Ajay Kumar Tripathi vs State
2006 Latest Caselaw 2207 Del

JUDGMENT

R.S. Sodhi, J.

1. Crl.A. No.645/2004 is directed against the judgment of Additional Sessions Judge, Karkardooma, Delhi in Sessions Case No. 77/2003 arising from FIR No. 59/2000 PS Bhajan Pura, whereby the learned Judge vide his order dated 9.7.2004 has held the appellant guilty of the offence under Section 364A IPC, but acquitted him under Section 302/201 IPC and further by his order dated 13.7.2004 sentenced the appellant to life imprisonment together with find of Rs. 2,000/- and in default of payment of said fine, additional RI for two months for an offence under Section 364A IPC.

2. The facts of the case as have set out by the learned trial Judge in his judgment are as under:

The brief facts of the case of the prosecution are that on dated 22.2.2000, one Suresh Kumar Gupta came to PS Bhajanpura and gave his statement to the duty officer, on the basis of which FIR bearing No. 59/00 for offence under Section 363 IPC, copy of which is Ex. PW 2/A, was registered. As per said statement of Suresh Kr. Gupta, he has been running a cloth shop at main market Bhajanpura, and his maternal nephew Neeraj, S/o Rajeshwar Dayal, R/o B-20, Gali No. 4, Bhajanpura, Delhi, who was studying in Pandit Yaadram Public School, Bhajanpura and whose school is over by 1.30 PM, had gone to school at about 7.30 AM, but had not yet returned from the school and his particulars/description are as follows : aged about 11 years, height 3-1/2 feet, colour wheatish, round face, and lean body, who is wearing brown shirt and coca cola colour trouser, coat and socks, black leather shoes and having school bag. Since despite their best efforts, he could not be traced out, hence he suspect that he has been kidnapped and therefore, legal action be taken. On the basis of said statement of Suresh Kr. Gupta, FIR under Section 363 IPC was registered and matter was handed over to SI Tej Ram for investigation. During the course of investigation, the accused Ajay Kr. Tripathi Along with the ransom amount of Rs. Three lacs was apprehended at Sheesh Ganj Gurudwara and therefore, at his instance, dead body of Neeraj was recovered and on his pointing out, shoe and school bag of deceased Neeraj were recovered and postmortem on the dead body of Neeraj was got conducted in which cause of death was opined as "asphyxia due to smothering". Site plan was prepared, photographs of the spot were taken and statement of the witnesses were recorded and after the conclusion of the investigation, ultimately charge sheet for offence under Section 363/364A/342/302/201 IPC was filed against accused Ajay Kr. Tripathi in the court of concerned learned Metropolitan Magistrate and as offence under Section 364A/302 IPC are Sessions triable, after compliance of Section 207 Cr.P.C., learned Metropolitan Magistrate was pleased to commit the matter to the court of Sessions and the case was assigned to the court of Sh. K.S. Pal, Ld. ASJ, Karkardooma Courts, Delhi and during the trial, matter was transferred to this Court.

