Bhoora Khan @ Bhalu vs State Of U.P.
2016 Latest Caselaw 4631 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       Reserved on 3.6.2016
 
Delivered on 29.7.2016
 
Court No. - 40
 

 
Case :- CRIMINAL APPEAL No. - 525 of 2009
 

 
Appellant :- Bhoora Khan @ Bhalu
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Imran Ullah,Manindra Pal Singh, Mukhtar Alam, Shyamal Narain
 
Counsel for Respondent :- Govt. Advocate
 
and
 
Case :- CRIMINAL APPEAL No. - 677 of 2009
 

 
Appellant :- Shamshad And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Babu Lal,Amit Saxena,Devendra Singh,Ghanshyam Joshi,Sudeep Harkauli,V.D. Chaudhary,V.S. Chaudhary
 
Counsel for Respondent :- Govt.Advocate
 
and
 
Case :- CRIMINAL APPEAL No. - 753 of 2009
 

 
Appellant :- Baseem Akhtar @ Banti
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- M.P.S. Chauhan,N.I.Jafri,Noor Mohammad,P.C.Srivastava,R.B.Sharma,S.K.Badhotia,Yogesh Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Ravindra Nath Kakkar,J.

(Delivered by Hon'ble Ravindra Nath Kakkar,J.)

These appeals have been preferred against the judgment and order dated 28.1.2009 passed by the Additional Sessions Judge/F.T.C. No.1, Aligarh passed in S.T.No.1083 of 2006 convicting the appellants under Section 364A IPC and sentencing them to undergo life imprisonment with fine of Rs.10,000/-.

To appreciate the contentions raised by the learned counsel for the parties, it would be expedient to go through the facts of this case. Briefly stated, the prosecution case is that Dr. Shaista Mannan Wasanwala lodged a missing report of her husband Dr. Mannan Abdul Hussain Wasanwala on 20.6.2006 at about 22:50 hrs. at police station Civil Lines, Aligarh, stating that when her husband did not return home from his clinic at Venus Tower till 8:30 P.M. she tried to contact him on mobile but his mobile was found to be switched off and despite all possible efforts, his whereabouts could not be known. Again on 1.7.2006, she lodged a first information report at police station Civil Lines narrating the entire event of abduction of her husband Dr. Mannan Abdul Hussain Wasanwala referring to a call dated 24.6.2006 by some unknown person demanding Rs.40 lakhs ransom for release of her husband Dr. Mannan Abdul Hussain Wasanwala followed by such frequent calls with a threatening to eliminate her husband if the money was not tendered. Being panicked and awe-struck, she made all efforts to arrange the money but could not succeed. The report further referred to the last call dated 1.7.2006 from one Shaimuddin, who had threatened that her husband would be killed if the ransom money was not paid by tomorrow. On the basis of the first information report dated 1.7.2006 as well as the missing report dated 20.6.2006, a case was registered as Case Crime No.263 of 2006 under Section 364A IPC at Police station Civil Lines, Aligarh and special report of the incident was sent to the higher authorities. The police swung into action and the investigation proceeded and Rajesh Kumar Dwivedi, SHO Civil Lines, who was the Investigating Officer, recovered Dr. Mannan Abdul Hussain from the clutches of abductors the same day at about 9.30 P.M. Recovery memo was prepared on the spot and accused Shamshad, Alimuddin and Bhura Khan alias Bhalu were arrested on the spot. The police took them on remand and the other accused were arrested on the basis of confessional statement of the above accused. Dr. Mannan was medically examined, site plan was prepared, statements of arrested accused were recorded and they were medically examined, mobile call details of the accused were investigated. After completion of investigation, Investigating Officer submitted charge sheet against accused persons under Section 364A IPC and a separate charge sheet under Section 364A IPC, against absconding accused Lalu alias Uvesh and Chand Khan was also submitted before the court. The learned Chief Judicial Magistrate took cognizance on the charge sheet and committed the case to sessions court for trial of accused. Thereafter, charges were framed by the trial court against the accused under Sections 364A and 120B IPC. They denied charges and claimed trial.

