JUDGMENT Imtiyaz Murtaza, J.
1. All the above appeals have been filed challenging the judgment and order dated 24.3.2004 passed by Addl. District & Sessions Judge, F.T.C. No. 1, Kanpur Nagar, whereby the appellants are convicted under Section 364A I.P.C. and sentenced to death and a fine of Rs. 10,000/- each. In default of payment of fine further imprisonment for one year has been awarded. The appellants are further convicted under Section 201 I.P.C. and sentenced to undergo imprisonment of 7 years each and a fine of Rs. 2,000/- and in default of payment of fine six months further imprisonment. The appellants are further convicted under Section 302/34 I.P.C. but they have not been awarded any other sentence of imprisonment. All the sentences were directed to run concurrently.
2. Criminal Reference No. 7 of 2004 is for confirmation of death sentence.
3. Brief facts of the case, mentioned in the first information report lodged by Gulab Singh Bhadoria, informant, are that he is resident of House No. 45, Kalyanpur Khurd, P.S. Kalyanpur. One Pradeep Kumar Savita, resident of village Rajepur, P.S. Rajepur, district Fatehpur is a tenant in his house for the last about two months. One Dipu @ Asit Bajpai is also staying with him for the last about 20 days. On 23.1.2003 at about 5.00 P.M. Pradeep Kumar and his friend Dipu @ Asit Bajpai took away his son Ram Lala, aged about 3 years four months, on the pretext of offering him Samosa. They took his son at the shop of Babloo @ Mahendra Kumar Gupta. A.V. Singh, proprietor of Kaushik Marble, saw his child crying and asked about the parentage of the child. Babloo informed that he is son of landlord of Pradeep Kumar. Thereafter Pradeep Kumar and his friend Dipu @ Asit Bajpai, took away the child. It is further alleged that when he and his family members got this information, they started searching his son Ram Lala, tenant Pradeep Kumar and Dipu @ Asit Bajpai, alongwith other persons of the Mohalla. Whole night they had searched them. On 24.1.2003 Babloo @ Mahendra Kumar Gupta handed over a letter containing demand of ransom of Rs. 70,000/- and in failing to make payment there was a threat to kill the children. They searched and found Pradeep Kumar at Panki Tempo Stand. They caught hold of him and it is alleged that Ram Lala is abducted by Pradeep Kumar and Deepu @ Asit Bajpai for ransom. Pradeep Kumar was brought to the police station alongwith letter demanding ransom. A report was registered on 24.1.2003 at 11.30 A.M. at P.S. Kalyanpur, district Kanpur Nagar. Report was registered by Con. Kishan Kumar vide Case Crime No. 96 of 2003 under Section 364A I.P.C. He prepared the check F.I.R. (Ext. Ka.-4) and also prepared G.D. entry (Ext. Ka.-5). After the registration of the case S.S.I. Vishwanath started investigation of the case. He recorded the statement of the informant, interrogated Pradeep Kumar Savita and he promised to get the dead body recovered. At his pointing out, the dead body of Ram Lala was recovered. He prepared Fard (Ext. Ka.-12) and site map (Ext. Ka.-13). He recorded the statements of Meena Devi, Rajendra Singh, Virendra Singh, Daya Ram and Ranjit Singh. The post mortem of the deceased was conducted by Dr. Ashok Kumar on 25.1.2003 at 1.00 P.M. In his opinion probable time of death was 1 1/2 day before. Rigor mortis upper passed lower present eye closed mouth half opened. P.M. staining whole of back buttock & thigh. Nail cyanosed. He noted the following ante mortem injury :
(i) Contusion size of 7 cm x 4 cm front of neck just below chin.
The cause of death, in his opinion, was asphyxia as result of manner of death.
4. After the investigation, charge-sheet was submitted against the appellants and one Pradeep Kumar Savita, whose case was separated because he was declared juvenile by the court. The case was committed to the court of session. Sessions Judge framed charges under Section 364A, 302/34 and 201 I.P.C.
