Amresh Kumar and Others vs State of Haryana

R.P. Nagrath, J.—Charges against the appellants were framed for offences under Sections 365, 302 both read with Section 34 of Indian Penal Code (IPC) and Section 201 IPC for causing certain evidence i.e. by putting dead body of Ankaj (described wrongly as Pankaj in the charge-sheet and at certain other places), a 4 years old child of Bal Kumar complainant in a gunny bag tied with iron wire and kept the gunny bag in a bath room with a intention of screening themselves from legal punishment. All the 4 accused, who are appellants before this Court, were convicted of the offences under Sections 364A/ 201 of IPC read with Section 120-B IPC by the trial court. They were all sentenced to undergo imprisonment for life and to pay fine of Rs. 5000/- each, in default to further undergo rigorous imprisonment for two years u/s 364A read with Section 120-B IPC. They were also sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 2000/- each, in default to further undergo rigorous imprisonment for one year, for offence u/s 201 read with Section 120-B IPC. The substantive sentences of imprisonment were to run concurrently and the period undergone was directed to be set off according to law.

Facts of the case emerging during trial may be briefly stated:-

Bal Kumar complainant (PW-13) was a tenant in House No. 139, Shakti Park, Street No. 3, Gurgaon, where he was running STD/PCO booth and also grocery shop. On 16.10.2007 Ankaj (deceased), his 4 years old child had gone for playing in house No. 147, which lies in front of the shop of PW-13. There were more than 50 rooms in house No. 147, rented out to labourers hailing from Bihar and U.P. etc.

Ankaj did not return and a missing report of child, Ex. PZ was lodged in Police Station, Sector 10 at about 8.40 p.m. on 16.10.2007 itself. In the report Ex. PZ, it is stated that Ankaj had gone for playing at about 1.00 p.m. in house No. 147 belonging to PW-8 Naresh Gujjar. Ankaj did not return and the family had been searching for the child but could not find any clue. The child was wearing yellow T-shirt, black underwear and slipper (chappal) of red colour, when he went for playing.

Thereafter, ransom calls were received at STD/PCO booth of Bal Kumar (PW-13) late in the evening on 16.10.2007 and also on the next day. Last ransom call was received at about 4.45 p.m. which was attended by Mithlesh PW-9, the employee of PW-13, and the kidnappers raised a demand of Rs. 10 lacs, to be delivered at 7.30 p.m. under the Peepal tree in Grain Market, Gurgaon, making assurance that the child would be released after half an hour therefrom. Complaint Ex. PQ was made in writing by PW-13 to the Police, on which the Police made endorsement at 7.10 p.m. on 17.10.2007. It was reported in Ex. PQ that four ransom calls were received at the STD/PCO booth of PW-13. The first call was received at about 11.00 p.m. on 16.10.2007. Three calls were made from landline numbers and one from a mobile phone and all the calls were recorded in the caller ID. FIR Ex. PR was registered on the basis of Ex. PQ for offence u/s 364 IPC. FIR Ex. PR shows that it was received by the Duty Magistrate at 10.00 p.m. on 17.10.2007 itself. This complaint was made by complainant to PW-19 ASI Dhanesh Kumar, who made the endorsement on the complaint and sent it to the police station for registration of FIR. The formal FIR Ex. PR is proved by Head Constable Sakender Kumar PW-11 then posted as MHC at the police station. It is, thus, clear that the report to police was made by PW-13 Bal Kumar even before the deadline fixed by the kidnappers for payment of ransom money.

PW-19 ASI Dhanesh Kumar received information from PW-13 Bal Kumar that a gunny bag was lying in the bathroom of first floor of House No. 147, from which foul smell was coming. PW-19 reached the spot and took out the gunny bag from the bathroom, which was tied with a metallic wire and opened it. There was a jersey in which the dead body was wrapped. The dead body of Ankaj was identified by PW-13. PW-19 prepared sealed parcels of gunny bag, jersey and iron wire and took these articles into possession vide memo Ex. PEE dated 19.10.2007 and prepared the rough sketch of place of recovery Ex. PFF. He also recorded the statements of Ram Suphal and Nain Kumar with regard to identity of the dead body. Though PW-19 stated that on the same day i.e. 17.10.2007, he visited the spot on receiving information from PW-13 about a gunny bag lying in the bathroom of first floor of House No. 147, yet it is the consistent evidence in the statements of PW-7 and PW-10 that the gunny bag was located late in the evening on 18.10.2007 and the proceedings for that by preparing documents were concluded on 19.10.2007.

