Delhi District Court
State vs . Aslam Khan Fir 241/2013 (57088/2016) on 25 May, 2019
State Vs. Aslam Khan FIR 241/2013 (57088/2016)
IN THE COURT OF SHRI AJAY GULATI
ADDITIONAL SESSIONS JUDGE 05: WEST, DELHI.
IN THE MATTER OF :
Case No. 57088/2016
FIR No. 241/2013
PS Vikas Puri
U/s 364A/394/120B/34 IPC
STATE
VERSUS
ASLAM KHAN @ ZAKIR HUSSAIN
S/o Deen Mohammad
R/o Village Laadamka, Tehsil Pahari
District Bharatpur, Rajasthan
Date of Institution : 11.11.2013
Date of Reserving Judgment : 21.05.2019
Date of Judgment : 25.05.2019
Result: Acquitted Page 1 of 53
State Vs. Aslam Khan FIR 241/2013 (57088/2016)
JUDGMENT
1. Accused Aslam has been sent up by the Investigating Officer of FIR No. 241/2013 registered u/s 364A/394/120B/34 IPC, to face trial in respect of the accusations that he conspired with 3 other persons to abduct Bhuvan Oberoi for seeking ransom from his father Vinod Oberoi (Complainant), secretly confined Bhuvan and caused injuries to him after abduction, and retained property stolen from Bhuvan i.e. a Nokia mobile phone and cash of Rs.2000/. Allegedly, Bhuvan was kidnapped on 30.7.2013 by the accused along with 2 other persons under a conspiracy. However, before the ransom could be paid, the kidnappers got wind of the fact that complainant Vinod Oberoi had sought police help and the police was tracking their movements. Resultantly, Bhuvan was released without ransom being paid on 31.7.2013. Subsequently, police tracked down the accused Aslam by trailing the electronic footprints of the mobile phone used by him (mobile no. 7568057990) which he allegedly used to call up Bhuvan and entice him into a trap leading to his abduction. The 3 co accused of Aslam could not be found i.e. Aneesh, Arshad and Padam and were declared proclaimed offenders. Consequently, chargesheet was filed only against accused Aslam.
Result: Acquitted Page 2 of 53State Vs. Aslam Khan FIR 241/2013 (57088/2016)
2. Briefly put, the prosecution version unfolds as under. 45 days prior to 30.7.2013, victim Bhuvan was with his friend Anubhav Narula who received a call from a person identifying himself as Zakir Hussain. The caller offered to sell 4 ½ kgs of gold bricks which he had found while excavating earth with an earth excavating machine. Zakir Hussain told Anubhav that since they are villagers, they cannot afford to sell it in the open market and thus offered to sell the same to him. However, Anubhav showed no interest but Bhuvan took Zakir Hussain's number and got in touch with him to gain his confidence. On 30.7.2013, Bhuvan contacted Zakir and asked him about the gold bricks. Bhuvan was asked to come to a predisclosed location in Sohna, Gurgaon. Thereafter, Bhuvan took lift in the car of his cousin Akansha who worked in Gurgaon and after dropping her at MG Road Gurgaon, took her car (Maruti Ritz) and reached Sohna. He was then asked to drive towards Ferozepur Jhirka and from there he was again asked to go to a brick kiln near village Sikri. There Bhuvan met 2 persons who blindfolded him, made him sit between the driver and the pillion on a motorcycle and took him to a hut like house where accused Aslam met him and told him that he has been 'kidnapped'. A Result: Acquitted Page 3 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) ransom call was first made to the sister of Bhuvan, namely Swati who then informed her father Vinod Oberoi (complainant). The ransom deal was eventually struck for 3 lakhs. Calls for ransom were made from the mobile phone of Bhuvan. However, after agreeing to pay ransom, the complainant also approached the police in the evening of 30.7.2013 at 5.30 PM and an FIR was subsequently registered at 8.15 pm. The mobile phone of Bhuvan was put on surveillance and within an hour, its location was tracked. On 31.7.2013, the complainant proceeded alone in his car with the ransom money to deliver the same on the instructions of Aslam and ultimately reached near Alwar, Rajasthan. However, the police claims (as per the Investigating Officer) that 3 raiding teams were formed soon after the location of mobile of Bhuvan was tracked and they proceeded towards Village Chhapra (District Bharatpur) on 31.7.2013. The police teams were in touch with the complainant while he drove as per the instructions of the abductors to meet them and drop off the ransom money. Eventually, police teams could not find the abductors or the victim, and met complainant at Ferozpur Jhirka. Complainant then drove towards Alwar and eventually to Nagar where he waited for over 2 hours for the abductors. In the meanwhile, Complainant had been Result: Acquitted Page 4 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) informed by the abductors that they knew that police was following him and that is the reason why they kept giving him directions to keep driving to different locations so as to lose the police teams. Complainant finally told the abductors that he was going back and will come again to deliver ransom but the abductors insisted that he should hand over the ransom. However, complainant returned home. After sometime, he received a call from Bhuvan informing him that he had been released by the abductors whereupon, police team picked him up from Police Station Pahari.
