Rashis Ahmed Alias Bhure And Etc. vs State
2006 Latest Caselaw 1615 Del

JUDGMENT

R.S. Sodhi, J.

1. Criminal Appeal Nos. 605 of 1999 and 620 of 1999 seek to challenge the judgment of the Additional Sessions Judge, Delhi, in Sessions Case No. 69/1995 dated 27th October, 1999 whereby the learned Judge has held the appellants herein guilty of the offence punishable under Section 363 IPC read with Section 120B IPC, as also under Section 364A IPC read with Section 120B IPC and further by this order dated 28th October, 2006, has sentenced each of the accused-appellants to undergo rigorous imprisonment for three years and a fine of Rs. 2,000/- and in default of payment of fine, further simple imprisonment for three months under Section 363 IPC read with Section 120B IPC; imprisonment for life and a fine of Rs. 5,000/-and in default of payment of fine, further simple imprisonment for six months under Section 364A IPC read with Section 120B IPC. All the sentences were directed to run concurrently. Benefit of Section 428 Cr.P.C. was also extended to the appellants-accused.

2. Brief facts of the case, as have been noted by the learned Additional Sessions Judge, are:

That Shakir s/o Nazir aged about 5 years was playing outside his house on 5-6-93 at about 5 p.m. From where he was kidnapped. DD No. 2 A was got recorded on 6-6-93 at P.S. Gokal Purl regarding missing of his son by Nazir. Therefore he searched for his son and since his son could not be traced, as such on 10-6-93 FIR No. 258/93 was recorded at P.S. Gokal Puri Under Section 363 IPC and in this FIR he had shown his suspicion on Sharif and Rahis both r/o Mushtafabad, Delhi having kidnapped his son. The investigation after the registration of the case was handed over to ASI Suresh Chand. Nasir, father of kidnapped boy received three ransom letters which were handed over by him to the police. Accrued Afsha Parveen alias Shabina who had given a ransom letter had told Nazir to meet Manzoor in Abdullapur Jail. As such Nasir went to Abdulla Pur Jail and met Manzoor who demanded Rs. 1,00,000/- as ransom and also shown the photograph of his to him. Nasir later on told this fact to the police. Accused Rahis Ahmed who was named in the FIR by Nasir was arrested by the IO and during the course of investigation he made disclosure statement in which he had named Sharif, Sher Ali, Vaki and Sabina alias Afsha Parveen who had hatched a conspiracy to kidnap Shakir for ransom. On 19-6-93 the investigations were handed over to special staff and during the course of investigation, accused Afsha Parveen alias Shabina and Manjoor were arrested. However, other accused could not be arrested and they were declared proclaimed offenders. The kidnapped boy Shakir was recovered from the custody of Afsha Parveen alias Shabina when she had come to collect the amount of ransom money on 11-7-94 at Gagan Cinema, Delhi. The specimen handwriting of Afsha Parveen alias Shabina was also taken and after completion of investigation a challan was filed against accused Afsha Parveen alias Shabina, Manzoor and Rahis Ahmed alias Bhure in the Court of Metropolitan Magistrate from where the case was committed to the sessions Court for trial.

Accused, Manzoor, was declared proclaimed offender on 16-3-1998.

3. The prosecution, in order to prove its case, examined as many as 10 witnesses. Of these, PW-1, Ms. Vakila, is the neighbour while PW-2, Mohd. Nasir, is the father of the kidnapped child.

4. PW-1, Vakila, has deposed to the effect that she knew how to read the Quran and knows a little Urdu. She did not go to school. In the year 1993, her father was working as a grill-maker in Kailash Nagar. She knew Sakir, son of Mohd. Nasir. About five years ago, while she was outside her house tending to the domestic hen in the gali around 5.00 p.m., she saw Sakir, son of Nasir, in the lap of Bhure alias Rahis Ahmed, present in Court. He is also known as 'tamatarwala'. This witness stated that she knew the accused, Rahis, earlier since he was residing in Gali No. 13, New Mustafabad. Sakir was residing along with his family members in Gali No. 148, New Mustafabad. The witness goes on to depose that he was Sakir in the lap of Rahis and was having toffees in his hands. The child was wearing a singlet and a blue underwear at that time. The following morning, she heard that Sikar had gone missing. She went to the house of Sakir and told his mother, Noor Begum, that she had seen Sakir in the lap of accused, Rahis, 'tamatarwala' who had given the child toffees. Thereafter, his witness along with Noor Begum went to the house of Rahis who was not available there. This witness has been cross-examined only to the effect that Nasir is not related to her.