PW-19 prepared application Ex. PGG dated 19.10.2007 for conducting postmortem examination on the dead body. The doctor also called the photographer in the hospital to take the photographs of the proceedings for recovery of onion from throat of the deceased child and these photographs are Ex. PP1 to PP8.

Autopsy on the dead body was conducted on 19.10.2007 at 1.45 p.m. by board of doctors constituted by senior medical officer and Dr. Saryu Sharma PW-14 was member of the board. The following injuries were found on dead body of the deceased:-

Contusion on the mouth and nose with haemorrhage and congestion on the inner side of both lips, cheek and tongue. Nose was flattened with fracture of nasal cartilage. Congestion around the fractured cartilage was present. On dissection of neck, congestion and haemmorhage present below the lower border of mandible and muscles. There was congestion and haemmorhage around larynx and epiglottis where an onion of the size of 5.5 cms x 3.5 cms was found in the larynx and upper part of trachea which was photographed after removing from the body.

There was contusion on the anterior and upper part of chest. On dissection there was congestion ecchymosis present in the chest muscles.

On opening of the skull there was haemmorhage and congestion present on the subcutaneous area on the left side of skull (parietal region). Sutures were separated and brain was liquified.

In the opinion of Board of Doctors, the death was asphyxia due to smothering and choking which was ante-mortem in nature and sufficient to cause death in natural course of life. The probable duration between injuries and death may be within few minutes and between death and postmortem two to four days. Postmortem report is Ex. PAA.

A suggestion was put to the doctor that the postmortem report Ex. PAA has been prepared falsely at the instance of Investigating Officer (IO). There cannot be force in the said plea. The doctor stated in the cross-examination that the onion was present in the wind pipe and it was found when the neck was dissected. The doctor even denied the suggestion that the onion can slip into the throat accidentally by a playing boy because there were other injuries present on the dead body of the deceased, which were on lips, nose and tongue and if the onion slips by accident such injuries cannot be there. Clothes of the deceased were also prepared into sealed parcel by the doctor and taken into possession vide memo Ex. PBB.

Investigation of this case was then entrusted by the Circle DSP to PW-20 Sub Inspector Rajender Singh of CIA Staff on 20.10.2007. PW-20 (IO) arrested all the four appellants on 25.10.2007. On interrogation of these accused on 26.10.2007, they made some disclosure statements in the presence of complainant and ASI Sukhpal Singh. It is the prosecution case that in pursuance to the said disclosure statement all the appellants led the Police Party to the room of house of Ranjit Gupta where the murder was committed. This part of the evidence led by the prosecution would not be admissible against other appellants but only against Ranjit Gupta appellant who was in occupation of the said premises and that too if it distinctly relates to some fact thereby discovered. PW-20 stated that in pursuance to the disclosure statement Ex. PI of Ranjit Gupta appellant, the police party went to the house No. 150 in the room of Ranjit Gupta. PW-20 lifted human hair of a child and cloth of black colour. These articles were prepared into sealed parcels and taken into possession vide memo Ex. PK.

PW-20, PW-10 ASI Sukhpal Singh and PW-13 further stated that Ranjit Gupta appellant led the Police Party to the recovery of slipper of child, balloon and some pieces of iron wire lying in the north-east corner of the same room in his occupation. These articles were also sealed and taken into possession vide memo Ex. PL.