3. Accused Aslam was arrested on 7.8.2013 from Gopal Garh Chowk, on the road leading to village Pahari after tracking his mobile phone but other co accused could not be traced and were eventually declared Proclaimed Offenders. Consequently, after completion of the investigation, accused Aslam alone was charge sheeted, as already highlighted.
4. Facts emerging from the Chargesheet are as under:
On 30.7.2013, complainant Vinod Oberoi made a statement before the investigating officer SI Johnson Jacob to the Result: Acquitted Page 5 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) effect that in the morning of 30.7.2013 at about 7.30 AM, his son Bhuwan had accompanied his cousin Akansha Sharma in her car bearing registration No. DL 9C AA4361, Maruti Ritz to MG Road, Vatika Tower, Gurgaon where he dropped Akansha Sharma after telling her that he is going upto Sohna and that he will pick her up on the way back. At about 12.30 PM, his daughter Swati received a phone call on her mobile phone No.9811670075 from the mobile No.9910710117 of his son Bhuwan after he reached Sohna whereafter his daughter Swati received another call on her mobile at about 2.30 PM on the same day from the mobile of her brother Bhuwan but this time, some other person was making the call who disclosed his name as Zakir Hussain. He told Swati that her brother Bhuvan is with him and that if she wants her brother back, a sum of Rs.6,00,000/ will have to be paid to him. Consequent to that, several other calls were also made to Swati from the mobile of her brother thereby demanding an amount of Rs. 6,00,000/ for releasing her brother Bhuwan.
5. On receiving the above complaint, Investigating Officer SI Johnson Jacob followed the movements of the abductors of Bhuwan through electronic surveillance as a result of which Bhuwan Result: Acquitted Page 6 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) was safely recovered by the police on 31.7.2013 without any ransom being paid to the abductors. Accused Aslam Khan was arrested on 7.8.2013 from Gopal Garh Market, District Bharatpur, Rajasthan and two mobile phones and cash amount of Rs. 2,000/ were recovered from him. The IO SI Johnson Jacob prepared the memos with regard to arrest and personal search of the accused whereafter the 'pointing out memo' was also prepared at his instance and case property was seized.
6. The Investigating Officer (IO) also recorded the disclosure statement of accused Aslam Khan in which he confessed to having abducted Bhuwan Oberoi on the pretext of selling him a brick of gold weighing 4/4.5 kgs for which he was called to a place near Village Pahari from where he was abducted by the accused with the help of his other associates, namely Arshad, Aneesh and Padam. The IO made efforts to apprehend the other associates of accused Aslam Khan but on finding no clue against them, NBWs were got issued against them. The Investigating Officer obtained the CDR, CAF and Cell ID regarding ownership of mobile phone No.9694330425 which was found to be in the name of accused Aslam Khan and from which Result: Acquitted Page 7 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) ransom calls were allegedly made. On completion of all the formalities with regard to the investigation, IO filed the chargesheet under Section 364A/394/120B/34 IPC against the accused before the court of concerned MM.
CHARGE :
7. The case was subsequently committed to the Court of Sessions. On 29.3.2015, Charges for the offence punishable U/s 120 B/34, 365/120B/34, 364A/120B/34, 394/34 and Section 411 IPC were framed against the accused to which he pleaded not guilty and claimed trial.
EVIDENCE :
8. To prove its case, the prosecution, in total, has examined 14 witnesses.
9. The ld. Prosecutor dropped witness SI Naveen Kumar as his statement would have been repetition of the statement made by PW 7 HC Ajay Kumar. Similarly, witnesses Const. Inder Singh and Const. Mahavir Singh were also dropped who were listed in the list of witnesses at serial Nos.10 and 11 as their statements would have been Result: Acquitted Page 8 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) repetition of the statements made by PW 7 HC Ajay Kumar and PW 10 HC Rakesh.
