The prosecution case was that on 07.6.2002 Nitin Aggarwal (PW-2) lodged a complaint to ASI Phool Chand in P.S. Dilshad Garden regarding kidnapping of his father Jai Narayan Aggarwal.In this complaint, he mentioned that he resided with his parents at Model Town.His shop was in Sikriwalan, Delhi and their factory was at B 16/6, Jhilmil Industrial Area.He claimed, that, he had earlier informed the police of a call he had received on the factory telephone, on 31.12.2001, wherein the caller had threatened to kidnap him and had demanded ` 5,00,000/-.In the present instance, he stated that his father, Jai Narayan Aggarwal had left for the house from the factory in his Maruti Car (No. DL 6CD 2817) at around 09.30 PM.Since his father had not reached home even at 10.30 P.M., he had called him on his mobile phone, but the call was not answered.He called his father again, at about 12.30 A.M. but his call was answered by an unknown man who told him that his father was in their custody and their "Bhai" would talk to him in the morning.PW-2 further stated that the informer had warned him that in case the police was informed, the body of Lalaji (his father) would be found in the drain.He suspected that Crl.A. Nos.1315, 1383/2011, 1 & 2/2012 Page 2 his father had been kidnapped by some gang.It was alleged that the kidnappers had demanded ` 15 lakhs for the release of Lalaji.On 13.6.2002, for securing safe release of his father, PW-2 arranged the ransom amount (30 bundles, with hundred notes of the denomination of Rs. 500 in each) and the I.O. and Nitin Aggarwal (PW-2) signed on some of the notes in ten of these bundles, and the currency notes in these bundles were then mixed up in the other twenty bundles.The kidnapper did not disclose the exact location where the ransom was to be handed over.The bag containing the ransom amount was given to Pramod Kumar Aggarwal (the uncle of PW-2 who deposed as PW-4), Surender Kumar (the brother-in-law of PW-2 who deposed as PW-9) and Kamal Kant (PW-2's friend who deposed as PW-8) who assumed false identities, and as directed by the kidnappers boarded the Delhi-Saharanpur train and sat in the last bogie of the train.When the train crossed the New Ghaziabad Railway Station they were asked to throw the bag containing the ransom money, which they did.On 14.06.2002, PW-2's father was released.Thereafter the investigation of the case was handed over to Inspector C.S. Rathi.In the course of the investigation, he got the telephone numbers used by the kidnappers for demanding ransom and the addresses, where these telephones were installed were traced.The I.O. also met the victim PW-1 Jai Narayan and obtained descriptions of the kidnappers.The IO, along with his staff, then visited the address from Crl.A. Nos.1315, 1383/2011, 1 & 2/2012 Page 3 where these calls had been made, which turned out to be a house in Khatoli, Muzaffar Nagar (where Telephone No. 73119 was installed).There, they met one Rakesh who told them that Titu@ Mukesh Verma used to receive and make calls from that number to Deepak.They were also told that Deepak was related to Pradhan Ram Naresh.The IO met Pradhan Ram Naresh and enquired about Deepak after disclosing all the facts to him.He admitted that Deepak was his brother-in-law and resided in Lajpat Nagar, Ghaziabad.Thereafter, the IO along with the staff and the Pradhan reached Deepak's house, where they found him.On seeing the police party, Deepak tried to flee; however, he was nabbed and interrogated.During interrogation, Deepak confessed his involvement in the offence and his disclosure led to recovery of a sum of ` 9,49,500/- which was kept in a black colored suitcase lying in the almirah.The notes were sealed and seized; Deepak was arrested.At his instance, Sukram Pal was caught who led to recovery of a desi katta and two cartridges which were used in the commission of the offence.A sum of ` 9,000/- was also recovered from his possession; it was seized.Sukram Pal and Deepak led the police to Mukesh's house where a scooter was parked.Deepak allegedly revealed that the said scooter was used to receive the ransom amount.The scooter was taken into possession; Mukesh, however was untraceable.Sukram Pal and Deepak also pointed out Rihan's house (No. 112, Devi Dass Mohalla, Khatoli) where Jai Narayan was kept captive, after his abduction.Rihan was not present in the house.However, his wife Samina was there.The police party searched the premises and recovered Crl.A. Nos.1315, 1383/2011, 1 & 2/2012 Page 4 cash of ` 60,000/- in the denomination of Rs. 500/-.On 25.06.2002, accused Deepak was interrogated and he revealed that he had deposited ` 9000 in Citi Bank.This money was seized.Learned counsel highlighted