5. The prosecution in order to prove its case has produced 8 prosecution witnesses. P.W. 1, Gulab Singh Bhadoria, stated that Pradeep Kumar was a tenant in his house for the last about two months. His friend Deepu @ Asit Bajpai was staying with him for the last 20 days prior to the occurrence. On 23.1.2003 at about 5.00 P.M. Ram Lala aged about 3 years 4 months was playing outside the house. Pradeep Kumar and Deepu @ Asit Bajpai took him on the pretext of offering him Samosa and they took him to the shop of Babloo @ Mahendra Kumar Gupta. His son was crying there. Seeing the child crying A.V. Singh, Proprietor of Kaushik Marble, asked as to why this child is crying. Babloo @ Mahendra Kumar Gupta informed that he is the son of landlord of Pradeep Kumar. Pradeep Kumar and Deepu @ Asit Bajpai took away the child from there. When the child did not return, they started search of Ram Lala, Pradeep Kumar and Dipu whole night. They searched alongwith other persons of Mohalla. On 24.1.2003 Babloo alias Mahendra Kumar Gupta handed over a letter containing demand of Rs. 70,000/- as ransom, otherwise there was a threat of killing the child. Pradeep Kumar was found at Panki Road Tempo stand. They caught hold of him. They brought him to the police station alongwith letter containing the demand of ransom. He lodged the report (Ext. Ka.-1). The letter of demand of ransom was given by Babloo alias Mahendra Kumar Gupta and he disclosed that this letter was handed over to him by Mannu @ Ayyub. It was also informed that this letter is written by Pradeep Kumar. He recognised the writing of Pradeep Kumar on the letter of demand of ransom (Ext. Ka.-2). In the cross-examination he stated that Pradeep Kumar had taken away the child. He did not inform to any one. He had seer; him taking away the child at about 5.00 P.M. There was no one alongwith Pradeep Kumar. On the date of occurrence both were present in the house. Both have taken away the child. He waited for half an hour and thereafter he started searching him. He stated that he had reached at the shop of Babloo at about 8.00 P.M. On the date of occurrence neither Babloo nor A.V. Singh, owner of Kaushik Marble, had disclosed anything. Mannu @ Ayyub had a hair cutting shop. Mannu is not involved in carrying the child from his house. He had lodged the report at 10.30 P.M. on 24.1.2003. The dead body was recovered at about 4.00 P.M. on 24.1.2003.
6. P.W. 2 Smt. Mina stated that she has three children. Ram Lala aged about 3 years 4 months is her second child. When he was abducted he was playing at the house alongwith other child on 23.1.2003. His child was playing at about 5.00 P.M. He was taken away by Pradeep and Dipu @ Asit Bajpai on the pretext of offering him Samosa. Pradeep Kumar was a tenant in her house for the last about 2 months. Dipu @ Asit Bajpai was friend of Pradeep Kumar. The dead body of the child was recovered from shrubs. She had no knowledge who had committed the murder. In the cross-examination she stated that she had seen Dipu @ Asit Bajpai taking away the child at 5.00 P.M. She stated that she had informed her husband that Dipu @ Asit Bajpai and Pradeep Kumar had taken away the child. The dead body of the child was recovered on the next date. She had no knowledge that any letter was received for ransom.
7. P.W. 3, Dr. Ashok Kumar, Medical Officer, New P.H.C., Gujaini, Kanpur Nagar had conducted the post mortem examination. The ante mortem injuries have been mentioned in the earlier part of the judgment.
8. P.W. 4 is Con. Kishan Kumar. He prepared the check F.I.R. and G.D. entry (Ext. Ka.-5).
9. P.W. 5 is Akshaiver Singh. He is proprietor of the shop known as Kaushik Marble. He stated that on 23.1.2003 at about 5.00 P.M. a child was crying on the shop of Babloo @ Mahendra Kumar Gupta and he enquired from Babloo as to why this child is crying. Babloo informed that this child is of the landlord of Pradeep Kumar and in the meantime Pradeep came and took away the child alongwith him and there was no other person. He returned to his shop. He had no knowledge as to whether any person is also there or not. In the morning when he returned he heard that one child is murdered and thrown. He stated that in the morning Babloo was having a letter and informed that a letter is received which was given to the Inspector. He did not know what was the content of the letter. In the cross examination he stated that the shop of Babloo is at a distance of 50 60 feet from his shop. He had seen the dead body of the child in the forest. There was a crowed of about 200 people.
