Delhi District Court
State vs Mohd. Shameem Etc on 9 December, 2023
IN THE COURT OF SH. VIRENDER KUMAR KHARTA
ADDITIONAL SESSIONS JUDGE (FTC)-02/CENTRAL
DISTRICT:TIS HAZARI COURTS : DELHI
In the matter of:-
(Sessions Case No. 28340/2016)
FIR No. 27/2014
Police Station Jama Masjid
Charge-sheet filed Under Section U/s 364 A/ 368/395/ 397/ 412
IPC and Section 25 & 27 of Arms Act.
Charges framed against accused U/S 3 6 4 A/ 3 4 / 3 9 5 / 3 6 8 / 3 4
persons namely Mohd. Shameem, IPC
Shehjada Irfan @ Lala, Tasleem,
Shehjada Waseem @ Mittal,
Mohd. Sakeeb, Abdul Salam @
Saeem @ Tiggi and Waseem @
Kalia
Additional Charges framed U/S 397/ 412 IPC & 25 Arms Act
against accused Tasleem.
Charges framed against accused U/S 364 A/ 34 & 395 IPC
persons namely Nazar Chaudhary
and Rashid Ali.
Additonal charges framed against 412 IPC
accused persons namely Shehjada
Waseem @ Mittal, Mohd. Sakeeb,
Shehjada Irfan @ Lala and Mohd.
Shameem.
State Vs 1. Mohd. Shameem
S/o Mohd. Aleem
R/o H. No. 1336, Pahari Imli Wali,
Chooriwalan, Turkmaan Gate, Chandni
Mahal, Jama Masjid, Delhi
FIR No. 27/2014 , PS: Jama Masjid,
State Vs. Mohd. Shameem & Ors. Page No 1 of 47
2. Shehjada Irfan @ Lala
S/o Shafiqudeen
R/o House no. 1214, Rakab Ganj,
Delight Cinema, Daryaganj, Delhi
3. Taslim
S/o Mohd. Zaki
R/o House no. 958, Gali Patna wali, Ballimaaran,
Chandni Chowk, Delhi.
4. Shehzada Waseem @ Mittal
S/o Mohd. Yamin
R/o H. No. 157, Gali Katra Gokul
Shah Bazar Matia Mahal,
Jama Masjid, Delhi.
5. Mohd. Sakeeb
S/o Mohd. Suleman
R/o H. No. 1254, Gali Jamun wali,
Kalan Mahal, Chandni Mahal
Delhi.
6. Abdul Salaam@ Waseem @ Tiggi
S/o Mohd. Aslam
R/o H. No. 114, 2nd Floor, Gali no.9,
Near Ameena Masjid, Gaon-Wazirabad,
Delhi.
7. Nazar Chaudhary
S/o Fazar Chaudhary
R/o 75, Ward no. 6
Mohalla Luharian Kasba Dasna
Ghaziabad (U.P).
8. Rashid Ali
S/o Israr Ahmad
R/o House 133, Ward no. 11
Ek Minar Masjid, Kasba Dasna,
Ghaziabad, U.P.
FIR No. 27/2014 , PS: Jama Masjid,
State Vs. Mohd. Shameem & Ors. Page No 2 of 47
9. Waseem @ Kalia
S/o Mohd. Jabbar Ali
R/o H. NO. 2343, Katra Alam Beg,
Ballimaran, Delhi.
...Accused persons
Date of institution of case 07.06.2014
Date of arguments 09.12.2023
Judgment reserved on 09.12.2023
Judgment pronounced on 09.12.2023
Decision Acquitted
J U D G M E N T:-
1. Accused persons namely Mohd. Shameem, Shehjada Irfan @ Lala, Tasleem, Shehjada Waseem @ Mittal, Mohd. Sakeeb, Abdul Salam @ Saeem @ Tiggi and Mohd. Waseem @ Kalia are facing trial U/S 3 6 4 A/ 3 4 / 3 9 5 / 3 6 8 / 3 4 IPC. Accused persons namely Nazar Chaudhary and Rashid Ali are facing trial U/S 364 A/ 34 & 395 IPC. Additionally, accused Tasleem is also facing trial under Sections U/S 397/ 412 IPC & 25 Arms Act. Accused persons namely Shehjada Waseem @ Mittal, Mohd. Sakeeb, Shehjada Irfan @ Lala and Mohd. Shameem are also facing trial u/s 412 IPC. The prosecution story is that on 08.02.2014 at about 04:30 PM at Bazaar Matia Mahal, Jama Masjid, Delhi accused persons in furtherance of their common intention kidnapped Mehandi Hasan and Rifaqat Ali @ Pappu and compelled complainant Nikhat Fatima to pay ransom of Rs. 20 Lakh and also committed dacoity of Rs. 1 Lakh from Mehandi Hasanand while committing dacoity, accused Tasleem had used pistol. It is further alleged that Mehandi Hasan and Rifaqat Ali were wrongfully concealed at specific places and accused persons namely Tasleem, Shehjada Waseem @ Mittal, Mohd. Sakeeb, Shehjada Irfan @ Lala and FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 3 of 47 Mohd. Shameem had dishonestly received or retained the stolen property obtained through the dacoity.
2. The brief facts which are borne out from the record of the case are that on 08.02.2014, complainant Smt. Nikhat Fatima gave a complainant in writing to SHO, PS Jama Masjid regarding the kidnapping of her husband namely Mehandi Hassan. On the complaint of Smt Nikhat Fatima, FIR no. 27/2014 was registered at PS Jama Masjid. During the investigation, IO SI Suresh Pal prepared a raiding party to trace the kidnapped persons as well as accused persons and on the same day at about 10:00 PM, Mehandi Hasan and Rifaqat Ali @ Pappu were released by the kidnappers near Red Fort on receiving guarantee from one Nasir.
3. Mehandi Hasan and Rifaqat Ali @ Pappu met with the IO after their release and they were taken to the hospital for their medical examination. IO recorded their statement u/s 161 Cr.P.C. IO also prepared the site plan. Accused persons were arrested and the case property was recovered from their possession. IO also obtained the CDRs of relevant mobile numbers. IO conducted the proceedings during investigation and recorded statement of witnesses u/s 161 Cr.P.C.
4. On completion of investigation, chargesheet was filed by the IO before the Court through the SHO. Supplementary charge sheets were also filed in the Court by the IO through SHO.
5. Cognizance was taken by the Ld. MM and the accused persons were summoned to face the trial. Copy of the charge-sheet under Section 207 Cr.P.C was supplied to the accused persons and the case was committed to the Court of Sessions u/s 209 Cr.P.C.
FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 4 of 47
6. Vide order dated 18.04.2015, the Ld. Predecessor Court framed charges against the accused persons namely Mohd. Shameem, Shehjada Irfan @ Lala, Tasleem, Shehjada Waseem @ Mittal, Mohd. Sakeeb, Abdul Salam @ Saeem @ Tiggi and Waseem @ Kalia U/s U/S 3 6 4 A/ 3 4 / 3 9 5 / 3 6 8 / 3 4 IPC. Charges u/s 364 A/ 34 & 395 IPC were framed against accused Nazar Chaudhary and Rashid Ali. Additional charges u/s 412 IPC were framed against accused persons namely Shehjada Waseem @ Mittal, Mohd. Sakeeb, Shehjada Irfan @ Lala and Mohd. Shameem. Additional Charges u/s 397/ 412 IPC & 25 Arms Act were framed against accused Tasleem. Accused persons pleaded not guilty and claimed trial.
7. To prove its case, prosecution has examined 29 witnesses. Accused persons also examined 05 defence witnesses in their defence. The testimonies of prosecution and defence witnesses along with its nature has been discussed briefly in the following paragraphs.
8. PW-1 Ms. Nikhat Fatima is complainant in the present case. She deposed that on 07.02.2014, her husband namely Mehandi Hasan left the house at about 06:00 PM and informed her that he was going to Brahm Puri. She further deposed that when her husband did not return till late night, she made a call to him who told him that he would come back. She further deposed that on next morning at about 09:45 AM she received a call from her husband who told her that Tasleem alongwith his associates Irfan Lala, Sakeeb and Nazar Chaudhary had kidnapped him from Matia Mahal near Jama Masjid at about 04:30 AM and they have asked him to arrange 20 lakh as ransom for his release. She further deposed that she went to PW-11 Nasir who is friend of her husband and after discussing the issue with Nasir she alongwith him went to PS Jama Masjid and gave a complaint Ex. PW1/A to the SHO. She further deposed subsequently she FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 5 of 47 came to know that her husband and other person namely Pappu had been released by the kidnappers.
9. PW-2 Ct. Hirdes Singh deposed that on 01.03.2014, he alongwith IO SI Suresh Pal went to Tis Hazari Courts where accused Abdul Salam @ Wasim @ Tiggi was produced from J. C. and IO arrested him. He further deposed that IO filed an application for TIP of accused but the accused refused for the same.
10. PW-3 Ct Arjun Singh deposed that on 27.02.2014, he collected the duly sealed exhibits from MHC(M) and deposited the same at FSL Office vide RC no. 145/21/14 and the exhibits remained intact as long as these were in his custody.
