Nadeem vs State
2010 Latest Caselaw 2313 Del

                                          REPORTABLE

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI

                    CRIMINAL APPEAL NOS. 647 & 749 OF 2009
                    CRIMINAL APPEAL NOS. 361 & 397 OF 2010

                                                              Judgment reserved on: 07.4.2010

%                                                                 Date of Decision: 30.04.2010

1)      CRIMINAL APPEAL NO. 647 OF 2009
NADEEM                                                                          . . . Appellant
                                 through :                   Mr. J.S. Kanwar, Advocate

                                         VERSUS
STATE                                                                    . . .Respondent
                                 through:         Mr. Lovkesh Sawhney, APP

2)      CRIMINAL APPEAL NO. 749 OF 2009
SITARA                                                                        . . . Appellant
                                 through :                   Ms.Anita Abraham, Advocate

                                         VERSUS

STATE                                                                          . . .Respondent
                                 through:                    Mr. Lovkesh Sawhney, APP

3)      CRIMINAL APPEAL NO. 361 OF 2010
MUMTIAZ                                                                       . . . Appellant
                                 through :                   Mr.Siddaharth Aggarwal, Advocate

                                         VERSUS

STATE                                                                          . . .Respondent
                                 through:                    Mr. Lovkesh Sawhney, APP

4)      CRIMINAL APPEAL NO. 397 OF 2010
                                                              Judgment reserved on: 13.4.2010

%                                                                 Date of Decision: 30.04.2010

KHALIL @ KAPIL                                                              . . . Appellant
                                 through :                   Mr. Galib Kabir/Mr. Avninder
                                                             Singh Advocate
                                         VERSUS

STATE                                                                          . . .Respondent
                                 through:                    Mr. Lovkesh Sawhney, APP

CORAM :-

        THE HON'BLE MR. JUSTICE A.K. SIKRI
        THE HON'BLE MR. JUSTICE AJIT BHARIHOKE



CRIMINAL APPEAL NOS. 647 & 749 OF 2009 & 361 & 397 OF 2010                                Page 1 of 14
         1.      Whether Reporters of Local newspapers may be allowed
                to see the Judgment?
        2.      To be referred to the Reporter or not?
        3.      Whether the Judgment should be reported in the Digest?

A.K. SIKRI, J.

1. This appeal arises out of the conviction of appellants Nadeem, Khalil @ Kapil,

Mumtaz and Sitara under Section 364 -A of Indian Penal Code, 1860 vide order

dated 7th July, 2009 passed by learned Additional Session Judge. The appellants have

been sentenced to undergo rigorous imprisonment for life, and to pay fine of Rs.

20,000/- each, and in default of payment of fine, to further undergo rigorous

imprisonment of one year.

2. The matter relates to the alleged kidnapping of a child named Furkan, son of

Sagir Ahmed (PW-2) and demand of ransom of Rs.5 lacs for releasing the said child.

The prosecution version, unfolded through the testimony of certain witnesses

examined before the Trial Court and believed by the Trial Court as well, is that on

28th June, 2006 at about 4.00 p.m., Furkan son of PW-2 who was aged 8 years, had

gone out of the house to play in the gali. He, however, did not return back home till

7.00 p.m. PW-2 searched him in the locality but the child could not be traced. Next

day, he came to know that his son was kidnapped when he received a telephone call

on the telephone both of one Alimuddin (PW-1), a STD owner, on 29th June, 2006 at

4.00 p.m. That unknown caller on the said call informed PW-2 that his son had been

kidnapped and ransom money of Rs. 5 lacs was demanded for return of the child.

The caller also told him that he would call later to tell where the money was to be

brought. The unknown caller told Sagir Ahmed that incase he complained to the

police, his child Furkan would be killed. Still PW-2 Sagir Ahmed went ahead and

reported the matter to the police. FIR (Ex.PW-2/A) was registered under Section

364 -A IPC. After the registration of the FIR, the police officials instructed PW-2

Sagir Ahmed to prepare a bundle of paper in the shape of bundle of currency notes.

3. On the same day i.e. 29th June, 2006 at about 9.00 p.m. the complainant (PW-

2) again received a call at his mobile phone and he was told to bring Rs. 5 lacs at a

given place in Mandoli jungle. On informing the police abo8ut this phone call, the

police officer reached at the house of the complainant at 9.10 p.m. Subsequently, the

Investigating Officer namely Sub Inspector Om Pal Singh (PW-8) called another

police official from police station to accompany them to the Mandoli Jungle where

kidnapper had directed PW-2 to come along with the demanded money.