10. P.W. 6 is Ranjit Singh. He deposed that Ram Lala was his nephew. He was abducted on 23.1.2003. On 24.1.2003 A.V. Singh. Proprietor of Kaushik Marble had told that one child was crying at the shop of Babloo. He had disclosed that this child is of landlord of Pradeep. He further disclosed that Pradeep and Dipu @ Asit Bajpai had brought him. Babloo had handed over a letter of ransom. Pradeep was a resident of Kalyanpur Tempo stand. He was brought to the police station. He admitted that he had abducted the child for ransom and committed the murder and the dead body was kept in the shrubs near Avas Vikas Yojna No. 1.
11. P.W. 7 is D.K. Singh, S.I. He had prepared the inquest memo of dead body of Ram Lala. Inquest memo is Ext. Ka.-6. Challan Lash is Ext. Ka.-7, letter to C.M.O. is Ext. Ka.-8, Photo of deceased is Ext. Ka.-9 and Seal is Ext. Ka. 10.
12. P.W. 8 is S.S.I. Vishwanath. He had investigated the case and arrested the accused persons.
13. The case of the appellants is of denial and they have produced one defence witness Rajendra Kumar Bajpai as D.W. 1 who staled that he had 3 children. Dipu was his son. In the year 1999 he was studying in Intermediate. He further stated that there was a dispute with regard to a Naali with one Krishna Dubey. He was inimical with them and he was also very close with the local police and holding some post in Bhartiya Janta Party. In the year 1999 police had broken down his door and taken away Dipu @ Asit Bajpai and kept him for 14 days in illegal detention. His wife sent several letters to the higher authorities (Exts. Kha. 1, 2 and 3) but he was not released. Thereafter she had filed a writ petition in the High Court against the police personnel. His son was released but the police used to demand the money from them and they threatened him to falsely implicate in some other case. The Sessions Judge relying upon the evidence on the record convicted the appellants as above.
14. We have heard Sri Vinod Tripathi, Sagir Ahmad, V.P. Srivastava and Anil Srivastava, learned counsels for the appellants and learned A.G.A. and Sri Mewa Lal Shukla for the respondent and complainant.
15. Firstly we shall take up the case of Mannu alias Ayyub, appellant in Crl. Appeal No. 1699 of 2004. This appellant is not named in the first information report. P.W. 1. Gulab Singh recognised Babloo @ Mahendra Kumar Gupta and Mannu alias Ayyub and stated that they had abducted his child Ram Lala and murdered. He further stated that letter of demand of ransom was received from Babloo @ Mahendra Gupta. He enquired from him as to who had given him this letter and he disclosed that he received this letter from Mannu @ Ayyub. He recognised the writing of Pradeep Kumar. Further his statement shows that he stated that Mannu works in hair cutting shop and he has no hand in abduction of his child nor he had done any act in this regard. He further stated that Babloo had given him the letter and he had also disclosed that his son is murdered by Mannu and he had not participated in the murder. Only three persons had committed the murder. The testimony of this witness indicates that he had no knowledge about any role of appellant Mannu alias Ayyub. Me admitted that Mannu had no role in abduction of his child and he gave statement against the appellant on the basis of the statement of co-accused Babloo which has no legal sanctity. P.W. 2 had not stated anything against the appellant Mannu. Similarly P.W. 5, Akshaibar Singh, did not speak anything against the appellant Munnu. P.W. 6, Ranjit Singh, uncle of the deceased, had also not stated anything against the appellant Munnu. P.W. 6 stated that he knows Munnu and Munnu had introduced the tenancy of Pradeep and he has no other connection with this case.
16. Thus, the total evidence on the record is the statement of co-accused Babloo against the appellant Mannu who had stated that letter of ransom was handed over to him by Mannu. First information report was lodged' after receiving the letter of ransom and it is also mentioned in the first information report that letter was handed over to the informant by Babloo but this fact was not mentioned that this letter was handed over to Babloo by Mannu. In our opinion, there is nothing on record to connect the appellant Mannu with the crime and findings of the Sessions Judge against Mannu is without any legally admissible evidence. The findings recorded by learned Sessions Judge with regard to Mannu alias Ayyub are set aside and he is acquitted of the charges levelled against him.