The other admissible evidence can be recovery u/s 27 of Evidence Act pursuant to the statement Ex. PG/1 made by Suraj Kant appellant. The admissible portion of the statement of Suraj Kant appellant is that the cloth with which the gunny bag covered was kept concealed under the cot of his residential room. This appellant led the Police Party to his rented room No. 33 of House No. 147 and got recovered the cloth (chunni) from there, which was sealed by IO and taken into possession vide memo Ex. PD.

This evidence, however, does not bring any incriminating circumstance against Suraj Kant appellant, as neither blood nor vomit/saliva could be detected on this cloth, contained in parcel exhibit 4(a) and chunni in exhibit 4(b), as per report of FSL Ex. PE.

Rest of the evidence of prosecution relating to demarcation of place of kidnapping, the place where the dead body was found is inadmissible. The evidence with regard to demarcating the STD/PCO booths from where the calls were allegedly made for ransom, is also inadmissible, as the landline and mobile numbers were already with the Police as reported in the complaint of Bal Kumar. The onus thereafter lay upon the prosecution agency to connect those landline and mobile numbers with the culprits. That could be established from the record of telecommunication department, as to in whose name those phone numbers were issued or to rely upon the statements of those STD/PCO holders or the owner of the mobile number.

The prosecution also tendered report of Forensic Science Laboratory (FSL), Haryana Ex. PE, Ex. PE/1, Ex. PE/2 and Ex. PE/3. The only relevant and important evidence from these reports is the matching of metallic wire with which gunny bag was tied and piece of metallic wire recovered from the house of Ranjit Gupta appellant at his instance. FSL report Ex. PE shows that sealed parcel Exhibit 3(b) received in the laboratory contained one dirty putrefied gunny bag stained with dark brown stains at places alongwith pieces of metallic wire without insulation. Exhibit-6 received by the laboratory was containing small piece of metallic wire without insulation. According to the prosecution story, this metallic wire was recovered from house of Ranjit Gupta at his instance. Vide report Ex. PE/1 of FSL, the rusty metallic wire tied with gunny bag marked as Exhibit 3(b) was compared with rusty metallic wire marked Exhibit 6, physically and under optical microscope. These were found similar in respect of colour, physical and microscopic appearance and gauge. Both these objects (metallic wire) have the same elemental composition. Rest of the articles are clothes of the deceased and jersey in which the dead body was wrapped and were found to be stained with human blood as per report Ex. PE/3 of FSL.

On completion of investigation the charge-sheet was presented. The case was committed to the Sessions Court for trial by the Area Magistrate.

The prosecution examined 23 witnesses in support of its case. The appellants were examined u/s 313 of the Code of Criminal Procedure and they denied all incriminating circumstances appearing in the evidence against them and pleaded that they have been falsely implicated. The appellants have not led any evidence in defence.

The learned trial Court convicted the appellants for offences under Sections 364A read with Section 120-B of IPC and Section 201 read with Section 120-B IPC and awarded sentences as aforesaid.

We have heard learned counsel for the appellants and State Counsel and have gone through the record quite extensively.

There was in fact no challenge to the version that Ankaj, 4 years old child of PW-13 was kidnapped for ransom and it is also proved that death of the kidnapped child was homicidal, establishing the fact that kidnappers killed the child. The controversy basically centres round the proof of identity of kidnappers for which the entire prosecution case rest on circumstantial evidence.

Learned counsel for the appellants vehemently contended that whole case of the prosecution is based on manipulated and fabricated evidence and the prosecution has not been able to complete the chain of circumstances to establish involvement of appellants in the crime. It is submitted that statement of PW-6 Sanjay Kumar that he spotted Ram Dular @ Munna @ Delux appellant taking child with him on 16.10.2007, is an improvement as this fact was not mentioned in the FIR reported to the Police on 17.10.2007. It is also urged that the evidence of PW-7 that he saw all the appellants carrying gunny bag to the bathroom of house No. 147 from where the recovery was made, is highly suspicious. In the end, learned counsel contends that there is no convincing evidence to connect the appellants with the alleged crime.