4. Thereafter, PW-2 along with the police party reached the Mandoli Village at

the given place. They all went in maruti van pre-arranged by the Investigating

officer. Police was at a little distance from the father of the child where kidnappers

had asked him to come. When the father (PW-2) was handing over the fake currency

notes (made from newspaper) wrapped in Black polythene bag to the main accused

Nadeem, the other co-accused namely Mumtiaz s/o Munna Khan and Kapil S/o

Haneef joined Nadeem. Meanwhile, the police officers who were present near the

place watching all the happenings, arrested all three persons namely Nadeem, Kapil

and Mumtaz and recovered the fake ransom from Nadeem.

5. The police officers interrogated the accused persons about the child and they

told that the child was with Sitara who resides at Sangam Vihar. The disclosure

statements of Kapil, Nadeem and Mumtiaz were recorded to this effect. The police

officers immediately rushed to Sitara's house at Sangam Vihar on 29th June, 2006 at

around 12:00 in the night and recovered child from Sitara's custody and immediately

arrested her as well in the presence of lady police constable named Nisha. Disclosure

statement of Sarita was also recorded. On the respective arrest of the aforesaid

accused persons, arrest memos were prepared. These persons were also searched at

the time of arrest and their personal search memos were prepared as well.

6. Apart from the STD owner (PW-1), Sagir Ahmed (father of Furkan and

complainant) (PW-2) and SI Om Pal Singh PW-8), five more prosecution witnesses

were examined to prove the aforesaid prosecution version. After the completion of

the prosecution evidence, the statements of accused persons were recorded under

Section 313 Cr.P.C. Accused Khalil @ Kapil stated that PWs have foisted a false

case against him as he had left the job with PW-2 where he was working at his

"karkhana" and had joined another "karkhana" of one Irfan. Accused Nadeem and

Mumtaz also stated on the similar lines. The accused persons also produced four

witnesses in defence. DW-1 (Yakub) deposed that he saw the child playing inside

the house on the day of incidence as well as on the next day, so the child had never

being kidnapped. DW-2 (Ashok Singh) said that on the day of incidence, there was

some dispute between Sagir Ahmed and accused persons about money, therefore, in

that context Sagir Ahmed took the accused to the police station. DW-3 (Farukh)

stated that there was a dispute between Sagir and Nadeem on the date of incidence

due to non-payment by Sagir. He also stated that child had not been kidnapped. Sh.

Asgar Ali who appeared as DW-4 also deposed in favour of the accused persons

stating that they were falsely implicated in the case at the instance of Sagir Ahmed

who had taken them to the police station on the pretext of entering into compromise.

7. Learned Additional Session Judge in his impugned judgment, after hearing

the arguments, recorded the finding that the prosecution by the testimony of eight

witnesses in its support, has proved its case beyond any reasonable doubt that the

kidnapping of Furkan was committed by the accused personal namely Nadeem,

Mumtaz, Kapil and Sitara for ransom of money of Rs. 5lakhs. The act was done by

accused persons in furtherance of their common intention and consequently, the

accused persons were convicted and sentenced under Section 364-A read with

Section 34 IPC. Against the aforesaid conviction and sentence, all the four convicted

persons have preferred these four separate appeals.

8. We may point out at this stage that PW-1 though admitted that he received a

call for Sagir Ahmed (PW-2) and informed him about the said call, has not supported

the prosecution version on the other aspects, inasmuch as, he has denied having any

knowledge as to who was the caller or what was the conversation which transpired

between the caller and Sagir Ahmed. He also stated that he did not ask Sagir Ahmed

about the conversation. The Public Prosecutor, with the permission of the Court,

cross-examined him and confronted him with the statement which was recorded

under Section 161 Cr.P.C. (Mark PW-1/A), wherein he had stated that Sagir Ahmed

had told him that his son had been kidnapped and caller was also demanding Rs. 5

lacs or that the caller had threatened to kill his son on not giving the said money or

that he had stated so to the police. PW-2 Sagir Ahmed and father of the kidnapped

boy is the main witness. PW-3 Constable Ali and PW-4 Constable Arvind Kumar

had joined the investigation. PW-4 with PW-5 Constable Arvind Kumar had helped

in recovery of child. PW-6 is Head Constable Vijender who had recorded the FIR

(Ex. PW-2/A), on the statement of PW-2. PW-7 Ct. Yashbir is also a witness to the

recovery of child. Sub Inspector Om Pal Singh (PW-8) was the Investigating

Officer.

9. Leading the frontal attack to the prosecution version and challenging the

findings of the learned Additional Sessions Judge in the impugned judgment, Mr. J.S.

