Sanjiv Khanna, J. Oral:

1. These three appeals by Jabir Ali @ Sonu, Arvind Kumar and Abdul Mannan @ Azad question a common judgment dated 10th April, 2012 convicted them under Section 120-B and Section 302/364-A /363 IPC read with Section 120-B Indian Penal Code, 1860 (IPC).

2. By order on sentence dated 16th April, 2012, they have been sentenced as under:

“1. Section 120-B IPC: Imprisonment for life and fine of Rs.10, 000/-, in default of which, they have to undergo Rigorous Imprisonment for one year.

2. Section 302 IPC read with Section 120-B IPC: Imprisonment for life and fine of Rs.10, 000/-, in default of which, they have to undergo Rigorous Imprisonment of one year.

3. Section 364-A IPC read with Section 120-B IPC:

Imprisonment for life and fine of Rs.10, 000/-. In default of payment of fine, they have to undergo Rigorous Imprisonment of one year.

4. Section 363 read with Section 120-B IPC: Rigorous Imprisonment for three years and fine of Rs.5, 000/-, in default of which, they have to undergo Rigorous Imprisonment for six months.”

3. The factum that Aruf Mandal, son of Shankar Mandal, aged about five years died a homicidal death remained unchallenged in arguments and is undisputed and has to be accepted in view of the post mortem report proved by Dr. B.N. Mishra (PW-3). On external and internal examination, the following injuries were noticed:-

“1. The ligature marks were present all around the neck at the level of thyroid cardilage with horizontally placed (more marked it anterior) with 2-3 cm. in number but superimposed each other with radish brown colour with abraded margins without parchment isation on section underneath the ligature marked under cited tissue appeared bruised with multiple haemorrahagic spots (suggestive of strangulation). The total length of the ligature marked was measure 20 cm. in length × 2-2.5 cm. in width.

2. One bruise of size 3 × 2 cm present it medial aspect of right arm with greenish in colour. Internal Injuries:

1. The brain and meninges were found highly congested with engorged blood vessels.

2. Both cornua of the hyoid bone fractured with collection of blood clots in dark red colour.

3. The muscles of neck were found bruised at the level of ligature mark.

4. The tracheal mucosa found congested

5. Blood mixed with froth present within the lumen of trachea.

6. Both lungs appeared highly congest, suffused and edematous.”

4. The cause of death, as opined, was asphyxia caused by forceful and sustained constriction of neck by using ligature material. All injuries were ante mortem in nature and injury No.1 was sufficient to cause death. The said post mortem was conducted on 6th January, 2008 between 12.15 p.m. to 2.55 p.m. Time since death, as opined, was about 5 days prior to the post mortem. The Post Mortem Report (Ex.PW3/A) records that rigor mortis had passed off and decomposition had set in. Bloody discharge was present on nostrils and mouth and signs of marbling were present. We shall in subsequent portion of the judgment refer to the statement of witnesses on how Aruf Mandal went missing on 2nd January, 2008 and his dead body was recovered on 5th January, 2008. At this stage, it is suffice to notice the main contention raised by the Appellants Counsel is that the impugned judgment wrongly records that the three appellants were the perpetrators, who were involved in kidnapping and murder of Aruf.

5. On the question of kidnapping of Aruf Mandal, his father Shanker Mandal (PW1) has stated that on 2nd January, 2008 at about 3 p.m. Aruf aged about 5 years was playing outside the house but thereafter did not return home. As he was untraceable, a phone call was made to police at number 100. Police came and recorded his statement (Ex.PW1/A). At about 6.30 p.m. and 7.40 p.m. PW-1 received two telephone calls demanding Rs.2 lacs for release of Aruf. The caller claimed that Aruf was with him and threatened that if his instructions were not followed, Aruf would be killed and thrown in a Nala. PW