11. PW-4 ASI Jai Kishan is the Duty Officer. He deposed that SI Suresh Pal produced rukka Ex. PW 1/A to him on the basis of which he registered FIR no. 27/2014 Ex. PW4/A. He also proved endorsement on rukka exhibit as Ex. PW4/B and the certificate u/s 65-B Evidence Act Ex. PW4/C.
12. PW-5 Rifaqat Ali @ Pappu is one of the alleged kidnapped person. He deposed that on 07.02.2014, he alongwith his cousin Mehandi Hasan was returning from Seelampur in car and at about 04:30 AM, they stopped the said car at Gali Gaidai, Jama Masjid for eating biryani. He further deposed that in the meantime accused Taslim alongwith other accused persons namely Irfan @ Lala, Waseem, Sakib, Waseem Kali, Wasim Tiggi and Mohd. Shameem reached there and took them in a Gali where accused Taslim fired thrice with his pistol. He further deposed that same are taken to the house of accused Mohd. Shameem where accused Irfan @ Lala took out Rs. 6000-7000/- from his wallet. He further deposed that accused Irfan @ Lala also took out Rs. 1 Lakh from the pocket of Mehandi Hassan. He further deposed that Taslim asked Mehandi Hasan to arrange Rs. 5 lakh. He further deposed that thereafter they were taken to Dasna, FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 6 of 47 Ghaziabad, U.P. in the office of accused Nazar Chaudhary. He further deposed that they were given beatings and accused Nazar Chaudhary asked that the ransom should be demanded as Rs. 20 lakh. He further deposed that Mehandi Hasan got arranged talks between accused Taslim and Nasir through his mobile phone and Nasir assured to arrange Rs. 5 lakh and one flat. He further deposed that thereafter they were released by accused persons near Red Fort at about 07/08 PM from where they went to the police station. This witness was cross- examined at length by the Ld. Counsel for accused persons and contradictions in his testimony were brought on record.
13. PW-6 HC Sayyad Azaz deposed that on 13.02.2014, he joined the investigation in the present case and accused Tasleem took them to Dasna at Canal of Masoori and pointed out to the spot where the kidnapped persons were brought. He proved the site plan of said spot Ex. PW6/A. In his cross- examination he deposed that he did not remember if the IO had asked any public witnesses to join the investigation.
14. PW-7 HC Anil Kumar deposed about the proceedings conducted by the IO on 11.02.2014 and 12.02.2014. He also proved the seizure memo of pistol Ex. PW7/B from possession of accused Tasleem. He also proved the seizure memo of wrist watch and cash Ex. 7/C from possession of accused Waseem @ Mittal. He also proved the arrest memo of accused persons namely Tasleem, Waseem @ Mittal and accused Sakib alongwith the recovery of case property. This witness was cross-examined at length.
15. PW-8 Mehandi Hasan is one of the kidnapped person. He is husband of the complainant PW-1 Nikhat Fatima. He narrated the incident in detail. He deposed that on 07.02.2014, he left his house and in the early morning of 08.02.2014 at about 04/04:30 AM he alongwith PW-5 Rifaqat Ali @ Pappu went FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 7 of 47 to Biryani Shop situated at Gali Gadhaiya, Jama Masjid where he noticed accused Tasleem, Irfan @ Lala, Waseem @ Kala, Waseem @ Tiggi, Waseem @ Kala, Shakib and Shameem. He further deposed that accused Tasleem took out a pistol and pointed out towards him and thereafter all the accused persons took them to house of accused Shameem. He further deposed that accused Tasleem demanded Rs. 5 lakh from him. He also deposed that accused Irfan @ Lala took cash Rs. 1 lakh from him which was kept by him in the polythene. He also deposed that thereafter they were taken to Dasna by accused persons in two cars. He also deposed that at Dasna, accused persons namely Nazar Chaudhary and Rashid joined them. He also deposed that thereafter accused persons demanded Rs. 20 lakh from him. He also deposed that through a phone call his friend Nasir Bhai assured to give Rs. 20 lakh to accused persons and thereafter at about 5/5:30 PM, accused persons took them towards Delhi and at about 07/07:30 PM he and PW-5 Rifaqat Ali were dropped by them near Red Fort. Besides the alleged incident, he also narrated about the proceedings conducted by the IO in his presence including arrest of accused persons and the recovery of case property. This witness was cross-examined at length and the contradictions in his testimony were brought on record by the Ld. Defence Counsels.
16. PW-9 ASI Amar Pal deposed that on 08.02.2014, he joined the investigation with IO SI Suresh Pal. He deposed about the proceedings conducted by IO SI Suresh Pal including the preparation of site plan, arrest and personal search of accused Shameem, Tasleem, Waseem @ Mittal, accused Shehjada Irfan @ Lala, recovery of cash, car, recovery of pistol from accused Tasleem, recovery of wrist watch. He also deposed about the proceedings conducted by the IO on 12.02.2014, 13.02.2014, 14.02.2014 and 26.04.2014. He proved the seizure memo of case properties, dislosure statements of accused persons and their arrest. This witness was also cross-examined at length. In his FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 8 of 47 cross-examination he admitted that no public persons was joined in the investigation of the present case. He also failed to give the description of the clothes worn by Mehandi Hasanand Rifaqat Ali. He also admitted that he and IO had not made any arrival entry in the local police station at PS Dasna.
17. PW-10 ASI Ramesh Chander deposed on the lines of PW Amar Pal as he had also joined the investigation IO SI Suresh Pal and PW-9 ASI Amar Pal. He also proved the proceedings conducted by the IO. This witness was also cross-examined at length.
18. PW-11 Shri. Nasir deposed that he did not remember the date, month or year of incident and one day Ms. Nikhat Fatima wife of Mehandi Hasan came to his house and informed him that her husband and Pappu had been kidnapped by Tasleem and others. He further deposed that the accused persons had demanded ransom of Rs. 5 lakhs and thereafter he made call at mobile phone of Mehandi Hassan and he had talk with accused Tasleem and then he came to know that accused persons were demanding ransom of Rs. 20 lakhs. He further deposed that he promised accused Tasleem that he would give the ransom amount to him and asked him to release Mehandi Hassan. He also deposed that after the said promise Mehandi Hassan and Pappu were released and he alongwith Mehandi Hassan and his wife went to the police station for lodging complaint. This witness was cross-examined by the Ld. Addl. PP for the State as he could not narrate the complete facts. This witness was cross-examined at length by Ld. Defence Counsels. In his cross-examination he admitted that Mehandi Hasan and accused Tasleem had previous enmity as brother of Mehandi Hasan had murdered brother of Tasleem and his another brother was seriously injured. He also admitted that brother of Mehandi Hasan was convicted in the said case and he was sentenced to death. He also deposed that 95 per cent he was confirmed that the SIM having number 9654043061 was in his name.
FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 9 of 47 19. PW-12 Amit Sharma , Nodal Officer, Reliance Communication
Services proved the certified copies of CAF, and CDR of mobile phone number 9555049663 alongwith certificate u/s 65 B Evidence Act Ex. PW12/A to Ex. PW12/F.
20. PW-13 Sh. Ajeet Singh, Nodal Officer, Vodafone Idea Cellular Company proved the certified copies of CAF and CDR of mobile phone number 9811532861, 9891205250, 9654043061 and 8377018968 alongwith certificate u/s 65 B Evidence Act Ex. PW13/A to Ex. PW13/J. He further deposed that he cannot produce the original customer application form of abovesaid mobile phone numbers as same had been destroyed as per order of department of Telephone dated 17.05.2012 and he had produced the CDR after retrieving the same from system.
21. PW-14 HC Arun deposed that he was posted as a photographer with mobile crime team, Central District and on 09.02.2014 as well as on 12.02.2014, he joined the investigation in the present case and took the photographs at the instance of IO SI Pankaj. He proved the photographs Ex. P-8/P1 and Ex. PW14/A alongwith their negatives Ex. PW14/B.
22. PW-15 Ct. Jagdeep deposed that on 15.03.2014, he was posted as Malkhana Munshi and he took the sealed envelope from Malkhana to Tis Hazari Courts and brought back the same after TIP proceedings. He deposed that no tampering took place with the said case property while it was in his custody.
23. PW-16 Sh. Anizuddin deposed that he was the owner of TATA Indica car bearing registration no. DL5 CG1515 and he had given the same to his friend Mehandi Hassan. He proved the photographs of said car exhibit as Ex. P-8/P1.
24. PW-17 Sh. Shahnawaz deposed that he did not remember if he had handed over any SIM to PW -11 Nasir. He was declared hostile by the Ld. Addl.
FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 10 of 47 PP for the State and he denied to have given any statement to the police u/s 161 Cr.P.C. He admitted that on the customer application form of mobile phone number 9654043061, his photograph was pasted and his signatures were also there but despite the said fact he did not admit that he had given the said SIM to PW-11 Nasir.
