Punjab-Haryana High Court

Islamuddin vs State Of Haryana on 8 January, 2024

                                                          Neutral Citation No:=2024:PHHC:001812




                                                     2024:PHHC:001802
                                                     2024:PHHC:001805
                                                     2024:PHHC:001806
                                                     2024:PHHC:001808
                                                     2024:PHHC:001812
                                                     2024:PHHC:001813


          IN THE HIGH COURT OF PUNJAB AND HARYANA
                       AT CHANDIGARH
                                        ****

I.                                              CRA-S-588-2019 (O&M)

Surender s/o Surat Singh                                    .....Petitioner

                                         Vs.
State of Haryana                                            .....Respondent


II.                                             CRA-S-1089-2019 (O&M)

Saleem s/o Sahid                                           .....Petitioner

                                        Vs.
State of Haryana                                            .....Respondent


III.                                            CRA-S-997-2019 (O&M)

Khalid s/o Hanif                                            .....Petitioner

                                        Vs.
State of Haryana                                            .....Respondent


IV.                                             CRA-S-911-2019 (O&M)

Aabid s/o Musa                                              .....Petitioner

                                        Vs.
State of Haryana                                            .....Respondent


V.                                              CRA-S-523-2019 (O&M)

Islamuddin s/o Sadiq Ahmad                                  .....Petitioner

                                        Vs.
State of Haryana                                            .....Respondent




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                                                            Neutral Citation No:=2024:PHHC:001812




CRA-S-588-2019 (O&M)                                    2024:PHHC:001802
CRA-S-1089-2019 (O&M)                                   2024:PHHC:001805
CRA-S-997-2019 (O&M)                                    2024:PHHC:001806
CRA-S-911-2019 (O&M)                                    2024:PHHC:001808
CRA-S-523-2019 (O&M)                                    2024:PHHC:001812
CRA-S-1387-2019 (O&M)                                   2024:PHHC:001813




VI.                                             CRA-S-1387-2019 (O&M)

Khalid s/o Shahid Ahmad                                     .....Petitioner

                                        Vs.
State of Haryana                                            .....Respondent

                                    ****
                           Reserved On: 08.12.2023
                          Pronounced On: 08.01.2024

CORAM: - HON'BLE MR. JUSTICE DEEPAK GUPTA

Present:    Mr. Sarfraj Hussain, Advocate for the
            appellant in CRA-S-588-2019.

            Mr. Vinod Ghai, Sr. Advocate with
            Mr. Arnav Ghai & Mr. Saurav Dogra, Advocates
            for the appellant in CRA-S-523-2019.

            Mr. Balraj Gujjar, Advocate for the appellant(s) in
            CRA-S-911-2019, CRA-S-997-2019 & CRA-S-1387-2019.

            Mr. Gautam Dutt, Advocate with
            Mr. Vishal Sharda, Advocate for the
            appellant in CRA-S-1089-2019.

            Mr. Randhir Singh, Addl. AG, Haryana.

                                        ****

DEEPAK GUPTA, J.

All the six criminal appeals, as titled above, are directed against

the same judgment dated 08.02.2019 passed by the Court of learned Additional

Sessions Judge, Gurugram, whereby the six appellants have been convicted in a

case arising out of FIR No.469 dated 01.07.2016 registered at Police Station

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CRA-S-588-2019 (O&M) 2024:PHHC:001802 CRA-S-1089-2019 (O&M) 2024:PHHC:001805 CRA-S-997-2019 (O&M) 2024:PHHC:001806 CRA-S-911-2019 (O&M) 2024:PHHC:001808 CRA-S-523-2019 (O&M) 2024:PHHC:001812 CRA-S-1387-2019 (O&M) 2024:PHHC:001813

DLF Sector-29, Gurugram. Whereas the conviction of appellants (1) Khalid son

of Shahid Ahmad, (2) Aabid; and (3) Khalid son of Hanif has been recorded

under Sections 332, 353, 365 & 186 read with Section 34 of the IPC besides

Section 395 IPC; the other three appellants namely (4) Islamuddin, (5) Saleem

and (6) Surender have been convicted under Section 395 IPC. Vide separate

order dated 12.02.2019, they have been sentenced as under:

Convicts - Khalid son of Shahid Ahmad, Aabid; and Khalid son of Hanif Offence Imprisonment Fine In default of payment of fine 332/34 Rigorous Imprisonment ₹3,000/- each Simple imprisonment IPC for 3 years for three months.

353/34     Rigorous Imprisonment ₹2,000/- each            Simple imprisonment
IPC        for 2 years                                    for two months.
365/34     Rigorous Imprisonment ₹5,000/- each            Simple imprisonment
IPC        for 5 years                                    for five months.
186/34     Rigorous Imprisonment ₹1,000/- each            Simple imprisonment
IPC        for one month                                  for 15 days.
395 IPC Rigorous Imprisonment ₹25,000/- each              Simple imprisonment
        10 years each                                     for one year.

Convicts - namely Islamuddin, Saleem and Surender Offence Imprisonment Fine In default of payment of fine 395 IPC Rigorous ₹25,000/- each Simple imprisonment Imprisonment for 10 for one year.

years each The substantive sentences were directed to run concurrently.

2. Trial record has been called and the same has been perused. In

order to avoid any confusion, appellants shall be referred as accused as per their

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status before the trial court.

Prosecution case:

3. As per the prosecution case, on 01.07.2016, Shri Surender Singh

(PW-3) came to Police Station DLF, Sector 29, Gurgaon at about 12:00 noon

and got recorded his statement Ex.P4 to the police to the effect that he is posted

as Insp./SHO Police Station DLF Sector-29, Gurugram. On the previous date

i.e., 30.06.2016, he in his uniform was proceeding towards the office of DCP

East Traffic Tower at about 11:30-12:00 noon in his private car No.HR-19F-

0220 Swift VDI for official work. As he reached near the cut of Sushant Lok, A

& B Block while proceeding from service lane, he noticed four boys standing in

suspicious circumstances. He descended from the car and started checking

them. In order to make enquiries from them, he made two of the boys to sit on

the rear seat of his car. One of the boys tried to flee but another one stopped

him. Then the three boys were made to sit on the rear seat and the fourth boy

sat on the seat beside him. They were to be taken to the police station for

necessary enquiry. After occupying the driving seat, as he (Inspector Surender

Singh) tried to start the car, the boys sitting on the rear seat dragged him by his

neck and put him in between rear and front seat. When he protested, they

caused injuries on his eye and lips. After driving the car for about 02 hours, on

reaching the jungle area, they put him in the Diggy (boot) of the car. He was

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kept in the Diggy for 5-6 hours at an abandoned place near a brick kiln and then

they started from that place at about 08:00 p.m. At about 09:00 p.m. they took

him in the area of Kosi, 10-12 km ahead of Hodal and dropped him. They

forcefully took away his car besides two mobile phones, one make Samsung

having SIM No.99999-81822 and another make Nokia having SIM No.97118-

03872. On the way, the miscreants had also asked his password of ATM Card

and withdrew money from his ATM. One of the miscreants was aged about 18

years and the other three were of about 25 years of age. Somehow, he reached

the highway with the help of a motorcyclist and then came to home. It was

further told by Surender Singh that he could identify the miscreants, if they

were produced before him.