5. PW-2, Nasir, states that on 5-6-1993 at about 5.00 p.m. his son, Sakir, aged about 41/2 years was playing in the gali outside the house along with other children. The child later went missing. The witness searched for his son but could not find him. He then went to Police Station Gokal Puri to lodge a report on the following day about his son being missing. He states that on the fateful evening, his son was wearing a singlet and a blue nicker and had been tonsured. FIR was registered on 10-6-1993. He suspected Bhure and Sharief. The witness goes on to say that Shabina, present in Court and who was not known to him earlier, came to his house and gave three letters and also informed him that his son, Sakir, was well and if he wanted to retrieve his son, he would have to contact one Manzoor lodged in Abdullahpur Jail. After handing over these letters and conveying the message, Shabina left. The witness got these letters read from someone and came to know that his son was alive. Thereafter, he went to Abdullahpur Jail and met accused, Manzoor. Accused Manzoor, showed him the photograph of his son, Sakir, and demanded rupees one lakh as ransom. The witness showed his inability as he was too poor to afford such a heavy ransom, but was threatened by Manzoor that in case the ransom was not paid, his son would be killed. Initially the witness did not report this to the Police, but later brought it to the note of the Police. He also gave the letters and the photograph to the Police. The same was taken into possession vide memo Ex. PW 22/A. Thereafter the witness along with constable Mohd. Ishaq, on instructions from the Investigating Officer, went to Abdullahpur Jail, Meerut and met Manzoor. The witness told Manzoor that constable Mohd. Ishaq, in plain clothes, was his relative. Manzoor was informed that the witness had disposed of his house in order to make arrangements to pay of the ransom demanded for release on his son. Manzoor informed the witness that the child was in safe custody and would be released a day after the ransom amount was received. Manzoor then fixed the meeting for 11-7-1994 at about 10.00 a.m. outside the gate, to be the place, where money was to be exchanged for release of his son. The witness further depose that en 11-7-1994 he along with constable Mohd. Ishaq in plain clothes and a police posse waited to handover the bag containing money which was made in such a manner so as to contain currency notes at the ends and blank papers in the middle. At about 10.00 a.m. accused Shabina, present in Court, came and asked for the money. The witness showed her the bundles of currency by opening the zip of the bag. Shabina demanded the money saying that she would handover the child the following day but the witness refused to handover the money and insisted that the child be handed over simultaneously. On this, Shabina fixed Gagan Cinema, Nandnagri, Delhi at 9.30 p.m. at the hundred feet road outside Gagan Cinema for the exchange. On the following day at about 9.30 p.m. accused Shabina came outside Gagan Cinema where the witness along with Constable Mohd. Ishaq was standing while Shabina came on foot holding the child by hand. She stated that she had brought the child and asked for the money to be handed over. The witness took the child. On this, Constable Mohd. Ishaq and the police posse apprehended Shabina. The witness further handed over the letters Q-1, Q-2, Q-3, 9-4, 9-5, 9-6, Q-7, Q-8 and Q-9, which were received by him as ransom demands, to the police. All these letters were found addressed to him, left in the Maszid on different dates, In cross-examination, the witness reiterates his statement-in-chief and nothing meaningful was elicited.

6. The other witness of importance is PW-5 Mohd. Sakir. His statement is as follows:

Mohd. Shagur s/o. Mohd. Nasir states his age himself to be about 8 years and studies in first class also states himself that he resides with his father in Gall No. 14 New Mustafabad. In order to find out whether he is competent witness and understood the facts, I had put general questions to him to test his intelligence and understanding.

Q. What is the profession of your father?

A. He sells apples in winter season and in summer, he deals in the work of coolers.

Q. How many brothers and sisters you have got?

A. We are two brothers and five sisters. My other brother is younger to me.

Q. What is the name of your school and how do you go there?

A. The name of my school is Lakhpal Memorial Public School and it is situated at Moonga Nagar, Shahadara. My maternal uncle takes me to the school and after leaving me there, he goes to his shop and after the school hours, I return to my house on foot.

Q. Do you know the name of your school teacher?

A. The name of my teacher is Asha.

Q. Whether children and other persons should speak truth or should tell lie?

A. Truth.

The child is quite intelligent and his general intelligence is good, he is capable of understanding the questions. Since he is a young child and can depose voluntarily as such his statements is being recorded without oath.