It may also be noticed that the charges against the appellants were framed for offences under Sections 365, 302 read with Section 34 IPC and Section 201 IPC, but the conviction has been recorded under Sections 304-A and 201 read with Section 120-B IPC. For that no prejudice to the appellants was caused as rightly observed by the learned trial Court that the appellants were quite well aware of the allegations against them. In any event no such contention has been raised or even taken in the grounds of appeal for showing any prejudice.

Per contra: Learned State counsel submits that the circumstances established against appellants would lead to the only conclusion of their guilt and of no other person and further that the complainant and the other witnesses examined to identify the culprits are not inimically deposed against the appellants to implicate them falsely for such a heinous crime.

We would first of all refer to the statement of PW-6 Sanjay Kumar, who is running a general store in house No. 147, where the victim had gone for playing on 16.10.2007 and subsequently the dead body was recovered. PW-6 is a relative of Naresh Kumar, owner of house No. 147 from whom he took one room for running shop of general store for about two years before the occurrence. PW-6 testified that on 16.10.2007 as soon as he came out from his shop he saw 4 years old child of PW-13 in the lap of Munna @ Delux accused. The witness identified this appellant while appearing in the witness box as PW-6. This appellant has also been described as Ram Dular @ Munna @ Delux, and this fact is not challenged in the cross-examination of PW-6 and PW-13. PW-6 further stated that the child was having balloon in his hand. The witness asked Munna @ Delux as to why he was taking the child in his lap, that the appellant told PW-6 that the boy is son of his sister-in-law and he was to purchase sweets (toffees) for the child. PW-6 was extensively cross-examined but withstood the test of scrutiny. There is no allegation of the witness, having any ulterior motive or prior enmity against this appellant to name him falsely in this case. PW-6 was not even confronted with any portion of his statement recorded by the Police u/s 161 Cr.P.C. on 18.10.2007.

Learned appellants'' counsel referred to cross-examination of PW-6 that he met PW-13 at about 1.30 p.m. on 16.10.2007. PW-13 was told about this fact noticed by PW-6 and both PW-6 and PW-13 went to the room of Munna @ Delux immediately but the child was not found. It is contended that no such suspicion was reported against Ram Dular @ Munna in the complaint made in writing to the Police. We are of the considered view that PW-13 could not have imagined that this appellant, who was admittedly residing in house No. 147 and had no prior enmity against the family of the complainant, could have kidnapped the child. PW-6 in cross-examination stated that he comes to his shop at about 6.00 a.m. every day and goes back at about 1.00 p.m. or 1.30 p.m. For rest of the day his brother manages the shop. PW-6 also stated that the child was wearing a vest and underwear on his body. In the DDR Ex. PZ, the missing report of the child, it was reported that the child was wearing T-shirt and black underwear when he went for playing in house No. 147, though the colour of underwear which the deceased was wearing was red as found in the FSL Ex. PE, where clothes of the deceased were sent. This is otherwise a minor and inconsequential.

In the cross-examination even PW-13 Bal Kumar complainant stated that after the child had gone missing he discussed with Naresh, owner of the house and Sanjay PW-6 to know whereabouts of the child and after half an hour Sanjay informed him that Munna @ Delux was playing with his son and giving him sweets. It was quite natural that PW-13 did not narrate this fact in the report Ex. PZ on 16.10.2007 or in the complaint Ex. PQ because the witness could not have thought of foul play by that time and was only worried about the return of his child.

The testimony of PW-6 is, thus, proved to be unblemished. The medical opinion as per autopsy report is that the probable duration between death and postmortem was 2 to 4 days. Postmortem examination was conducted on 19.10.2007 at 1.45 p.m. So the child was killed latest by afternoon of 17.10.2007.

From the above consistent and convincing evidence an important circumstance would emerge that the child was in the company of Ram Dular @ Munna @ Delux appellant soon before the child went missing and it was, thus, for this appellant to explain as to where the child, who was ultimately killed, had gone. The appellant did not admit the above evidence appearing in the statement of PW-6 and PW-13 during his examination u/s 313 Cr.P.C. Rather he denied all the incriminating evidence appearing against him on question No. 13 put to him and would go a long way in support of the prosecution story. From the false response of Ram Dular @ Munna @ Delux appellant to Sanjay Kumar PW-6 that the child was son of his sister-in-law, whereas it was not the case of this appellant anywhere nor even suggested to PW-13 that he is related to the complainant, an adverse inference is raised against this appellant.