Evidence collected during investigation:

4.1 On the basis of above statement, FIR Ex.P1 was registered by P/SI

Shahid Ahmad (PW5), who put his endorsement Ex.P7 on the statement Ex.P4

in this regard. He took the complainant - Inspector Surinder to Civil Hospital,

Gurgaon, where he was medico-legally examined by Dr. Sarita (PW4), who

prepared MLR Ex.P5/1. PW5 then took the complainant to the spot of crime,

from where he was kidnapped and on his demarcation, prepared rough site plan

Ex.P8.


4.2         Investigation was then taken over by Inspector Raj Kumar (PW10),


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                                                           Neutral Citation No:=2024:PHHC:001812




CRA-S-588-2019 (O&M)                                   2024:PHHC:001802
CRA-S-1089-2019 (O&M)                                  2024:PHHC:001805
CRA-S-997-2019 (O&M)                                   2024:PHHC:001806
CRA-S-911-2019 (O&M)                                   2024:PHHC:001808
CRA-S-523-2019 (O&M)                                   2024:PHHC:001812
CRA-S-1387-2019 (O&M)                                  2024:PHHC:001813

In Charge, Crime, Sector 39, Gurgaon. On 29.07.2016, accused Khalid son of

Shahid Ahmad, Aabid and Hayyum @ Hallu @ Dana, all residents of Village

Chilli (Hathin) were arrested by Insp. Raj Kumar on the basis of secret

information. They were separately interrogated by Insp. Raj Kumar in presence

of ASI Ajit (PW8) & Ct. Abhilash (PW9).

4.3 It was disclosed by accused Aabid (vide Ex.P43) that about 25-30

days back, on the asking of Islamuddin son of Sadiq Ahmad resident of

Punhana, District Mewat, he (Aabid) along with his companions Surender,

Saleem, Khalid son of Hanif, Hayyum @ Hallu and Khalid son of Shahid had

come to Gurgaon to loot vehicles, in the Scorpio car which was arranged by

Surender. They did not find any vehicle for looting in the night time and so,

stayed in a guest house in Sector-56. Next day in the morning, they went

towards the Gurgaon city in search of vehicle to be looted. Surender assured

him (Aabid), Khalid son of Shahid Ahmad, Hayyum @ Hallu and Khalid son of

Hanif to give ₹10,000/- each for looting the vehicle. As they reached at Galleria

Market near Sushant Lok, they noticed a Verna car parked in the service road.

They planned to loot the said vehicle. Surender stopped the Scorpio a little

before the service road and sent him (Aabid), Khalid son of Hanif, Khalid son

of Shahid Ahmad and Hayyum to loot the vehicle. All four of them went

towards the Verna car; whereas, Surender and Saleem kept sitting in the

Scorpio. They were proceeding towards the Verna car, when suddenly a police

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inspector came in a Swift car and started making enquiries from them and made

them to sit in his vehicle for taking them to the police station for making

enquiries. Khalid son of Hanif resident of Ali Meo occupied the front seat;

whereas, he (Aabid), Hayyum and Khalid son of Shahid Ahmad sat the rear

seat. As the police official occupied the driving seat, Khalid resident of Ali Meo

signaled three of them to drag the police official. Then, he (Aabid), Khalid son

of Shahid & Hayyum dragged the police official from driver seat and put him

behind the car. When that police official tried to shout, they gave him fist

blows. Khalid resident of Ali Meo started driving the swift car. Said Khalid also

gave signal to Surender and Saleem, sitting in the Scorpio, to move ahead of

them. The Scorpio vehicle started moving ahead. They proceeded from

Faridabad Road towards Palli and then Swamika and on reaching in the jungles

of Village Swamika, they put the police official in the Diggy of the car and

snatched his purse. They asked password of his ATM. Then he (Aabid) along

with Khalid resident of Chilli went to Hathin and withdrew ₹16,000/- from

ATM. On coming back, he, Khalid resident of Ali meo, Khalid resident of

Chilli and Hayyum distributed ₹4,000/- each. Then, they took the swift vehicle

to village Nimka. The Scorpio vehicle was moving ahead of them. At Village

Nimka, they stopped the vehicles near an abandoned brick kiln, where on the

calling of Surender, Liyakat son of Subhan Khan, Fakru son of Ashu and

Islamuddin son of Sadiq Ahmad reached there. Aabid disclosed further that they

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told them (Liyakat, Fakru and Islamuddin) the incident of kidnapping the police

official. They kept the police official confined at that place for 3-4 hours and

then, Islamuddin suggested to snatch the vehicle of police official and drop him

in the fields near Kosi. Thereafter, Khalid resident of Chilli left the place,

whereas rest of them along with the Swift vehicle and Scorpio reached in the

fields of Village Hathana ahead of Hodal and dropped the police official at the

road near the fields. Accused Aabid told further that they had already taken

away two mobile phones after removing their SIMs from the police official.

Then they came to Village Nimka at the house of Fakru with the Swift vehicle,

where Islamuddin assured them to give ₹5,000/- each and then took away the

Swift car with him. Surender and Saleem left the place with Scorpio. The two

mobile phones of police official were kept by Khalid resident of Ali Meo. All of

them left for their respective places. Aabid disclosed further that out of

₹4,000/-, which had come to his share, he had already spent ₹1800/- and that he

could get recovered the remaining amount of ₹2200/-. He also stated that he

could identify the places, from where they had kidnapped the police official;

where they had put him in the Diggy of the car in Village Swamika; the place

from where money was withdrawn from ATM; the place in Village Nimka,

where the police official was kept confined; and also the place, where they had

dropped the police official at Village Hathana.


4.4         The aforesaid disclosure statement Ex.P43 suffered by accused


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                                                           Neutral Citation No:=2024:PHHC:001812




CRA-S-588-2019 (O&M)                                   2024:PHHC:001802
CRA-S-1089-2019 (O&M)                                  2024:PHHC:001805
CRA-S-997-2019 (O&M)                                   2024:PHHC:001806
CRA-S-911-2019 (O&M)                                   2024:PHHC:001808
CRA-S-523-2019 (O&M)                                   2024:PHHC:001812
CRA-S-1387-2019 (O&M)                                  2024:PHHC:001813

Aabid son of Musa recorded by Insp. Raj Kumar was witnessed by ASI Ajit

Singh and Constable Abhilash. On the similar lines, disclosure statements

Ex.P44 and P45 were suffered by accused Khalid son of Shahid Ahmad, and

Hayyum respectively. Khalid son of Shahid Ahmad stated that out of ₹4,000/-,

which had come to his share, he had spent ₹1,400/- and that he could get

recovered ₹2,600/- from his house and also could demarcate all the places of

crime. Accused Hayyum disclosed that he could get recovered ₹2,700/- from

his house as the remaining ₹1,300/- had already spent by him.

