Delhi District Court
State vs . Mohd. Abrar on 28 February, 2015
1
IN THE COURT OF Ms. VEENA RANI, CHIEF METROPOLITAN
MAGISTRATE, SOUTHEAST DISTRICT, SAKET COURTS COMPLEX,
NEW DELHI
FIR No:667/2007
U/S 365 IPC
PS: Sarita Vihar/Crime Branch
State Vs. Mohd. Abrar
Date of filing of the charge sheet : 04122007
Date of reserving order : Not reserved.
Date of pronouncement : 28022015
1. Date of Commission of Offence:03092007
2. Name of complainant :Mohd. Jaan S/o Late Miyan Jaan
R/o 965, Jaitpur Extn. PartII, Khadda Colony New Delhi.
3. Name & address of accused :Mohd. Abrar S/o Mohd. Kallu
Khan R/o D77/1, Shahin Bhag, Abu Fazal Enclave, Sarita Vihar,
Delhi.
4. Offence Complained of : U/s 365 IPC
5. Plea of accused :Pleaded not guilty.
6. Final order :Acquitted.
7. Date of order :28022015
JUDGMENT
1. The allegation against the accusedherein is that on 03.09.2007 at about 7:40 P.M. the accusedherein i.e. Mohd. Abrar s/o Mohd. Kallu Khan kidnapped Mohd. Shadaab (aged 10 years) FIR No:667/2007, State Vs. Mohd. Abrar 2 s/o Mohd. Jaan (complainant of the case) with intent to cause him to be secretly and wrongfully confined. The charges were accordingly framed under S.365 IPC.
2. In order to prove their case the prosecution examined as many as 10 witnesses.
3. PW1 : Mohd. Jaan s/o Sh. Miya Jaan r/o D965, Jaitpur, Khadda Colony, New Delhi (heresay evidence).
The abovesaid witness is the complainant and the father of the kidnapped child. He stated in his testimony that on 03.09.2007 his son was missing from Khadda Colony near his house and a complaint of missing person was lodged with the police. On 08.09.2007 his daughter Rubi accompanied by Munnawwar (Ruby's uncle / chacha) had gone to purchase vegetables from the market where his daughter Ruby had seen Mohd. Shadab sitting in a tempo with the accused. Thereafter PW1 registered an FIR against the accusedherein. It has also been mentioned by PW1 that he had received threat from the accused who had once said "Tujhey aisi chhot pahunchaunga kit tu yadd rakhega". The accused had business enmity with PW1.
4. PW2 : Kumari Rubi aged 13 years daughter of Mohd. Jaan r/o D965, Jaitpur, Khad da Colony, New Delhi The abovesaid witness has deposed that on 08.09.2007 she, FIR No:667/2007, State Vs. Mohd. Abrar 3 accompanied by her chacha (could not recall his name), had gone to Balaji Subzi Mandi to purchase vegetables. When she came out of the subzi mandi, her brother (sitting in a DCM vehicle) called her. She too called her brother who was sitting with four other persons in the DCM. One person who was holding his bother's hand. She immediately called her chacha (who was purchasing dhania). As soon as she told her chacha about the incident, the DCM driver ran away from the spot alongwith her brother.
5. PW3 Sh. Nand Kishore S/o Sh. Navratan Lal, aged about 38 years, R/o Nagar Krishi Farm, Khadda Colony, Jaitpur II, New Delhi. (turned hostile) The abovesaid witness has deposed that he was the neighbour of the complainant Mohd. Jaan. On 03.09.2007, Ruby, daughter of Mohd. Jaan came to his residence and stated that one boy was going in a tempo. He (PW3) along with other persons of the colony went to Balaji Sabzi Mandi and found nothing there. Thereafter, PW3 returned and knew nothing more about the case. The said witness was declared hostile and was crossexamined by the Ld. APP. During the cross examination the said witness PW3 admitted that Shadab, aged about 10 years was missing on 03.09.2007. However, the said witness further deposed that "it was wrong to suggest that on 08.09.2007 in the evening, Munnewar (brother of Mohd. Jaan) and Ruby (daughter of Mohd. Jaan) FIR No:667/2007, State Vs. Mohd. Abrar 4 told that they had seen one person namely Abrar had taken Shadab in a DCM tempo from Balaji Sabzi Mandi and when they tried to catch the tempo and driver of the tempo accelerated the same and run away from there." The said witness PW3 had merely heard the above said incident when Rubi, daughter of Mohd. Jaan stated to someone.