25. PW-18 Dr. Rajender proved the MLC of PW Mehandi Hasan and Rifaqat Ali exhibit as Ex. PW18/A and Ex. PW18/B.
26. PW-19 SI Sushil Kumar deposed that on 25.03.2014 he examined the case with scientific tools and found that 04 chance prints identical with Mohd. Waseem, 04 chance prints were identical with Tasleem Ahmad and one chance prints was identical with Irfan. He proved his detailed report in this regard. Ex PW19/A alongwith photographs Ex. PW19/B. In his cross-examination he admitted that he did not have any degree in Forensic Science. He also admitted that he did not visit the scene of crime being Fingerprint Expert. He deposed that he cannot tell if specimen fingerprint of accused Shehjada Waseem or any other accused were in sealed cover envelope or not. He denied the suggestion that he was asked to send the draft for approval with ulterior motive in order to falsely implicate the accused persons.
27. PW-20 ASI Nixon K.J. deposed that on 09.02.2014 he joined the investigation in the present case and at that time SI Suresh Pal handed over the custody of Mohd. Shameem to him and at instance of Mehandi Hasan accused Irfan @ Lala was arrested and one bag containing Rs. 25 thousand was recovered from his possession. This witness was not cross-examined on behalf of accused persons.
FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 11 of 47
28. PW-21 HC Ram Roop is the MHC(M). He proved the entries in register no. 19. and 21 Ex. PW1/A to Ex. PW21/E. In his cross-examination he denied the suggestions that entries in register no. 19 are ante-dated and ante-time.
29. PW-22 Dr. Swati Gupta deposed that since original documents were not produced before she did not give opinion regarding nature of injury on MLC of Mehandi Hasan. She proved her endorsement on the MLC Ex. PW22/A. She further deposed on 23.07.2014 the MLC of Mehandi Hasan was put before her again and after going through the notes, she opined the nature of injury as simple in nature.
30. PW-23 Insp. Pankaj Kumar deposed that on 09.02.2014, he was posted as SI and was In-Charge of Mobile Crime Team, Central District. He deposed that he alongwith HC Ajay (fingerprint proficient) and Ct. Arun (photographer) reached the spot and Ct. Arun took the photographs of TATA Vista Car bearing registration no. DL 5CG 1515 and HC Ajay lifted one chance print from the said car. He also deposed that on 12.02.2014 at instance of SI Suresh Pal he went to bus stand opposite Rajghat where HC Ajay took 14 chanceprints from car bearing registration no. DL 2CAD 9069 and Ct. Arun took the photographs. He proved his report Ex. PW23/A and PW23/B in this regard. In his cross- examination he denied the suggestion that the said reports were prepared by him at instance of IO while sitting in the PS.
31. PW-24 ASI Ajay Kumar deposed on the lines of PW-23 Insp. Pankaj Kumar. He deposed that on 09.02.2014 and on 12.02.2014, he alongwith SI Pankaj and Ct. Arun went to the spots and he lifted the chanceprint from cars mentioned above. This witness was not cross-examined on behalf of accused persons.
FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 12 of 47
32. PW-25 Retd. SI Deshpal Singh deposed that on 09.11.2015, he alongwith Ct Sansar Pal went to Tis Hazari Court in the Court of Ld. MM where accused Waseem @ Kalia was produced in muffled face and with the permission of Court he formally arrested him and recorded his disclosure statement. He also deposed that accused Waseem @ Kalia refused to join the TIP proceedings and thereafter the accused was sent to J.C.
33. PW-26 Sh. Ajay Kumar Mallik, Ld. ASCJ proved the TIP proceedings of accused Nazar Chaudhary exhibit as Ex. PW26/B and deposed that accused Nazar Chaudhary had refused to join the TIP proceedings. He also proved the TIP proceedings of accused Abdul Salam @ Wasim @ Tiggi exhibit as Ex. PW26/D and deposed that accused Abdul Salam @ Wasim @ Tiggi refused to join the TIP proceedings. He also proved the TIP proceedings of case property Ex. PW26/G in which Mehandi Hasan correctly identifies the case property. He also proved the TIP proceedings of accused Rashid Ali exhibit as Ex. PW26/I and deposed that accused refused to join the TIP Proceedings. This witness was not cross-examined on behalf of accused persons.
34. PW-27 Retd. SI Suresh Pal is the IO of the present case. He deposed that on 08.02.2014, he was posted as SI at PS Jama Masjid and on that day complainant Nikhat Fathima came to the PS and gave a written complaint to him at about 04:30 PM on which he made endorsement Ex. PW27/A and thereafter FIR in the present case was registered. He narrated about all the proceedings conducted by him during investigation. He proved the arrest memo and personal search memo of accused persons alongwith seizure memo of case property. He correctly identified the accused persons in the Court during the trial. This witness was cross-examined at length. In his cross-examination he admitted that he never received any complaint from the family members of Rifaqat Ali @ Pappu. He also admitted that he did not ask the witnesses from the petrol pump to join the FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 13 of 47 investigation. He deposed that the parking area near Rajghat was not authorized by MCD and he did not remember if any attendant in the said parking area was joined by accused in the investigation or not. He also deposed that no person was joined in the investigation by him after reaching at Dasna Gang Nehar. He also deposed that they visited Dasna Ganga Nehar by Private Santro Car. He also admitted that PW-Mehandi Hasan did not give in writing the serial number of currency notes which was robbed by the accused persons from him. He also admitted that no neighbour was called to join the investigation at the time of arrest of accused Shameem. He deposed that complainant Nikhat Fathima had given her mobile phone number 8377018968 which was in name of one Rohid. He deposed that he did not flash the message to police headquarter for intercepting the vehicle i.e. Vista by which Mehandi Hasan was dropped at Lal Quila. He also admitted that he did not ask the shopkeepers whose shops were adjacent to Biryaniwala to join the investigation in the present case. He deposed that he did not know whether any CCTV camera installed at Petrol Pump or not. He denied the suggestion that he was well aware that the bill of wrist watch marked P-27/A was forged and fabricated. He also deposed that he did not deem it proper to investigate the present case through the call details of accused persons. He denied the suggestion that he did not conduct the investigation in the present case in a fair manner or that accused persons have been falsely implicated in the present case.
35. PW-28 Dr. Ashok Malik proved the sanction Ex. PW28/A given by him to prosecute accused Tasleem under Arms act.
36. PW-29 Dr. P. N. Pandey, proved the nature of injury as simple on the MLC of PW-5 Rifaqat Ali @ Pappu, Ex. PW-5/DX-2.
FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 14 of 47
37. After closing of Prosecution Evidence, separate statements of all the accused persons were recorded u/s 313 Cr.PC, wherein they denied all the charges against them. They also stated that they are innocent and have been falsely implicated in the present case by the IO at instance of PW-8 Mehndi Hasan. They also stated that the TIP proceedings was refused by them as they had been shown to the complainant/injured in the PS. Accused persons also took the defence that there was enmity between the family of accused Tasleem and victim Mehandi Hasan and brother of accused Tasleem namely Mohd. Sadiq had married with Rubina who was niece of victim Mehandi Hasan and the said marriage had taken place against the wishes of Mehandi Hasan and his brothers and his nephews. They further stated that on 07.07.2008, the brothers of victim Mehandi Hasan namely Mohd. Saleem, Shaheen Zargam Ali and his nephews namely Sajid Waseem, Sabir Kasim and Shahi Nawaz had fired 17-18 rounds of gun shot at Mohd. Tayyab and Tariq, the brothers of accused Tasleem in which Mohd. Tayyab sustained serious injury and Tariq succumbed to injuries and victim Mehandi Hassan, his above mentioned brothers and nephews also threatened to annihilate the family of accused Tasleem. They further stated that in the abovesaid case the brothers and nephews of victim Mehandi Hassan were awarded death sentence by the trial court due to which they have been falsely implicated in the present case.
38. After the recording of their statements u/s 313 Cr.P.C, accused persons examined 05 defence witnesses. The testimonies of defence witnesses has been discussed in brief as under:-
39. DW-1 Matloob Khan deposed that on 07.09.2014 accused Shameem was engaged by him for videography for the marriage of his son Imran Khan and accused Shameem remained there from 12:00 Am to 05:30 AM for the videography/photography.
FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 15 of 47
40. DW-2 Sh. Mehtabuddin deposed that on 7th day of month, accused Waseem @ Kalia worked with him till 01:00 AM and thereafter he left for his house and on next day accused Waseem @ Kalia remained in his factory till 04:00 PM.
41. DW-3 Rashid Ul Khairi deposed that he was working as an accountant with packard Watch Company since 1986 and on 11.02.2014 vide invoice no. 27537 one titan watch was told for Rs. 1950. He proved the bill of the said watch already marked as Mark PW27/DA and exhibited as Ex. DW3/A. He also proved the entry of voucher/invoice in the sealed register exhibit as Ex. DW-3/B. He also deposed that the bill dated 20.01.2013 marked as P-27/A was bogus and fake document and same was not issued by the Pakard Watch Company. He was cross-examined by the Ld. Addl. PP for the State in which he denied the suggestions given to him in his cross examination.