The prosecution examined PW-1 constable Anil Kumar, PW-2 Dr. Shaista Mannan Wasanwala, PW-3 Dr. Mannan Abdul Hussain Wasanwala, PW-4 Sunil Kumar Tyagi, Inspector Special Task Force, PW-5 Yogendra Singh Bhati, SI, S.O.G. Team, PW-6 Rajesh Kumar Dwivedi, SHO Civil Lines and PW-7 Ram Pal Singh Inspector to prove the prosecution case. After the prosecution evidence was over, statements of the accused under Section 313 Cr.P.C. were recorded by the trial court.

DW-1 Mohd. Kesar Masood and DW-2 Dr. Salim Ahmad were examined as defence witnesses.

PW-1 Constable Anil Kumar proved the photo copy of GD entry of the missing report, exhibit Ka-1, which was given on 20.6.2006 at about 22.50 hrs. by Dr. Shaista Mannan Wasanwala, wife of abducted victim Dr. Mannan Abdul Hussain Wasanwala to the police station. This witness deposed that photo copy of the missing report was prepared from original missing report which was enclosed with original GD.

PW-2 Dr. Shaista Mannan Wasanwala proved the missing report paper no. exhibit Ka-2. She stated before the court that she had received first threat call on 24.6.2006 informing abduction of her husband Dr. Mannan Abdul Hussain Wasanwala (the victim) and demanding Rs.40 lakhs as ransom and she also made to talk with her husband on the same day. She stated in her oral testimony that prior to recovery of the victim on 1.7.2006, she had given a written report mentioning how her husband had been abducted on 20.6.2006 and Rs.40 lakhs was demanded for his ransom at Police Station Civil Lines. PW-2 has proved the written report as exhibit Ka-3.

PW-3 is the abducted victim Dr. Mannan Abdul Hussain Wasanwala whose testimony narrates entire incident, therefore, his evidence is most important, material and this witness can be said to be a star witness of the prosecution case. But his testimony requires to be tested with utmost care and caution which we will deal with later on as the whole prosecution story revolves around his sole testimony. Exhibit ka-4 Supurduginama is proved by this witness by identifying his signatures.

PW-4 Sunil Kumar Tyagi, who is the Inspector in Special Task Force, U.P. Field Unit, Meerut in his statement before the Court stated about the formation of a joint police team comprising Deputy Superintendent of Police, Aligarh, Shri Indrajit Singh, District Police S.O.G. Inspector Shri Ashok Kumar and Shri Rajesh Kumar Dwivedi, Inspector, Police Station Civil Lines, Aligarh as members to trace the whereabouts of the abducted victim. PW-4 Sunil Kumar Tyagi further stated that on an information received on 1.7.2006 that the abducted victim was detained in the house of accused Shamshad situated at Mohalla Brahmanpuri, Qasba Atrauli and the ransom was being demanded by the gang of accused, he along with Sub-inspector Shakti Singh, Jitendra Kumar, Rajiv Dwivedi, Head Constable Yogesh, Munesh, Rakesh and Constable Jagdish, Rajendra, Sarvesh and Commando K.P.Singh and Driver Jaiveer, S.O.G.Inspector Ashok Kumar and Rajesh Kumar Dwivedi. P.S. Civil Lines, came to Atrauli and contacted Inspector Devendra Singh there. Further the entire police force was constituted into three teams one under the supervision of PW-4 Sunil Kumar Tyagi, the second under the supervision of Inspector Ashok Kumar, and the third team was under the supervision of Inspector Rajesh Kumar Dwivedi from where they jointly reached to the house of Shamshad at about 9:30 in the night and raided the house. On this two persons sitting on the roof of the house, opened fire upon the police party with an intention to kill and jumped from the roof and taking ride on the motorcycle standing nearby ran away from there. They were chased by the two police teams headed by Inspector Sunil Kumar and Inspector Ashok Kumar. Resisting the chase, accused sitting on the pillion of the motorcycle continuously fired at the police party and moving ahead they threw their motorcycle on the roadside and taking shelter of dugs and bushes, the accused persons started indiscriminate firing upon the police party. The police party also resorted to firing and warned them to surrender. After close of the firing between the accused and, the police, one accused was found to be injured and the other succeeded in fleeing away form the spot. This resulted into an encounter of the injured accused who was later on identified as Shaimuddin of Dibai by Constable Munesh and Rakesh. Thereafter, information of this incident was sent to the police station Atrauli. Empty cartridges found on the spot were collected and kept under seal and lateron on kept in the police station and Case Crime No.307 of 2006 was registered under Section 307 IPC at P.S. Atrauli.