6. PW4 Munnewar S/o Sh. Miyan Jaan, aged about 45 years, R/o Kasba Uzari, District J.P. Nagar, PS Sayyed Nangli, Dadri Chowk, UP .
In the year 2007, PW4 was residing at D965, Jaitpur ExtensionII, Khadda Colony, New Delhi. On 03.07.2007, his nephew namely Shadab was missing. On 07.09.2007, he along with Ruby (PW2) had gone to Balaji Sabzi Mandi, Jaitpur for purchasing vegetables. He told his niece to stand near the road and proceeded to purchase cigarette. Ruby raised an alarm and shouted "Chacha Chacha Dekho Shadab Ko Aadmi Tempo Mein Le Kar Ja Rahe". Thereafter, PW4 chased the tempo and saw four person including Abrar were sitting in the tempo. He identified the accused Abrar, present in the Court. However, he did not know the remaining three persons. The driver of the tempo accelerated the same in the direction of Badarpur/Jaitpur side and PW4 could not apprehend the same. Thereafter, PW4 alongwith Ruby returned home. He narrated the whole FIR No:667/2007, State Vs. Mohd. Abrar 5 incident to his brother Mohd. Jaan. Thereafter,his brother searched the said tempo on motorcycle but no clue was found of the said tempo. Thereafter, PW4 alongwith his brother and other persons of the locality went to the house of Abrar but he was not found there and the family members of the accused stated that "Hamein Nahi Pata Abrar Kahan Gaya Hain". Thereafter, all of them returned home. On the next day, PW4 alongwith his brother and other members of the locality went to the house of the accused but he was not found there. Thereafter, his brother lodged an FIR.
7. One leading question was also put to the said PW4 (with the permission of the court) to which he answered that he did not remember the incident took place on 08.09.2007 at about 6.30 PM.
8. As per the crossexamination, PW4 remained with his brother for one month after the incident and thereafter, went to his village. But he used to visit his brother at Jaitpur. He knew nothing more of the incidence thereafter. PW4 further stated that as per the information given by the police his brother went to Bombay, Kolkata, Baduyun in search of Mohd. Shadaab. However, PW4 himself never accompanied his brother to any of the said places. He had not written any complaint. PW4 also stated that he knew the accused Abrar because he was getting his stitching FIR No:667/2007, State Vs. Mohd. Abrar 6 work done from Maharani Bagh. The accused had never given work to Mohd. Jaan (PW1) who was also in the business.
9. During the crossexamination of PW4 it was admitted by PW4 that the Police had not recorded his statement U/s 161 Cr.PC on 10.09.2007, a statement was shown to the witness but he denied the same and stated that he had given a written statement to the police which he got written by someone and he signed the same. The said statement is not on record. On further crossexamination PW4 stated that "It is incorrect that in the statement which have been shown to me, I had not mentioned the fact of four person which I have stated today in the Court ." PW4 was Confronted with the statement 'Mark DA' where it was not so recorded. The said witness PW4 on further cross examination stated that "I had not given the colour and number of the tempo in my statement. I had not given the description of the three person who were sitting in the tempo. I stated to the police that I ran after the tempo." PW4 was Confronted with the statement Mark DA where it was not so recorded.
11. PW 5 :Statement of ASI Sumer Singh, No. 609 D, PS Sangam Vihar, New On 11.09.2007 he was posted at PS Sarita Vihar as Duty FIR No:667/2007, State Vs. Mohd. Abrar 7 Officer from 12 midnight to 8 am and at about 12.05 am he received a Rukka sent by HC Sukhpal through Ct. Satyapal and on the basis of same above mentioned FIR was registered , copy of FIR is EX. PW 5/A bearing his signature at point A and he also made endorsement on Rukka EX. PW 5/B bearing his signature at point A. He brought the original FIR(OSR).
12. PW6 Sh. Umar, during his examinationinchief, deposed that Mohd. Jaan is his neighbor. It is deposed by PW6 that in the year 2007, son of Mohd. Jaan was missing from the gali in front of his house, Mohd. Jaan tried to search his son but he could not find him. He further deposed that he does not know anything about the present case.