42. DW-4 Sh. Ravashil Ali deposed that accused Nazar Chaudhary is involved in the business of poultry farming with his father and in the year 2013- 14 he was doing the same work alongwith his father and he did not have any property dealing office at Dasna road nor he was having the same at any point of time. In his cross-examination, prosecution has failed to put any dent on his veracity.
43. DW-5 Waseem Ahmad deposed that in the year 2014, he was selling biryani at Gali Gharia Matiya mahal, Delhi and he knew only accused Tasleem. He further deposed in the month of February 2014, no incident of kidnapping had happened in front of his biryani shop or at his biryani shop and accused Tasleem did not come with his friends at biryani shop at any point of time.
FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 16 of 47
44. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State, Sh. Anuj Ranjan, Ld. Counsel for complainant and Ld. Counsels for accused persons.
45. Ld. Addl. PP for the State assisted by Sh. Anuj Ranjan, Ld. Counsel for complainant argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his submissions, he argued that complainant PW-1 Nikhat Fathima, PW-5 Rifaqat Ali @ Pappu, PW-8 Mehandi Hasan and PW-11 Nasir have completely supported the prosecution case. He also argued that the fingerprints of accused person were found on two cars. He further argued that the robbed amount has been recovered from the possession of accused persons. He further argued that IO and other police officials have proved the proceedings conducted by them during the investigation of the present case. He also argued that prosecution has proved the recovery of case properties from the possession of accused persons beyond reasonable doubt. He further argued that PW-1 Nikhat Fathima, PW-5 Rifaqat Ali @ Pappu, PW-8 Mehandi Hasan and PW-11 Nasir are the witnesses of sterling quality and hence their testimonies should be relied upon. He argued that the prosecution has proved its case against accused persons under the Sections under which charges have been framed against them beyond reasonable doubt and hence accused persons should be convicted under all the Sections of Law under which charges have been framed against them.
46. Ld. Counsels for accused persons argued that accused persons have been falsely implicated in the present case. They argued that there are material contradictions in the testimonies of PW-1 Nikhat Fathima, PW-5 Rifaqat Ali @ Pappu, PW-8 Mehandi Hasan and PW-11 Nasir and hence their testimonies FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 17 of 47 cannot be relied upon. They argued that no recovery has been effected by any of the accused and same have been planted upon and that is why no independent public witnesses have been joined in the investigation at the time of alleged recoveries. They also argued that there is no recording of the conversation allegedly took place between PW-1 Nikhat Fatima and the kidnappers. They also argued that PW-8 Mehandi Hasan has used a forced and fabricated invoice of the watch. They also argued that no CCTV footage from the point of kidnapping till taking of the victims to Dasna has been collected by the IO. They also argued that the location chart of the mobile phones has also not been collected by the IO. They argued that prosecution has failed to prove its case against the accused persons beyond reasonable doubt and hence the accused persons should be acquitted under all the Sections under which charges have been framed against them.
47. In the present case, Charges U/s 364A/395/ 397/368/412 IPC and u/s 25 Arms Act have been framed against the accused persons. These Sections have been elaborated as follows:-
364 A Kidnapping for ransom etc. Whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction, and threatens to cause death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such persom may be put to death or hurt, or causes hurt or death to such person in order to compel the Government or [any foreign State or international inter-governmental organisation or any other person] to do so or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.
368 Wrongfully concealing or keeping in confinement, kidnapped or abducted person.
Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner if he had kidnapped or abducted such person with the same FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 18 of 47 intention of knowledg, or for the sam purpose as that with or for which he conceals or detains such person in confinement.
397 Robbery or dacoity, with attempt to cause death or grievous hurt If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, so attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
Dacoity has been defined u/s 391 IPC and punishment for the dacoity has been provided u/s 395 IPC. These sections reads as under:-
391. Dacoity When five or more persons who conjointly commit or attempt to commit a robbery, or where the whole number of persons who conjointly committing or attempting to commit a robbery and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding is said to commit "Dacoity".
395. Punishment for dacoity Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
412 Dishonestly receiving property stolen in the commission of a dacoity.
Whoever dishonestly receives or retains any stolen property, the possession whereof he know or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen shall be punished with [imprisonment for life] or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Section 25 of Arms Act provides punishment for the possession of arms without any license which has been defined as under:-
(1) Whoever--
FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 19 of 47
(a) [manufactures, obtains, procures], sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(b) shortens the barrel of a firearm or converts an imitation firearm into a firearm 3[or convert from any category of firearms mentioned in the Arms Rules, 2016 into any other category of firearms] in contravention of section 6; or
(d) brings into, or takes out of, India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than 5[seven years but which may extend to imprisonment for life] and shall also be liable to fine.
[(1A) Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than 7[seven years but which may extend to fourteen years] and shall also be liable to fine.
[Provided that the Court may, for any adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than seven years.] [(1AB) Whoever, by using force, takes the firearm from the police or armed forces shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.] (1AA) whoever manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer or has in his possession for sale, transfer, conversion, repair, test or proof, any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than 9[ten years] but which may extend to imprisonment for life and shall also be liable to fine.] FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 20 of 47 [(1AAA)] Whoever has in contravention of a notification issued under section 24A in his possession or in contravention of a notification issued under section 24B carries or otherwise has in his possession, any arms or ammunition shall be punishable with imprisonment for a term which shall not be less than 11[seven years but which may extend to imprisonment for life] and shall also be liable to fine.
(1B) Whoever--
(a) acquires, has in his possession or carries any firearm or ammunition in contravention of section 3; or
(b) acquires, has in his possession or carries in any place specified by notification under section 4 any arms of such class or description as has been specified in that notification in contravention of that section; or
(c) sells or transfers any firearm which does not bear the name of the maker, manufacturers number or other identification mark stamped or otherwise shown thereon as required by sub-section (2) of section 8 or does any act in contravention of sub-section (1) of that section; or
(d) being a person to whom sub-clause (ii) or sub-clause (iii) of clause (a) of sub-section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section; or
(e) sells or transfers, or converts, repairs, tests or proves any firearm or ammunition in contravention of clause (b) of sub-section (1) of section 9; or
(f) brings into, or takes out of, India, any arms or ammunition in contravention of section 10; or
(g) transports any arms or ammunition in contravention of section 12; or
(h) fails to deposit arms or ammunition as required by sub-section (2) of section 3, or sub-section (1) of section 21; or
(i) being a manufacturer of, or dealer in, arms or ammunition, fails, on being required to do so by rules made under section 44, to maintain a record or account or to make therein all such entries as are required by FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 21 of 47 such rules or intentionally makes a false entry therein or prevents or obstructs the inspection of such record or account or the making of copies of entries therefrom or prevents or obstructs the entry into any premises or other place where arms or ammunition are or is manufactured or kept or intentionally fails to exhibit or conceals such arms or ammunition or refuses to point out where the same are or is manufactured or kept, shall be punishable with imprisonment for a term which shall not be less than 12[two years but which may extend to five years and shall also be liable to fine] and shall also be liable to fine:
Provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than 13[two years].] [(1C) Notwithstanding anything contained in sub-section (1B), whoever commits an offence punishable under that sub-section in any disturbed area shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
Explanation.--For the purposes of this sub-section, disturbed area means any area declared to be a disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order, and includes any areas specified by notification under section 24A or section 24B.] (2) Whoever being a person to whom sub-clause (i) of clause (a) of sub-
section (1) of section 9 applies, acquires, has in his possession or carries any firearm or ammunition in contravention of that section shall be punishable with imprisonment for a term which may extend to one year, or with fine, or with both.
[(3) Whoever sells or transfers any firearm, ammunition or other arms--
(i) without informing the district magistrate having jurisdiction or the officer in charge of the nearest police station, of the intended sale or transfer of that firearm, ammunition or other arms; or FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 22 of 47
(ii) before the expiration of the period of forty-five days from the date of giving such information to such district magistrate or the officer in charge of the police station, in contravention of the provisions of clause (a) or clause (b) of the proviso to sub-section (2) of section 5, shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.] (4) Whoever fails to deliver-up a licence when so required by the licensing authority under sub-section (1) of section 17 for the purpose of varying the conditions specified in the licence or fails to surrender a licence to the appropriate authority under sub-section (10) of that section on its suspension or revocation shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to five hundred rupees, or with both.
(5) Whoever, when required under section 19 to give his name and address, refuses to give such name and address or gives a name or address which subsequently transpires to be false shall be punishable with imprisonment for a term which may extend to six months, or with fine of an amount which may extend to two hundred rupees, or with both.
[(6) If any member of an organised crime syndicate or any person on its behalf has at any time has in his possession or carries any arms or ammunition in contravention of any provision of Chapter II shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
(7) Whoever on behalf of a member of an organised crime syndicate or a person on its behalf, -
(i) manufactures, obtains, procures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section 5; or
(ii) shortens the barrel of a firearm or converts an imitation firearm into a fire arm or converts from any category of firearms mentioned in the Arms Rules, 2016 into any other category of firearms in contravention of section 6; or FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 23 of 47
(iii) brings into, or takes out of India, any arms or ammunition of any class or description in contravention of section 11, shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
Explanation.--For the purposes of sub-sections (6) and (7),--
(a) organised crime means any continuing unlawful activity by any person, singly or collectively, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any person;
(b) organised crime syndicate means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime.