PW-5 Yogendra Singh, the Sub-inspector S.O.G. Team is a witness of recovery of abducted victim Dr. Mannan from the house of accused Shamshad and also witness of the recovery of incriminating article from the arrested accused Shamshad, Bhura, Alimuddin on the spot. From the possession of accused Shamshad one countrymade pistol along with two live cartridges was recovered while from accused Bhura a Rampuri knife and from accused Alimuddin a key of the room where abducted victim Dr. Mannan had been detained was recovered. Recovery memo was prepared on the spot which was proved as Exhibit Ka-6.

PW-6 Rajesh Kumar Dwivedi who is the Investigating Officer supported the prosecution case in his oral testimony and proved the recovery memo as exhibit Ka-5. He also proved the lock and key recovered from accused Alimuddin as Exhibits-2 and 3, call details of accused Shaimuddin with Parvez as exhibits 4 to 15, copy of G.D. containing interrogation of Parvez as Exhibit-7 and the site plan of the spot as Exhibit-Ka 6.

Inspector Ram Pal Singh, who is another Investigating officer has been examined as PW-7 by the prosecution. Ram Pal Singh in his evidence before the court stated that he conducted further investigation on 8.8.2006, he prepared and proved the site plan/spot memo regarding recovery of the abducted victim Dr. Mannan Abdul Hussain which is Exhibit-8 and after completion of investigation filed charge sheet which has been proved as Exhibit Ka-9.

After close of the prosecution evidence, statements of all the charged accused were recorded under Section 313 Cr.P.C. Accused Alimuddin stated in his evidence that he along with his brother Shaimuddin, and brother-in-law Shamshad was arrested on 30.6.2006 and on 2.7.2006 he came to know that his brother Shaimuddin was encountered by the police and they had been falsely charged. He also stated that there was no recovery of any incriminating article whatsoever from him. Accused Parvez in his statement under Section 313 Cr.P.C. that he was falsely implicated due to political enmity. He requested for his identification on 5.9.2006 which has not been done. Accused Bhura in his statement under Section 313 Cr.P.C. stated that on 1.7.2006 at about 1:00 O. Clock in the night, the police took him from his house and asked him to become a witness of the encounter of accused Shaimuddin which he refused and hence he had been falsely nabbed in this case. He also stated that there was no recovery of any incriminating material from his possession. Accused Baseem Akhtar in his statement under Section 313 Cr.P.C. stated that he was not named in the first information report, he was arrested by the Delhi police and was kept baparda but the Aligarh police falsely implicated him to show its good work. He also stated that though he moved an application on 18.6.2006 for his identification, but the same was not done. Accused Shamshad in his statement under Section 313 Cr.P.C. stated that he along with his brother-in-law Alimuddin and Saimuddin (Alimuddin's brother) was arrested from Alimuddin's house at Dibai on 30.6.2006 and on 2.7.2006 he came to know that Saimuddin was encountered by the police. He further stated that he has been falsely implicated in this case and nothing incriminating was recovered from his possession.

In support of defence case, DW-1 Mohd. Qaisar Masood and DW-2 Dr. Salim Ahmad have been examined. Dw-1 Mohd. Qaisar Masood who is the brother of accused Parvez stated that the police forcibly took Parvez from the house on 7.7.2006 with respect to which a telegram was sent to the Senior Superintendent of Police on the same day which is paper no.34 kha/2 followed by another telegram dated 8.7.2006 to the Senior Superintendent of Police. On 9.7.2006 he sent telegrams to the Chairman, Minority Commission and the Human Right Commission which are paper nos.34 kha/4 and 34 kha/5.

DW-2 Dr. Salim Ahmad who is known to accused Parvez stated that the police took Parvez from his house on 7.7.2006 due to political enmity.

After hearing learned counsel for the parties, the trial court found accused Baseem Akhtar, Alimuddin, Shamshad and Bhura guilty for the offence under Section 364A IPC and sentenced them to undergo life imprisonment and fine of Rs.10,000/- each and acquitted accused Parvez under Section 364A IPC and 120B IPC and being aggrieved by the judgment and order of the court below dated 28.1.2009, the present criminal appeal has been preferred.