PW6 was cross examined by Shri Dheeraj Kumar, Ld. Substitute APP for the state and during his cross examination by Ld. APP PW6 stated that it is correct that on 8.9.2007 in evening time he was sitting at the residence of Mohd. Jaan alongwith other 2025 persons. PW6 further stated that meanwhile, Rubydaughter of Mohd. Jaan and Manovar, brother of Mohd. Jaan came there. PW6 denied the suggestion that they told the gathering that they had seen the son of Mohd. Jaan in a Matador tempo alongwith Abrar in Subzi Mandi or that that they had also told that when they tried to reach to the tempo, driver of the same fled away alongwith the tempo (confronted with statement U/s 161 Cr.PC, mark A from point A to A where it is so recorded). PW6 admitted FIR No:667/2007, State Vs. Mohd. Abrar 8 that accused Abrar is my relative. PW6 denied the suggestion put by Ld. APP that he is deliberately deposing falsely as he has been won over by the accused.
13. PW7 Ct. Satya Pal Singh deposed that on 06.10.2007 he accompanied HC Sukh Pal, who was executing a warrant against Mohd. Abrar, at D77/1, Abul Fazal Enclave, Jamia Nagar, Shahin Bagh. PW7 deposed that at about 12.30 pm they reached at the house of Mohd. Abrar and arrested him and his personal search was conducted vide memo Ex. PW7/A and Ex. PW7/B bearing his signatures at points A. PW7 correctly identified the accused Mohd. Abrar is present in the court.
14. PW8 Constable Ravi Kumar during his examinationinchief deposed that on 04.09.2007 he was posted as Constable at PS Sarita Vihar and his duty hours were from 8.00 am to 8.00 pm., on that day, at about 12.00 noon he recorded DD no.13 at PP Madanpur Khadar, PS Sarita Vihar. The copy of the same is exhibited as Ex. PW8/A. Original DD register containing the abovesaid DD no.13 were produced by PW8 in the court which were seen and returned. ...
15.PW
9, Inspector Sunil Kumar, No. D 3446,
SER, Crime Branch.
On 24.11.07 he was posted as Sub Inspector in Anti Kidnapping section of crime branch. On that day investigation of this case was FIR No:667/2007, State Vs. Mohd. Abrar 9 marked to him. As per the previous investigation one boy Sadab aged about 10 years was missing since 03.09.07 from near his house i.e. Jaitpur and as per the investigation the missing boy was last seen on dated 08.09.07 with accused Abrar. Accused Abrar was already arrested on 06.10.07 by local police. He during further investigation made efforts to recover the missing boy Mohd. Shadab but he could not be traced. Letters were sent to NCR, PCR, AIR, Doordarshan, CBI, CIC etc. He recorded the statement of witnesses who have joined the investigation on relevant dates. After completing the investigation charge sheet was filed against accused Mohd. Abrar.
16.PW : 10, HC Sukhpal Singh, No. 356, PS Burari, New Delhi.
The abovesaid witness has deposed that on 04.09.07 a DD entry No. 13 regarding missing of one Mohd. Shadab son of Mohd. Ali Jan was got recorded at PP Madanpur Khadar, PS Sarita Vihar. On this he made all efforts to trace the missing boy and informed NCRB, CBI and got published advertise ment in this regard in newspaper and flashed WT message but all the efforts went in vain. On 10.09.07 father of missing Mohd. Ali Jan came to PP Madanpur Khadar and informed that his daughter Ruby and brother Munawar Ali had seen the missing boy namely Mohd. Shadab alongwith one Mohd. Abrar in a tempo. Mohd. Ali Jan lodged a complaint against Mohd. Abrar vide Ex. PW 1/A and PW10 put his endorsement on it vide Ex. PW FIR No:667/2007, State Vs. Mohd. Abrar 10 10/A bearing his signatures at point B and got the FIR registered. He made efforts to search accused Mohd. Abrar but to no avail. He prepared the site plan Ex. PW 10/B bearing his signatures at point A. In the meantime complainant also alleged that he had been receiving threatening calls from different phone numbers on behalf of accused Mohd. Abrar. NBW against accused Mohd. Abrar were got obtained. Thereafter on 06.10.07 accused Mohd. Abrar, was arrested and his personal search was conducted vide Ex. PW 7/A and Ex. PW 7/B, both bearing signatures of PW10 at point B. PC remand of the accused was also obtained and all made further efforts to trace the missing boy but of no avail. Permission for lie detector test was also obtained. Thereafter case was transferred to Crime Branch.
17. Statement of accused Mohd.Abrar was recorded u/s 313 CrPC where in he has denied the evidence on record and stated that he is innocent and has been falsely implicated in the present case by the police. Accused chosen not to lead Defense Evidence.
18. The elements of the offence S.365 IPC::
If we look into an offence of Section‐ 365 of IPC, we will find following ingredients for the offence‐
1. that the accused kidnapped or abducted any person and FIR No:667/2007, State Vs. Mohd. Abrar 11
2. that he did so with an intent to cause that person to be confined secretly or wrongfully.
