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Hon'ble Rajiv Gupta,J.

(Delivered by Hon'ble Rajiv Gupta, J) Heard Ms. Seema Pandey, learned Amicus-curiae for the appellant, learned AGA for the State and perused the record.

This criminal appeal has been filed against the judgment and order dated 29.3.2014 passed by Addl. District and Sessions Judge/Special Judge (Dacoity Affected Area), Court No. 19, Agra in S.S.T. No. 69 of 2002 (State Vs. Hannu @ Sonu @ Abhai Singh and another) arising out of Case Crime No. 24 of 2002, under Sections 302, 364-A, 201 IPC, P.S. Lohamandi, District- Agra, whereby the accused appellants have been convicted for the offence under Sections 302 IPC and awarded the sentence of life imprisonment with a fine of Rs. 30,000/- each and in default of payment of fine, to further undergo five months additional rigorous imprisonment, under Section 364-A IPC and awarded the sentence of life imprisonment with a fine of Rs. 30000/- each and in default of payment of fine, to further undergo five months additional rigorous imprisonment and under Section 201 IPC and awarded the sentence of three years rigorous imprisonment with a fine of Rs. 5000/- each and in default of payment of fine, to further undergo one month additional rigorous imprisonment. All the sentences have been directed to run concurrently.

It has been informed that appellant No. 2- Amit @ Meenu had already expired and as such, the instant appeal as against him has been abated vide order dated 20.9.2019.

As per the prosecution case as unfolded in the first information report lodged by one Mahendra Agarwal (P.W.-1) vide written report Exbt. Ka-1 dated 27.1.2002, which was registered vide Case Crime No. 24 of 2002, under Sections 364-A IPC in Police Station- Lohamandi, District-Agra vide G.D. Report No. 4 at 1:30 A.M. (Exbt. Ka-8) and the check FIR (Exbt. Ka-7) prepared by P.W.-6 at relevant date and time. The allegations made in the first information report are that on 26.1.2002 in the evening at about 6 P.M., his son Golu @ Nitin aged about 5 years was found missing. Information in respect of which, was given by him at Police Station- Lohamandi and thereafter, he continued to make his search. It is further alleged that in the night at about 10:25 P.M., a telephone call by some unknown person was received at his house, who stated to arrange a sum of Rs. 20 lacs, to get back his son. By the said fact, it is evident that his son, has been kidnapped for the purposes of ransom.

Per contra, learned AGA has submitted that there is clinching "last seen evidence" against the appellants in the form of statement of P.W.-2 and P.W.-3, which the appellants has not been able to contradict, as such they are liable to be convicted under Section 302 IPC. Further-more from the testimony of P.W.-8, the voice of appellant- Hannu, making the demand of ransom on phone call, which was attended by P.W.-8 has been identified and as such, the offence under Section 364-A IPC also stands proved against him and the trial court has rightly convicted the appellants under Section 364-A IPC.
Thus, we find that except suspicion there is no cogent, clinching and reliable evidence to show that the appellant demanded ransom of Rs. 20 lacs by making a telephone call.
It is well settled principle of law that suspicion, howsoever strong it may be, cannot take the place of proof, as such, in the absence of any evidence connecting the fact that ransom in question on the telephone call was made by the appellant, an offence under Section 364-A IPC has not been established against the appellant and the contrary view taken by the trial court is absolutely illegal and is liable to be set aside.