Learned counsel for the appellant Baseem Akhtar contended that the impugned judgment and order is against the evidence on record, the appellant was falsely implicated in this case as he had nothing to do with the aforesaid crime in question. Learned counsel next submitted that no identification parade was conducted on the appellant and the prosecution miserably failed to prove the presence and involvement of the accused appellant at the place of the occurrence. It is next submitted that incriminating evidence against the appellant has not been put forth while recording statements under Section 313 Cr.P.C. Learned counsel for the other appellant made submissions that the impugned judgment is wholly illegal, arbitrary and unjustified, the appellant has been falsely implicated and the judgment and order passed by the court below is against the weight of evidence on record and is liable to be set aside.

On the other hand, learned Additional Government Advocate supported the judgment of the trial court and submitted that the order of conviction and sentence recorded by the court below needs no interference. The prosecution has fully established its case that the appellants abducted Dr. Mannan Abdul Hussain for ransom on 20.6.2006, threatened to kill Dr. Mannan if ransom of 40 lakhs was not paid by his wife. on phone frequently. It was also submitted that the prosecution has proved its case beyond reasonable doubt and the judgment of the court below is perfectly legal based on cogent reasons. The prosecution has also proved that on 1.7.2006 abducted victim Dr. Mannan was recovered from the clutches of the accused from the house of accused Shamshad by and the police arrested the accused appellants from the spot. Moreover, the factum of abduction of Dr. Mannan and his recovery was not challenged by the defence side. It was lastly contended that the ingredients of the offence under Section 364A IPC are proved beyond reasonable doubt and the judgment and order of the court below requires no interference and the appeals filed by the appellants are liable to be dismissed.

We have heard Shri Sudeep Harkauli and Shri N.I.Jafri learned counsel for the appellants and Shri Ashish Pandey, learned A.G.A. assisted by Ms. Manju Thakur for the State and have given our anxious and most thoughtful consideration to the rival submissions of both the parties and have also perused the impugned judgment and have gone through the evidence on record.

Before dealing with the pending appeals, it would be relevant to refer to the provisions of Section 364A IPC and the relevant proposition of law covering decision under these appeals. Section 364A is alluded below:

"364A. Kidnapping for ransom, etc.-Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any foreign State or international inter-governmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine."

In the case of Vinod vs. State of Rajasthan, Manu/SC/70052008, the Hon'ble Apex Court has held that to attract the provisions of Section 364A IPC what is required to be proved is:-

(i) that accused kidnapped or abducted a person.

(ii) kept him under detention after such kidnapping or abduction.

(iii) that kidnapping under this section was for ransom.

Similar view was expressed by the Hon'ble Apex Court in the case of Akram Khan v. State of West Bengal Manu/SC 1470/2011.

The word 'ransom' means as per Concise Oxford English Dictionary, 2002, p. 1186 'to hold some-one captive and demand payment for their release. Money paid to have a kidnapped person released. So the person abducted or kidnapped must be in the custody of the person at the time demand of ransom is made.

CJ Fletcher Moulten once observed that proof does not mean rigid mathematical formula that is impossible. Further proof must mean such evidence as would induce a reasonable man to come to a definite conclusion.

In Vaidivelu v. State of Maharashtra AIR 1957 SC 614 the Hon'ble Apex Court classified witnesses into three categories: (1) wholly reliable (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. In this category of witnesses the court have to be circumspect and have to look for corroboration in material particulars by reliable testimony direct or circumstantial.

In Musheer Khan alias Badshah Khan v. State of Madhya Pradesh, 2010 (74) ACC 150 the Hon'ble Apex Court held that identification test meant for purposes of helping investigating agency to ensure that it is proceeding in right direction it is not substantive.

In Vijay Chinee v,. State of Madhya Pradesh (2010) 6 SCJ 492 the Hon'ble Supreme Court held that evidence of a witness must be read as a whole and the cases are to be considered in totality of the circumstances. It further held that men may tell lies but circumstances do not.

Apart from it it is a trite law that in arriving at the conclusion about the guilt of the accused charged with a commission of the crime, the court has to judge the evidence by yardstick of probabilities its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts.