19. Hence, to bring home an offence U/S‐365 of IPC the prosecution has to prove that:
1. the accused conveyed the victim without his/her consent beyond the limit of India or
2. took or enticed away a minor or any person of unsound mind out of the keeping of his or her lawful guardian without his/her consent, or
3. by force (as understood in Section‐349 IPC) compelled the victim of any age to go from one place to another, or
4. by deceitful means induced the victim of any age to go from one place to another,
5. that this keeping or abduction aforesaid was committed with a view to murder the victim or with a view to dispose him/her in such a way that the victim might be murdered.
20. Both the elements "confined secretly or wrongfully" are to FIR No:667/2007, State Vs. Mohd. Abrar 12 co‐exist in a case. So, now it is to be seen whether the aforesaid ingredients have been established or not? Whether the victim Mohd. Shadaab. was abducted or kidnapped by the accused persons.
21. The testimony of PW1 (complainant and the father of the kidnapped child) can be divided into segments: one segment deals with what was narrated to him by his daughter (PW2) and PW4. The other segment deals with the business enmity which the accused had with the complainant (PW1). As far as the first segment is concerned the same is of the category of 'hearsay' evidence and is therefore rejected. With regard to the second aspect the PW1 stated that he had received threat from the accused who had once said "Tujhey aisi chhot pahunchaunga kit tu yadd rakhega". The accused had business enmity with PW1. However, nothing is elaborated further by PW1.
22. Identification of the accused in the court:
In the case in hand there are two witnesses who have narrated accounts of the incident dated 08.09.2007 where the kidnapped child was last seen with the accused in the vehicle. There testimonies on the aspect of identification of the accused in the court would be discussed but before that it would be relevant to mention that no TIP was held before. The accused had been in the police custody.
FIR No:667/2007, State Vs. Mohd. Abrar 13
23. The witness PW2 does not support the prosecution version. The said witness could not identify the accused and further admitted that "Abrar who took my brother was not there at the time of the incident." The witness PW4 identified the accused Abrar in the court.
24. The legal position with respect to identification of an accused was summarized by the Hon'ble Supreme Court in Dana Yadav @ Dahu and Ors. vs. State of Bihar, (2002) 7 SCC 295 inter alia as under:
"37...(c) Evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in court. X X X (e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check value to the evidence of identification in court of an accused by a witness and the same FIR No:667/2007, State Vs. Mohd. Abrar 14 is a rule of prudence and not law."
25. This judgment was followed by this Court in in Rijaul Khan vs. State, 2014 (1) JCC 670 and it was observed as under: "As a legal principle, the substantive evidence of a witness is the statement made by him in the Court. The identification for the first time in the Court, by its very nature, is of a weak character and, therefore, the Court normally looks for corroboration of such evidence by way of some other evidence which may, inter alia, include identification in a Test Identification Proceeding. Identification in a Test Identification Parade is not a substantive piece of evidence, though it can be used as a piece of corroborative evidence if the witness identifies the accused while deposing in the Court."
26. The power to identify also varies in terms of power of observation and memory of the identifying person. Another relevant circumstance in this regard is as to for how much time the witness had seen the accused. If, for instance, he had only a glimpse of the accused, he may not be in a position to firmly recall his identity, but if he had interacted the accused for a substantial time and had ample opportunity to observe him, he may face no difficulty in identifying him at a later date. (see SUNIL MASHI@ SILLY versus STATE NCT OF DELHI CRL.A. 610/2013 Date of Decision: 14th October, 2014) FIR No:667/2007, State Vs. Mohd. Abrar 15
27. In the present case PW4 testified that he was a tailor by profession and stitched export garments at Seelampur. However, at the time of the incidence he was working somewhere else and used to visit his brother for night shelter at Jaitpur and had no concern with the accused Abrar at that time. The above made testimony makes it clear that the PW4 was not having enough familiarity for him to identify the accused. Even if he had, the perusal of the statement of the PW2 u/s 161 Cr.P.C. it would reveal that it was PW4 who had told PW2 that it must be Abrar who had taken her brother in the vehicle. The identification of the accused is therefore doubtful.
