JUDGMENT 1. 1. Aasu @ Aas Mohammad son of Ramjani, Majlish son of Nahar Khan, Jakir son of Kallu and Aasu son of Sirdar, aggrieved against the conviction and sentence, have directed this appeal against the judgment dated 25.5.2009 rendered by the Additional Session Judge (Fast Track) No. 4, Deeg, headquarter at Bharatpur. 2. The appellants, Aasu @ Aas Mohammad, Majlish and Jakir were convicted for the offence under Section 364-A and 420 IPC, whereas Aasu son of Sirdar was only convicted for the offence under Section 364-A IPC. Vide separate order of even date, the trial court sentenced all the appellants for the offence under Section 364-A IPC to life imprisonment and a fine of Rs. 5,000/-; in default thereof, to undergo sentence of five months' simple imprisonment. Appellant Nos. 1 to 3 Aasu @ Aas Mohammad, Majlish and Jakir were also convicted for the offence under Section 420 IPC and sentenced to undergo five years' rigorous imprisonment and to pay a fine of Rs. 3,000/-; in default thereof, to undergo three months' simple imprisonment. 3. In the present case, FIR was lodged by Mahant Singh Chauhan, PW-7. He had presented a complaint Exhibit P-1, before P.W.-4, Ajay Sharma, S.H.O., P.S. Kaman, on 9.9.2005 at 6:30 PM. On the basis of complaint (Exhibit P-1), formal FIR (Exhibit P-2) was registered on the same day at 7:10 PM. The FIR lodged by first informant PW-7, translated into English reads as under : "To, SHO, Police Station, Kama. Sub: regarding registration of case. Sir, it is submitted that I, Mohant Singh Chauhan son of Late Shri Raj Mangal Singh Chauhan is resident of 430, Vikas Nagar, Lucknow. I am contractor engaged in construction work and I am also having JCB machines. One month before, on mobile phone, one person disclosing his name as Farooq contacted me and introduced himself to be resident of Mathura. He stated that he is operator of JCB machine and he wanted to be employed by me as Machine Operator and he also told that he was previously known to me. After two days, the said person said to me that while plying JCB Machine, at Gujarat, they found one gold brick beneath the earth. He stated that he is a poor person. Therefore, you can sell or purchase that gold brick. After two days, the said person said to me that while plying JCB Machine, at Gujarat, they found one gold brick beneath the earth. He stated that he is a poor person. Therefore, you can sell or purchase that gold brick. By making repeated calls, he asked me that I can purchase gold brick at a lower cost. I fell for offer and as per his saying I came to Kaman. At Kaman, he along with one person called Fakru, who is also known as Aasu @ Aas Mohammad met me and they took me from Kaman to Kashi Road in one room built in the fields. After using drill machine, they had given me dust of gold which I brought to Lucknow, where I got the same checked and found it contained 70% gold. Fakru and Aasu @ Aas Mohammadd, later told me to take the brick. On 28.8.2005, I along with my son Naveen came to Kaman. They had given me one brick and took Rs. 2.50 lakhs from me along with three mobile sets of Nokia. Thereafter, they took Rs. 2,500/- from me and I went to Lucknow and got the gold brick tested, but no gold was found therein. Thereafter, I contacted Aasu @ Aas Mohammad. He asked me whether I had sold the goods or not? I replied in negative. He again told me that he is having another brick and I can take the same. Since I wanted to get him arrested, on 9.9.2005, I contacted Circle Officer, Kaman. Circle Officer called me at Kaman. Meanwhile, breaks of my vehicle failed. At that time, I received phone of Aasu @ Aas Mohammad and I informed him that I am at distance of 4-5 kms. and my son has gone to take the car mechanic. My son had not returned for two hours. I became worried. At that time, I received phone from Aasu @ Aas Mohammad. He disclosed me that my son is in his custody. He further told me that in case you want your son to be released bring Rs. 2.50 lakhs and do not inform the police and if the money is not paid, your son will be beheaded. I became nervous and with folded hands requested him not to harm my son. The above said accused being Badmash have apprehended my son and they are asking for ransom. 