Kanwar, Advocate who appeared in Crl. Appeal No. 647/2009, submitted that the

appellants were falsely implicated by the police at the instance of Sagir Ahmed who

wanted to take revenge. He argued that entire prosecution story was hollow and full

of contradictions and concoctions and the prosecution had miserably failed to prove

the charge under Section 364-A IPC against the appellants. Ms. Anita Abraham and

Mr. Siddharth Aggarwal, Advocates reiterated the submissions made by Mr. Kanwar,

Advocate with additional inputs on their part while appearing in Crl. Appeal Nos.

749/2009 and 361/2010 respectively.

10. These three appeals were heard on 7th April, 2010 and the judgment was

reserved. Immediately thereafter, fourth convict namely Khalil @ Kapil also filed the

appeal against the impugned judgment and conviction which was listed for admission

on 9th April, 2010. Mr. Galib Kabir, Advocate who appeared for appellant in that

appeal was apprised of the arguments heard in other three appeals and this fourth

appeal was listed for final arguments, with the consent of the parties, on 13 th April,

2010. On that day, counsel for the parties made their submissions in that appeal as

well. It is in this backdrop, we are deciding all these four appeals by this common

judgment.

11. We are not undertaking the exercise of reproducing the arguments of learned

counsel for the appellants, inasmuch as, we are finding force in most of these

arguments. Therefore, to avoid repetition, we propose to go ahead with our reasons

in accepting these appeals and to demonstrate that in our opinion, the prosecution

has miserably failed to prove the charge beyond reasonable doubt. Infact the

prosecution story is replete with shaky dispositions, serious loopholes and alarming

gaps the benefit where of has to go to the accused persons. While recording our

reasons, we shall simultaneously advert to the arguments advanced by learned

counsel for the appellants as well as Mr. Lovkesh Sawhney, APP who appeared on

behalf of the State. Our reasons are as follows:-

(i) From the very start, the prosecution case fizzles out on analyzing the

attitude and conduct of Sagir Ahmed, the father of the kidnapped child.

He deposed that on 28th June, 2006 at about 4.00 p.m., his son Furkan,

aged about 8 years, had gone out to play in the gali but he did not come

back home till about 7.00 p.m. Version of the complainant is that he

had searched him in the locality but he could not be traced. Strangely,

he did not take any further steps thereafter. A minor and young child

of eight years goes missing but the father is not bothered even when his

son does not return the home entire night. Not only that, even on the

next date till 4.00 p.m., he did not show any anxiety about his missing

child. He did not go to the police to report the matter. He did not state

as to what steps he took to trace out his child on 29th June, 2006. He

has maintained a stoic silence as if he was in a meditating state for 24

hours. He does not take any initiative by making serious attempt to

locate his child but comes to know about the alleged kidnapping of his

child only when he receives a telephone call at the STD booth of PW-1

Alimuddin on 29th June, 2006 at 4.00 p.m. This conduct of the father,

for 24 hours, whose child has gone missing, puts a question mark on the

credibility of the prosecution story as to whether child at all was

missing. Clearly, the factum of not lodging FIR for 24 hours is down-

played by the learned Addl. Sessions Judge and conveniently glossed

over. The learned Addl. Sessions Judge has observed in this behalf "It

is the normal conduct of a person to search for child, if the child is

missing in the neighbourhood and wait for some time for the return of

the child and once one is very sure that child would not return, one

goes for the police report". Again what is not appreciated is that it

would be not a normal conduct of a father to wait endlessly even when

after his search attempts, he has not been able to trace the child. What

the abnormal conduct is that a father of eight years of child would keep

quite and would not report the matter to the police for 24 hours and

even when the child did not return whole night and the next day till

4.00 p.m. Curiously, even thereafter, as per the version of the father, he

comes to know about the whereabouts of the child when he received

STD Call alleging kidnapping. Till that time, he was in slumber. It is

this abnormal conduct of a father which has escaped attention of the

learned Addl. Sessions Judge.

(ii) In the entire prosecution story, it has not come on record as to how the

kidnapping took place. After the alleged recovery of the child from the

house of appellant Sitara, neither the accused persons were questioned

on this aspect nor anything from Furkan was elicited. This is really

strange and major lapse in the prosecution version.

(iii) Investigation of the case was as shady and as shoddy as possible. As

per the version of PW-2, he received second call on his mobile phone

and he informed the police about the same. His mobile phone was not

checked to see as to whether any such call had been received. Had it

been correct, IO would have first examined the cell phone to find out

from which number the call was received. No such attempt was made.