It is established law that every case has to be appreciated on its own fact and in the light of evidence led by the parties. The court has to examine the cumulative effect of evidence in order to determine as to whether the prosecution has been able to establish its case beyond reasonable doubt or that the accused is entitled to the benefit of doubt. The court has to examine the evidence in its entirety. The court cannot just take an aspect of the entire evidence.

It is settled legal proposition that even the sole testimony of a witness can form basis of conviction provided it finds corroboration from other physical factors and circumstances. It is also well settled that it is not necessary for the defence to prove its case with same rigour as the prosecution is required to prove its case and it is sufficient if the defence succeeds in throwing a reasonable doubt on the prosecution case which sufficiently enables the court to reject the prosecution version.

It is also a well settled legal proposition that a reasonable doubt is not an imaginary, trivial, or merely possible doubt but a fair doubt upon reason and common sense and it must grow out of the evidence in the case and it is quality of each individual circumstance that is material and that would essentially depend upon quality of evidence.

Tested on the anvil and touchstone of the aforesaid principles, we find that there is substance (force) in the arguments of the learned counsel for the accused appellant Baseem Akhtar because admittedly, the accused Baseem Akhtar was not arrested on the spot where the recovery of the abducted victim Dr. Mannan Abdul Hussain is allegedly made by the prosecution. It is also an admitted fact that the name of accused Baseem Akhtar first came to light during investigation in the confessional statement of co-accused Shamshad and he was arrested on the execution of warrant 'B' at Delhi jail and transit remand was granted and he was finally taken into judicial custody on 11.8.2006 by the Chief Judicial Magistrate having jurisdiction whereas the occurrence is of 20.6.2006 and recovery of the abducted victim was of 1.7.2006. It is also the defence version that he was kept baparda. Inspite of this admitted fact identification parade was not conducted on the accused during investigation. The accused in his statement under Section 313 Cr.P.C. specifically stated that since he was not named in the first information report and arrest was made by the Delhi police on execution of warrant 'B', he moved an application on 18.6.2006 claiming identification which was not done. Perusal of record shows that for the first time during trial of the case, PW-3 abducted victim Dr. Mannan Abdul Hussain Wasanwala recognised Baseem Akhtar but with wrong identity of name. It is also relevant to mention that Dr. Mannan was abducted on 20.6.2006 and the police recovered him on 1.7.2006 and accused Baseem Akhtar was arrested by the Delhi police on the execution of warrant 'B' issued by the Magistrate having jurisdiction and was taken in judicial custody on 11.8.2006. While the statement of PW-3 Dr. Mannan Abdul Hussain was recorded on 30.7.2007 after lapse of considerable time from the date of the incident on 20.6.2006 and more so the accused was recognised by wrong name before the court. This itself is indicative of a fact that there is a serious omission (lapse) prejudicing the right of the accused charged for an offence under Section 364A IPC.

To substantiate his arguments learned counsel appearing for appellant Baseem Akhtar has placed reliance on the decision of the Hon'ble Apex Court in the case of Dana Yadav alias Dahu and others vs. State of Bihar, 2002 SCC (cri) 1698. In this case the Hon'ble Apex Court observed that belated identification of the accused in court for the first time after more than 2 years from the date of the incident should not form the basis of conviction, especially when the same is not corroborated by previous statements made before the police or any other evidence. It was also observed that ordinarily if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above.

Admittedly, in this case the incident is of 20.6.2006, abducted person was alleged to be recovered on 1.7.2006. Accused Baseem Akhtar not named in the first information report was arrested by the Delhi police on execution of warrant 'B' and then taken into custody on 11.8.2006 in this case and for the first time he was recognized by PW-3 Dr. Mannan (abductee) during his deposition before court on 30.7.2007. More so there is no corroborative/supportive evidence, therefore, on the sole testimony of identification before court by PW-3 conviction of accused Baseem Akhtar cannot and should not sustain.