In the cross-examination PW-13 stated that when his son was missing, Munna and Suraj Kant appellants were roaming around his shop. It is contended that the above statement cannot be accepted because PW-13 did not inform the above fact to the Police. This evidence has come on record in the cross-examination of PW-13 and being a natural response must be believed. PW-13 is not alleged or shown to be inimical towards appellants nor has any ulterior motive to falsely implicate them for the heinous crime. The appellants'' version is also simple denial during their examination u/s 313 Cr.P.C.

The prosecution has thus proved that the deceased child was last seen in the company of Ram Dular @ Munna appellant, for which the said appellant owed responsibility to explain as the child did not return home thereafter and was found dead two days later.

The next question is, how the gunny bag containing dead body was detected and recovered? The prosecution relied upon the evidence of PW-8 Naresh Kumar the owner of House No. 147, Street No. 3, Shakti Park, Gurgaon, who has constructed 57 rooms in the said building which he rented to labour class people belonging to Bihar State. It is this witness who saw the gunny bag lying in the bathroom of first floor of the house in the intervening night of 18/19.10.2007 and informed the police. In the cross-examination PW-8 stated that he used to stay in this building from morning till evening. He would go back from here by about 8.00 p.m. or 9.00 p.m. daily. He used to take round of the whole building in the morning as well as evening. He noticed the gunny bag lying there at about 9.00 p.m. on 18.10.2007. There was lot of foul smell coming from the bathroom when he reached there. PW-8 then went to police station, Sector 10 at about 9.30 p.m. and informed them verbally. 4 or 5 police officials visited the site with him at about 9.30/9.45 p.m. and the police opened the gunny bag in his presence. No one else except him was present with the police at that time.

PW-8 stated that he was associated in the investigation by Police on 19.10.2007. The dead body found in the gunny bag was identified by Bal Kumar (PW-13). He further stated that the gunny bag, the jersey (sweater), and metallic wire were made into parcels by IO for which memo Ex. PF was attested by him. These articles gunny bag (P-10), jersey (P-11) and iron wire (P-12) were produced during examination of PW-8.

In view of the above statement of PW-8, the story propounded by PW-7 Ram Suphal brother of the wife of PW-13 cannot be accepted.

PW-7 stated that he saw all the four appellants carrying a gunny bag on the night of 18/19.10.2007. PW-7 is running his own grocery shop at Shiv Nagar, Pataudi Road, Gurgaon. According to PW-7, his nephew Sat Narain is running a grocery shop in Street No. 2, Shakti Park, Gurgaon. The distance between Shakti Park and Shiv Nagar is about 1 1/2 kms.

In view of the testimony of PW-8 as discussed earlier, it is not possible to believe the version put forth by PW-7. According to PW-8, he detected the gunny bag lying in the bathroom at about 9.00 p.m. whereas PW-7 stated that he was coming at about 10.30 p.m. from the shop of his nephew, when he saw the appellants carrying gunny bag.

There are other material contradictions which persuade us to discard the statement of PW-7. In the cross-examination PW-7 stated that he had seen four persons carrying gunny bag but was confronted with his statement Ex. DA recorded u/s 161 Cr.P.C. where he did not name appellant Munna @ Delux also accompanying the other three. PW-7 admitted that the name of Munna to be accompanying the other appellants has been stated by him for the first time in Court. The other material contradiction is that PW-7 saw the three persons placing gunny bag in the bathroom situated at the third floor of house No. 147 whereas prosecution story is that the gunny bag containing dead body was recovered from the bathroom on first floor of the house.

There was otherwise no occasion for PW-7 to go to the shop of his nephew at 10.30 p.m. PW-7 stated that he went to the shop of his nephew at about 10.30 p.m. for strolling. There was no servant present in the shop of Suraj Narain. The statement of PW-7 that while he saw the appellants carrying gunny bag, he asked them as to where they were going and no response came, is highly improbable. In cross-examination, PW-7 stated that he did not state to the Police that the accused gave no response when they were asked as to where they were going. This version is, therefore, a material improvement.