10. Brief description of the purpose for which each of the witnesses were summoned, is as follows -
PW1 Victim Bhuvan to depose regarding the occurrence PW 2 - Complainant Vinod Oberoi PW3 - Ms. Swati, sister of the victim Bhuvan who first received ransom call PW4 Vishal Gaurav - Nodal Officer (Airtel) regarding CDR of mobile No. 7568057990 (in the name of Smt. Kalsum) PW5 - Amar Nath Singh - Nodal Officer (Idea Cellular) deposed about portability of mobile No. 9694330425 to Vodafone (in the name of accused Aslam) PW6 Rajeev Ranjan - Nodal Officer (Tata Tele Services) regarding CDR of mobile No. 9212908261 (used by complainant Vinod though in the name of Shakara D/o Abdullah Khan). PW7 - HC Ajay Kumar - remained associated in the investigation of the case and arrest of accused Result: Acquitted Page 9 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) PW8 - Israr Babu - Alternate Nodal Officer (Vodafone) regarding CDR of mobile No. 9694330425 (in the name of accused Aslam) as well as CDR of mobile No.9811670075 (allegedly used by Swati, though in the name of one Chhatar Pal son of Ganga Ram). PW9 - ASI Ravinder Kumar - duty officer PW10 - HC Rakesh remained associated in the investigation of the case, brought the car of victim and was a part of team which arrested the accused.
PW11 - SI Sandeep Yadav - subsequent IO PW12 - Smt.Kalsum - alleged subscriber of mobile No. 7568057990 PW13 - ASI Madan Singh - made inquiries from Kalsum regarding mobile No. 7568057990.
PW14 SI Johnson Jacob Investigating Officer
11. Accused however, did not lead any defense evidence but in his statement recorded u/s 313 Cr PC, denied all incriminating evidence which appeared against him.
12. PW 1 Bhuwan Oberoi is the person who was allegedly abducted by the accused. He stated that 45 days prior to the date of Result: Acquitted Page 10 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) incident while he was sitting with his friend Anubhav Narula at his shop in Vikas Puri, Delhi, a phone call was received at the mobile No.9871245538 of his friend. The caller informed his name as Zakir Hussain stating that he runs a JCB machine and while working in a field, he found gold bricks weighing 4/4.5 kgs which he wanted to sell. His friend did not show any interest but he took the mobile number of the caller i.e. 7568057990 and had a talk with him subsequently.
The witness further deposed that on the day of incident i.e. 30.7.2013, he was asked by Zakir Hussain to reach Sohna (Gurugram). He took a lift from his cousin Akansha Sharma who used to work in Gurgaon and was going towards her place of work. He requested to accompany her till Gurgaon on the pretext that he has some work at Sohna Road. After dropping Akansha at MG Road, he drove away to Sohna Road in her white car Maruti Ritz, as was directed to him by the caller Zakir Hussain. The witness was later on instructed by the caller to drive to Ferozpur Jhirka and then to reach near a brick kiln situated 67 kms before Sikri Village where the caller was to meet him. When Bhuvan reached the given place at about 1.30 PM, a person of the age of about 2728 years met him and Result: Acquitted Page 11 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) after sometime, another person of the same age also came there on a black Splendor motorcycle. Thereafter, he was made to sit on the said motorcycle in between those two boys with his eyes blindfolded. He was taken 78 kms away from there after which they stopped in the middle of a forest. The witness also deposed that one of those two boys took out a country made pistol and threatened him not to raise alarm while aiming the pistol towards him. He was again blindfolded and driven further for 23 kms away from that place, and taken to a hut type house where accused Zakir Hussain came and told that he has been kidnapped. He was directed to call up his relatives for a ransom of Rs.6,00,000/. The witness called his sister Swati on her mobile No.9899670075 informing her about the entire incident. Thereafter, accused snatched his mobile phone and demanded ransom amount of Rs. 6 lakhs. The above said three persons including the accused, also snatched his gold chain weighing 10 gms and cash amount of Rs. 2,000/. He was also given beatings on the same day. His father informed the abductors the next day, about the arrangement of Rs. 3,00,000/ having been made by him whereafter his father was directed to bring the money. The witness also deposed that he came to know about the names of all the accused persons as Anis, Aslam and Result: Acquitted Page 12 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) Arshad. On coming to know that police is searching for them, accused Aslam and his associate Anis drove him (Bhuvan) on a bike and left him at some abandoned place. He then walked for some time and reached a village where be borrowed a mobile phone from someone and informed his father about his release. The Witness was taken by the villager of said village to PS Pahari where his father came along with the police. PW1 identified accused Aslam in the court as the person who had met him at the place where he was kept after abduction and who disclosed his name as Zakir Hussain.