4.5 All these three accused i.e., Aabid, Khalid son of Shahid Ahmad

and Hayyum identified the various places of crime, regarding which separate

demarcation memos were prepared. As per their respective disclosure

statements, Khalid son of Shahid Ahmad got recovered ₹2,600; accused

Hayyum got recovered ₹2,700/- and Aabid got recovered ₹2,200/-, which were

taken into possession on 31.07.2016 vide separate recovery memos Ex.P29,

Ex.P28 & Ex.P30 respectively.

4.6 Further prosecution case is that accused Khalid son of Hanif was

arrested in this case on 01.08.2016 by ASI Ajit, as he was produced on the basis

of production warrant after taking permission from the Court. On interrogation

by ASI Ajit, said accused Khalid son of Hanif suffered disclosure statement

Ex.P14 on the similar lines, as earlier made by co-accused Khalid son of Shahid

Ahmad, Aabid and Hayyum; and disclosed further that the two mobile phones

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of the police official, had come to his share, apart from ₹1,500/-, which had

been conceded by him at his house in Village Hathana and that he could get

them recovered. He also stated that he could demarcate all the places of crime.

Said disclosure statement Ex.P-14 prepared by ASI Ajit was witnessed by

Constable Saleem (PW7) and Constable Abhilash (PW9).

4.7 On 02.08.2016, abovesaid accused Khalid son of Hanif suffered

supplementary disclosure statement Ex.P44/1, stating that in fact, one of the

mobile phones make Nokia had been thrown by him on the way, as it was in

damaged condition and that he had concealed another mobile make Samsung

besides ₹1,500/. Pursuant to said disclosure statement, accused Khalid son of

Hanif got recovered a Samsung mobile belonging to the complainant besides

₹1,500/-, which were taken into possession vide recovery memo Ex.P16. IMEI

numbers as mentioned on the recovered mobile phone were also noted in the

recovery memo. Accused also identified the places of crime, regarding which

separate demarcation memos were prepared.

4.8 As per further prosecution case, accused Islamuddin was joined in

the investigation after getting his production warrants issued. He was arrested

in this case on 04.10.2016. On interrogation by ASI Ajit Singh in the presence

of Constable Saleem & Constable Sumer, said accused Islamuddin suffered

disclosure statement Ex.P14/A on the same lines, as suffered by the earlier

arrested accused in this case. He also disclosed that he had taken away the

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Swift car of the police official, which he had concealed at his house in Alinagar

in District Gorakhpur (U.P.) and that he could get the same recovered. He also

stated that he could demarcate the place, where the police official was kept

confined in Village Nimka at a brick kiln and the place, where he was dropped

in the fields near Village Hathana.

4.9 On 07.10.2016, abovesaid accused Islamuddin suffered

supplementary disclosure statement Ex.P14/1, as per which he had not

concealed the looted car at his house and rather, he had kept the same in a

vacant plot near a closed theatre in Ali Nagar and that he could get the same

recovered. Pursuant to this disclosure statement, accused Islamuddin got

recovered the looted car of the complainant from the disclosed place, which

was taken into possession vide recovery memo Ex.P15.

4.10 After completion of investigation, challan against 05 accused i.e.,

Khalid son of Shahid Ahmad, Aabid, Hayyum, Islamuddin and Khalid son of

Hanif was presented in the Court. Charges against them were framed on

02.02.2017.

4.11 However, in the meantime, two other accused namely Saleem and

Surender, who were lodged in Tihar Jail in another case, were joined in the

investigation after obtaining their production warrants and were formally

arrested in this case on 16.02.2017. On interrogation by ASI Ajit Singh in the

presence of Constable Saleem & EASI Umar Mohammad (PW6), two of them

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suffered disclosure statement Ex.P9 (by accused Salim) & Ex.P10 (by accused

Surinder) on the similar lines, as suffered by the earlier arrested accused in this

case. They demarcated places of crime, from where the complainant was

abducted, confined and dropped.

4.12 After completion of investigation, the supplementary challan qua

both of them i.e., Surender and Saleem was presented in the Court. Accused

Liyakat son of Subhan Khan; and Fakru son of Ashu are yet to be arrested.

Charges:

5. The case was committed to the Court of Sessions after making

compliance of Section 207 Cr.P.C. All the seven accused were charge sheeted

on 03.08.2017 under Sections 332/34, 353/34, 365/34, 394/34, 186/34 &

Section 395/34 IPC, to which all of them pleaded not guilty and claimed trial.

Accused Hayyum declared PO:

6. During proceedings, accused Hayyum, who had been released on

bail on 05.04.2018 absented from trial and so, his bail was cancelled on

04.07.2018. He was ultimately declared proclaimed offender on 08.10.2018,

when his presence could not be procured despite issuance of warrant of arrest

and proclamation against him.





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                                                             Neutral Citation No:=2024:PHHC:001812




CRA-S-588-2019 (O&M)                                     2024:PHHC:001802
CRA-S-1089-2019 (O&M)                                    2024:PHHC:001805
CRA-S-997-2019 (O&M)                                     2024:PHHC:001806
CRA-S-911-2019 (O&M)                                     2024:PHHC:001808
CRA-S-523-2019 (O&M)                                     2024:PHHC:001812
CRA-S-1387-2019 (O&M)                                    2024:PHHC:001813


Evidence produced by prosecution:

7. In order to prove its case, prosecution examined following 10

witnesses.

S. No. Name of Witness

1. Ct. Arvind PW-1

2. ASI Girish PW-2

3. Insp. Surender Singh (complainant) PW-3

4. Dr. Sarita PW-4

5. P/SI Shahid Ahmad (initial IO) PW-5

6. EASI Umar Mohd. PW-6

7. Ct. Mohd. Salim PW-7

8. ASI Ajit Singh (Part IO) PW-8

9. HC Abhilash PW-9

10. SI Raj Kumar (Part IO) PW-10

8.1 PW-3 Insp. Surender, the complainant of the case deposed about

the occurrence and proved his statement Ex.P4 made to the police on

01.07.2016. He also identified the accused present in the Court. Detailed

version of his testimony shall be discussed in later part of this judgment, as his

statement is most material in this case.