(8) Whoever involves in or aids in the illicit trafficking of firearms and ammunition in contravention of sections 3, 5, 6, 7 and 11 shall be punishable with imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine.
Explanation.--For the purposes of this sub-section, illicit trafficking means the import, export, acquisition, sale, delivery, movement or transfer of firearms and ammunition into, from or within the territory of India, if the firearms and ammunition are not marked in accordance with the provisions of this Act or are being trafficked in contravention of the provisions of this Act including smuggled firearms of foreign make or prohibited arms and prohibited ammunition.
(9) Whoever uses firearm in a rash or negligent manner or in celebratory gunfire so as to endanger human life or personal safety of others shall be punishable with an imprisonment for a term which may extend to two years, or with fine which may extend to rupees one lakh, or with both.
48. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 24 of 47 and gone through the relevant provisions of law. I have also considered the judgments relied upon by the Ld. Addl. PP for the state as well as Ld. Counsels for accused persons.
49. PW-1 Nikhat Fatima, PW-5 Rifaqat Ali @ Paapu, PW-8 Mehandi Hasan and PW-11 Nasir are the star witnesses of the prosecution. PW-1 Complainant Nikhat Fatima is the complainant in the present case while PW-5 Rifaqat Ali @ Pappu and PW Mehandi Hasan are alleged to have been kidnapped by the accused persons. PW-11 Nasir is alleged to have agreed to pay the ransom amount to the accused persons. Therefore the testimony of these four witnesses has to be appreciated minutely as per the established principles of law.
50. PW-1 Nikhat Fatima gave a complaint Ex. PW1/A in writing to SHO PS Jama Masjid on the basis of which present FIR was registered. In her complaint, she has named one Nazim Chaudhary alongwith other accused persons who had kidnapped her husband from Matia Mahal, Jama Masjid. In her examination in chief in Court in capacity of PW-1, she clarified that she had mentioned the name of Nazar Chaudhary as Nazim Chaudhary in her complaint. As per prosecution story, accused Nazar Chaudhary met the victims i.e. PW-5 Rifaqat Ali @ Pappu and PW-8 Mehandi Hasan at Dasna for the first time and he was not involved in the kidnapping of PW-5 Rifaqat Ali @ Pappu and PW-8 Mehandi Hasan. This raises serious doubts on the veracity of PW-1 Nikhat Fatima.
51. In her complaint Ex. PW1/A, PW-1 Nikhat Fatima stated that her husband Mehandi Hasan had been kidnapped by accused persons and she had not mentioned that Rifaqat Ali @ Pappu had also been kidnapped. As per her complaint Ex. PW1/A, she received total four calls from her husband i.e. FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 25 of 47 09:45 AM, 10:12 AM, 10:30 AM and 10:45 AM from her husband Mehandi Hasan and it seems quite improbable that PW-8 Mehandi Hasan may not have told her that alongwith him, PW-5 Rifaqat Ali @ Pappu has also been kidnapped. Moreover, PW-1 Nikhat Fatima in her cross-examination deposed that her husband has told her that he was going to have Biryani with PW-5 Rifaqat Ali. It makes the version of PW-1 Nikhat Fatima as doubtful.
52. PW-1 Nikhat Fatima in her cross-examination on behalf of accused persons namely Tasleem, Abdul Salam and Mohd. Sakib deposed that after 15-20 minutes of receiving the last call from her husband i.e. after 10:45 AM, she went to the house of PW-11 Nasir. However, in her cross-examination on behalf of accused persons namely Shehzada Waseem and Mohd. Waseem, she deposed that she received three calls in presence of Nasir. Thus, both the versions of PW-1 Nikhat Fatima are contradictory to each other and same cannot stand together and hence testimony of PW-1 Nikhat Fatima cannot be relied upon on this point and it raises serious doubts on her veracity. Moreover PW-8 Mehandi Hasan in his cross-examination deposed that he made 6-10 calls to his wife PW-1 Nikhat Fatima from 04:00 AM to 07:30 PM which is in contradiction with PW-1 Nikhat Fatima.
53. PW-1 Nikhat Fatima deposed that she alongwith PW-11 Nasir went to the PS and gave complaint Ex. PW1/A to SHO on the basis of which present FIR registered. PW-1 Nikhat Fatima in her complaint Ex. PW1/A has stated that her husband has asked her to arrange Rs. 20 lakh for paying the ransom which means that PW-11 Nasir had the knowledge that a ransom of Rs. 20 Lakh has been demanded by the accused persons. However, PW-11 Nasir deposed that PW-1 Nikhat Fatima told him that a ransom of Rs. 5 Lakh was demanded by the accused persons and when he made phone call on the FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 26 of 47 mobile of PW-8 Mehandi Hasan and talked to accused Tasleem, he came to know that they were demanding a ransom of Rs. 20 Lakh. Thus, there is a material contradiction in the version of PW-1 Nikhat Fatima and PW-11 Nasir w.r.t the same fact which raises serious doubts on their veracity.
54. PW-1 Nikhat Fatima in her complaint Ex. PW1/A has stated that only her husband PW-8 Mehandi Hasan had been kidnapped by accused persons and she has not mentioned the name of Rifaqat Ali @ Pappu. In the court also PW-1 Nikhat Fatima in her cross-examination deposed that she came to know that Pappu had also been kidnapped only when she met her husband in the PS on second visit. However, PW-11 Nasir deposed that PW-1 Nikhat Fatima came to his residence at about 12:00-01:00 Noon and told him that her husband Mehandi Hasan and Rifaqat Ali @ Pappu had been kidnapped. Both the statements of abovesaid witnesses are contradictory to each other on material facts and hence cannot stand together and hence cannot be relied upon.
55. PW-1 Nikhat Fatima deposed that she received calls from her husband w.r.t his kidnapping on her mobile phone 8377018968. PW-13 Sh. Ajeet Singh, alternate Nodal Officer, Vodafone Idea Cellular Company produced the certified copy of customer application form alongwith his subscriber's details vide memo Ex. 13/A and as per the said record mobile no. 8377018968 was allotted to one Mohd. Rohid. PW-Mohd. Rohid has not been examined by the prosecution as PW to prove that he had given the said SIM card to PW-1 Nikhat Fatima for use. In absence of examination of PW- Mohd. Rohid, it cannot be said that PW-1 Nikhat Fatima was using the mobile phone no. 8377018968 and she had conversation with her husband PW-8 Mehndi Hasan FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 27 of 47 through that mobile number. Thus, it raises doubt w.r.t the phone calls received by PW-1 Nikhat Fatima.
56. PW-1 Nikhat Fatima in her examination in chief deposed that she went to PW-11 Nasir and discussed the matter with him and thereafter she alongwith Nasir went to PS and gave a complaint. PW-1 Nikhat Fatima has not deposed that PW-11 Nasir had assured that accused persons on phone to arrange Rs. 20 lakh as ransom amount. However, PW-11 Nasir who was present PW-1 Nikhat Fatima till the registration of FIR deposed that he talked with accused Taslim and promised him that he will give the ransom amount and asked him to release Mehandi Hasan. Thus, there is material omission in the testimony of PW-1 Nikhat Fatima w.r.t assurance given by PW-11 Nasir. In these circumstances, the testimony of PW-1 Nikhat Fatima and PW-11 Nasir has become doubtful.
57. PW-11 Nasir deposed that he used his mobile phone no. 9654043061 while making call to PW-8 Mehandi Hasan when he was in custody of accused persons. In his cross-examination he deposed that 95 per cent he was confirmed that the abovesaid mobile phone SIM was in his name. PW-13 Sh. Ajeet Singh, alternate Nodal Officer, Vodafone Idea Cellular Company produced the record of mobile phone no. 9654043061Ex. PW13/A and deposed that the said number was issued in the name of one Shehnawaj. PW- 17 Shehnawaj Siddiqui deposed that he did not remember if he had handed over any SIM having no. 9654043061 to Nasir in the year 2014. He correctly identified his photograph on customer application form Ex. PW13/H4 and also deposed that at the time of filling the customer application form he had provided his Voter ID mark P-17/A and he did not remember if he had given the said SIM to PW-11 Nasir. As per the prosecution story, the conversation FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 28 of 47 took place between: PW-11 Nasir and PW-8 Mehandi Hasan and at that time PW-11 Nasir had used the abovesaid mobile phone to make call. Since, PW- 17, Shehnawaj Siddiqui has turned hostile, the use of abovesaid mobile phone by PW-11 Nasir to make call to PW-8 Mehndi Hasan and having conversation with accused Tasleem has become doubtful which raises serious doubt on prosecution story.