17. Now we shall take up the case of the appellant Babloo @ Mahendra Kumar Gupta in Crl. Appeal No. 2022 of 2004. He is the person against whom allegation is that he had handed over the letter of ransom to the informant in which there was a demand of Rs. 70,000/-. The other circumstances against him are that he runs a shop and Ram Lala was found sitting there by P.W. 5, Akshaivar Singh. In the first information report it is alleged that Pradeep and Dipu @ Asit Bajpai had taken the child Ram Lala to the shop of Babloo on the pretext of offering him Samosa. The child was seen crying at the shop and Proprietor of Kaushik Marble A.V. Singh, P.W. 5, had enquired as to why this child was crying. Babloo had informed that this child is of landlord of Pradeep Kumar and thereafter Pradeep and Deepu look away the child thereafter. On 24.1.2003 Babloo had handed over a letter of ransom to the informant. P.W. 1 in his statement in court had supported the version of the first information report. It is also mentioned that a child was seen crying by P.W. 1, A.V. Singh, and he enquired from Babloo who had informed him that this child is of landlord of Pradeep and thereafter Pradeep and Dipu took away the child. On 24.1.2003 Babloo had handed over a letter of demand of ransom. He further stated that his son Ram Lala is abducted by Pradeep Kumar and Dipu @ Asit Bajpai. It is also stated by him that he had enquired from Babloo as to who had given him this letter and he had disclosed that Mannu @ Ayyub had given this letter to him. P.W. 2, Smt. Meena did not state anything against Babloo @ Mahendra Kumar Gupta. P.W. 5, A.V. Singh stated that he had seen the child crying at the shop and he enquired from Babloo as to why this child is crying and he informed him that this child is of landlord of Pradeep and thereafter he came and took away the child. In the cross-examination he stated that he had seen that the child is crying and Samosa was given in the plate. He further stated that he had handed over the letter of ransom shown to him by Babloo and Instated that he received this letter and he called Devi Ram, In-charge Police Out Post and the letter was handed over to Devi Ram Two circumstances are mentioned against this appellant. First that the child was found crying at his shop and he had handed over the letter to P.W. 5, A.V. Singh, and in his presence letter was handed over to Devi Ram, In-charge, Police Out Post.
18. We have considered the evidence in this regard and the order of the Sessions Judge. There is no allegation of abduction of the child against this appellant. It has come in evidence that he runs a shop and the child was kept at his shop by Pradeep who later took away the child. Secondly his conduct that as he got the letter he handed it over to P.W. 5 and in his presence In-charge, Police Out Post was called and letter was given to him. Despite this fact he was not made accused in the first information report and in our opinion these two circumstances do not connect the appellant with the crime. If the child Ram Lala was detained at his shop and he was found crying there, why he disclosed the identity of the child to P.W. 5. This shows his truthfulness. He did not conceal the identity of the child. Similarly the letter which he found, handed over to P.W. 5, A.V. Singh, and he immediately called the In-charge, Police Out Post and handed it over to him. If he had any involvement he would not have handed ever the letter to some one who will disclose this to the police officer in his presence. Apart from these two circumstances, there is no other circumstance to connect the appellant with the crime. In our opinion, after considering the evidence on record and order of Sessions Judge, there is no such circumstance to connect the appellant with this crime. The appeal of Babloo @ Mahendra Kumar Gupta (Crl. Appeal No. 2022 of 2004) is allowed and his conviction and sentence is set aside.