Signed

illegible

Some five years ago at about 5.00 p.m., I have been playing in the street situated at a little distance ahead from my house. At that time Bhure came over there. The child pointed out towards accused Rahis @ Bhure and told that he was Bhure. The child further told that one another person was in the company of Bhure at that time whose name he did not know. The child told that. Bhura gave a toffee to him and he knew him because Bhure resides in street No. 13. The child told that Bhura took him into lap after giving toffee to him. He took him towards road and then made him sit on the scooter and took him to various places. He could not tell the names of those places. The child told that Bhure kept him in the company of a lady who was standing in the Court at that time. The child pointed out towards accused Shabina and told that she was the same lady in whose company he was kept by Bhure. He told that there were other children also of Shabina in the said house where he remained for many a days. He told that Shabina provided him insufficient meals and whenever, lit; asked her to take him to his papa, she used to beat him. A female took him to the police station from the house of Shabina where his father met him at the police station.

At this stage additional Addl. PP want to put a leading question regarding that Shabina brought him to his father, Heard allowed.

Q. Shabina took me to my papa? (sic) xxx by counsel

Sh. R.K. Srivastava. Advocate for both the accused.

I had been knowing Bhure for the last five years. Its incorrect that Bhure did not. take me. The facts which had been disclosed by me to the police today had already been disclosed to the police even earlier. Confronted with statement PW-5/DA in which he had disclosed that he was made to sit on a scooter and subsequently, he was kept in the company of a lady namely Shabina. Not recorded. It is incorrect to state that Bhure has not lifted me.

ROAC

Signed

illegible

Addl. Sessions Judge

Karkardooma Courts,

Shahadara, Delhi

19-5-98

Note : Child witnesses. Statement recorded by me In my own hand as such signature of child not obtained.

Signed

illegible

Addl. Sessions Judge

Karkardoorna Courts,

Shahadara, Delhi

19-5-98

The rest of the witnesses are witnesses of procedure except for Constable Mohd. Ishaq who corroborates PW-2, Mohd. Naslr.

7. The case put up by counsel for Shabina, Ms. Gaba, learned Counsel is that the evidence of Nazir is hearsay, since he had not heard of the missing child from Vakila directly, but from his wife Noor Begum. This criticism, with great respect, cannot be sustained since the complainant had already filed the complaint before the police to his interaction with his wife on the subject. In any event, this part of his oral testimony has not been taken into consideration. The next criticism is to the non-examination of Noor Begum. She submits that this is suicidal for the prosecution since the Noor Begum was an essential witness to support PW-1 Vaklla's statement. She also contents that the Jail record has not been exhibited to show the meeting between Afsha Parveen, Nazir and Manzoor at Abullahpur Jail. Similar is the criticism regarding the meeting with Manzoor in the presence of Ishaq Mohd. No doubt. it would have been profitable to examine Noor Begum to support the testimony of Vakila, PW-1, but PW-1 Vakila has not been cross-examined. There was no need of examining Noor Begum. We also find that non-production oi jail record of Abdullahpur Is not a circumstance which in itself would militate against the oral testimony of PW-2, Nazir which is corroborated by Ishaq Mohd. constable. Although, its production may have been more helpful. The next criticism advanced by learned Counsel is that public witnesses were not Joined when the child was recovered and that the case property was not kept intact. In the present case where the raid has been conducted to recover the child in the manner indicated by PW-1 and the factum of the child recovered amply proved, the non-joining of public witnesses to the said raid, is hardly of any consequence. Further, there is nothing on record to show that case property was tampered with or was not secured during the trial or it was not available. The criticism is based on misreading of evidence. Last but not the least, counsel submits that there is nothing to show that the ransom note was written by Afsha Parveen. She cannot be taken as part of the conspiracy to kidnap the child for ransom. We have given our careful consideration to this aspect of the matter and find that the ransom demands were delivered to the father of the child by Afsha Parveen. She also came to collect the ransom amount in exchange of the child. In this view, it can hardly be said that Afsha Parveen was oblivious of purpose of kidnapping.

8. From analysis of the evidence on record, we find that the child was picked up by Rahis Ahmed who was a neighbour of the family and the child was familiar with him. The child was last seen with this accused by PW-1, Ms. Vakila. The demand for ransom was made and conveyed through Shabina and repeated by Manzoor. The fact that the child was recovered from the custody of Shabina in exchange of the ransom amount goes to show that the prosecution has been able to establish its case beyond a shadow of doubt.

9. In this view of the matter, having given our careful consideration to the facts of the case, we are of the opinion that there is no infirmity in the judgment under challenge. The trial Court has elaborately gone into the evidence adduced before it and has given detailed reasons which we find no reason to differ with. Accordingly, the judgment and order on sentence, under challenge, are upheld and the appeals dismissed. Accused Rahis is already in custody. Accused-Afsha Parveen, who was granted bail vide order dated 17-7-2006, shall be taken into custody to serve out the remaining portion of her sentence.