2.50 lakhs and do not inform the police and if the money is not paid, your son will be beheaded. I became nervous and with folded hands requested him not to harm my son. The above said accused being Badmash have apprehended my son and they are asking for ransom. My son be get recovered immediately." 4. On the basis of above, as stated earlier, FIR was registered. Police party subsequently had recovered Naveen, PW-8, son of the complainant-informant. At that time, the police party also apprehended Aasu @ Aas Mohammad son of Ramjani and Majlish son of Nahar Khan. As per prosecution case, two other accused namely Jakir son of Kallu and Aasu son of Sirdar had decamped from the spot. 5. After the son of the complainant was recovered, the Investigating Agency submitted a charge-sheet under Section 173 Cr.P.C. The said charge-sheet was committed to the court of Sessions and was entrusted for trail to Additional Session Judge (Fast Track) No. 4, Bharatpur. The prosecution examined 12 witnesses. The accused appellants in their statement recorded under Section 313 Cr.P.C. had denied of incriminating evidence put to them and had pleaded innocence. Aasu @ Aas Mohammad had examined his father Ramjani, as DW-1, and himself as DW-2 to give a counter version regarding his arrest and pleaded false implication. 6. The prosecution evidence can be divided into four parts, as stated earlier, PW-7, Mahant Singh Chauhan, is the first informant, who had a transaction regarding purchase of counterfeit gold brick with accused Aasu @ Aas Mohammad, and his son Naveen, PW-8, being victim, who was allegedly abducted for ransom. Another set of witnesses include police officials, who had affected the arrest of Aasu @ Aas Mohammad and Majlish at the spot and had recovered Naveen, son of Mahant Singh Chauhan, who was kept detained by the accused in the sugarcane field. Third set contain medical evidence i.e. testimony of PW-3, Dr. Radheyshyam Goyal who on 10.9.2005, examined Mahant Singh Chauhan and his son Naveen. On person of Mahant Singh Chauhan, one simple abrasion was found, whereas, on person of Naveen, one abrasion on left hand was found and another injury was complaint of pain. 7. Fourth part of evidence, independent witnesses PW-10 Jagdish was examined but has not supported the case of prosecution. 8. On person of Mahant Singh Chauhan, one simple abrasion was found, whereas, on person of Naveen, one abrasion on left hand was found and another injury was complaint of pain. 7. Fourth part of evidence, independent witnesses PW-10 Jagdish was examined but has not supported the case of prosecution. 8. It will be relevant for us to notice the statement of PW-1 Brajendra, who was posted as Constable in C.O. Office, Kaman. This witness stated that on 9.9.2005, he was posted at town police post, Kaman. On the directions issued by Chen Singh, C.O., he along with Badan Singh, ASI, in civil dress, accompanied Mahant Singh Chauhan, who had complained of kidnapping of his son. He further stated that accused were demanding Rs. 2.50 lakhs for returning the son of Mahant Singh Chauhan. This witness stated that they were keeping surveillance on the vehicle of Mahant Singh Chauhan. At Anaj Mandi, accused Aasu @ Aas Mohammad came to Mahant Singh Chauhan and demanded ransom. At that time, they had a scuffle. They apprehended Aasu @ Aas Mohammad and from the fields nearby, where the accused kept Naveen under detention, he (Naveen) came running. They apprehended another criminal, who disclosed his name as Majlish. From the search of Aasu @ Aas Mohammad, one counterfeit gold brick was found. From the search of Majlish, a mobile set was found. Since Aasu's health deteriorated, he was immediately got admitted at Civil Hospital, Kaman. This witness in the court identified Majlish and Aasu @ Aas Mohammad, who were arrested at spot. This witness disclosed the names of accused persons who ran from the spot. In cross-examination, this witness stated that he and Badan Singh were on motorcycle whereas Mahant Singh Chauhan was in his car. Mahant Singh Chauhan stopped the car near Kothari of Public Health Department. They had stopped their motorcycle 5-10 steps beyond the car. PW-4, Ajay Sharma, the Investigating Officer while proving the version of investigation had stated that formal arrest of Aasu @ Aas Mohammad was shown later as on the day when he was apprehended, his condition had deteriorated and he was got admitted in the Hospital. This witness further stated that accused Aasu son of Sirdar while in custody had disclosed the place from where he had made a telephonic call to the informant. 