8.2 PW-5 P/SI Shahid Ahmad proved recording the statement Ex.P4 of

complainant- Insp. Surender Singh and deposed that on basis of that statement,

he registered FIR Ex.P1 and put his endorsement Ex.P7. He also deposed that

he took Insp. Surender Singh to Civil Hospital, Gurugram and got conducted

his medico-legal examination. He also proved rough site plan Ex.P8.


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CRA-S-588-2019 (O&M)                                    2024:PHHC:001802
CRA-S-1089-2019 (O&M)                                   2024:PHHC:001805
CRA-S-997-2019 (O&M)                                    2024:PHHC:001806
CRA-S-911-2019 (O&M)                                    2024:PHHC:001808
CRA-S-523-2019 (O&M)                                    2024:PHHC:001812
CRA-S-1387-2019 (O&M)                                   2024:PHHC:001813


8.3          PW-1 Ct. Arvind had taken the special report Ex.P1 to the Area

Magistrate and other senior police officials.

8.4 PW-4 Dr. Sarita had conducted the medico-legal examination of

complainant Insp. Surender Singh on 01.07.2016. She found two injuries on his

person, one in the eye and other on the lips and proved medico legal report

Ex.P5/1.

8.5 PW-2 ASI Girish Kumar is draftsman, who proved site plan Ex.P2

prepared on the demarcation of Insp. Surender.

8.6 PW-10 Insp. Raj Kumar proved the arrest of accused Khalid son of

Shahid Ahmad, Aabid and Hayyum on 29.07.2016. He further proved

disclosure statements suffered by these accused besides demarcation memos

and recovery memos apart from the rough site plans. He also identified the

accused except accused Hayyum, who had since been declared proclaimed

offender.

8.7 PW-9 Head Constable Abhilash and PW-8 ASI Ajit corroborated

his testimony regarding the arrest of the above accused, disclosure statements

and recovery memos etc.

8.8 PW-8 ASI Ajit, apart from corroborating the version of PW-10 SI

Raj Kumar, further proved joining of the investigation by accused Khalid son of

Hanif on 01.08.2016, who was arrested by him on the same day. He also proved

the disclosure statement and the recovery memos prepared at the behest of said

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accused Khalid. He further proved arrest of accused Islamuddin on 04.10.2016;

and that of accused Saleem and Surender on 16.10.2017 and proved the

disclosure statements and recovery memos pertaining to them.

8.9 PW-6 E/ASI Umar Mohd. and PW-7 Ct. Saleem corroborated the

version of PW-8 ASI Ajit Singh.

Statement of accused under Section 313 Cr.PC.:

9. After conclusion of the investigation by the prosecution, all the

incriminating circumstances appearing in the evidence were confronted to the

06 accused namely Khalid son of Shahid Ahmad, Aabid, Saleem, Khalid son of

Hanif, Islamuddin and Surender. They controverted the same and pleaded

innocence. They closed the defence evidence.

10. After hearing both the sides, all the six accused as named above

were convicted and sentenced by Ld. Trial court, as per the details given earlier

vide judgment/orders dated 08.02.2019/12.02.2019, against which the six

appeals have arisen.

11. At the outset, it may also be mentioned here that one of the

accused Hayyum, who had been earlier declared proclaimed offender on

08.10.2018, was later on produced in the Court on 25.03.2021 and after holding

separate trial qua him, said Hayyum was acquitted vide judgment dated

20.02.2023, as informed during arguments.




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CRA-S-588-2019 (O&M)                                   2024:PHHC:001802
CRA-S-1089-2019 (O&M)                                  2024:PHHC:001805
CRA-S-997-2019 (O&M)                                   2024:PHHC:001806
CRA-S-911-2019 (O&M)                                   2024:PHHC:001808
CRA-S-523-2019 (O&M)                                   2024:PHHC:001812
CRA-S-1387-2019 (O&M)                                  2024:PHHC:001813

12. The conviction of the six accused has led to filing of 06 separate

appeals as per following details:

CRA-S-588-2019        Surender
CRA-S-523-2019        Islamuddin
CRA-S-911-2019        Aabid
CRA-S-1089-2019 Saleem
CRA-S-997-2019        Khalid son of Hanif
CRA-S-1387-2019 Khalid son of Shahid Ahmad

Contentions raised for the Appellants - accused :

13.1 It is contended on behalf of the appellants by learned counsels that

entire story as projected by the prosecution is highly doubtful and that

prosecution utterly failed to prove connection of any of the accused with the

crime and that the conviction has been recorded by the Trial Court based upon

conjectures, surmises and inadmissible evidence.

13.2 It is contended that though as per the prosecution version, the

senior police official of the rank of Inspector, who himself was posted as SHO

in Police Station Sector-29, DLF, Gurugram, was allegedly abducted in broad

daylight at about 11:30-12:00 noon on 30.06.2016 but still the FIR has been

lodged on the next day i.e., 01.07.2016 at about 12:30 p.m. i.e., after more than

24 hours delay. Attention is drawn towards the statements of PW-8 ASI Ajit as

well as PW-10 SI Raj Kumar that they had come to know about the abduction

on the same day i.e., 30.06.2016 at about 11:00-12:00 in the noon. PW-10 has

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gone to the extent that abduction of the SHO was being flashed in the media

channel You Tube. Still not even a DDR was recorded regarding the alleged

crime.

13.3 Learned counsels further contended that no evidence is adduced

that any entry regarding his movement on 30.6.2016 from Police Station

Sector-29, Gurugram was made by complainant- Insp. Surender Singh in the

DDR register nor there is any evidence that any of the senior police officers

took any action on 30.06.2016, when the complainant did not reach to attend

the meeting and when the alleged abduction of SHO came to their notice. It is

also pointed out that though complainant was freed at about 09:00 p.m. on

30.06.2016 as per his statement but he did not make any effort to contact

anybody including his senior officers on that day and rather, reported the matter

for the first time by appearing in his own police station at about 12:00 in the

noon of 01.07.2016.

13.4 Still further, it is argued that though as per the FIR version, it is

four persons, who had abducted the complainant- Insp. Surender but

prosecution has built up its case against as many as 09 accused, out of whom 07

were sent for trial and 02 have not been arrested till date and that in his

testimony, complainant has not disclosed, as to which of the four accused had

abducted him.


13.5        Further attention is drawn towards the fact that first arrest was


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CRA-S-588-2019 (O&M)                                   2024:PHHC:001802
CRA-S-1089-2019 (O&M)                                  2024:PHHC:001805
CRA-S-997-2019 (O&M)                                   2024:PHHC:001806
CRA-S-911-2019 (O&M)                                   2024:PHHC:001808
CRA-S-523-2019 (O&M)                                   2024:PHHC:001812
CRA-S-1387-2019 (O&M)                                  2024:PHHC:001813

made by the police on 29.07.2016 of accused Khalid son of Shahid, Aabid and

Hayyum but no effort was made to hold any Test Identification Parade or to get

them identified from the complainant, as to whether these accused had

participated in the crime, inasmuch as these accused were arrested simply on

the basis of secret information. Not only this, even after the other accused were

arrested from time to time, no Test Identification Parade was held at any stage

and therefore, identification of the accused for the first time in the Court by

PW-3- complainant Surender Singh is of no avail, particularly when he has not

specified, as to which of the four accused out of the accused facing trial, had

abducted him.

