police took the specimen handwriting of Vijay as well as Ajay and sent the specimens for comparison with the ransom note. As per the report of the handwriting expert, Dr. A.K. Gupta, PW-4 the ransom note was written by Vijay. It may be stated at this point that Vijay has set up the defense that he was forced to write the ransom note by Santosh Aggarwal.
10. On completion of investigations by the police, a challan was filed under Section 173 of the Code of Criminal Procedure (for short CrPC) on 30th August, 1999. The following two charges were framed against the Appellants: -
That on 21.2.99 at 6.30 p.m. from vacant plot No.1011/9, Govind Puri, Delhi within the jurisdiction of P.S. Kalkaji, New Delhi, you both in furtherance of your common intention kidnapped Kumari Reecha Aggarwal aged 5 years old and threatened to cause death of Reecha Aggarwal and asked Santosh Aggarwal to pay ransom of Rs.10 lacs and thereby you both committed an offence punishable Under Section 364A/34 IPC and within my cognizance.
Secondly, on the above said date, time and place you both in furtherance of your common intention you kidnapped Kumari Reecha Aggarwal with the intention causing said Reecha Aggarwal to be secretly and wrongfully confined and you both have thereby committed an offence punishable Under Section 365/34 IPC and within my cognizance.
The Appellants pleaded not guilty and claimed a trial. The prosecution examined 14 witnesses but the Appellants did not examine any witness. However, they made a statement under Section 313 of the CrPC.
11. Before examining the correctness or otherwise of the impugned judgment and order, it may be stated that both the Appellants, that is, Ajay and Vijay had earlier worked with Santosh Aggarwal for about 15 to 20 days and according to them, he owed a sum of a little over Rs.10,000/- towards their wages and that he had set up the entire incident to implicate them in a false case.
12. The most important witness in this case is the kidnapped child Richa, but unfortunately, the learned Trial Judge concluded that she was not competent to depose. The case of the prosecution is, therefore, based entirely on circumstantial evidence.
13. The crucial witness in the case, under the circumstances, is Santosh Aggarwal, PW-1, the father of Richa. He was categorical in describing the statement of facts and nothing has been suggested by learned Counsel for the Appellants to shake the testimony of this witness. The only contention urged by learned amices Curiae to doubt the veracity of the testimony of Santosh Aggarwal is that he had employed the Appellants but had not paid them their wages, which were a little over Rs.10,000/- and to avoid this payment, he had engineered the entire incident. We find this to be a highly speculative contention. It is most unlikely that any person would stage-manage the kidnapping of his five year old daughter and have her taken out of town just for the sake of saving a little bit of money. We cannot countenance the suggestion advanced by learned amices Curiae.
14. It was also contended that the ransom note had been dictated by Santosh Aggarwal, PW-1. This argument was, of course, in continuation of the earlier submission but we feel, quite independently, that there is no merit in this contention also. There is nothing to suggest that Santosh Aggarwal, PW-1 was familiar with the topography of Rudrapur and of Gola Ghat. The ransom note describes quite vividly the area where this witness was advised to bring the ransom money. From the description given in the ransom note, it is quite clear that the layout of the area could be known only to someone who is familiar with that area and there is nothing to indicate that Santosh Aggarwal, PW-1 had even been to that area so as to describe it as fully as has been done in the ransom note. Consequently, we are not at all impressed with the contention that the ransom note was dictated or written at the behest of this witness.
15. That Vijay was the author of the ransom note is not in dispute he only says that it was dictated to him by Santosh Aggarwal. The authorship of the ransom note, quite apart from anything else, is also clear from the testimony of Dr. A.K. Gupta, PW-4 who was the Director in charge of the Forensic Science Laboratory who stated that the handwriting on the ransom note tallied with the specimen handwriting of Vijay.
16. In so far as the recovery of the child Richa is concerned, PW-10, Paritosh Bala has quite categorically stated that Vijay had brought her to the house/jhuggi of this witness on 24th February, 1999. Vijay had told the witness that the child was that of his employer and that she had been brought here for herbal treatment. Therefore, there is no doubt that not only had Vijay brought Richa to the house/jhuggi of Paritosh Bala but that he also wrote the ransom note which was sent to Santosh Aggarwal. The role played by Vijay in the entire episode is clear without any doubt.
17. Learned amices Curiae contended that it was rather unusual that while the ransom note required Santosh Aggarwal to come with the ransom money on 27th February, 1999, he reached Gola Ghat with the police party on 26th February, 1999, that is, a day earlier. It was also submitted that it was very unlikely that Ajay would be roaming around the jungles of Gola Ghat which, apparently housed wild animals, a day earlier than the due date of receipt of ransom.
18. It is not for us to speculate what Ajay was doing in the Gola Ghat jungle a day earlier nor is it for us to speculate why the police party reached the jungle a day earlier. The fact, however, remains that there is not only the testimony of Santosh Aggarwal but also members of the police party who had gone from Delhi that supports the fact that Ajay was found near the Gola Ghat jungle on 26th February, 1999. The apprehending of Ajay on 26th February, 1999 is also supported by the testimony of Constable Manoj Kumar of Uttaranchal Police who had accompanied the police party, and who could not have had any ulterior motive in the case.
19. Learned amices submitted that Manish, PW-2 did not see the face of those two persons who had taken Richa away nor did he identify the two persons in Court. However, the importance of the testimony of this witness is only limited to the fact that two persons had taken Richa away and nothing more. The learned Trial Judge has noted that the defense counsel had, for some odd reason, put a suggestion to this witness that he had not seen Richa with the accused persons. The witness denied this suggestion meaning thereby that he affirmed that the Appellants had taken Richa away. But the learned Trial Judge did not base his conclusions only on this suggestion given by learned Counsel for the defense. Apart from anything else, the learned Trial Judge noted that the Appellants had declined to join the Test Identification Parade (TIP) on the ground that the witnesses had already seen them but the Appellants had not stated anywhere who had seen them, when and where. In view of this, the learned Trial Judge rightly drew an adverse inference against the Appellants in refusing to join the TIP.