3. The prosecution in order to establish its case examined as many as 27 witnesses. Of these important one being, PW-11 Rakesh Gupta, uncle of the deceased, PW-2 Suresh Kumar Gupta, the complainant, Rajeshwar Dayal, father of the deceased as PW-4 Smt.Santosh, mother of the deceased as PW-5 and SI Tej Ram Meena as PW-27. The main witness of the prosecution is Rakesh Gupta PW-11, he deposed in the court that on 22.2.2000 at about 2 PM, while he was sitting at his shop at Bhajan Pura he was informed by his elder brother Rajeshwar Dayal that his son Neeraj had not come back from school. Thereafter, they also informed about the same to Suresh Gupta who is his brother in law and he Along with Pankaj, his elder nephew went in search of Neeraj, but Neeraj could not be traced out despite their best efforts and thereafter they came back to the house of their brother Rajeshwar Dayal and at about 7.15 PM he attended the telephone call and the caller informed him that Neeraj is with him and demanded for Rs. three lacs for his release and he informed about the said fact to the family members and information was also given to the police in this regard and he got installed tape recorder on the said telephone No. 2171598 through his friend Surender Arora and after sometime police also reached their house and was informed in this regard. On the next day at about 7 PM , same person called by phone on the same number and asked if money had been arranged and when he replied that money could not be arranged he again asked for arranging the money and will give call afterwards. At about 8.50 or 9 PM call was made by the same person and when he stated that money had been arranged, he told him to give that amount of Rs. three lacs ahead of Majnoo ka Tila at red light Gurudwara and turn towards right side and near the wall of a garden where STD and ISD with two plus is written and wall is to be climbed inside and on the tree on which there would be the writing of 'YES' money bag is to be kept there and to leave the place. The caller on the phone had also assured him that he will give proof of Neeraj when he will go to that pointed place. Thereafter, he went to PS informed the police and police asked him to reach the spot with money and police would follow him. Thereafter, he along with the amount of Rs. three lacs keeping in a cloth bag reached at the pointed place at 10 PM but as it was dark inside the park, and he did not see anyone he returned back along with the bag. On the next day morning at about 8.30/9 AM he received a phone call by the same person who asked him as to why he did not bring cash yesterday and thereafter he asked him to bring the cash amount at Sheeshganj Gurudwara and informed him that inside the Gurudwara in the gents toilet he would found a token of 142 in a aala and in return of said token 142 he will get the bag containing clothes and kara of Neeraj from the Ghathari Ghar and after keeping the said bag he will place the bag containing cash amount and said token is to be kept in the same aala and after receipt of ransom amount Neeraj would reach their house. After attending the said call, he went to PS and informed the police in this regard, on which a raiding party was formed and police asked him to do as he was told to do on phone and police team would be with him. Thereafter, he Along with money bag containing Rs. three lacs reached Sheeshganj Gurudwara where SI Meena and other police party met him there and told him one Dilbag Singh Sardarji of the police had been made to sit in the gathri ghar and he should not worry. Accordingly, he went to the toilet at Gurudwara and took the token from the aala and collected the gathri from the gathri ghar and in place of bag containing coat and kara of Neeraj, he placed money bag containing Rs. three lacs and placed the said token in the aala itself and hided himself in the side of Gurudwara. At about 7.30 PM, he saw SI Meena along with other police officials apprehending that person who was having the thaila in his hand and that person was Ajay Kumar Tripathi who was known to him being neighbourer and was residing in the neighborhood as a tenant and the brother of said Ajay Kumar, Sanjay was friend of Neeraj. On search of thaila which was in the hand of Ajay Tripathi Rs. three lacs were recovered and from his pocket one map and Rs. 15/-in cash were recovered and said Ajay Tripathi is the accused present in the court. He also added that said Ajay Tripathi had visited their house on the birthday and had presented a gift which was earlier to this incident. The police seized the said currency notes vide memo EXPW 10/G bearing his signature at point B and the map recovered from the pocket of accused was seized vide memo EXPW 10/A and the said map is EXPW 10/B. The kara and coat which were found in the bag were handed over by him to the police which were seized vide memo EXPW 10/F. The accused was arrested vide personal search memo EXPW 10/C. He informed about the incident at his house to Suresh Gupta. He remained throughout with the police and from there accused was taken near Gali No. 9 at the corner at Thana road where the accused led the police party and pointed out towards the lanter of the nala. Meanwhile, Suresh Gupta also reached there and the accused got recovered the dead body of his nephew Neeraj. Both hands and legs of Neeraj were found tied.