9. This witness further stated that accused Aasu son of Sirdar while in custody had disclosed the place from where he had made a telephonic call to the informant. 9. PW-5, Badan Singh stated that he was posted as A.S.I. on 9.9.2005, he was called by C.O., Kaman and informed that Mahant Singh Chauhan had informed that some Badmash are demanding Rs. 2.50 lakhs as ransom from him. They were instructed to follow the informant in civil dress. This witness stated that they were following Mahant Singh, who was in his car. Little ahead of Anaj Mandi, one person met informant and made him stop the car. Mahant Singh Chauhan caught hold of that person. That person made an excuse and became unconscious. They got that person admitted in the Hospital. Later police recovered Naveen and another person was arrested who disclosed his name as Majlish. From that person, one counterfeit gold brick and a mobile phone were recovered. This witness also identified the accused Aasu, who was present in the court. 10. We need not notice the details of the testimony of PW-7, Mahant Singh Chauhan, and PW-8 Naveen, the victim, as PW-7 Mahant Singh Chauhan had broadly reiterated what was stated by him in the FIR along with fact that two of the accused Aasu @ Aas Mohammad and Majlish were arrested at the spot and Naveen was recovered. The same facts were reiterated by PW-8, Naveen. 11. Jagdish, PW-10, independent witness, as stated earlier has not supported the prosecution case. 12. PW-9, Rakesh Kumar, PW-11, Badan Singh and PW-12, Brajendra Singh had participated in the investigation and deposed regarding the same. 13. We have heard Mr. Vinay Pal Yadav, counsel for the appellants. Mr. Yadav, very eloquently, has assailed the prosecution case by urging that we should discard the testimony of PW-7, the complainant-informant and PW-8, Naveen, son of the informant, being improbable, unnatural and unconvincing. He stated that at the most the case will fall under Section 420 IPC and since Mahant Singh Chauhan was allegedly cheated by the accused, he in league and in connivance with the Circle Officer had exaggerated the version and had introduced the story of abduction and demand of ransom. Mr. Yadav, has stated that in the court, PW-7, the informant appearing as witness has not stated anything about demand of Rs. Mr. Yadav, has stated that in the court, PW-7, the informant appearing as witness has not stated anything about demand of Rs. 2.50 lakhs, but had stated that the accused that demanded money. It is also canvassed before us that since the complainant-informant intended to trap the accused, who had cheated him, he himself went for the second time accompanied by his son. Mr. Yadav, has further stated that the prosecution has not taken details of the calls exchanged between the accused and calls made by them to the complainant-informant. It is stated that same being clinching evidence, prosecution ought to have brought the same on record. It is stated that the prosecution has not proved its case beyond reasonable doubt. It is further stated that after registration of FIR, special report was not sent to the Illaqa Magistrate. 14. The arguments raised may look attractive at first instance, but when we take into consideration the testimony of PW-1, Brajendra Singh, PW-5, Badan Singh, we intend to place implicit reliance upon them. Both are official witnesses, who in plain cloth were directed by C.O. Kaman, to follow the informant. They were following the informant on a motorcycle. The informant when had reached Anaj Mandi, according to testimony of these witnesses, Aasu @ Aas Mohammad had come forward. PW-1, Brajendra Singh stated that he was just 5-10 steps behind the first informant. The accused had demanded the money. Accused Aasu @ Aas Mohammad was apprehended at the spot. At the same time, son of the complainant, Naveen surfaced from the fields, where he was detained. Majlish another accused