that PW-2 had deposed about a threat six months prior to the incident, i.e. 31.12.2001 whereby a call demanding ` 5 lakhs as ransom and a further threat to kidnap had been made-out.The complainant had alerted the police about this fact.The truthfulness of the testimonies of PWs-2 and 19, Inspector Brij Mohan was evident from the fact that Ex. PW-2/B, which is prepared on 13.06.2002, clearly described the currency notes which were marked.Learned counsel submitted that the relative series on the currency notes were noted and countersigned by PW-2 and PW-19. PW-4 deposed having witnessed that 30 packs of cash in denominations of ` 500/- each, totaling ` 15 lakhs had been seen and that the police official, PW-19 had signed on the 10th, 20th and 30th note of each of ten bundles and that ten bundles were then mixed with 20 bundles.The signed currency notes were in 10 bundles.The recoveries made pursuant to the disclosure statement of Deepak, (who was arrested on 20.06.2002) established that several of those signed notes were taken into custody; these were evidenced by the Memo, Ex. PW-12/E. Deepak failed to explain these and merely denied having possessed them, in his reply to the queries put under Section 313 Cr.PC.Learned APP argued that the case was in fact solved after Deepak's arrest since he led to the place where PW-1 had been confined, i.e., Rihan's house.Further, currency notes were seized from that place.They were the subject matter of Ex. PW-12/Q.Learned APP urged here that the these accused were in fact arrested much later on 25.06.2002; they had refused to participate in the Test Identification Parade (TIP) proceedings as deposed to by PW-18, who recorded his observations in the documents marked during the trial as Ex. PW-18/A to PW-18/D. It was argued that besides the recoveries made on 20.06.2002 from Rihan's house, aggregating ` 60,000, a further amount of ` 31,000/- was recovered pursuant to his disclosure statement, after his arrest.Furthermore, the belt which belonged to the abducted person, PW-1 was also recovered and produced during the trial; it was seized under Memo Ex. PW-11/E.Like in the case of Rihan, Mukesh too was identified by PW-1; he too was arrested on 25.06.2002; his disclosure statement, assisted the police in the recovery of currency notes to the tune of ` 2,69,500/-.These also contained some marked notes; photocopies of all the notes and some of the original notes were produced during the trial.It was urged that during the course of investigation, specimen finger prints of the accused were taken.The specimen print, S-2 (belonging to Mukesh), part of Ex. PW-22/B-3 matched with the specimen of left thumb, designated as Crl.A. Nos.1315, 1383/2011, 1 & 2/2012 Page 12 chance prints Q-2 and marked as S-2 in the report, which was produced as Ex. PW-22/L. Similarly, the chance print developed by the finger print expert, PW-22, i.e. Q-3 was identical with the right thumb mark, S-3 from the finger print specimen of Rihan, according to the report, Ex. PW-22/F and 22/M. These recoveries, coupled with the positive identification by PW-1, of Mukesh and Rihan established beyond reasonable doubt that they were involved in the offence alleged against them.It was submitted that as regards Sukhram Pal, two recoveries of ` 9,000/- and ` 10,000/- (Ex. PW-12/L and Ex. PW-11/C), and the recovery of katta, Ex. PW-12/N proved his involvement.Furthermore, the evidence of PW-1 revealed that Sukhram Pal guarded the premises when the victim was in custody of the abductors.At that time, the callers had threatened to resort to abduction and demanded ` 5 lakhs.On the day of the incident, i.e. on 06.06.2002, the witness was worried since his father did not return at the scheduled time from his factory.At 12.30 AM, he made a telephone call to his father's mobile; it was received by someone else, who stated that his father had been abducted; a ransom demand was made thereafter.PW-1 further deposed having received another call at his residence, later on 07.06.2002, by which the Crl.A. Nos.1315, 1383/2011, 1 & 2/2012 Page 13 caller asked him to arrange ` 25 lakhs.He was thereafter allowed to talk to his father at 10.00 PM that night.Apparently there was a lull after this and on 13.06.2002, PW-2 arranged for ` 15 lakhs and had them marked by the police; PW-4, his uncle, Pramod Kumar supports this statement.After 30 bundles containing ` 500/- denomination notes, aggregating to ` 15 lakhs, (of which 10 bundles were marked and signed by PWs-19 and PW- 2 at serial numbers 10, 20 and 30 of each bundle), all currency bundles were mixed.PWs-4, 8 and 9 went along with the bundles, on the last bogie of the train from Shahdara Railway Station.According to