More curiously, PW-2 deposed that he did not even remember his

mobile phone number which had been purportedly "missed from my

possession". On the day of occurrence at least, PW-2 was possessing

the mobile phone. Learned counsel for the State tried to explain this

lapse by submitting that due to paucity of time, the Investigating

Officer possibly did not try to verify the version of PW-2 as he was

concerned with the safety and recovery of the child. Even if it did not

occur to the police to verify the version of PW-2 at that time as the

police was more interested with in recovering the child, fact remains

that no such attempt in this behalf was made even afterwards. If the

mobile phone of the complainant had gone missing, he could have at

least told the cell phone number to the police and on that basis record

to the call received on the said cell phone and particularly call in

question allegedly received at 9.00 p.m. could be collected from the

service provider in order to ascertain the number and to connect the

same with the accused. It was not done. It cannot be said as to whether

this lapse is intentional or a grave omission. PW-2 even could not

recall the mobile number while deposing in the court and did not reveal

this number to the Court. Further, as pointed out above, statement of

recovered child was not recorded at all to ascertain under what

circumstances he was kidnapped; who were the persons who kidnapped

him; what was the role of the different accused persons. We are

pointing out this for the reason that as per PW-2 when he reached

Mondoli Jungle with ransom money, he was approached by one person

who met him and asked him about the money. Only after he handed

over the black polythene bag to that person, "in the meantime two other

persons also reached there". The first person whom he had handed over

the money was Nadeem and other two persons were Mumtiaz and

Kapil. Whether they were parties to the alleged conspiracy or had any

role could be known from the statement of Furkan.

Furthermore, the Investigating Officer (PW-8) in his statement

did not talk about the cell phone call at all.

(iv) Most material witness in the present case was Furkan, the child in

question, who was allegedly kidnapped. He was not even cited as a

witness and examined. He was eight years of old boy. PW-2 in his

cross-examination claims that later on his son told him as to how he

was kidnapped which indicates that child was capable enough to narrate

the incident if it actually happened. This has given rise to legitimate

argument by the appellants that prosecution story is cooked up and the

appellants are framed in a false case. On the one hand, best witness is

not examined. On the other hand reasonable doubt is created that a

false case is foisted upon the appellants as it was difficult for the

prosecution to take help of this child for setting up such a case against

the appellants. Adverse inference can clearly be drawn against the

prosecution for non-examination of this child and benefit thereof has to

go to the appellants/accused persons. We are not convinced with the

reasoning given by the learned Additional Sessions Judge for not

examining the child. Though, the learned Addl. Sessions Judge was

conscious of the fact that a child was very important witness in this case

which observation is specifically made in the impugned judgment, at the

same time this lapse is toned down and side tracked by stating that

non-citing of the child was not fatal to the prosecution case as the

complainant had himself joined the investigation with the IO and no

adverse inference could be drawn against the prosecution in this regard.

This clearly amounts to trivializing the issue. The learned Addl.

Sessions Judge has failed to appreciate that non-examining of the child

would be fatal more particularly when attendant circumstances or

other evidence coming on record was not sufficient to establish the

culpability of the accused persons. On the proper analysis of the whole

evidence, it becomes abundantly clear that it is the said child who could

have thrown light on various aspects if such a kidnapping had taken

place at all.

(v) As pointed out above, PW-1 STD owner has not supported the

prosecution version. He is the only independent witness in the entire

case. Thus in the absence of any evidence, coming on record, it is not

established that ransom call was made at all. We may also observe at

this stage that in respect of so called ransom call, there are variations in

the version of different witnesses which we shall point out at relevant

stage hereafter. These factors also militate against the story of ransom.

(vi) Apart from the aforesaid aspects which put a serious dent on the

prosecution story, following are the material contradictions in the

testimony of some witnesses which would force us to conclude that

charge against the appellants is not proved beyond reasonable doubt.

These are:-

(a) As per PW-2, first call at STD booth was received on

29th June, 2006 at 4.00 p.m. After receiving this call, he

went to police Station Gokul Puri and reported the

matter to the police and got the FIR registered. After

the registration of the FIR, the police officer instructed

him to prepare a bundle of papers in the shape of

bundles of currency notes. On the other hand, as per

PW-3 Ct. Ali Shabbar, it is Sub Inspector Om Pal Singh

who prepared the bundles of fake currency notes.

Further Sub Inspector Om Pal Singh has stated in his

statement that he was not present at the time of

preparation of the bundles.

(b) There is also contradiction in the manner in which child

was allegedly recovered from Sitara's custody. One

witness (PW-) stated that it happened in the presence of

a lady police Constable Nisha where as other witness

has stated that no lady police was present. Further,

according to one version, when the house at Sangam

Vihar where the child was purportedly kept was

knocked, Sitara opened the door and came out and child

was inside. Other version is that somebody else opened

the door and child was in the lap of Sitara.