19. In Criminal Appeal No. 2002 of 2004, filed by Dipu @ Asit Bajpai, learned counsel for the appellant submits that there is no evidence against the appellant nor any recovery is made on his pointing out. We have considered the submissions made by learned counsel for the appellant and also examined the testimony of the witnesses. A perusal of the first information report indicates that according to the allegations of the first information report he is friend of Pradeep Kumar Savita, who was tenant in the house of the informant, and about 20 days prior to the occurrence he started living with Pradeep Kumar Savita in the house. It is further alleged in the first information report that on 23.1.2003 Pradeep Kumar and his friend Dipu @ Asit Bajpai took away the son of the informant on the pretext of offering him Samosa at the shop of Babloo @ Mahendra Kumar Gupta. His son was crying at his shop and P.W. 5, A.V. Singh, enquired as to why this child is crying. Babloo had informed him that this child is of the landlord of Pradeep Kumar and thereafter Pradeep Kumar and his friend Dipu @ Asit Bajpai took away the child. This clearly indicates that immediately after the occurrence and prior to the recovery of the dead body, allegations were made against Dipu @ Asit Bajpai by the informant and he supported the version of the first information report in his statement recorded in court. He further submitted that after the abduction of the child he had received a letter of ransom for payment of Rs. 70,000/-. This part of the testimony is also fully corroborated by the testimony of P.W. 5, A.V. Singh. Pradeep Kumar was arrested by the informant and thereafter, at his pointing out, the dead body was recovered. So far as the role and participation of the appellant is concerned that is also supported by the testimony of P.W. 2 Smt. Meena. She stated that Dipu @ Asit Bajpai and Pradeep had taken away her son Ram Lala. She also identified this appellant as Dipu @ Asit Bajpai. In the cross-examination also she had stated that she had seen Dipu @ Asit Bajpai taking away her child. She had also informed her husband that she had seen that Dipu @ Asit Bajpai and Pradeep Kumar took away the child. There is no suggestion to the witnesses that why they are falsely implicating them. Merely suggestion of the appellant is that he has been falsely implicated on account of enmity with the police.
20. D.W. 1, Rajendra Kumar Bajpai, was examined and he stated that in the year 1999 his son was abducted by the police and his wife had moved applications to the higher authorities, which are Ext. Kha-12 and his wife had also filed a writ petition before the High Court. There is nothing on the record to suggest why prosecution witnesses are interested in falsely roping the appellant.
21. The evidence on the record fully proves that the deceased Ram Lala was last seen alongwith Deepu @ Asit Bajpai and Pradeep Kumar Savita and thereafter he was not seen alive. The dead body of the deceased was recovered on the pointing out of Pradeep Kumar Savita. The allegation of the last seen of the deceased alongwith them is also mentioned in the first information report and thus finds full corroboration from the testimony of the witnesses. Thereafter the deceased was not seen alive and his dead body was recovered on the pointing out of Pradeep Kumar Savita. The allegation of taking away the deceased is of 5.00 P.M. on 23.1.2003 and thereafter the deceased was seen alongwith them at the shop of Babloo. The post mortem of the deceased was conducted on 25.1.2003 at 1.00 P.M. and in the opinion of the doctor time since death was one and a half day. The appellants' case is of only denial. No explanation has been offered in the statement by the appellants recorded under Section 313 Cr.P.C. A small child of three years and four month was abducted by the appellant alongwith Pradeep Kumar Savita for ransom. In our opinion, the findings of conviction are rightly recorded by the trial court.
22. Lastly the counsel for the appellant submits that the trial court was not justified for imposing death sentence on the appellant. We have considered the submission of the counsel for the appellant. There is nothing on the record to suggest that appellant was previously involved in any heinous offence nor there is no evidence that he will be a danger to the society, if the death penalty is not awarded. There is no evidence as to who actually caused the death of the deceased though the offence committed by the appellant deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case we do not think that the case falls in the category of rarest of the rare cases and we modify the impugned judgment and instead of death penalty, award life imprisonment to the appellant for offence under Section 364A I.P.C. In all other respects the impugned judgment is maintained.
23. In view of the discussion made above the appeals are decided as under:
(i) Crl. Appeal No. 1699 of 2004 Mannu @ Ayyub v. State of U.P.) The appeal is allowed. The conviction and sentence awarded against the appellant is set aside and he is acquitted of the charges. He is in jail. He shall be released forthwith unless wanted in some other case.
(ii) Cri. Appeal No. 2022 of 2004 Babloo @ Mahendra Kumar Gupta v. State of U.P.
The appeal is allowed. The conviction and sentences awarded against the appellant is set aside and he is acquitted of the charges. He is in jail. He shall be released forthwith unless wanted in any other case.
(iii) Crl. Appeal No. 2002 of 2004 Deepu @ Asit Bajpai v. State of U.P.
The appeal is dismissed with the modification that instead of death penalty, life imprisonment is awarded under Section 364A I.P.C. In all other respect the impugned judgment is maintained. The appellant is in jail. He shall be confined there to serve out the sentences awarded by the trial court and modified by us.
(iv) Criminal reference for confirmation of death sentence of the appellants is rejected.