a pre-arranged plan with the abductors, the bundle was thrown near the New Ghaziabad Railway Station.The next day, i.e. on 14.06.2002, PW-1, Jai Narayan was released.The investigation thereafter proceeded and the police traced the calls somewhere to Khatoli in U.P. According to the prosecution version, initially Rakesh and subsequently Pradhan Ram Naresh were questioned; this led to the arrest of Deepak and Sukhram Pal on 20.06.2002 and subsequent arrests on 25.06.2002, of Mukesh and Rihan, and the recoveries alleged in this case.Apart from bald and general denials, these Appellants could not give any reasonable explanation to these incriminating circumstances.Mr. K.B. Andley, Sr.Advocate with Mr. M.Shamikh, Advocate for appellant in Crl.A. Nos.1315 & 1383/2011 Mr. Bhupesh Narula, Advocate for appellant in Crl.A. No.1/2012 Ms. Stuti Gujral, Advocate for appellant in Crl.A. 2/2012 Mr. Sanjay Lao, APP on behalf of the State in all the matters.In these appeals, common judgment and order on sentence dated 17.09.2009 of learned Additional Sessions Judge SC No.15/2009 has been challenged.The Appellants were convicted for committing offences punishable under Sections 364-A/34 IPC, and sentenced to undergo life imprisonment, with fine.On the same day Rihan and Mukesh Verma @ Titoo were arrested by the police; they made disclosure statements.On 26.6.2002 at the instance of Mukesh, one charger along with one mobile, a police uniform were recovered from his house.He also assisted in the recovery of ` 2,67,500/- which was taken into possession by the I.O. Sukram Pal assisted in recovery of ` 10,000/- from his house.Rihan's disclosure led to recovery of ` 31,000/- from his house which was also taken into possession.After completion of investigation charge sheet for the offences punishable U/s 365/364A/34 IPC was filed against the accused before the Trial Court.Upon being charged, the accused claimed that they were not guilty.The Trial Court, after considering the evidence led by the prosecution - which included testimony of 25 public witnesses and the exhibits produced in the case, concluded that the Appellants were guilty as charged, and sentenced them, in the manner described above.Appeals Nos.1315/2011 & 1383/2011, though filed in 2011, involved individuals who were in jail for about 9 years (Deepak and Mukesh); consequently the matters were set down for hearing.At the stage of final hearing, on 03.01.2012 it was noticed that the co-accused, Rihan and Sukhrampal had not preferred appeals.Consequently, the Court directed Delhi High Court Legal Services Committee to contact them, and Crl.A. Nos.1315, 1383/2011, 1 & 2/2012 Page 5 ascertain if they wished to file appeal.The DHCLSC did contact them; their appeals were filed, as Crl.At the outset, this Court wishes to record its appreciation and acknowledgement to counsel assigned by the DHCLSC, i.e., Shri.Bhupesh Narula, and Ms. Stuti Gujral (who appeared and argued on behalf of Shri Siddharth Agarwal).They were fully prepared with the matter, and rendered meaningful assistance to the Court and, as shall be seen hereafter, their contribution was invaluable.It was submitted that the two individuals, through whom Deepak's role was ascertained, i.e., Rakesh and Pradhan Ram Naresh, were deliberately not examined during the trial.They could have given valuable information about the role, if at all, played by Deepak, in the episode.It was urged that admittedly, according to PW-1's testimony, two individuals had abducted him; one pointed the katta at him, and later muffled his face with a towel, and the other was in a police uniform.Deepak was not among these two.Furthermore, Deepak was not shown to Crl.A. Nos.1315, 1383/2011, 1 & 2/2012 Page 6 be connected with any of the co-accused.Moreover, though the witness mentioned the currency notes, the prosecution had not proved their seizure, as the originals were not produced in court; only photocopies were relied on.This, according to the counsel was unacceptable, and did not amount to proof of such fact.It was argued that even if it was assumed that Deepak had currency notes which he could not explain or account for, that circumstance, in the absence of positive evidence linking him with the abduction, threat to PW- 1's life, or apprehension of his bodily injury, and in the absence of any Crl.A. Nos.1315, 1383/2011, 1 & 2/2012 Page 7 demand (by Deepak) could not have led the Trial Court to find his guilt for the offence under Section 364-A, IPC, especially when there was no charge of conspiracy under Section 120-B IPC.He did not ascribe any special role, i.e. his Crl.A. Nos.1315, 1383/2011, 1 & 2/2012 Page 8 standing guard over him, when he was held captive, after