(c) Most glaring contradiction is the timings at which the

second police party met PW-2 and the first raiding

party at railway crossing, Mandoli. It has come in the

statement of PW-8 Constable Arvind Kumar that they

were instructed to proceed towards Mandoli Jungle at

8.00 p.m. and accordingly they started. Significantly,

PW-2 stated in his statement that he received the call at

9.00 p.m. on his mobile phone when the caller told him

to come to the jungle of Mandoli with ransom money. If

this call was received at 9.00 p.m. by PW-2 and only at

that time the place where the ransom was to be given

was disclosed, how the police officers could be told at

8.00 p.m. to go to Mandoli jungle.

(vii) Other curious aspect which needs to be mentioned is the manner in

which PW-2described the accused persons who came to receive the

ransom. In this behalf, he has deposed as under:-

"When I reached in Mandoli jungle one person met me and asked about the ransom money. I

told him that I had come with ransom money and handed over the black polythene bag to that person and in the meantime two other persons also reached there. Police officials apprehended all those three persons. The name of the person who came first to me and to whom I handed over the polythene bag was revealed as Nadeem, accused present in the court today and the name of other two persons were revealed as Mumtyaz and Kapil, accused persons present in the court today.'

The manner in which PW-2 narrated the incident gives an impression that he did not know the said three accused persons and it was revealed to him later that the person to whom he handed over the money was Nadeem and he was also told that other two persons were Mumtiaz and Kapil. Fact is that he knew Nadeem since his childhood and he also knew Kapil much long prior to the incident which he disclosed when specific questions were put to him in the cross examination. In fact he admitted that Nadeem had worked with him for about 20 days, whereafter he left the job and joined some other place.

The manner in which he handed over the ransom money to Nadeem also appears to be artificial. As per his version when "one person" (i.e. Nadeem) met him and asked him about money, he handed over the black polythene bag to that person. He did not even ask as to where his child was and whether he had brought his child with him or not or that he would give the money after the child is handed over to him or at least shown to him. He did not even ask as to where the child was kept. This shows, some what unnatural conduct on the part of a father who would hand over the ransom money without first ascertaining himself that his child was safe and would be handed over to them.

12. No doubt, minor discrepancies in the statement of witnesses are to be ignored.

It is also well settled legal position that doubts in the prosecution story are treated as

reasonable. It is to be ensured that they are free from a zest for abstract speculation,

or free from an over emotional response. Doubts must be actual and substantial

doubts as to the guilt of the accused persons arising from the evidence, or from the

lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an

imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and

common sense. It must grow out of the evidence in the case. When we apply these

tests to the facts of this case and take into consideration all the aforesaid aspects

cumulatively, a reasonable and plausible doubt is established putting a question mark

on the prosecution version. We may point out here that there are more

inconsistencies in the testimonies of various witnesses which are ignored by the

learned Addl. Sessions Judge as trivial and not very material. We have not been

influenced by those inconsistencies viz. who hired the maruti van; how many persons

sat in the maruti van; what route was followed by the police party to reach at

mandolin phatak as we agree with the learned Addl. Sessions Judge. However, the

inconsistencies discussed by us are quite material and could not have been wished-

away by labelling them as minor in nature. Some of these inconsistencies infact go to

the root of the matter and make the prosecution story questionable. Benefits of these

inconsistencies have to be given to the appellants. Irresistible conclusion which is

drawn from the aforesaid discussion is that the prosecution has not been able to

prove that child Furkan was kidnapped by the accused persons with common

intention to extract ransom money from the Furkan's father i.e Sagir Ahmed (PW-

2).

13. The learned Addl. Sessions Judge has disbelieved the testimony of different

defence witnesses produced by the accused persons who had deposed that they had

seen Furkan, boy in question, in the house of PW-2 and, therefore, he was not

abducted. Though, not very convincing reasons are given for adopting this course of

action, it is not necessary to deal with this aspect in view of our aforesaid discussion

holding that in the first instance the prosecution itself has not been able to prove

the guilt of the appellants beyond reasonable doubt.

14. The upshot of the aforesaid discussion would be to hold that the learned Addl.

Sessions Judge has arrived at a wrong finding of guilt against the appellants and,

therefore, conviction and sentence imposed upon the appellants is not sustainable.

We accordingly allow the present appeal by setting aside the judgment and sentence

awarded to the appellants.

15. The appellants shall be released forthwith, if they are not wanted in any other

case.

(A.K. SIKRI) JUDGE

(AJIT BHARIHOKE) JUDGE APRIL 30, 2010.

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