28. Improper / tardy investigation:
The defenceside has argued that the investigations made were improper and incomplete. In that regard the testimonies of PW10 is of some significance wherein the said witness has stated that the complainant had been receiving threatening calls from different phone numbers on behalf of accused Mohd. Abrar. During the cross examination the PW10 denied the suggestion that the matter was not investigated properly. PW10 did not know about the outcome of the lie detector test as it was not got carried out by him. It was admitted that that there was no document placed in the judicial file regarding investigation of the threatening calls and respective phone numbers. PW10 further denied that the accused had cooperated with the investigations, FIR No:667/2007, State Vs. Mohd. Abrar 16 and still NBWs were got issued against the accused showing him as the absconder.
29. The testimony of PW10 would reveal that there had been no investigation on the 'telephone numbers'. None of the witness including the main complainant PW1 has come up with any sort of evidence on that aspect. The effect of 'noinvestigation' would necessarily go to the accused.
30. Another witness PW9 (I.O. of the case) admitted that the accused was examined under lie detection test after charge sheet was filed in the Court. However, the said report is not on the record. PW9 had not taken the accused out station for any investigation.
31. The kidnapped boy Mohd. Shadaab is still missing. His whereabouts remain unknown. The accusedherein has undergone the police investigation - even the polygraph test. If the accused had secretly confined the missing boy, the whereabouts would have been ascertained. The prosecution has not been able to prove its case beyond doubt.
32. CONCLUSION The prosecution is bound to prove its case beyond reasonable doubt. In 'Raj Kumar Singh @ Raju @ Batya vs. State of FIR No:667/2007, State Vs. Mohd. Abrar 17 Rajasthan', 2013 (6) SCALE 635, the Supreme Court observed :
"17. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely FIR No:667/2007, State Vs. Mohd. Abrar 18 probable doubt, but a fair doubt that is based upon reason and common sense."
33. In K.M. Nanavati v. State of Maharashtra, [1962] Suppl. 1 SCR 567 it is observed that:
"In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution' to prove 'the guilt of the accused."
34. It is an established principle of law that the standard of proof for the accused is not at par with the prosecution and he may establish his plea by raising a "probability" unlike the "burden of proof beyond reasonable doubt" resting upon the prosecution. In the case of M.S. Narayana Menon Alias Mani v. State of Kerala reported in (2006) 6 Supreme Court Cases 39, the Hon'ble Apex Court had held that the burden of proof on accused is not heavy; he can discharge its burden on the basis of preponderance of probabilities through direct or circumstantial evidence.
35. It will be useful to refer to some of the passages from the text books of outstanding authors on evidence. In Phipson on FIR No:667/2007, State Vs. Mohd. Abrar 19 Evidence, 13th edn. page 44 & 48 the passages read as follows:
"The burden is upon the prosecution of proving a defendant's guilt beyond reasonable doubt before he is convicted. Even where the evidential burden shifts to the defendant the burden of establishing proof beyond reasonable doubt remains upon the prosecution and never changes. If on the whole case the jury have such a doubt the defendant is entitled to be acquitted."
"In criminal cases the prosecution discharge their evidential burden by adducing sufficient evidence to raise a prima facie case against the accused. If no evidence is called for the defence the tribunal of fact must decide whether the prosecution has succeeded in discharging its persuasive burden by proving its case beyond a reasonable doubt. In the absence of any defence evidence, the chances that the prosecution has so succeeded fare greater. Hence the accused may be said to be under an evidential burden if the prosecution has established a prima facie case. Discharge of the evidential burden by defence is not a prerequisite to an acquittal. The accused is entitled to be acquitted if at the end of and on the whole of the case, there is a reasonable doubt created by the evidence given by either the prosecution or the prisoner.....No matter what the charge.....the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt FIR No:667/2007, State Vs. Mohd. Abrar 20 to whittle it down can be entertained."
36. The Hon'ble Apex Court in Rang Bahadur Singh V. State of U.P. reported in AIR 2000 SC 1209 has held as follows :
"The timetested rule is that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits."
37. The shotcomings of the prosecution case have already been discussed. The defence on the other side has been successful in casting doubts over the prosecution version. In this particular case, the prosecution has failed to prove all the ingredients that are required to establish the offence under section 365 IPC. The accused Mohd. Abrar is hereby acquitted of all charges against him in this case. File be consigned to the record room.
38. On oral request for the counsel for accused, the FIR No:667/2007, State Vs. Mohd. Abrar 21 previous bail bonds of the accused are accepted in compliance of Section 437(A) of Cr.P.C. File be consigned to record room.
Announced in the open court on this 28th Day of February 2015.
(VEENA RANI) Chief Metropolitan Magistrate South East District/Saket Courts,New Delhi FIR No:667/2007, State Vs. Mohd. Abrar