4. The star witness of the prosecution PW-2, Suresh Kumar Gupta has testified that on 22.5.2000 at about 2.30 PM while he was present at his shop at B-5, Bhajanpura, main market, dever of his sister and Pankaj, son of his sister informed him that Neeraj younger son of his sister who had gone to school had not returned. Thereafter, they went to search for Neeraj but he could not be traced out despite their best efforts. He also went to PS Bhajanpura and lodged a missing report in this regard, on the basis of which FIR was lodged and copy of the same is EXPW 2/A which bears his signature at point A. He also added on the same day at about 7 PM one telephone call was received by Rakesh, dever of his sister at his sister's house and Rakesh told him that Neeraj was kidnapped by some person and Rs. three lacs was demanded by the kidnapper and one the date when he visited the house of his sister Rakesh informed him that he received a telephone call and kidnapper had asked him to bring ransom amount at Majnoo ka tila on 23.2.2000 and Rakesh went to that place, but kidnapper was not found there. On the next day he went to the house of his sister. Rakesh again informed him that a phone call was received by him on that day in the morning as kidnapper had asked him to come to Sheesh Ganj Gurudwara, Chandni Chowk along with ransom amount. At about 8/8.15 PM, they received a phone call from Rakesh that Ajay Kumar Tripathi who has been residing in Bhajanpura was found lifting the ransom amount and he was apprehended but till 12 night he received no further information. Therefore, he went to PS Bhajanpura at about 12.50 in the night and at the instance of duty officer, he went to gali No. 9 Bhajanpura where accused Ajay Kumar along with the police officials were found present. Accused Ajay Kumar Tripathi pointed out the corner of the gali No. 9 that dead body was kept there and thereafter dead body of Neeraj was recovered from the drainage and the pointing out memo in this respect is EXPW 2/B which bears his signature at point A. He also added that on 25.2.2000 he had gone to mortuary GTB Hospital and he identified the dead body of his bhanja Neeraj and his statement in this regard is EXPW 2/C. In cross examination by the Ld. defense counsel, said PW 2 further added that on that day the police had gone to his sisters house after lodging the FIR. He also added that on the next day of incident, he was present at his sisters house when the ransom call was attended by Rakesh and the call was to hand over the ransom money at Majnoo ka Tila. Again in the morning of 24th the telephone call for ransom amount was attended by Rakesh and Rakesh had informed about the call to the PS in the morning itself. He denied the suggestion of Ld. defense counsel that the dead body was not recovered in his presence as the same was already recovered during the day time and accused was falsely implicated at the instance of the police.

5. The testimony of PW-11 stands corroborated by that of PW-10, Harbans Singh who is a public witness. Further Suresh Kumar Gupta, complainant lodged an FIR which is exhibited PW 2/A. Rajeshwar Dayal PW-4 has deposed in the Court that his son Neeraj was studying in 4th standard in Pandit Yaadram School, Tanki Road, Bhajanpura and on 22.2.2000, Neeraj had gone to the school at about 7.30 A.M. but did not come back till 2 P.M. and thereafter they searched for Neeraj and at about 4 P.M., he telephoned at 100 number regarding the missing of his son but till 6 P.M. he could not get any clue and as such Suresh Gupta, who is his brother in law (sala) went to PS Bhajanpura and lodged the missing report in this regard. At about 7/7.15 PM, when he was along with his brother Rakesh Gupta and brother in law Suresh Gupta were present at his house a telephone call was received by his brother Rakesh Gupta who informed that neeraj had been kidnapped and kidnapper has been demanding Rs. three lacs as ransom and therefore a taping system of the phone was installed at his phone connection by one Surender Arora. His brother in law Suresh Gupta went to PS and informed police about the said telephone call on which police came to their residence and recorded his statement. He also added that telephone number installed at his house is 2171598. In the cross-examination by the Ld. defense counsel. He further added that on the date of incident his son Neeraj had gone to school from his house in his precence at about 7.30 AM and his son used to go on foot and come back to his house on foot. On that day, when his son Pankaj came to his shop and informed him that Neeraj had not returned from the school he immediately called for his brother Rakesh and his brother in law Suresh Gupta. He also added that Suresh Gupta his brother in law had gone alone in PS to lodge the FIR. He also added that his statement was recorded by the police at about 8/8.15 PM on that very day i.e. on 22.2.2000 at his house. He also added that information about the recovery of dead body of his son was received by him in the night of 24.2.2000. He also added that the distance between the place of recovery of his sons dead body i.e. corner of the gali No. 9 and his house is about a walking distance of 10 minutes. He denied the suggestion that he has been deposing falsely.