58. PW-1 Nikhat Fatima deposed that on 07.02.2014, her husband PW-8 Mehdi Hassan went to Brahmpuri and did not returned till late night and she called on his mobile phone who told him that he would come and disconnected the phone and thereafter she went to sleep and her husband did not return even in the morning. She deposed that she usually get up at about 07:00 am in the morning and on that day, she got call from her husband at about 09:45 am. The conduct of PW-1 Nikhat Fatima is relevant. PW-8 Mehdi Hassan had assured her to return but he did not return till morning and even thereafter PW-1 Nikhat Fatima did not inquire anything about her husband after getting up at 07:00 am in the morning. She also did not make any call at 100 number despite receiving ransom call and later on in the afternoon she went to the PS directly. This raises doubt on the prosecution story.
59. PW-11 Nasir deposed that he agreed to arrange Rs. 20 Lakh as ransom amount and asked accused Taslim to release Mehandi Hasan. The conduct of PW-11 Nasir and PW-1 Nikhat Fatima is relevant here as PW-11 Nasir had agreed to pay the ransom amount before going to the PS, then why this fact was not mentioned by PW-1 Nikhat Fatima in her complaint Ex. PW1/A. Even if the said promise was made, why PW-1 Nikhat Fatima and PW-11 Nasir did not wait for safe release of Mehandi Hasan. It raises serious doubt on veracity of PW-1 Nikhat Fatima and PW-11 Nasir.
FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 29 of 47
60. PW-1 Nikhat Fatima, PW-8 Mehandi Hasan and PW-11 Nasir deposed that the ransom amount was demanded from PW-8 Mehandi Hasan only. As per the testimony of PW-8 Mehandi Hasan and PW-5 Rifaqat Ali @ Pappu, they both were kidnapped. PW-5 Rifaqat Ali @ Pappu also admitted that no ransom was demanded from him. PW-1 Nikhat Fatima deposed that family members of PW-5 Rifaqat Ali @ Pappu did not come to PS nor they made any complaint in this regard. It is very unusual that if two persons are kidnapped and the ransom is demanded from one only. This raises doubt on prosecution story.
61. PW-1 Nikhat Fatima in her complaint has not stated anything about PW-5 Rifaqat Ali @ Pappu however in her cross-examination on behalf of accused Shehjada Irfan @ Lal, she deposed that her husband PW-8 Mehandi Hasan told her that during the first call made to her that he was going to have biryani with PW-5 Rifaqat Ali @ Pappu from Gali Garhia Matiya Mahal. Thus, as per the version of PW-1 Nikhat Fatima, she has told this fact during the late night call by her husband PW-8 Mehandi Hasan but she did not mention anything about this fact in her complaint Ex. PW1/A nor she made any call to PW-5 Rifaqat Ali @ Pappu to know as to how the incident took place as she deposed that she came to know that PW-5 Rifaqat Ali @ Pappu was also kidnapped by accused persons only after they were released. This raises serious doubt upon the veracity of PW-1 Nikhat Fatima.
62. PW-11 Nasir deposed that he promised to pay the ransom amount to accused Taslim. However, PW-5 Rifaqat Ali @ Pappu deposed that PW-11 Nasir assured to arrange Rs. 5 Lakh and one flat as ransom. Thus, PW-11 Nasir has not deposed anything that he will pay the amount of Rs. 5 lakh and one flat to the accused persons. Thus, there is material contradiction between FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 30 of 47 the testimony of PW-5 Rifaqat Ali @ Pappu and PW- Nasir on the same fact. Moreover, nothing has been brought on record by the prosecution w.r.t the existence of such flat.
63. PW-1 Nikhat Fatima deposed that the complaint Ex. PW1/A was in her handwriting and she had written it at about 03:00-03:30 PM at her residence after discussion with PW-11 Nasir. However, in her cross-examination on behalf of accused Waseem @ Kalia she deposed that IO had provided her the paper on which she wrote her complaint Ex. PW1/A and at that time the police officials were present with her. Thus, PW-1 Nikhat Fatima has given two contradictory versions w.r.t the same fact and hence her testimony cannot be relied upon.
64. PW-5 Rifaqat Ali @ Pappu deposed that accused Mohd. Shameem @ Fancy took out camera and said that "inhe nanga karo aur inki video banao tab ye paise mangyenge". PW-8 Mehandi Hasan has not deposed any such fact before the Court and hence the testimony of PW-5 Rifaqat Ali @ Pappu is doubtful on this aspect.
65. PW-5 Rifaqat Ali @ Pappu deposed that when they were in custody of accused persons, PW-8 Mehandi Hasan made 3-4 calls to his known persons for arranging Rs. 5 lakh for the accused persons and the said persons assured Mehandi Hassan that the arrangement of Rs. 5 Lakh will be made at about 11:00 AM. PW-8 Mehandi Hasan deposed that he had made call to his wife PW-5 Nikhat Fatima for arranging the ransom amount and he has not deposed that he had made call to other 03-04 persons for arranging Rs. 5 Lakh for ransom. Moreover, no such person has been examined and cited as PW by prosecution. Thus due to the material contradiction on a material fact in the FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 31 of 47 testimony of PW-5 Rifaqat Ali @ Pappu and PW-8 Mehandi Hasan, doubts have been created on the prosecution story.
66. PW-5 Rifaqat Ali @ Pappu deposed in his cross-examination that he reached Brahmapuri between 08:00-09:00 PM and remained there till 03:30 AM and during that period he alongwith PW-8 Mehandi Hasan had taken dinner at house of Abbas who was brother of PW-8 Mehandi Hasan. PW-8 Mehandi Hasan has not deposed anything in this respect in his examination- in-chief. Moreover Abbas has not been cited and examined as PW by the prosecution. This raises serious doubt on the veracity of PW-5 Rifaqat Ali @ Pappu.
67. PW-5 Rifaqat Ali @ Pappu deposed that accused Irfan @ Lala took him and Mehandi Hasan inside the gali and accused Taslim took out a pistol and fired thrice with his pistol near their foot. However, this fact has not been stated by PW-5 Rifaqat Ali @ Pappu in his statement recorded u/s 161 Cr.P.C and he was confronted with his said statement Ex. PW5/DX-1 on this aspect. Moreover, PW-8 Mehandi Hasan has not deposed that accused Taslim had fired thrice. PW-27 Retd SI Suresh Pal has not deposed anything about the firing by accused Taslim. The whole charge-sheet is silent on this aspect. The said spot was inspected by IO PW-27 Retd. SI Suresh Pal and no fired cartridges were found at the spot nor any marks of such firing were found at the spot during the investigation by the IO. This raises serious doubt on the prosecution story.
68. PW-5 Rifaqat Ali @ Pappu deposed that accused Taslim took his kada and thereafter he changes his version and deposed that accused Nazar Chaudhary took his Kada. This fact was not stated by PW-5 Rifaqat Ali @ Pappu in his statement recorded u/s 161 Cr.P.C and he was confronted with FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 32 of 47 his said statement Ex. PW5/DX1. Moreover PW-5 Rifaqat Ali @ Pappu has not given any bill of abovesaid kada nor such kada was recovered by the IO during the investigation. It raises doubt on the testimony of PW-5 Rifaqat Ali @ Pappu.
69. PW-5 Rifaqat Ali @ Pappu deposed that accused Irfan @ Lala took Rs. 6000/- 7000/- from him and in later part of his examination he deposed that accused Taslim had taken Rs. 6000-7000/- from him. PW-8 Mehandi Hasan had not deposed that any such amount was taken by any of the accused from PW-5 Rifaqat Ali @ Pappu. Thus there is material contradiction of PW-5 Rifaqat Ali @ Pappu and PW-8 Mehandi Hasan and hence their testimonies are not reliable.
70. PW-5 Rifaqat Ali @ Pappu in his cross-examination deposed that they had crossed Toll tax plaza while they were being taken to Dasna. No CCTV footage of the said toll Plaza has been collected by the IO to prove that the cars used in the commission of offence had crossed the said plaza to reach Dasna. No slip with respect to the toll tax paid by the drivers of two cars has also been placed on record by the IO nor any toll plaza employee has been examined and cited as PW by the IO. This raises serious doubts on the quality of investigation.
71. PW-8 Mehandi Hasasn in his cross-examination admitted that other customers were also present at the biryani shop. No such person has been examined and cited as PW by the prosecution. The prosecution has not even examined the biryaniwala who was present at the spot. Accused persons in their defence has examined DW-5 Waseem Ahmad. DW-5 Waseem Ahmad deposed that in the year 2014, he used to sell biryani at Gali Gharia Matiyamahal, Delhi and in the month of Feb 2014 no incident of kidnapping FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 33 of 47 had happened at his biryani shop or in front of his biryani shop. DW-5 Waseem Ahmad has been successful in putting a dent on the prosecution story w.r.t the alleged incident.
72. PW-5 Rifaqat Ali @ Pappu deposed that accused Rashid came to the canal while PW-8 Mehandi Hasan deposed that accused Rashid came to the office of accused Nazar Chaudhary. The version of PW-5 Rifaqat Ali @ Pappu and PW-8 Mehandi Hasan is contradictory w.r.t the same fact and hence their testimonies in this regard cannot be relied upon.