In cross - examination, witness deposed that he received a call from Zakir Hussain on 30.7.2013 at 7 am and thereafter 5 - 6 more calls on the same day. He could not tell the number of the car of his cousin in which he went to Sohna. After he was blindfolded, he was driven for 30 - 40 minutes at a speed of 25 - 30 kms. However, he could not answer the question whether the road was cemented or 'kachha'. He further deposed that he saw accused Aslam for the first time in police station and was not aware if Aslam was having telephonic conversation with him posing as Zakir Hussain. As per the witness, the abductors used to remain in muffled faces in front of him. He also deposed that he did not receive any injury in captivity nor Result: Acquitted Page 13 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) were his hands & legs tied. He was released on the night of 31.7.2013 but met his father alongwith the police at 8 am on 1.8.2013. He further stated that his statement was recorded by the police at PS Vikas Puri on 1.8.2013. The witness was reexamined by the prosecution counsel on the point of identity of the accused as he had identified accused in his chief examination. In view of his response to the questions in reexamination, Ld. Predecessor recorded that the witness is not answering the questions properly.
PW 2 Vinod Oberoi, the complainant who is father of victim Bhuwan Oberoi, has deposed that his son Bhuwan had accompanied his cousin Akansha Sharma at about 7/7.30 PM (should be AM) on 30.7.2013 in her Ritz Car. On the same day at about 2.30 PM, a phone call was received by her daughter Swati from Zakir Hussain, whereafer his daughter asked him to come home immediately. On reaching his house, the witness made a phone call to Zakir Hussain who informed him that his son Bhuwan is with him and that he has to pay a sum of Rs.12 lacs towards ransom which amount was finally settled at Rs. 3 lacs after negotiations. Complainant was asked to reach Firozpur Jhirka, near Haryana and Result: Acquitted Page 14 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) Rajasthan border. Complainant thereafter approached the police officials who recorded his statement Ex.PW2/A at about 5.30 PM on 30.7.2013.
The witness further stated that in the morning of next day i.e. 1.8.2013 at about 8.00 AM, he left for Firozpur Jhirka in his car along with cash of Rs. 3 lac. On the way to Firozpur Jhirka, about 10 12 calls were received by the Witness from the accused from the mobile phone of his son Bhuwan. Upon following the directions of the accused, the witness reached upto Alwar where he was told that the accused would meet the witness after about two hours. Complainant again received call from the accused at about 6.00 PM on the same day i.e. 1.8.2013 and was scolded for taking police assistance. The witness convinced the accused that he had not taken any police assistance upon which the accused told the witness about the registration number of vehicle of the police. Complainant was directed to go back about 11 kms from where he was asked to take turn for 'Nagar' since there is not much traffic on that road and if the police were to follow the witness, the same would be easily noticed by the accused. After travelling for about 8 kms, the accused further contacted the Witness directing him to reach near a Pond. The Result: Acquitted Page 15 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) Witness however told the caller/abductor that since it was raining, the Kachha Rasta near the pond would be slippery and muddy. On the instructions of police officials who were following the Witness, he requested the accused that he would come on the next day upon which the accused asked him to at least hand over the money to him on the same day. However, the witness returned but soon after, while he was on his way back, he received a call from his son Bhuwan who asked him whether he is coming to get him or not and further informed the Witness that the kidnappers knew that the police was following the Witness. After about half an hour of receiving the above said call, the witness received another call from his son Bhuwan which call was made from some unknown number stating that he has been released and somehow had reached to a village safely.