5. Smt. Santosh PW-5, who is the mother of the deceased, deposed in the Court that on 22.2.2000, at about 7.30 AM, her son Neeraj who was studying in 4th class at Pandit Yaadram School left from their house for the school and he was in school uniform. He used to return at about 1.30 PM, but on that day he did not return home and so she informed her husband through her son Pankaj. He brother and devar were also called at home. One telephone call was received in the evening at their phone No. 2171598 which was attended by her devar but informed that someone had kidnapped her son and asking for money for releasing him. She also added that caller had demanded Rs. Three lacs for the release of her son. In the cross-examination by the Ld. defense counsel, he further added that police had come to their house in the evening and she was present at the house when the telephone call was attended by her devar. She denied the suggestion that she had been deposing falsely.

6. The Investigating Officer, PW-27 has deposed to the steps taken by him during investigation and states as that on 22.2.2000, while he was present in the PS and was on emergency duty, duty Officer handed over him FIR of this case copy of which is EX.PW 2/A for investigation. He added that thereafter, he went to the house of Neeraj, the child who was missing in B Block Gali No. 4, Bhajanpura and recorded statement of his parents. On enquiry from school going children he was informed that Neeraj had attended the school on 22.2.2000 and after the school he went towards his house and school children had seem him up to corner of Gali No. 10, Bhajanpura. He had also interrogated the school teachers to confirm that Neeraj had attended his school on 22.2.2000. In the meantime, while he was present in the PS, Rakesh Gupta came and informed that he received a telephone call at phone No. 2171598 that Neeraj is in caller's custody and he had demanded Rs. three lakhs as ransom for the release of the child. Thereafter, he added Section 364A in this case and he along with SHO and other police staff went to the house of Neeraj and interrogated his parents and confirm about the telephone ransom call. Thereafter, telephone No. 2171598 was kept under observation from Dilshad Garden Telephone Exchange and they have deputed HC Ved Prakash from telephone exchange for observation. In the evening on 23.2.2000, Rakesh Gupta uncle of deceased came to the PS and informed that the kidnapper again contacted him on phone and asked him to come with Rs. three lakhs at Rashtriya Vigyan Park, Majnoo Ka Tila by giving the detail of location and to place the money near a keekar tree in which the word 'Yes' would found written inside the said park. Rakesh Gupta also informed him that they had connected the said telephone with another telephone for recording the conversation, but he could not operate the same. Thereafter, he contacted at the telephone exchange Dilshad Garden and came to know that telephone call to phone No. 2171598 was made from a phone at 25 Khyber pass and owner of said phone is one Budhiraja. The concerned employee had also disclosed about the telephone No. but he did not remember the same. Thereafter, a raiding party was constituted consisting of himself SHO Inspt. Ranvir Singh Khatri, SI Sanjeev Sharma and other staff and Rakesh Gupta along with the ransom amount was proceeding ahead of them as per their instruction and went at Rashtriya Vigyan Park, Majnoo Ka Tilla and they hided themsleves outside but Rakesh Gupta was frightened and could not deliver the ransom amount near the keekar tree and nobody was visible as it was dark at that time. Thereafter, they went to 25 Khyber pass one Jagdish Ka dhaba where one phone booth was also there inside it and one Jugal Kishore Budhiraja met them and on inquiry as to who made telephone call to phone No. 2171598, he disclosed that one person aged about 25/26 years, wearing some dirty clothes and he got extended the calls several times and he took the slips of the said telephone bill and handed over to him which is already exhibited as Ex. X and now exhibited as EX PW 27/A. The said bill was taken into possession vide memo Ex.PW 12/A. he recorded the statement of said Jugal Kishore Budhiraja who produced the bill and thereafter, they returned to the PS. On 24.2.2000, in the morning while he was present in the PS along with SHO and other staff. Rakesh Gupta uncle of the abuducted child came to the PS and told that kidnapper had again telephoned asking him to bring money at Gurudwara Sheeshganj and narrated about the details in this regard. On which the matter was discussed with the SHO and Rakesh Gupta was asked to reach with money there. SHO along with SI Sanjeev Sharma and Ct. Dilbagh Singh and other police officials met him there and police officials were in civil clothes. Ct. Dilbagh Singh, driver of the SHO was directed to sit with Sewadar in gathrighar and other police officials also took their position in the Gurudwara. As per directions of the kidnapper, Rakesh Gupta had taken token No. 142 from toilet and received a polythene bag from the gathri ghar against said token and said bag was found containing coat and kara of Neeraj and thereafter, he replaced the bag containing Rs. 3 lacs and deposited the same into the gathri ghar and received back token No. 142 and kept said token at gents toilet as instructed by the kidnapper earlier. In the meantime, one public person named Harbans Singh was requested to join the proceedings and he agreed for the same. Ct. Dilbagh Singh was sitting in the gathri ghar wearing the dress of Sewadar of Gurudwara. At about 7/7.30 PM, Ct. Dilbagh Singh had signaled him by pointing out towards the accused as the person who had taken the bag containing Rs. 3 lacs against token No. 142 and thereafter, accused was apprehended at the gate of gurudwara and found carrying the said cloth bag which Rakesh Gupta had placed against token No. 142. He further added that on interrogation the accused confesses his guilt and told that he had kidnapped the boy and had committed his murder on the same day and he hided the dead body beneath, the pulia of nala in gali No. 9, Bhajanpura. Accused was arrested and his personal search was taken vide memo Ex. PW 10/C and from his search the site plan prepared on a plain paper indicating site of Majnoo ka tila and on the back side of the same, some writing was there and the said writing and the site plan were matching with the information which the kidnapper had given earlier for handing over the ransom money near keeker tree in Rashtriya Vigyan Park near Majnoo ka tila and the same was taken into possession vide recovery memo Ex. PW 10/A and said site plan is Ex. PW 10/B. The bag with accused was found carrying containing the amount of Rs. 3 lacs which were wrapped in a newspaper and after verifying the said notes were again wrapped in a newspaper and put in the same cloth bag and sealed with the sale of TRM and was taken into possession vide memo Ex. PW 10/G and the disclosure statement of accused is Ex. PW 10/E and at the request of public witness Harbans Singh, thereafter he was discharged. Thereafter, the accused had taken