73. PW-8 Mehandi Hasan deposed that accused Nazar Chaudhary and Rashid met them in office while PW-5 Rifaqat Ali @ Pappu deposed that accused Nazar Chaudhary came on later on. Thus, their version in this regard is contradictory. Accused Nazar Chaudhary has taken a defence that he was not having any office of property dealer at Dasna at the relevant time. He has examined DW-4 Ravahil Ali in this regard. DW-4 Ravahil Ali deposed that accused Nazar Chaudhary is involved in the business of poultry farming with his father and in the year 2013-2014 he was doing the same work alongwith his father and he does not have any property dealer office at Dasna Road nor he was having the same at any point of time. Prosecution has not produced any concrete evidence to show that accused Nazar Chaudhary was having any office of property dealing at Dasna Road at the time of incidence and hence doubt has been created on the prosecution story.
74. PW-5 Rifaqat Ali @ Pappu deposed that accused Nazar Chaudhary said that "5 lakh nahi 20 lakh chahiye" and hence the said demand of Rs. 20 lakh was made by accused Nazar Chaudhary. However PW-8 Mehandi Hasan had deposed that the accused persons demanded Rs. 20 lakh and he has not specifically stated that the said demand was made by accused Nazar FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 34 of 47 Chaudhary though he improved his version in this regard later on. This raises serious doubts on prosecution story.
75. PW-5 Rifaqat Ali @ Pappu deposed that he was using the SIM card in name of his brother Isteqar. However, prosecution has not examined Isteqar to prove that PW-5 Rifaqat Ali @ Pappu was having the possession of SIM card in his name to prove his location at Dasna.
76. The prosecution has not proved the audio recording of any conversation between PW-1 Nikhat Fatima, PW-8 Mehndi Hassan, PW-11 Nasir and accused Tasleem with respect to the demand of ransom amount by the accused person. This has weakened the prosecution case.
77. Accused persons have also taken the defence that there was a previous enmity between PW-8 Mehndi Hassan and accused Tasleem. They have taken the defence that love marriage of one Rubina who was niece of PW-8 Mehndi Hassan was solemnized with Mohd. Shadiq who is brother of accused Tasleem against the wishes of their family members and due to that one 07.07.2008, the brothers of Mehndi Hasan namely Mohd. Saleem, Shaheen Zargam Ali and his nephews had fired 17-18 rounds at Mohd. Tayyab, Tairq and other brothers of accused Tasleem in which Mohd. Tayyab sustained serious injuries and Tariq scummed to the injuries and FIR No. 134/2008 in this regard was registered at PS Lahori Gate in which brother and nephews of PW-8 Mehndi Hasan had been awarded death sentence by the trial court. PW- 8 Mehndi Hasan in his cross-examination admitted that Zargam was his maternal cousin who was awarded death sentence by the court. He also admitted that niece of Zargam got married with brother of accused Tasleem. Similarly PW-5 Rifaqat Ali @ Pappu in his cross-examination also admitted that brother of accused Tasleem was murdered by Zargam and he along with FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 35 of 47 his associates was awarded death sentence by the court. Similarly, PW-11 Nasir in his cross-examination admitted that there was previous enmity between PW-8 Mehndi Hasan and Tasleem as brother of Mehndi Hasan had murdered the brother of Tasleem. Thus, the accused persons have brought on record that there was enmity between PW-8 Mehndi Hasan and accused Tasleem. Accused persons have taken the defence that accused Tasleem has falsely implicated due to the said enmity and the other accused persons have been falsely implicated as they were friends of accused Tasleem. Accused persons have been successful in creating a doubt on prosecution story due to the previous enmity between accused Tasleem and victim PW-8 Mehndi Hasan.
78. PW-11 Nasir deposed that he assured the payment of ransom amount in sum of Rs. 20 lakh to the accused persons and thereafter PW-5 Rifaqat Ali @ Pappu and PW-8 Mehndi Hasan were released by the accused person on his assurance. PW-11 Nasir has not explained as to from which source he was going to make payment to the accused persons. Moreover, PW-11 Nasir had not given the said assurance in writing to the accused persons nor he had given any property to them to complete his assurance. The ransom amount was not a legal payment that can be assured. It is highly improbable that if a persons is kidnapped or abducted, he may be released by the accused person only on oral assurance of PW-11 Nasir. Moreover, PW-11 Nasir was the partner of accused Mehndi Hasan at the relevant time and hence it cannot be ruled out that he is not an interested witness.
79. As per prosecution story fingerprints of accused persons namely Mohd. Waseem, Tasleem, Shehjada Irfaan @ Lala were found on the cars used in the commission of alleged offence. PW-19 SI Sushil Kumar has proved his report FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 36 of 47 in this regard Ex. PW19/A. In his cross-examination PW-19 SI Sushil Kumar admitted that he did not have any degree in Forensic Science. He also admitted that he did not know the articles from which the fingerprints of accused persons were lifted. In his cross-examination he deposed that he prepared the draft of his report in July and send the same to the Director for approval and after getting the approval, he gave his opinion. He admitted that there may be some typing mistake in his draft and as such he rectified the same after approval. Ld. Counsel for accused persons have relied on judgment of Hon'ble Supreme Court of India titled as Hari Om @ Hero Vs. State of U.P. (Crl. Appeal no. 1256/2017) and have argued that the proper procedure in lifting the fingerprints and their examinations have not been followed. The said fingerprints have been lifted by PW-24 ASI Ajay Kumar who is a police official and no expert was called from FSL to lift said fingerprints. Surprisingly, the fingerprints of the victims were not lifted/found in the alleged cars. The issue of approval by PW-19 SI Sushil Kumar from the director also raises serious doubts on his report. Applying laid down by the Hon'ble Supreme Court of India in Hari Om @ Hero (Supra), this court is of considered opinion that the fingerprints of the accused persons in the cars have not been proved by the prosecution beyond reasonable doubt.
80. PW-8 Mehandi Hasan deposed that Waseem @ Kana @ Mittal took his wrist watch. The prosecution has proved the purchase receipt of the said watch marked as PW-27/A having serial no. 027537 dated 20.01.2013 purchase from Packard Watch Company situated at 703, Chandni Chowk, Delhi which shows that the said watch was purchased before the incident. However, the accused persons have examined DW-3 Sh. Rashid ul Khairi. DW-3 Rashid ul Khairi deposed that he was working as an accountant at Packard Watch Company since 1986. He produced the invoice of watch sold FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 37 of 47 through invoice no. 27535 Ex. DW3/A alongwith entry of voucher in the register exhibit as Ex. DW3/B. As per the said voucher, the said watch with said serial no. was sold on 11.02.2014 i.e. after the alleged incident. He categorically deposed that the bill produced by the prosecution marked PW27/ A is a bogus and fake document and same has not been issued by Packard Watch Company. IO PW-27 Retd. SI Suresh Pal also deposed that he had not verified the bill of the watch produced by the victim to him. He also deposed that he cannot say that bill marked as Mark P-27/A is forged or genuine since he had not verified the same. In the cross-examination of DW 3 Rashid ul Khairi, the prosecution has failed to put a dent on his veracity. Thus accused persons have proved that the watch having receipt no. 27537 was sold on 11.02.2014 by the Packard Watch Company i.e. after the alleged incident. Thus, the argument of the Ld. Defence Counsels that the said watch has been planted upon the accused cannot be ruled out in totality. Thus, the recovery of the watch from the possession of the accused Waseem @ Mittal has become doubtful.
81. The alleged robbed watch was of Titan Company. Ld. Counsel for accused persons have argued that in order to help PW-8 Mehandi Hasan only one watch of TITAN Company was kept while other watches were of Ajanta and Sonata company. The said facts has been recorded in the TIP proceedings of watch Ex. PW8/A by the Ld. MM. Thus, the TIP of the watch has also become doubtful as the watch of Mehndi Hasan was of Titan company and only watch of Titan company was kept for TIP proceeding of the said watch. Moreover the accused persons have proved that said watch was purchased after the alleged incident.
FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 38 of 47
82. PW-27 IO SI Suresh Pal has proved the recovery of robbed cash, other articles and cars from possession of accused persons and he has proved the seizure memo of said case properties. He has also proved the recovery of pistol from possession of accused Taslim vide seizure memo Ex. PW7/B. IO in his cross-examination has admitted that he has not joined any independent public person at the time of seizure of case properties in the present case. The recovery of the case property has to be proved by the prosecution beyond reasonable doubt in compliance with the law laid down in this regard by Hon'ble Supreme Court of India.
83. Section 27 of Indian Evidence Act is an exception to Section 25 and Section 26 of the said act. Section 27 is based on the doctrine of confirmation by subsequent events. The principle u/s 27 of Indian Evidence Act is based on the principle that if any fact is discovered on the basis of disclosure statement of accused, the discovery of said fact is a guarantee that the information given by the accused in his disclosure statement is true. Such information may be confessional or non-inculpating in nature but if any new fact is discovered from such information it will be considered as a reliable information.