13.6 Learned counsels further contend that entire prosecution case is

based on the disclosure statements suffered by the accused and the recoveries

based thereon. In this regard, attention is drawn towards the fact that all the

witnesses examined by the prosecution are police officials, except PW-4 Dr.

Sarita, who is the medical officer. No independent witness was joined at any

stage of investigation, either at the time of interrogating the accused or

recording their disclosure statements or at the time of effecting recovery or at

the time of preparing demarcation memos allegedly at the instance of the

accused.

13.7 Still further, it is argued that recovery of some currency notes only

is shown to have been effected from accused Khalid son of Shahid Ahmad,

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Hayyum and Aabid, without connecting the recovered currency notes with the

notes allegedly withdrawn by the accused from the ATM from the account of

the complainant. Here also, attention is drawn towards the fact that though as

per the complainant, accused had withdrawn money by using his ATM card

after asking his password and as per the investigation based on the disclosure

statement, ₹16,000/- was withdrawn from ATM of HDFC Bank Hathin, still no

effort was made to collect the bank statement pertaining to the account of the

complainant or as to when the money was withdrawn and whether the money at

all was withdrawn or not. It is further argued that in case money had been

withdrawn from ATM of a bank, the face of the person withdrawing the money

must have been captured by the CCTV installed in the ATM of the bank but

there is no effort on the part of the investigating agency to collect the CCTV

footage. It is argued that in these circumstances, the recovery of money from

the three accused is clearly plantation.

13.8 Learned counsels further contend that though two mobile phones

of complainant are alleged to have been taken away by the abductors, out of

which recovery of one of the mobile is shown from accused Khalid son of

Hanif but there is no corroborative evidence as to whether the mobile phone of

make Samsung allegedly recovered from accused Khalid son of Hanif is the

same mobile, which was taken away from the complainant, as no call detail

records have been collected to show that the mobile of the complainant and the

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recovered mobile had the same International Mobile Equipment Identity i.e.

IMEI number.

13.9 Learned counsel representing accused Saleem and Surender also

made specific mention of the fact that no recovery whatsoever has been

effected from these two accused and that case against them is built up by the

prosecution only on the basis of their alleged disclosure statements or the

disclosure statement of co-accused, all of which were recorded during police

custody.

13.10 Regarding the role of accused Islamuddin, learned senior advocate

representing the said accused points out towards the statement of PW-8 ASI

Ajit, who admitted that as per his investigation, said accused did not participate

in the abduction of the complainant. Recovery of the Swift car of the

complainant is shown from the said accused. In this regard, learned senior

counsel has drawn attention towards the testimony of recovery witnesses to the

effect that car was recovered from an open place in the parking of a theatre,

which was accessible to all and therefore, it cannot be stated that recovery place

was to the exclusive knowledge to the accused. Further attention is drawn

towards the fact that though the recovery of car from this accused has been

projected from Alipur (U.P.), which as per PW-8 ASI Ajit Singh is at a distance

of 800 Kms from Gurugram but still no official from the local police station

was joined in the recovery nor was informed about the recovery nor any

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photograph of the place of recovery was taken nor any person from the locality

was joined at the time of effecting recovery nor any receipt of any toll plaza

falling on way from Alipur to Gurugram is produced and therefore, recovery is

a complete plantation.

13.11 With all the above submissions, learned counsels appearing for all

the six appellants, have prayed for their acquittal by allowing these appeals.

Contentions by State:

14. Learned State counsel, opposing all the appeals, has defended the

impugned judgment of conviction. Learned State counsel points out that at no

stage, occurrence has been denied by any of the accused- appellants. The

statement of PW-3 complainant- Inspector Surender Singh finds corroboration

from the medical evidence, inasmuch as two injuries were found on his person,

one on the eye and other on the lips, as was stated by him. Still further, it is

argued that there was no reason for the complainant- Insp. Surender Singh to

falsely implicate any of the accused, in the absence of any animosity. It is

further argued that if any omissions or lapses had been left by the investigating

agency, that cannot be a reason to disbelieve the statement of the complainant.

Learned State counsel argues that learned Trial Court has considered all the

points in detail and has rightly recorded the conviction. Attention is also drawn

towards the fact that all the accused have criminal antecedents. With these

submissions, prayer is made for dismissal of all the appeals.



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CRA-S-588-2019 (O&M)                                    2024:PHHC:001802
CRA-S-1089-2019 (O&M)                                   2024:PHHC:001805
CRA-S-997-2019 (O&M)                                    2024:PHHC:001806
CRA-S-911-2019 (O&M)                                    2024:PHHC:001808
CRA-S-523-2019 (O&M)                                    2024:PHHC:001812
CRA-S-1387-2019 (O&M)                                   2024:PHHC:001813

15. I have considered submissions of both the sides in depth and have

appraised the entire record.

Analysis by this court & Finding:

16. In his initial statement Ex.P4 made to the police on 01.07.2016, on

which FIR Ex.P2 is based; as well as in his testimony as PW-3 during trial,

complainant- Insp. Surender Singh has disclosed about the participation of four

miscreants only, who abducted him in his own car, caused injuries to him, kept

him in their confinement, withdrew money through his ATM card, took away

his two mobile phones and then released him at about 09:00 p.m. At no stage,

PW-3 Insp. Surender Singh disclosed about the participation of more than 04

persons in the crime. However, prosecution has built up its case against as

many as 09 accused, out of which 07 were sent for trial, whereas 02 namely

Fakru son of Ashu, and Liyakat son of Subhan Khan both residents of Nimka

(Nuh) are yet to be arrested. Since complainant stated about the role of 04

miscreants only, so it becomes very important to know as to whether those 04

miscreants are included within the 09 accused against whom the prosecution

has built up its case and if so, which are those four miscreants.

17. Basing its investigation largely upon the disclosure statements of

the 07 arrested accused, prosecution has projected that it is accused Aabid,

Hayyum, Khalid son of Shahid Ahmad, and Khalid son of Hanif, who had

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abducted the complainant, gave injuries to him, took him to the jungles, put him

in the Diggy of the car and kept him in their confinement. It is further projected

by the prosecution that accused Saleem and Surender were leading the Swift car

in which the abduction had taken place by moving their Scorpio vehicle ahead

of the Swift car. It is further projected that it is on the direction of accused

Islamuddin that all these six accused had come to Gurugram to commit the

looting incident, though accused Islamuddin himself did not come to Gurugram

to participate in the crime. It is further projected that when the above-named six

accused (two in the Scorpio vehicle and four in the Swift car along with the

complainant) reached at an abandoned brick kiln in Village Nimka, then on the

calling of accused Surender, accused Liyakat son of Subhan Khan, Fakru son of

Ashu and Islamuddin had reached there, to whom the entire story of abduction

of police official was told and then, Islamuddin had taken away the Swift car

belonging to the complainant.