In crossexamination, witness deposed that he received 50 calls from Zakir Hussain through mobile phone of Bhuvan; that ransom demand was reduced from 12 lacs to 3 lacs which was to be paid on 1.8.2013; that the police was informed at 5.30 pm on 30.7.2013; that on 1.8.2013, he started at 8 am with ransom amount and eventually reached Alwar by 6 pm where abductor called him and Result: Acquitted Page 16 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) abused him for seeking police assistance; that abductors knew that police was following him; that ultimately, he returned without dropping off the ransom; and when he told the abductor that he is going back, the abductors requested him to atleast handover the ransom that he was carrying. Witness further deposed that on his way back, he received a call from Bhuvan asking him whether he is coming or not to take him ? After half an hour, Bhuvan again called up to inform that he has been released.
PW 3 Ms. Swati Oberoi, daughter of complainant Vinod Oberoi and sister of victim Bhuwan Oberoi has also deposed about her brother Bhuwan having gone to Sohna Road, Gurgaon with his cousin Akansha on 30.7.2013 as well as of her receiving a phone call from the mobile phone of Bhuwan at about 2/2.30 PM on her mobile phone by someone who disclosed his name as Zakir Hussain. The caller asked her to pay a sum of Rs. 6 lac for releasing Bhuwan. She immediately informed her father telephonically. Her father tried to search out Bhuwan and lastly made complaint to the police at about 5.006.00 PM on the same day.
Result: Acquitted Page 17 of 53State Vs. Aslam Khan FIR 241/2013 (57088/2016) In crossexamination, witness deposed that she had filed an application with the police (the said application was never produced before the court). PW 3 also deposed that she met Bhuvan on 1.8.2013 at 10.30 am in PS Vikaspuri. She further deposed that custody of Bhuvan was not handed over till 3 pm on 1.8.2013; that Bhuvan was having injuries; denied suggestion that beatings were given by her father to Bhuvan in the police station; and lastly, that police had rescued Bhuvan from kidnappers.
PW 4 Shri Vishal Gaurav, Nodal Officer of Bharti Airtel deposed that as per copy of Customer Application Form Ex.PW4/A, the subscriber of mobile phone No.9910710117 was Shri Vinod Kumar Oberoi. He also produced a copy of voter identity card Ex.PW4/B of the abovenamed subscriber. The computer generated copy of CDR in respect of abovenumbered mobile phone for the period 20.7.2013 to 7.8.2013 was proved by the witness as Ex.PW4/C. The witness has also deposed that as per copy of Customer Application Form Ex.PW4/D, the subscriber of mobile phone No.756805799 (complete Number is 7568057990) was Smt. Result: Acquitted Page 18 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) Kalsum. He also produced a copy of voter identity card Ex.PW4/E of the abovenamed subscriber. The computer generated copy of CDR in respect of abovenumbered mobile phone for the period 1.7.2013 to 7.8.2013 was proved by the witness as Ex.PW4/F. The witness has also deposed that he issued certificate Ex.PW4/G under Section 65B of Indian Evidence Act regarding correctness of abovesaid call data record. The witness also proved the Cell ID Location Charts Ex.PW4/G and Ex.PW4/H in respect of mobile Nos.7568057990 and 9910710117, respectively.
Inadvertently, the certificate issued under Section 65B of Indian Evidence Act by this witness and the Cell ID Location Charts, both have been given same exhibit number Ex.PW4/G. In crossexamination, no questions were asked regarding cell phone locations.
PW 5 Shri Amar Nath Singh, Nodal Officer of Idea Cellular Ltd has deposed that since mobile No.9694330425 had been ported out to Vodafone Cellular Ltd on 27.4.2013, Idea company did Result: Acquitted Page 19 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) not have any record of the abovenumbered mobile phone for the relevant period.
This witness was not cross examined.
PW 6 Shri Rajeev Ranjan, Nodal Officer from Tata Tele Services has deposed that the copies of Customer Application Form and the CDR for the period 10.7.2013 till 7.8.2013 in respect of mobile phone No.9212908261 owned by Ms. Shakara D/o Mr. Abdulla Khan, were supplied to the police officials on their request. The witness proved the certified copies of CDR of the said mobile phone as Ex.PW6/A, the customer application form along with voter identity card of Ms. Shakara as Ex.PW6/B, the certificate under Section 65B of Indian Evidence Act to that effect as Ex.PW6/C and the Cell ID Chart containing two pages as Ex.PW6/D. In cross examination, nothing relevant was asked. Questions were put regarding coverage area of one mobile tower. Besides this, witness was also put that the above number is in the name of one lady (though the number was being used by complainant Vinod, as per the prosecution).