The next circumstance relied upon by the prosecution is that the appellants remained absconding for about one week after they were named in the FIR. PW-19 ASI Dhanesh Kumar, who initially investigated the case stated in the cross-examination that he came to know about identity of the accused on 18.10.2007 at 5.00 p.m. He raided their houses at 7.00 p.m. on the same day but they were not available. He also recorded the DDR in this regard in the Police Station on 18.10.2007.

In the cross-examination PW-20 stated that all the four appellants had already been named by PW-6 and PW-7 when investigation of the FIR was handed over to him on 20.10.2007. He, however, searched for the accused between 20.10.2007 to 25.10.2007 at various addressed including Gandhi Nagar, Shakti Park, their residential addresses and work places. PW-20 searched for the appellants separately at their residences every day from 20.10.2007 to 25.10.2007. Room of Ranjit Gupta was separate and it was found locked. Shop of this appellant was also found locked. It is, thus, proved that appellants were evading arrest for a long period which would bring their immediate conduct and to be also kept in view while assessing the circumstantial evidence in this case. There is no explanation from the appellants on this important factor.

We would now discuss the evidence of recovery of material incriminating articles connecting some of the appellants with the crime. PW-20 in cross-examination stated that he arrested Suraj Kant, Ranjit Gupta, Ram Dular from Gandhi Nagar, Gurgaon and Amresh Kumar from Shakti Park, Gurgaon. The appellants were interrogated on 26.10.2007 in CIA Staff in the morning from 10.00 a.m. onwards. The complainant was also called from his house by the police for associating him in the interrogation and to witness consequent recovery made in pursuance thereof.

PW-20 further stated that all the 4 appellants led the Police Party to house No. 150, 1st Floor in occupation of Ranjit Gupta appellant. PW-13 (complainant) in cross-examination stated that they reached the house of Ranjit Gupta appellant at about 4.00 or 4.30 p.m. PW-13 also stated that the house was locked and it was opened with the keys produced by Ranjit Gupta appellant. The recovery of human hair and cloth of black colour from under the double bed of the room of Ranjit Gupta was made. These articles were prepared into sealed parcels and taken into possession vide memo Ex. PK. This recovery was effected from the room in occupation of Ranjit Gupta pursuant to the disclosure statement and cannot be fastened on other appellants on the basis of similar disclosure statements made by them.

PW-20 stated that Ranjit Gupta also led the Police Party to the recovery of slippers of child, torn balloon fixed with a piece of stick, and small piece of iron wire, lying in the north-eastern corner of the room, which were made into sealed parcels and taken into possession vide memo Ex. PL. The rough sketch of the place from where the above recoveries were made, is Ex. PHH.

The above statement of PW-20 is corroborated on all these aspects by PW-13 Bal Kumar, complainant, who was associated in the interrogation and recovery and ASI Sukhpal, PW-10, a member of the Police Party. All these parcels containing hair, slippers of the child and the balloon were produced during the examination of PW-13 and PW-10. As appeared in the testimony of PW-10 the articles recovered from the house of Ranjit Gupta are pair of chappals Ex. P-13 and Ex. P-14, torn balloon with stick Ex. P-15 and piece of metallic wire Ex. P-16. PW-10 stated that the slipper were identified by PW-13 to be belonging to the deceased. No question was put to PW-13 to challenge that these articles do not belong to the deceased.

PW-19 ASI Dhanesh Kumar who recovered the dead body, contained in the gunny bag, from the bathroom of building No. 147, stated that the dead body was wrapped in the jersey (pullover) and that gunny bag was tied with a metallic wire, which were sealed and taken into possession vide memo Ex. PEE. PW-10 and PW-13 have been extensively cross-examined on this aspect, who have withstood the test of scrutiny.