was also apprehended at the spot. Two official witnesses had no animus against the accused. It is not a case of planned abduction or demand of ransom, as it has happened on the same day, when complainant had disclosed the accused that his son had gone to call for mechanic. The accused intended to raise the amount from the complainant and hence, had taken his son into custody and raised a demand for ransom. The very fact that two of the accused were arrested at the spot will make the arguments regarding their identification, insignificant. PW-8, Naveen, the victim had identified Aasu @ Aas Mohammad, Majlish, as one who had kept him in custody by showing country made pistol. Testimony of PW-3, Dr. Radheyshyam Goyal also corroborate the version given by the witnesses. The very fact that two of the accused were arrested at the spot will make the arguments regarding their identification, insignificant. PW-8, Naveen, the victim had identified Aasu @ Aas Mohammad, Majlish, as one who had kept him in custody by showing country made pistol. Testimony of PW-3, Dr. Radheyshyam Goyal also corroborate the version given by the witnesses. 15. In our humble opinion, apprehension and arrest of two persons Aasu @ Aas Mohammad and Majlish is an event which foreclose all defence on part of these accused and seal their fate. So far as two accused Jakir and Aasu son of Sirdar are concerned, there is no evidence available with the investigating agency except the statement of PW-1, Brajendra Singh, that two other persons ran away from the spot. There is nothing with the prosecution to explain their identity. No mark of their identification have been divulged by the prosecution, neither weight, nor height, nor complexion nor nature of their hair, nothing has been specified in the prosecution case to connect these two persons as one, who had accompanied two other accused Aasu @ Aas Mohammad and Majlish, who were arrested at the spot. No witness has given details regarding the features of two accused, namely Jakir and Aasu son of Sirdar. PW-11, Harpal Singh, during his cross-examination stated that when they went to get the victim released they have seen the accused in the light of mobile. He further stated that today he cannot identify the accused persons who were present at the spot. It will be relevant to quote the following lines of cross-examination in verbatim:- " vigrZ dks NqM+kus tc x;s rc gekjs ikl eksckbZy dh ykbZV FkhA vkt eSa eqyfteku dks ns[kdj 'kDys ls ugha igpku ldrk fd fdlus vigrZ dks idM+ j[kk FkkA " 16. Furthermore, Investigating Officer PW-4, Ajay Sharma, had stated that Aasu son of Sirdar during arrest had disclosed the place from where alleged telephonic call was made to the informant, PW-7, such disclosure has not been followed by any recovery, hence same is inadmissible. Furthermore, there can be no disclosure qua the spot from where telephonic call was made. Statement allegedly made by the accused during custody is inadmissible and is to be excluded from consideration. There is not even an iota of evidence against the accused Jakir. Furthermore, there can be no disclosure qua the spot from where telephonic call was made. Statement allegedly made by the accused during custody is inadmissible and is to be excluded from consideration. There is not even an iota of evidence against the accused Jakir. What is disclosed by the accused during interrogation is inadmissible being hit by Section 25 of the Indian Evidence Act and cannot be made basis to sustain their conviction. Hence, we shall extend the benefit of doubt to the appellant No. 3, Jakir and the appellant No. 4 Aasu son of Sirdar. 17. As a result of above discussion, this appeal is partly accepted qua the appellant No. 3, Jakir son of Kallu, and the appellant No. 4, Aasu son of Sirdar by extending benefit of doubt. They are acquitted of the charges and judgment of trial court regarding their conviction and sentence is held to be unsustainable. However, we find merit in the prosecution case so far as the appellant No. 1, Aasu @ Aas Mohammad son of Ramjani and the appellant No. 2, Majlish son of Nahar Khan, is concerned. Consequently, appeal on their behalf is dismissed and conviction recorded and sentence awarded is upheld qua them. *******