Apart from it learned counsel for the accused appellant Baseem Akhtar made submissions that learned trial Judge has not complied with the basic requirements of Section 313 Cr.P.C. the requisite questions and the specific incriminating evidence which was against this accused have not been put to the accused, as there is no evidence on record even remotely to show that appellant Baseem Akhtar had abducted Dr. Mannan Abdul Hussain Wasanwala for ransom, In support of his arguments, he placed reliance upon a decision of Hon'ble Apex Court in the case of Sukhjit Singh vs. State of Punjab 2015 (1) SCC (Cri) 76, wherein the Hon'ble Apex Court laid down that the statements of accused under Section 313 Cr.P.C. sis not an empty formality. Incriminating material has to be brought to the notice of the accused under Section 313 Cr.P.C. The Court also held that it can cause immense prejudice to him especially when there is no evidence to establish his complicity in the alleged offence. Further, in Shaikh Maqsood v. State of Maharashtra, 2009 (6) SCC 583, the Hon'ble Apex Court held that if no question was put to the accused which established that he was the author of the crime, the effect of non putting of appropriate question will be a good ground for setting aside of the conviction of the accused. The Court further observed that the object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt.

A perusal of the statement of accused Baseem Akhtar under Section 313 Cr.P.C. reveals that general questions were put to him like that of the other co-accused whereas he being neither named in the first information report nor arrested on the recovery spot, his identification for the first time before court during statement of PW-3 Dr.Mannan Abdul Hussain after a long gap from the incident. The evidence specifically of identification has not been put before him or any incriminating evidence whatsoever regarding his presence and involvement in the commission of crime has been brought to the notice of this accused. Appropriate questions which could establish that he was author of the crime had not been put before this accused hence we find substance in the plea of the learned counsel for the appellant that no requisite question and incriminating evidence which was against this accused have been put before him to establish that he was present and involved in the commission of offence under Section 364A IPC. That being so, the conviction of accused appellant Baseem Akhtar cannot be maintained and is liable to be set aside.

With regard to the criminal appeals of other co-accused, prosecution case is that Dr. Mannan Abdul Hussain Wasanwala was abducted on 20.6.2006, he was forcibly taken to the house of Shamshad. There victim was detained in a small room of a tubewell for four days,thereafter shifted to other place for 8 days. The wife of the abducted victim first lodged a missing report on 20.6.2006, thereafter first information report of abduction for ransom was lodged on 1.7.2006 by the wife of the abducted victim. In between 20.6.2006 to 1.7.2006, wife got first anonymous threat call for ransom on 24.6.2006 and thereafter continually received such calls and finally on 1.7.2006 she received threat from a person who disclosed his name as Shaimuddin for ransom of Rs.40 lakhs by tomorrow otherwise, Dr. Mannan Abdul Hussain would be killed and then she lodged the F.I.R. The other part of the prosecution case is that on information by informer on 1.7.2006, a joint team of police was formed and divided in three units, took the task for raiding the house of Shamshad, the recovery of abducted victim Dr. Mannan was successfully conducted and police arrested three persons on the spot but two persons, who were sitting on the roof fired on the police team, jumped from the roof, took the motor cycle standing nearby and escaped from the spot. They were chased by two units of joint police team and the accused person who was sitting on the pillion of motorcycle indiscriminately fired towards the chasing police party and at some point of time they stopped and took the motorcycle by the side of the road, hid themselves behind road side bushes and pits from where they again started firing on the police party. On this point of time the police also opened fire on the accused resulting in encounter of one person and the other accused escaped successfully. The dead was later on identified as accused Shaimuddin.

Now taking it to be correct version of the prosecution, the first question that arises for consideration is that how and under which circumstances the dead body of the encountered accused Saimuddin was found in the middle of the road because it has come in the evidence of prosecution witness PW-3 Dr. Mannan Abdul Hussain Wasanwala that he had identified the dead body of accused Saimuddin that was kept in the middle of the road.