them in gali No. 9, Bhajanpura and pointed out towards the nala at the corner of the gali and stated that he had placed the dead body of child Neeraj in the nala beneath the lanter and thereafter, his dead body was taken out from the said nala. The photographer was called who took the photographs of the dead body at his instance. The hands and feet of the deceased boy were tied with a plastic type polythene and the dead body was identified by Rakesh Gupta and dead body was sent through Constable in the mortuary at GTB Hospital. Thereafter, the accused pointed his house bearing No. 246, Gali No. 10, Bhajanpura where he stated to have killed the boy in the room of the house and pointing out memo in this regard is Ex. PW 21/A. Thereafter, they returned to the PS and accused was put behind the bar and case property was deposited in the malkhana. He also added that he had prepared the site plan of the house as pointed out by the accused and the said site plan is Ex. PW 27/B. He had also prepared the site plan from where the dead body of the deceased boy was recovered and the same is Ex. PW 27/C. He also added that in the morning of 25.2.2000, Rakesh Gupta, uncle of the deceased and other relatives met him and their identification statement was recorded and the same is Ex. PW 11/A and Ex. PW 2/C and after postmortem accused was taken out from the lock up and on interrogation the accused disclosed that he had placed the school bag and shoes of the boy near Majnoo ka Tila as he had reached there for satisfaction of the parents of the deceased for delivering of the ransom amount there and his disclosure statement in this regard is Ex. PW 25/A. Thereafter, the accused after being produced before the Ld. MM was granted two days police custody remand. He also added that they went at the house of deceased boy where Rakesh Gupta and Suresh Gupta met him and was handed over a telephone instrument and the cassette which was taken into possession vide memo Ex. PW 11/C. Thereafter, he recorded statement of Surender Kumar Gupta, who had given the instrument. Thereafter, he recorded statement of Shivdutt Sharma, S/o Pandit Yadram, who is the owner of house No. 246, Gali No. 10, Bhajanpura and stated to have given a room of the said house to accused Ajay Kumar Tripathi on rent. He also added that on the next day, i.e., on 26.2.2000, he joined Ct. Virender, photographer Michal Bosco and Driver /Ct. Dilbagh Singh in the investigation of the case and accused was taken out from the lock up and he pointed out Rashtriya Vigyan Park and pointed out the wall where he had made sign of plus and STD/ISD is written on the wall and pointed out the bushes and got recovered school bag of the boy and the bag was checked and found containing shoes, books and some note books of the boy and photographs of the same were also obtained and thereafter the same were sealed in a parcel and taken into possession. He also added that Ct. Ashok and HC Dharampal who were on petrolling duty met them and they were joined in the proceedings there. He also added that the parcel was taken into possession vide memo Ex. PW 16/A. He also added that he prepared the site plan of the place of recovery of the school bag and the same is Ex. PW 27/F. He claimed to have recorded the statement of Ct. Ashok Kumar, HC Dharampal of PS Timarpur and of photographer Michal Bosco. He also added in his deposition that thereafter, the accused took them to Jagdish Ka Dhaba, 25 Khyber Pass, on the STD booth and pointed out the same and told that on the night of 23.2.2000 at about 8.50 PM, he made telephone call from that STD booth to phone No. 2171598 and Jugal Kishore Budhiraja, present at that time had identified the accused and told that he is the same person who had made the phone call on 23.2.2000 at about 8.50 PM for which he had already handed over the phone bills to the police and his pointing out memo is Ex. PW 12/B. He also recorded the statement of Jugal Kishore Budhiraja and Ct. Virender Singh in this regard and thereafter they returned to PS. He also added that on 3.3.2000, the print out of the telephone No. 2171598 which was received from telephone exchange which are collectively Ex. PW 21/C. He also added that on 13.3.2000, he called the draftsman from police deptt. and on his pointing out, he prepared rough notes and prepared scaled site plan which is Ex. PW 20/A. He also added that during the course of investigation, he collected the scaled site plan and photographs which were taken at the time of recovery of the dead body and at the time when accused had pointed the site at Rashtriya Vigyan Park and where school bag and shoe of the deceased were recovered. The photographs of the same are Ex. PW 15/1 to 5 and photographs about the recovery of the shoe, school bag are Ex. PW 17/1 to 17/9 and negatives are Ex. PW 17/10 to 17/18. He also added that during the course of investigation, he collected the postmortem report Ex. PW 1/A. He also added in his deposition that in the TIP, the father of the deceased Rajeshwar Dayal has duly identified the school bag, books, note books and shoe of the deceased boy before the concerned link MM. He also added that he had correctly recorded the statement of witnesses and filed the challan in the court. He identified the telephone instrument as Ex. P-1 and cassette as Ex. P-2 which were handed over to him by Rakesh Gupta. He had also identified the thaila containing the currency notes as Ex. P-3 and currency notes of Rs. 3 lacs collectively as ExP 5 and piece of newspaper in which the currency notes were wrapped as ExP 4. He also identified the brown coat as ExP 6 kara as ExP 7 and polythene as Ex P 8 as the same which were handed over to him by Rakesh Gupta which accused had placed in the gathri ghar against token No. 142. He had also identified the school bag as Ex.P 9 and pair of shoe as ExP 10 and the books and the note books bearing the name of Neeraj Gupta collectively as P 11, which were found in the said school bag. He also identified the pant, sweater, tie, belt and shirt which were found wearing on the dead body at the time of recovery and are collectively ExP 12. In the cross examination by the Ld. defense Counsel, further added that they had received copy of FIR for investigation of this case in the evening after 6 PM. He also added that the distance between the house of victim and the rented room of the accused were he was living in 4/5 minutes waking distance. He denied the suggestion that the accused was in his custody since 23.2.2000. He also added that till the arrest of the accused from the Gurudwara he did not disclose the fact of the case to the authority of Gurudwara. He also added that accused had made disclosure statement at Gurudwara Sheeshganj after his arrest after 7.30 PM. He denied the suggestion that the accused has been falsely implicated in this case or that he has prepared the memos falsely. He also denied the suggestion of Ld. defense counsel that nothing was recovered from the possession of the accused in Gurudwara or that accused had not made any disclosure statement in Gurudwara or that dead body of the victim was not recovered at the instance of the accused.