abduction.It was urged in this regard, that the victim had been confined after his abduction for quite some time; had this accused been keeping guard over him, all the while, PW-1 would have named him, or mentioned his role, in the statement recorded during investigation, immediately after he was set free.Such was not the case.Counsel for Rihan also argued that the prosecution version about recovery of ` 91,000/- from him, in two lots was unbelievable.Here, it was argued that none of the notes bore any markings or signatures, as alleged during the trial.The entire conviction hinged on the testimony of PW-1 who could not have identified the appellant, as he saw him fleetingly at night.During the trial, all the accused had refused to participate in the TIP (testified by the concerned Magistrates - PW-18 and 21).However, the victim, PW-1 was able to identify Mukesh and Rihan during the trial, without any difficulty.The role attributed to Mukesh was that he initially Crl.A. Nos.1315, 1383/2011, 1 & 2/2012 Page 14 asked PW-1 to give him a lift till a turning (bend in the road).Mukesh was dressed in a police uniform which too was also seized pursuant to the disclosures made by him after his arrest.Rihan, who too was identified by PW-1, accompanied Mukesh.Both of them had approached PW-1's car.Rihan sat at the back.When the car reached the turning, the accused were asked to get-down; they, however, requested PW-1 to cross the bridge.PW-1 further stated that when the car reached the middle of the bridge, Rihan pointed a country made pistol to his temple and asked him to stop.Jai Narayan snatched the pistol and threw it on the road.Mukesh took out a knife and pointed it at his abdomen and pushed him.Rihan, in the meanwhile, took-out a towel and threw it on Jai Narayan's face.Both of them pulled him out and kept him in the back seat of the car; Mukesh took over the wheel and drove it for about 2-2 hours.It is also stated that Rihan lifted the country made pistol which had been thrown down by Jai Narayan.He further deposed being taken to the accused's house, and identified Rihan's wife as Shamina and his eldest daughter's name as Shibbo.PW-1 could recount all the events which took place when he was in the custody of the abductors.He had led the police to the house where he had been confined.It can be seen from the evidence of PW-1 that he was clear as regards the identification of Mukesh and Rihan.He could identify the family members as well as the location of Rihan's house.Though PW-1 was cross- examined, on the behalf of the accused, nothing significant could be elicited to discredit his testimony.A submission on behalf of Mukesh was that the prosecution could not establish how the investigation in fact commenced.Added to these were two other circumstances, according to counsel, which falsified the prosecution story.Here it was urged that the police witnesses deposed to having having ascertained the call details as well as the ownership of the telephone number and yet omitted to bring that material evidence during trial, on record.Two, the entire story about the currency notes being handed-over to the police for marking on 13.06.2002 and being dropped at a pre-arranged destination on that day itself is unsupported by any objective material.It was urged that no call details were proved, to establish that in fact any of the witnesses, who had boarded the train were contacted at the relevant time, signaling them to throw the bags of Crl.A. Nos.1315, 1383/2011, 1 & 2/2012 Page 16 currency.Furthermore, argued counsel, the easiest thing that the police could have done was to follow the train or try and nab those who tried to pick-up the currency notes.As far as the recoveries from Rihan and Sukh Ram Pal are concerned, the witness who primarily deposed about it is PW 11 HC Anil Kumar.He deposed that on 26.6.2002 accused Mukesh led the police to a house; this led to recovery of a police uniform, Panasonic make mobile phone and a charger.Mukesh's statement also led to the recovery of ` 2,67,500/-.Yet ` 19,000/- was recovered at his behest.He was not a party to any covert or overt act, threatening PW-1; nor was he a party to his abduction and illegal confinement.Their appeals, Crl.A. Nos. 1383/2011 and 2/2012 are consequently dismissed.The conviction of Deepak, is, for the reasons discussed above, modified to one under Section 365/34 IPC read with Section 411 IPC.He is sentenced to undergo RI for seven years, for the offence under Section 365/34 IPC.

Sections cited: Section 365 in The Indian Penal Code, Section 34 in The Indian Penal Code, Section 411 in The Indian Penal Code, Section 120B in The Indian Penal Code, Section 161 in The Indian Penal Code