The next question that does not appeal to us (seemingly improbable) is that how the two accused persons who were sitting on the roof of the house where abducted victim was detained, jumped and took the motorcycle standing there and escaped from the spot in front of three police teams and that too indiscriminately firing on the chasing police personnel. There is material contradiction on width of the road from where it is alleged that the two accused escaped and on the point whether accused escaped from back side of the house or from front of the house. The material in this way that police team is said to be standing in front of the house and it is impossible to escape if road is so narrow by motorcycle. Therefore, from the very beginning the prosecution story seems to be doubtful about the recovery of abducted victim Dr. Mannan from the house of accused Shamshad and encounter of accused Saimuddin as alleged by the prosecution. As regards the recovery of abducted victim Dr. Mannan and preparation of recovery memo on spot, there is a lot of contradiction between the statement of PW-3 Dr. Mannan and PW-5 Yogendra Singh Bhati and PW-6 Rajesh Kumarr Dwivedi who were the witnesses of recovery as PW-5 Yogendra Singh Bhati who is recovery witness stated in his deposition that accused escaped towards the north direction and the police team was also standing in the north direction and the way towards the front of the alleged house was only of 10 feet and the motorcycle was at a distance of 15-20 steps ahead of them from where the two accused jumped from the roof took the motorcycle and escaped successfully riding on the motorcycle whereas PW-6 Rajesh Kumar Dwivedi who is also the witness of recovery of the abducted victim Dr. Mannan stated that width of the road in front of the house is only of 4-5 feet and according to this witness the two accused jumped from the alleged house and escaped from the back of the house. This is a material contradiction on the point whether the two accused jumped and escaped from the side of the alleged house which creates a doubt in prosecution story about the recovery of the abducted victim as well as encounter of accused Saimuddin whereas PW-7 I.O. Ram Pal Singh stated in his evidence that width of the road in front of the place of occurrence is about 6-7 feet hence there is contradiction about the width of the road in front of the house of Shamshad.

The next contradiction in the statements of prosecution witnesses is with regard to source of light at the time of recovery of the abducted victim Dr. Mannan PW-3 who stated that at the time of recovery there was kerosene oil light and there had not been electricity in his room and it was a complete dark room at the time of recovery. PW-5 stated at that time there was electric light in the room. PW-6 also stated that there was light at the time of recovery of Dr. Mannan. He specifically stated that recovery memo was prepared in electric light. This is a material contradiction which cannot be overlooked. It is also a fact that there was no public independent witness of the recovery memo.

The next important point is with regard to the preparation of site plan Exhibit Ka-6 proved by PW-6 Rajesh Kumar Dwivedi. According to the witness, site plan of the place of occurrence was prepared on the basis of pointing out by abducted victim Dr. Mannan. PW-7 Inspector Ram Pal Singh stated that on the pointing of S.I. Kamlesh Kumar he prepared the site plan on 13.9.2006 of place of recovery of abducted victim Dr. Mannan. The witness has admitted that site plan exhibit Ka-8 was prepared in absence of abducted victim Dr. Mannan which is confirmed by the statement of PW-3 Dr. Mannan. He also admitted that the place of parking of motorcycle used by the two accused persons in escaping from the spot has not been shown by him in his site plan exhibit Ka-8. He also admitted that place of firing by the accused on the recovery spot has not been shown in the site plan. Also admitted that the direction in which the accused had escaped has not been shown in the map exhibit Ka-8, a place denoted by 'H' shown as electric bulb on the recovery spot but PW-3 abducted victim in his deposition before court denies the existence of electric light in the room where captive had been detained. According to this witness there was complete dark at the place of recovery except a kerosene light in his room. Therefore, it is apparent that on the point of source of light at the time of recovery of abducted victim Dr. Mannan and preparation of the site plan/map there is material contradiction among the prosecution witnesses as well as material omissions in the site plan.

Another contradiction which requires attention is that PW-3 abducted victim Dr. Mannan who is an educated person in his oral testimony specifically and categorically stated about the presence of Senior Superintendent of Police Akhilesh at the time of his recovery till identification of encountered accused Saimuddin but other prosecution witnesses have denied the presence of Senior Superintendent of Police Akhilesh on the place of incident. This poses another question mark on the prosecution story regarding recovery of abducted victim Dr. Mannan as alleged and arrest of three accused persons on the spot and encounter of accused Saimuddin highly doubtful. Apart from it, PW-3 Dr. Mannan in his oral evidence before court stated that at the time of his recovery his signature on any paper whatsoever on the recovery spot had not been taken by any of the police personnel which makes preparation of the recovery memo on the spot highly improbable (doubtful). Apart from it, the original recovery memo has not been produced before the court which is established by the evidence recorded before the trial court wherein PW-5 Yogendra Singh Bhati who is witness of recovery of abducted victim as well as the recovery of illegal incriminating articles from the arrested accused Shamshad, Alimuddin and Bhura on spot proved it admitting his signatures on the photocopy of the original recovery memo Exhibit Ka-5. Likewise, PW-6 Rajesh Kumar Dwivedi in his statement admitted that original recovery memo is not before him but admitted his signatures on the photo copy of the original recovery memo which is another question mark in this case.