7. Another important witness to which reference may be made is PW-12, Jugal Kishore Budhiraja who states that he deposed in the court that he has been running a dhaba at 25, Khyber Pass and inside dhaba there is a telephone booth and telephone number of said STD is 2921009.... He also added that on 23.2.2000, at about 8.45 PM, one boy came to the booth for making a call and he made three calls continuously and bill of the said phone was handed over to the police by him which was seized by the police vide memo Ex. PW 12/A bearing his signature at point A. The number mentioned in the said bill is Ex. X and point A is the number where call was made. He also added in his deposition that the accused person present in the court is the same boy who had come to his shop on 23.2.2000 to make the aforesaid call. He also added that on 26.2.2000, police officials came to his booth at about 4 PM and one boy was with them and he is the accused present in the court today and on asking by the police he identified the said boy before the police as the same boy who had made calls from his booth on 23.2.2000. The pointing out memo of the accused is Ex. PW 12/B in respect of the booth bears his signature at point A. In the cross-examination by the Ld. defense counsel, said PW-12 added that police had come after an hour of the phone on the same day and at that time accused present in the court was not with them and he had handed over the bill on 23.2.2000 itself and police had obtained his signature on seizure memo. Thereafter, when police came on 26.2.2000, stayed with him about half an hour. He denied the suggestion of Ld. defense counsel that the bill Ex.-X does not belong to his STD booth or that he has been deposing falsely at the instance of the police.