18. It is in light of aforesaid projection of prosecution case that is

required to be seen as to whether prosecution has been able to establish the case

against all or any of the accused and if so to what extent.

19. Although there are certain material lapses/omissions in collecting

the evidence regarding reporting to the police about the abduction of PW-3

Insp. Surender as pointed out by counsels for the appellants but still the

statement of the said PW-3, as far as occurrence is concerned, cannot be

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disbelieved. The material issue to be considered is about the connection of the

accused with incident. In other words, whether the prosecution has been able to

link all or any of the accused with the crime.

20. As per statement of PW-3 Insp. Surender, he was going to the

office of DSP East at about 12:00 noon on 30.06.2016 in his private car bearing

No.HR-19F-0220 (Swift VDI), when on the service lane towards Galleria

market, he noticed four suspected youths. As admitted by PW-3, he is unable to

tell as to whether any entry in the Daily Diary register was made regarding his

departure from the police station on 30.06.2016. PW-5 P/SI Shahid Ahmad,

who took up the initial investigation by recording the statement Ex.P4 of the

complainant, lodging of the FIR Ex.P1, taking the complainant to the hospital

for his medico-legal examination and also prepared rough site plan Ex.P8 of the

place from where abduction took place, admitted in his cross-examination that

if any police official makes movement from the police station, an entry is

recorded in the DDR. PW-10 Insp. Raj Kumar, who carried forward the

investigation after PW-5, admitted that he did not collect any DDR of the Police

Station Sector-29 regarding movement of SHO Surender Singh.

21. Apart from the absence of any DDR coming on record regarding

the movement of Insp. Surender Singh from Sector-29 police station on

30.06.2016, there are contradictions as to when the said abduction came to the

notice of the police. PW-5 P/SI Shahid Ahmad says that he came to know about

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the abduction of complainant only on 01.07.2018, when complainant came to

the police station at about 12:00 noon and got recorded his statement. Quite

contrary to this, PW-8 ASI Ajit, the later Investigating Officer says that they

had come to know about the abduction of SHO on 30.06.2016 itself at about

11:00-12:00 noon, as the VT messages were being flashed on the police

wireless set and whole police of District Gurugram was searching for the SHO.

PW-10 SI Raj Kumar also says that he had come to know about the abduction

on the same day. He has gone to the extent that the news of abduction of the

SHO was being even flashed on You Tube. Despite all this, not even any Daily

Diary entry was made in the relevant register regarding the abduction of Insp.

Surender Singh on 30.06.2016 and thus, the first version on the police record

came only on 01.07.2016, when complainant got recorded his statement Ex.P4

at about 12:00 noon on that day.

22. As per PW-3, he was released at about 09:00 p.m. at a lonely place,

10-12 Kms ahead of the Hodal city towards Kosi Kalan area and that by taking

a lift from a motorcycle, he reached National Highway, Mathura Road and then

with the help of private vehicles, came to Gurgaon in the late night. Though,

considering the trauma which he had faced on 30.06.2016, the statement of

PW-3 may be accepted by this Court with a pinch of salt but considering the

fact that complainant himself is a senior police official of the Inspector rank and

at the time of his release, he was in police uniform & having only two simple

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injuries, one on the eye and other on the lips, there is no evidence that he made

any attempt whatsoever to contact his family members or any police officials of

the police station or any senior police officer after his release by the miscreants,

when he reached the National Highway with the help of a motorcyclist. Though

his two mobiles had been taken away by the miscreants as stated by him, but he

could have made efforts to take the help of either the motorcyclist or by going

to a petrol pump on the highway or of the person on whose private vehicle he

reached Gurgaon, to contact any of the family member or police officer.

23. Despite the aforesaid lapses, let the statement of PW-3 Insp.

Surender Singh be taken at its face value, as far as the incident of his abduction

is concerned, by ignoring the factors that no DDR regarding his movement was

made in the register, nor any DDR was recorded regarding his abduction

despite the said fact having coming to the notice of police on 30.06.2016 itself

and that he did not inform anybody after being released.

24. Proceeding further, crime took place on 30.06.2016. FIR was

lodged on 01.07.2016. The first arrest was made by the investigating agency on

29.07.2016, when three accused namely Khalid son of Shahid Ahmad, Aabid

and Hayyum were arrested by Insp. Raj Kumar PW-10 on the basis of secret

information. As has come in the cross-examination of PW-10, he did not know

any of these accused nor they were figured in the investigation till 29.07.2016.

He also says that these accused were apprehended at about 04:00 p.m. At the

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same time, he further says that these accused were arrested on the basis of

footage installed at ATM machine, Hathin.

25. The abovesaid statement of PW-10 Insp. Raj Kumar implies that

when these three accused were arrested by him, he had seen them in the footage

at ATM machine, Hathin. By that time, neither the disclosure statements of any

of these three accused had been recorded, nor they had disclosed anything

regarding withdrawal of any amount from any ATM machine at Hathin. In these

circumstances, it is not explained by the prosecution, as to how on the basis of

appearance in the CCTV footage at ATM machine, the three accused were

connected with the crime, prior to recording their disclosure statement.

26. The abovesaid statement of PW-10 Insp. Raj Kumar has another

implication. The disclosure statements by accused Khalid son of Shahid

Ahmad, Aabid and Hayyum (Ex.P43, Ex.P44 & Ex.P45) were suffered on

29.07.2016, in which it was disclosed by them that after reaching the Village

Swamika, they had put the police official in the Diggy of the car, snatched his

purse, asked the password of ATM card and then Khalid son of Shahid Ahmad

& Aabid went to ATM at Hathin and withdrew ₹16,000/-. Meaning thereby, it is

for the first time that police come to know on account of these disclosure

statements that money of ₹16,000/- was withdrawn by using the ATM card of

complainant at Hathin. However, it is on 31.07.2016 that accused Aabid and

Hayyum identified the ATM, from where they had withdrawn the money as is

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evident from demarcation memo Ex.P26 and the site plan of that place as

Ex.P36. So, it remains a mystery as to how PW10 came to know about ATM

footage on 29.7.2016, on the basis of which he arrested the three accused.