Yet another relevant circumstance of this case which requires consideration is that PW-3 victim has stated that during the incident his purse money, mobile, A.T.M. Card, watch and PAN Card were taken by the accused. It is also an admitted fact that the victim was abducted along with his Maruti Zen car but there was no recovery of the said articles from any of the accused persons. Another relevant circumstance which is to be considered is that PW-3 Dr. Mannan stated that the accused took the PIN number of his ATM card, but no money has been withdrawn by any of the accused. PW-3 could not explain the location of the site from where he was said to be recovered. Likewise, PW-5 Yogendra Singh Bhati- witness of recovery memo could not explain the location of the recovery spot.

Another peculiar circumstance is that PW-3 Dr. Mannan who was forcibly abducted by the accused persons and was kept under instant fear of death for about 12 days and it has also come in his deposition that after the incident before his release he was continuously being harassed and tortured by the accused but from perusal of his oral testimony it transpires that inspite of all these facts he had a sympathy with the three accused persons who had been arrested on the recovery spot. This fact is not understandable why this sympathy was developed in the mind of a tortured abducted person.

It is also not understandable that how the two accused persons who were sitting on the roof of alleged house in which the captive was detained jumped down and able to take the motorcycle standing in front of the alleged house and run away through the narrow road that was 4-5 feet wide and that too in front of the police team that had been there attempting to recover abducted victim Dr. Mannan on the information of an informer.

As regards the electronic call details whose description has come in the statements of PW-6 Rajesh Kumar Dwivedi which are exhibits 4 to 15 but it has no relevance to the case as no evidence whatsoever has been tendered to identify the voice and accuracy of the conversation and connecting incriminating evidence hence as required evidence has not been tendered to prove it by the prosecution, therefore, has no relevance in this case.

After the close scrutiny of the evidence tendered by the prosecution in this case and considering the peculiar facts and circumstances of this case, it can be safely concluded that abduction of Dr. Mannan Abdul Hussain Wasanwala is a proved fact but the prosecution has miserably failed to prove beyond reasonable doubt the presence and involvement of the appellants accused in the commission of the crime under Section 364A IPC.

Microscopic analysis of the entire case will transpire that in order to justify the encounter of accused Saimuddin, his close relatives have been falsely implicated in this case. Short reasons thereof are as follows:

(i) No identification proceedings conducted on accused Baseem Akhtar after his arrest. More so, his identification for the first time before the trial court by PW-3 victim Dr. Mannan Abdul Hussain Wasanwala after a long lapse of more than one year found to be defective as the two accused were not identified by correct name.

(ii) Another peculiar feature of the case is that statement under Section 164 Cr.P.C. had not been recorded.

(iii) Mode and manner of recovery of the abducted victim and arrest of three accused persons on the spot are highly doubtful.

(iv) Recovery memo of the abductee was found to be doubtful.

(v) No independent public witness of recovery of the abducted victim.

(vi) No recovery of looted articles nor recovery of Maruti Zen of the victim.

(vii) Material laches/lapse in preparation of the site plan.

(viii) Major contradiction/discrepancy/variation in the statements of the prosecution witnesses and lastly

(ix) chain of link evidence particularly that of electronic evidence is not proved.

Under the facts and circumstances as stated above, the evidence of the prosecution witnesses is neither cogent nor credible or trustworthy hence cannot be believed.

For the foregoing reasons, in our view the appeals filed by the appellants deserve to be allowed and are, accordingly, allowed. The judgment and order dated 28.1.2009 convicting and sentencing the accused appellants are set aside and the accused appellants are acquitted for the offence under Section 364A IPC. Accused appellants Baseem Akhtar @ Banti and Bhoora Khan @ Bhalu who are in jail be released, if not detained in any other case. Accused appellants Shamshad and Alimuddin who are on bail, their bail bonds are cancelled and sureties stand discharged. Compliance of the provisions of Section 437A Cr.P.C. be ensured.

Let a certified copy of the judgment and order be sent to the Chief Judicial Magistrate concerned for compliance report. The lower court records be returned for compliance.

Order Date :- 29.07.2016

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