8. In 313 statement the accused denied the allegations of the prosecution and claimed that he has been falsely implicated, but choose not to lead any evidence. Counsel for the appellant vehemently argues that prosecution has not been able to show that deceased was kidnapped by the appellant and or killed, therefore his case does not fall under Section 364A IPC.

9. We have heard learned Counsel for the parties and with the assistance gone through the material placed on record. We find from analysis of depositions of witnesses that there is ample material on record to show that appellant was caught red-handed with the ransom amount. There is also evidence on record that the appellant made calls for ransom and there is evidence on record to show that the appellant got recovered the dead body of Neeraj. There is also medical evidence of Dr.Gaurav Aggarwal, PW-1 that the deceased died due to "asphyxia due to smothering".

10. In that view of the matter, we find that the trial court has rightly held the appellant guilty under Section 364A IPC. However, we also find that the trial court went wrong in acquitting the appellant for an offence under Section 302 and 201 IPC. The material on record sufficiently links the appellant with the kidnapping. Having once kidnapped the child and given a ransom call, the appellant received the ransom amount and thereafter led to the recovery of the dead body of the deceased, is sufficient indication as to what happened to the child, when he was in the custody of the appellant. The explanation of the appellant would not automatically render him innocent of the act of murder unless it is substantiated by evidence. On the contrary, chain of circumstances adduced by the prosecution so read together satisfy the test of the only probability that it was appellant who has caused death of Neeraj and thereafter disposed his body in the nallaha adjacent to Gali No. 9.

11. In that view of the matter, we feel it necessary to exercise power under Section 386(3) and alter the finding by making an amendment in the judgment by holding the appellant guilty for an offence under Section 302 read with 201 IPC. However, we find from the facts and circumstances of the case that sentence awarded in this case commensurate with the crime committed and needs no change. In that view, the reasoning of the trial court to arrive at the conclusion that the appellant has committed an offence under Section 364A appeals to us and we find no reason to interfere with the same. For the offence under Section 302 IPC, we sentence the appellant to life imprisonment and fine of Rs. 2,000/- and in default of payment of said fine, additional RI for two months. For an offence under Section 201 IPC, we sentence appellant to 7 years RI and fine of Rs. 500/- and in default of payment of fine, additional RI for one month. Sentence of imprisonment and fine are directed to run concurrently. Consequently, while holding the appellant guilty under Section 302, 201 and 364A, we disposed of Crl.Appeal No. 645/2004.