27. Still further, once the investigating agency came to know that ATM

card of the complainant was used so as to withdraw the amount of ₹16,000/- by

two of the accused, whether any effort was made to corroborate this version of

the accused. The answer to this question is a big NO. Firstly, there is no

evidence at all that any official from HDFC Bank, Hathin was associated in the

investigation. There is no effort to collect the bank statement of the complainant

Insp. Surender Singh as to whether ₹16,000/- or any other amount had been

withdrawn from his bank account through ATM on 30.06.2016 and if so, at

what point of time. There is no evidence to show any effort on the part of the

investigating agency to collect the CCTV footage of the ATM, which must have

captured the faces of the persons, who had withdrawn the money by using the

ATM card of the complainant.

28. In fact, except for the disclosure statement made by the accused,

there is absolutely no corroboration that any amount was even withdrawn from

the bank account of the complainant through any ATM card. This is a big lapse

and omission on the part of the investigating agency, which is fatal to the

prosecution. In the absence of any material, corroborating the facts disclosed in

disclosure statements of the accused, that portion of disclosure statements

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becomes inadmissible. Simply because a new fact has been disclosed by the

accused in his disclosure statement is not sufficient to make that disclosure

admissible unless that discovery of fact is corroborated by some evidence. In

this case, the fact disclosed by the accused that they had withdrawn ₹16,000/-

from the ATM of HDFC Bank at Hathin is not at all corroborated. In the

aforesaid circumstances, the statement of PW-10 Insp. Raj Kumar to the effect

that accused Aabid, Hayyum and Khalid son of Shahid Ahmad were arrested on

the basis of footage of the CCTV of ATM, is absolutely not reliable.

29. Further, as noticed above that initial arrest was of three accused

Khalid son of Shahid Ahmad, Aabid and Hayyum on 29.07.2016 i.e., almost

after one month of the incident. None of the accused had been named in the

FIR. There was no certain description of the miscreants in the FIR. These

accused in their disclosure statements had told about the role of nine accused

including themselves. In these circumstances, it had become very essential for

the investigating agency to get the three accused as arrested on 29.07.2016,

identified from the complainant as to whether they were amongst abductors or

not. There is no evidence at all that any Test Identification Parade was ever

conducted; or any effort was made to get the three accused as initially arrested,

identified from the complainant.

30. Although this Court is conscious of the fact that holding of a Test

Identification Parade during investigation is not a sine qua none to connect an

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accused with a crime to establish identity but it depends upon facts and

circumstances of each case as to whether the step of conducting TIP was

necessary or not. In the present case, as the complainant specified the role of

only four miscreants in his abduction, confinement, taking away the purse and

mobiles etc, so it was very essential to establish the identity of those four

miscreants.

31. In his entire testimony, PW-3 complainant Surender Singh has not

disclosed the role of more than four miscreants in the crime. At the time, when

statement of PW-3 Insp. Surender was being recorded in the Court, six accused

were facing trial out of seven challaned by the police, inasmuch as accused

Hayyum had been declared proclaimed offender. PW-3 in very generic terms

stated in his testimony that all the accused are present in the Court, without

specifying as to which of the accused had abducted him, as he had disclosed the

role of only four miscreants in the crime as mentioned above.

32. Considering the above circumstances, the observation of learned

Trial Court to the effect that TIP was not necessary and that identification of the

accused for the first time in the Court is admissible, cannot be accepted.

33. Moving further, based on the disclosure statement of accused

Khalid son of Shahid Ahmad, Hayyum and Aabid, recovery of money only has

been effected from these accused vide separate recovery memos prepared on

31.07.2016. ₹2,600/- were recovered from accused Khalid son of Shahid

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Ahmad vide recovery memo Ex.P29. ₹2,700/- were recovered from accused

Hayyum vide recovery memo Ex.P28 and ₹2,200/- were recovered from

accused Aabid vide recovery memo Ex.P30. These recovery memos have been

proved by the statements of PW-10 Insp. Raj Kumar. Statements find probation

from PW-9 HC Abhilash, the recovery witness. However, there is no

connecting evidence, as to whether the currency notes as recovered from the

possession of accused Khalid son of Shahid, Hayyum and Aabid is part of the

money, which was allegedly withdrawn from the bank account of the

complainant by using his ATM card. So much so, even the withdrawal of

money from the bank account of the complainant is not proved as has already

been discussed.

34. In all the aforesaid circumstances, it is held that conviction of the

accused Khalid son of Shahid Ahmad, Hayyum and Aabid based on the

recovery of currency notes or on the basis of identification by PW-3, cannot be

sustained.

35. Coming to the role of accused- appellant Khalid son of Hanif, he

was arrested on 01.08.2016 by ASI Ajit PW-7 and on interrogation, he suffered

disclosure statement Ex.P-14 on the same lines as the earlier three arrested

accused and that he had taken away the two mobiles, one of make Samsung and

other of make Nokia belonging to the complainant Insp. Surender which he had

concealed at his house. On 02.08.2016, he suffered a supplementary disclosure

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statement Ex.P-44 to the effect that in fact, one of the mobiles being in

damaged condition had been thrown by him on the way and that he had

concealed only one mobile. Pursuant to that disclosure statement, recovery of a

mobile phone make Samsung, apart from an amount of ₹1,500/- was effected at

his behest on 02.08.2016 and the same were taken into possession vide

recovery memo Ex.P-16.

36. The evidence against accused Khalid son of Hanif is different from

the earlier three accused i.e., Aabid, Hayyum and Khalid son of Shahid Ahmad

only to the extent that from those three accused, recoveries of currency notes

only was effected; whereas, from the said accused Khalid son of Hanif, apart

from currency notes of 41,500/-, a mobile phone make Samsung of

complainant Surender is also alleged to have been effected. His identification

for the first time in the Court made by PW-3 Insp. Surender is highly doubtful

for the same reasons, as have been discussed above qua the three accused

Khalid son of Shahid Ahmad, Hayyum and Aabid. Similarly, the recovery of

₹1,500/- from him cannot be stated to be connected with the crime for all the

reasons as discussed earlier.

37. Coming to the recovery of mobile of make Samsung, the recovery

memo Ex.P16 would reveal that it contains specific IMEI

No.353508076831325101 and 383509076831323/01, which were mentioned on

the recovered mobile. In order to connect the accused with the crime on the

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basis of this recovery of the mobile, it is essential for the prosecution to prove

that recovered mobile is the same, which was taken away from the

complainant; or in other words that the recovered mobile belongs to the

complainant. However, prosecution has utterly failed to prove the said fact.

38. It is important to notice that in his statement Ex.P4, which is the

basis of FIR Ex.P1, it is specifically disclosed by the complainant that the

mobile phones which were taken away by the miscreants were Nokia having

sim No.9711803872; and Samsung having sim No.9999981822. Neither in the

FIR nor in his testimony before the Court, complainant gave unique

identification numbers i.e., IMEI number of the two mobiles, which were taken

away from him. There is nothing on the record to show that any effort was

made during investigation to collect any bill, receipt or any other document to

show that the mobile of make Samsung as recovered from the accused Khalid

son of Hanif with specific IMEI Number belonged to the complainant.