Vide report Ex. PE and Ex. PE/1, the metallic wire with which the gunny bag lying in the bathroom was tied from the top was similar in respect of colour, physical and microscopic appearance and gauge and these have the same elemental composition bringing a positive circumstantial evidence against Ranjit Gupta, appellant.

The evidence has also been led by the prosecution for the recovery of hair of the child from under the double bed of the house of Ranjit Gupta. The prosecution case is that when the dead body of the child was recovered it was wrapped in a jersey on which human hair was also found. These were made into sealed parcels and sent for comparison to the FSL but the report of FSL on this aspect does not support the prosecution case. The report of FSL Ex. PE says that hair recovered from the sweater and the hair recovered from the spot were identified to be human in origin. No further opinion could be given as hair in Exhibit 4(b) recovered from spot, were insufficient in number.

The other evidence collected by prosecuting agency relates to call details of mobile phone and the STD/PCO booths from where the calls were made at the STD/PCO booths of the complainant. Admittedly the mobile phone from which one call was made does not belong to any of appellants. The evidence of prosecution that some of the appellants demarcated the STD/PCO booths from where the calls were made is inadmissible because land-line numbers where from the calls were made, were already with the Police in the complaint itself. Onus, thus, rested on the investigating agency to connect the above calls made from STD/PCO booths or mobile phone number either by recording the statements of owners of STD/PCO booths or the person in whose name the mobile number existed. PW-20 in cross-examination stated that mobile phone no. 9971679402 did not belong to Amresh Kumar appellant. PW-20 did not, however, record the statement of owner of the said number. PW-20 even does not remember the name of owner of the said mobile number. The evidence demarcation of the STD/PCO booths without discovery of any fact cannot be admissible u/s 27 of the Evidence Act.

From the discussion made above, the following circumstances are convincingly and cogently established against appellants Ram Dular @ Munna and Ranjit Gupta:-

(i) That Ankaj a 4 years old child of Bal Kumar complainant was kidnapped for ransom on 16.10.2007 in the noon time.

(ii) That dead body of Ankaj deceased was recovered on the night of 18/19.10.2007.

(iii) That death of Ankaj was homicidal.

(iv) Ankaj the deceased child, was last seen in the company of Ram Dular @ Munna appellant for which this appellant has not furnished any explanation and the dead body of the child was recovered two days thereafter.

(v) Recovery of incriminating article i.e. piece of metallic wire was made from the residential house of Ranjit Gupta appellant, pursuance to his disclosure statement. This piece of wire completely matched with the metallic wire with which gunny bag containing dead body of child was recovered.

(vi) Recovery of slippers of the deceased child was from residential house of Ranjit Gupta appellant pursuant to the disclosure made by him; and

(vii) The appellants were absconding for more than one week after they were named in FIR as wanted culprits, which is immediate conduct after the incident and an important circumstance.

From the above circumstances proved convincingly by the prosecution, inference of guilt of Ram Dular @ Munna and Ranjit Gupta arises as these circumstances are not incompatible to their innocence or guilt of any other person. The circumstances, from which this inference can be drawn are closely connected with the principal fact sought to be inferred i.e. kidnapping and murder of the child. The law on the subject has been elaborately summed up by the Hon''ble Supreme Court of Kusuma Ankama Rao Vs. State of Andhra Pradesh, . The circumstances established in this case negative the innocence of these appellants and bring the offence against them beyond any reasonable doubt.

However, the prosecution case against the other two appellants namely; Amresh Kumar and Suraj Kant remains doubtful. The judgment of conviction against them is set aside and they stand acquitted of the charges held against them.

The conviction of appellants Ram Dular @ Munna and that of Ranjit Gupta for offences under Sections 364A and 201 IPC read with Section 120-B IPC is affirmed. We also find no ground to interfere in the sentences awarded to them by the trial Court under the aforesaid sections. Since the appeal of Amresh Kumar and Suraj Kant, appellants has been allowed, they be set at liberty forthwith if not required in any other case. Copy of this judgment be sent to all the concerned and Chief Judicial Magistrate, Gurgaon for compliance.