84. The fact discovered on the basis of disclosure of statement of accused must be relevant facts. Such information must be given by the person who is accused of an offence and the recovery of article or discovery of fact must be based upon the information given by such accused.
85. Hon'ble High Court of Delhi in Judgment titled as Mohammad Burhan Vs. Directorate of Revenue Intelligence, cited as 'MANU/DE/3131/2017' has held that joining of independent public witness is not mere a formality; it is a vital safeguard to avoid false implication of individual. In number of cases either no independent public witnesses are FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 39 of 47 associated on the pretext that none of them is available; in some cases only passerbyes are requested to join the investigation. Non-examination of independent public witness in the instant case is serious flaw and adverse inference is to be drawn against the prosecution for withholding them.
86. Similarly Hon'ble Supreme Court of India in Judgment titled as Ramanand@Nand Lal Bharti Vs. State of Uttar Pradesh cited as 2022 SCC online SC 1396 has observed as under:-
"52. Section 27 of the Evidence Act, 1872 reads thus:
'27 How much of information received from the accused may be proved- Provided that, when any fact is deposed to as discovered in consequence of information, received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved.
If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire, in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 40 of 47 investigating officer may draw in accordance with law. This first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of that independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two particular place anything like the weapon of offence of blood stained clothes or any other article is discovered then the part of the entire process expects the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.
87. In the present case, IO has not examined any independent public witness at the time of recovery of alleged case properties. Even no notice u/s 160 Cr.P.C was given to any person in this regard. Moreover, PW-8 Mehandi Hasan had not specifically mentioned the serial number of currency notes which was allegedly robbed from him. All the currency notes issued by the Reserve Bank of India are same and their identity can be fixed only through serial numbers or any specific mark put up on the same by someone. Applying the law laid down by the Hon'ble Supreme Court of India in Mohammad Burhan (Supra) and Ramanand@Nand Lal Bharti (Supra), this Court is of considered opinion that since no independent public witness were joined in the investigation at the time of recovery of alleged case properties including the recovery of currency notes, cars, other articles and pistol has become doubtful. Since, the recovery of pistol in the present case is doubtful the sanction accorded by PW-27 Dr.Ashok Mallik the then Addl. DCP Ex.
FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 41 of 47 PW28/A is irrelevant. Thus the prosecution has failed to prove the recovery of case properties from the possession of the accused persons.
88. PW-27 Retd SI Suresh Pal admitted that he had not made any DD entry at the police station at Dasna. Dasna is situated in Uttar Pradesh while the FIR in the present case was registered in Delhi. The general procedure followed by the Investigating Agency is that if the investigating agency of one State visits to another States for investigation, the police officials of other State are joined in investigation to ensure the fairness of investigation and the DD entry is to be made in this regard at the police station within whose jurisdiction investigation is to be conducted. IO SI Suresh Pal has not followed the said procedure due to which the investigation conducted by him at Dasna has become doubtful.
89. The CDR and mobile location chart of all the accused persons has not been collected by the IO to prove the location of each accused at different places in Delhi, on way to Dasna and their presence with the victims at Dasna. IO PW-27 SI Suresh Pal in his cross-examination has deposed that he did not deem it proper to investigate the case through call details. The call details in any case is a scientific evidence and the investigation conducted by the IO in this regard is faulty and hence the benefit of the same shall go to the accused persons.
90. To prove the prosecution case, the testimony of the prosecution witnesses must be reliable. It is not the quantity but the quality of the testimony of the witness that helps a court in arriving at a conclusion in any case. The test in this regard is that the evidence adduced by the parties must have a ring of truth. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 42 of 47 conviction of accused, the testimony of the prosecution witness must be of sterling quality.
91. In case titled as Rai Sandeep @ Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21, it is held that :
"22. In our considered opinion, the "sterling witness"
should be of a very high quality and caliber whose ver- sion should, therefore, be unassailable. The court con- sidering the version of such witness should be in a posi- tion to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be rele-
vant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross- examination of any length and howsoever strenuous it may be and under no circumstances should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence commit- ted, the scientific evidence and the expert opinion. The said version should consistently match with the version of very other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 43 of 47 punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the of- fender guilty of the charge alleged."
92. Similarly, in case of Ramdas Vs. State of Maharashtra, (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the pros- ecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the pros- ecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testi- mony. In the instant case we do not fine her evidence to be of such quality."
Thus, from the above said judgments, it is clear that the version of the witness should be natural one and it must corroborate the prosecution case. Such version must match with the testimony of other prosecution witnesses. It should be of such a quality that there should not be any shadow of doubt upon it.
93. The contradictions and inconsistencies appearing in the testimonies of PW-1 Nikhat Fatima, PW-5 Rifaqat Ali @ Pappu, PW-8 Mehandi Hasan and PW-11 Nasir have created serious doubts about the prosecution story. The versions of PW-1 Nikhat Fatima, PW-5 Rifaqat Ali @ Pappu, PW-8 Mehandi Hasan and PW-11 Nasir are not natural one. The different versions brought on record by the PW-1 Nikhat Fatima, PW-5 Rifaqat Ali @ Pappu, PW-8 Mehandi Hasan and PW-11 Nasir coupled with turning of hostile of PW-17 FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 44 of 47 Shahnawaz Siddiqui and non-joining of any independent public persons at the time of recovery of caseproperties casts a shadow of doubt on their veracity. The things appears to have not happened in the manner these have been pro- jected. The testimony of PW-1 Nikhat Fatima, PW-5 Rifaqat Ali @ Pappu, PW-8 Mehandi Hasan and PW-11 Nasir in the present case cannot be said to be of sterling quality to secure the conviction of the accused persons.
94. It is established principle of law that if two views are possible, the view favourable to the accused must be accepted. The benefit of doubt must al- ways go to the accused as the prosecution has to prove the case beyond rea- sonable doubt.
95. The Hon'ble Apex court in Rang Bahadur Singh Vs. State of U.P. re- ported in AIR 2000 SC 1209 has held as follows:
"The timetested rule in that acquittal of a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the ac- cused 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."
96. In yet another decision in State of U.P. Vs. Ram Veer Singh and An- other reported in 2007(6) Supreme 164 the Hon'ble Apex Court has held as follows:
"The golden thread which runs through the web of ad- ministration of justice in criminal cases is that if two view are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount considera- tion of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 45 of 47 conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not."
97. In the present case, due to the contradictions and inconsistencies in the testimonies of PW-1 Nikhat Fatima, PW-5 Rifaqat Ali @ Pappu, PW-8 Mehandi Hasan and PW-11 Nasir coupled with the faulty investigation con- ducted by the IO, serious doubts have been created on the prosecution story and two views are possible in this case and hence the benefit of the same must go to the accused persons.
98. In the light of aforesaid discussion, this court is of the considered opin- ion that the testimonies of PW-1 Nikhat Fatima, PW-5 Rifaqat Ali @ Pappu, PW-8 Mehandi Hasan and PW-11 Nasir are not clear, cogent, credible and trustworthy and same are not corroborated by other material evidence.
99. For the reasons stated above, this court is of the considered opinion that the prosecution has failed to prove the ingredients of alleged offences against accused persons namely Mohd. Shameem, Shehjada Irfan @ Lala, Tasleem, Shehjada Waseem @ Mittal, Mohd. Sakeeb, Abdul Salam @ Saeem @ Tiggi, Nazar Chaudhary, Rashid Ali and Waseem @ Kalia beyond reasonable doubt.
100. Accordingly in view of the aforesaid discussion,accused persons namely Mohd. Shameem, Shehjada Irfan @ Lala, Tasleem, Shehjada Waseem @ Mittal, Mohd. Sakeeb, Abdul Salam @ Saeem @ Tiggi and Waseem @ Kalia are hereby acquitted of offences punishable under Sec. 364A/34/395/368/34 IPC. Accused Tasleem is hereby also acquitted under Sec. 397/412 IPC and Sec. 25 Arms Act, 1959. Accused persons namely Nazar Chaudhary and Rashid Ali are also acquitted under Sec. 364A/34 & Sec. 395 IPC. Accused persons namely Shehjada Waseem @ Mittal, Mohd.
FIR No. 27/2014 , PS: Jama Masjid, State Vs. Mohd. Shameem & Ors. Page No 46 of 47 Sakeeb, Shehjada Irfan @ Lala and Mohd. Shameem are also acquitted un- der Sec. 412 IPC.
101. Bail bonds of the accused persons except bail bonds filed under section 437A CrPC stand cancelled. Their sureties stands discharged. Case property, if any, be released to the rightful owners.
File be consigned to Record Room after due compliance.
Digitally signed by VIRENDER VIRENDER KUMAR
KUMAR KHARTA
Date: 2023.12.09
KHARTA 18:21:46 +0530
Announced in the open court
on 09th day of December 2023 (Virender Kumar Kharta) Additional
Sessions Judge-(FTC)-02 Central
District, Tis Hazari Courts, Delhi
FIR No. 27/2014 , PS: Jama Masjid,
State Vs. Mohd. Shameem & Ors. Page No 47 of 47