39. There can be thousands and thousands of mobiles of make

Samsung but every mobile has its distinct unique IMEI Number. Simply

because one of the mobiles taken away from the complainant was of make

Samsung and that a mobile of make Samsung has been recovered from the

accused Khalid son of Hanif, it cannot be stated that recovered mobile is the

same, which had been taken away from the complainant.

40. Let it be assumed that IMEI number of the mobile of the

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complainant was not available for any reason whatsoever, the investigating

agency at least could have made an effort to collect the call detail records of the

two SIM numbers, which were inserted in the two mobiles of the complainant,

which had been taken away by the miscreants. Had the call detail records been

collected by the investigating agency, it could have established the link, as to

whether the Samsung mobile of a particular IMEI number as mentioned in the

recovery memo Ex.P16 was ever used for same numbers 9711803872 or

9999981822 belonging to the complainant. In the absence of any call detail

records, it cannot be stated that the two sim numbers as disclosed by the

complainant in the statement Ex.P4 /FIR Ex.P1, were ever used at any point of

time in the mobile, as recovered from accused Khalid son of Hanif and so, it

cannot be stated that recovered mobile belonged to the complainant.

41. Apart from the fact that collection of the call detail records could

have produced the link of the recovered mobile with the mobile taken away by

the miscreants, the said CDR could have also shown the location of the

complainant on the fateful day of 30.06.2016, as to at what point of time and at

what particular place, he was kidnapped and at what places and at what times,

he was taken by the miscreants. Thus, a vital piece of evidence, which could

have gone a long way to establish the guilt of the accused, has not been

collected by the investigating agency.

42. In the aforesaid circumstances, it is held that prosecution has not

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been able to establish its charges against accused Khalid son of Hanif, who

deserves to be given strong benefit of doubt. As such, its conviction as recorded

by the Trial Court cannot be sustained.

43. Coming to the role of accused Surender and Saleem, they are on

the same footing. As per the case projected by the prosecution, they were

moving in a Scorpio vehicle, ahead of the Swift car of the complainant, in

which the complainant had been kidnapped by the four accused. As per

prosecution, these two accused remained present till the place, where the

complainant was released at about 09:00 p.m. However, in his entire testimony,

PW-3 Insp. Surender has not stated that there were more than four miscreants in

the crime, as has already been noticed. There is nothing in the testimony of PW-

3, who is not a simple layman and rather, a senior police official that he noticed

any Scorpio vehicle moving ahead of the Swift car, at any point of time.

Although he was put in the Diggy of the Swift car but it was after moving for

about 02 hours and after reaching Village Swamika as per the disclosure

statement of the accused relied by the prosecution. In the FIR also, it is clearly

stated by complainant that after about two hours of the movement of the car in

which he was abducted, they put him in Diggy of the car after reaching in a

jungle. For about two hours, when he was inside the car or when he was being

shifted in the diggy or when he was taken out of the Diggy at about 08:00 p.m.

at the place of his release, he must have noticed the Scorpio vehicle, in case it

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was present there occupied by accused Surender and Saleem. There is no such

evidence. So much so, in the entire prosecution case, neither the registration

number of the Scorpio vehicle has come on record nor there appears to be any

effort whatsoever to recovery any such Scorpio vehicle.

44. Further, it is admitted case of the prosecution that no recovery

whatsoever has been effected from these two accused Saleem and Surender.

They were joined in the investigation after obtaining the production warrant, as

they were already in custody in some other case. They were arrested in this case

on 16.02.2017 and their disclosure statements Ex.P9 and Ex.P10 were recorded

by PW-8 ASI Ajit Singh as deposed by him, which are supported by PW-6 ASI

Umar Mohd. and PW-7 Ct. Mohd. Salim. The said disclosure statements were

recorded in the Court compound, Gurugram without joining any independent

witness. The facts as disclosed in the disclosure statement of the co-accused had

already come to the notice of the police. The places of crime, which have been

demarcated by these two accused had already come to the notice of the

investigating agency. In all these circumstances, there is no evidence admissible

in law against any of these two accused Saleem and Surender and as such, their

conviction as recorded by the Trial Court cannot be sustained.

45. Coming to the role of accused Islamuddin, as per the own case of

the prosecution, he did not participate in the crime of abduction of PW-3 Insp.

Surender. It has been alleged that it is at his behest that the crime was

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committed and that after reaching at abandoned brick kiln, said Islamuddin

along with Fakru and Liyakat had arrived and then said Islamuddin had taken

away the Swift car belonging to the complainant, which was later on recovered

on 07.02.2016. Disclosure statement of accused Islamuddin Ex.P-14/1 is

proved by PW-7 ASI Ajit and his statement finds corroboration from PW-7

Constable Mohd. Salim. They have also proved recovery memo of the car as

Ex.P-15. The recovery is stated to have been effected from Alipur in U.P.

46. As has come in the testimony of PW-7 EHC Mohd. Salim, one of

the recovery witness, the car was lying parked in an open place near Manas

Theatre, Ali Nagar (U.P.). There are many shops around that place. As per him,

local police was joined but did not sign the recovery memo. He also admits that

no independent witness was joined at the time of recovery. PW-8 Insp. Ajit, the

IO at that time also admitted that car was lying parked in the open. He further

says that the distance between Gurugram and Alinagar is 800 Kms. and that he

drove the car to Gurugram. He admits that he cannot produce any receipt

regarding any toll plaza falling in between. He admits that there is no evidence

of any entry made in the local police station of Alinagar, from where recovery

was effected. So much so, he admits that no information was given to the local

police about the recovery.

47. In the aforesaid circumstances, when the recovery of the car has

been effected from an open place i.e., in the parking area of a theatre, which is

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accessible to anyone, it cannot be stated that car has been recovered on account

of the exclusive knowledge of accused Islamuddin. As such, conviction of

accused Islamuddin based on the recovery of car, cannot be sustained.

48. On account of entire discussion as above, it is held that though

occurrence as narrated by PW-3 Surender in complaint Ex.P4/FIR Ex.P1 has

been proved by the prosecution but it has utterly failed to prove connection of

any of the accused- appellants with the crime by leading any cogent or

admissible evidence in law. All the six accused- appellants deserved to be given

the strong benefit of doubt.

49. Consequently, all the six appeals are hereby accepted. All the

accused- appellants are acquitted by giving them strong benefit of doubt. The

appellants, who are in custody, are directed to be released forthwith, in case

they are not required in any other case.




                                                           ( DEEPAK GUPTA )
                                                                JUDGE
January 08, 2024
Neetika Tuteja
                       Whether Speaking/reasoned           Yes/No
                       Whether Reportable                  Yes/No




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