20. The disclosure statement given by Vijay, which led to the recovery from the Gola Ghat jungle of the frock worn by Richa in Delhi, was rightly taken into consideration by the learned Trial Judge in convicting the Appellants.
21. We are in agreement with the learned Trial Judge when he succinctly stated the relevant facts and circumstances which arose from the testimony of all the witnesses and these are -
(1) Santosh Aggarwal had a daughter by the name of Richa who was about 5 years old on 21st February, 1999.
(2) The Appellants had earlier worked with Santosh Aggarwal at his house for a short duration for about 15-20 days.
(3) On 21st February, 1999, Richa was playing with some children when she was seen going with two young persons and thereafter she was not seen for a few days.
(4) On 23rd February, 1999, Santosh Aggarwal received a ransom note demanding Rs.10 lakhs for the safe return of Richa from the Gola Ghat jungle.
(5) Santosh Aggarwal along with a police party left Delhi and reached the Gola Ghat jungle on 26th February, 1999 at the place indicated in the ransom note.
(6) Ajay was apprehended from the jungle on 26th February, 1999 and he disclosed that Richa was at the house/jhuggi of Paritosh Bala.
(7) Santosh Aggarwal and the police party along with Ajay reached the house/jhuggi of Paritosh Bala and found Richa over there. Paritosh Bala stated that Richa had been left behind by Vijay on 24th February, 1999.
(8) On 26th February, 1999, Vijay was arrested when he was identified by Ajay and he made a statement as a result of which the frock that Richa was wearing while in Delhi was recovered from the Gola Ghat jungle.
(9) There is no dispute that the ransom note was handwritten by Vijay.
(10) There is no dispute that both the Appellants refused to participate in the TIP.
22. Learned amices submitted that this was a case of circumstantial evidence and that all necessary facts must be proved by the prosecution before the chain of events is complete. If there is a missing link, it was submitted, then the benefit of doubt must go to the Appellants. Reliance was placed on State of Haryana v. Jagbir Singh and Anr. .
23. In the decision cited by learned amices, the Supreme Court considered a large number of decisions on the law relating to appreciation of circumstantial evidence, beginning with a decision rendered in 1952, in Hanumant Govind Nargundkar v. State of M.P. . Reference was also made to Sharad Birdhichand Sarda v. State of Maharashtra ; Hukam Singh v. State of Rajasthan ; Eradu v. State of Hyderabad ; Earabhadrappa v. State of Karnataka ; State of U.P. v. Sukhbasi 1985 Supp SCC 79; Balwinder Singh v. State of Punjab , Ashok Kumar Chatterjee v. State of M.P. 1989 Supp (1) SCC 560; Bhagat Ram v. State of Punjab , C. Chenga Reddy v. State of A.P. Padala Veera Reddy v. State of A.P. 1989 Supp (2) SCC 706; State of U.P. v. Ashok Kumar Srivastava and State of Rajasthan v. Rajaram . The Supreme Court concluded that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The circumstances from which the inference as to the guilt of the accused are drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal facts inferred from those circumstances. The cumulative effect of all circumstances must be such as to negative the innocence of the accused and bring the offence home beyond all reasonable doubt. This view taken by the Supreme Court was reiterated in State of U.P. v. Satish .
24. In K.R. Purushothaman v. State of Kerala , the Supreme Court reiterated the necessity of looking at the cumulative effect of proved circumstances for determining the guilt of the accused. It was reiterated that suspicion cannot take the place of legal proof and the prosecution is required to prove each and every circumstance in the chain of circumstances so as to complete the chain.
25. Fairly recently, in Sunny Kapoor v. State (UT of Chandigarh) 2006 (5) SCALE 467, the Supreme Court stated the following principle which is of relevance: -
It is now well settled by a catena of decisions of this Court that for proving the guilt of commission of an offence under Section 302 IPC, the prosecution must lead evidence to connect all links in the chain so as to clearly point the guilt of the accused alone and nobody else.
The same principle was reiterated in State of U.P. v. Desh Raj 2006 (3) SCALE 194 when the Supreme Court said that -
By now, it is well settled principle that in order to sustain a conviction of circumstantial evidence, the prosecution must establish that the chain of circumstances only consistently point to the guilt of the accused and inconsistence (sic) with his innocence.
26. In Ramreddy Rajeshkhanna Reddy and Anr. v. State of Andhra Pradesh 2006 (3) SCALE 452, the Supreme Court relied upon Anil Kumar Singh v. State of Bihar and Reddy Sampath Kumar v. State of A.P. and observed -
It is now well-settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well-settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.
27. Applying the law laid down by the Supreme Court and looking at the circumstances cumulatively, we find that the entire chain of events is complete starting from the kidnapping of Richa to her recovery and arrest of Vijay. We are of the view that the prosecution has been able to prove its case beyond a shadow of doubt.
28. We may also mention one supplementary fact, namely, that the arrest of the Appellants was from a place close to where the ransom was to be received. The Appellants have not indicated, even in their statement under Section 313 of the CrPC, what they were doing in that place. There was no apparent reason for them to be present at Gola Ghat other than to receive the ransom money as per the ransom note.
29. Under the circumstances, we uphold the conviction and sentence of the Appellants and dismiss the appeal.
30. In view of the assistance rendered by the learned amices Curiae, we direct the State to pay him a fee of Rs.5,500/- within a period of six weeks from today.