Result: Acquitted Page 20 of 53State Vs. Aslam Khan FIR 241/2013 (57088/2016) PW 7 HC Ajay Kumar deposed that at about 8.00 AM on 7.8.2013, he had accompanied Insp. Maninder Singh, SI Naveen Kumar, HC Dilbagh, HC Praveen, Const. Maninder, Const. Sanjeev and other staff to Bharatpur, Gopal Garh Chowk, Rajasthan in two private vehicles in connection with investigation of the present case. Police informer met them there at about 2.15 PM and informed about the presence of accused wanted in the present case, at Gopal Garh Chowk. The members of raiding team were briefed by the IO. At the instance of the secret informer, one person who was seen coming from the side of Pahari towards Gopal Garh Chowk, was apprehended by the raiding team at about 3.15 PM. On interrogation, he revealed his name as Aslam Khan. From the right pocket of his blue colour Jeans, two mobile phones make N95 Nokia, Ex.P1 and C5 Nokia, Ex.P2 were recovered, which were seized by the IO/SI Johnson Jacob vide seizure memo Ex.PW7/A. The witness then deposed that further search of the accused was conducted and an amount of Rs. 2,000/ (collectively Ex. P3), were also recovered from the back pocket of the Jeans worn by accused, out of which two notes were of Rs.500/ denomination whereas ten notes were of the denomination of Rs.100/ each. Same Result: Acquitted Page 21 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) were also seized by the IO vide seizure memo Ex.PW7/B. The accused was arrested vide arrest memo Ex.PW7/C and his personal search was conducted vide memo Ex.PW7/D. The disclosure statement Ex.PW7/E was also recorded by the IO in the presence of the witness. He identified the accused in court and also both the mobile phones which were allegedly recovered from the accused.
In crossexamination, he stated that he had not signed on any of the documents Ex PW7/A to Ex. PW7/E; denied that none of the memos was prepared in his presence; and further deposed that the arresting police team went in private vehicles to Gopalgrah.
PW 8 Shri Israr Babu, Alternate Nodal Officer from Vodafone Mobile Service Ltd has deposed that as per Customer Application Form Ex.PW8/A, the subscriber of mobile phone No.9694330425 was Aslam Khan. He also produced a copy of voter identity card Ex.PW8/B of the abovenamed subscriber. The computer generated copy of CDR in respect of abovenumbered mobile phone for the period 20.7.2013 to 7.8.2013 was proved by the witness as Ex.PW8/C and the certificate under Section 65B of Indian Evidence Act in this regard as Ex.PW8/D. Result: Acquitted Page 22 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) The witness also deposed that as per Customer Application Form Ex. PW8/E, the subscriber of mobile phone No.9811670075 (which phone number as per the prosecution was being used by Swati D/o complainant Vinod) was of Chhatar Pal. He also produced a copy of driving license Ex.PW8/F of the above named subscriber. The computer generated copy of CDR in respect of abovenumbered mobile phone for the period 1.7.2013 to 8.8.2013 was proved by the witness as Ex.PW8/G and the certificate under Section 65B of Indian Evidence Act in this regard as Ex.PW8/H. In cross examination, nothing relevant was asked.
PW 9 ASI Ravinder Kumar, the duty officer has deposed about registration of FIR under Section 364A IPC at about 8.15 PM on 30.7.2013 on the basis of rukka handed over to him by IO/SI Johnson Jacob on which he made his endorsement Ex.PW9/A regarding registration of the case. The original rukka and the computerized copy Ex.PW9/B of FIR were handed over by him to SI Johnson Jacob for further investigation.
In cross examination, nothing relevant was asked.
Result: Acquitted Page 23 of 53State Vs. Aslam Khan FIR 241/2013 (57088/2016) PW 10 HC Rakesh has deposed that on the directions of SI Johnson Jacob, he alongwith victim Bhuwan had gone to PS Gopal Garh on 3.8.2013 for taking car No. DL 9C AA4361 (Maruti Ritz). This car was purportedly seized by the police officials of PS Gopalgarh under section 102 Cr. PC when they found it parked unattended near a brick kiln. The victim identified the vehicle on reaching PS Gopal Garh whereupon the same was handed over to the witness by the police officials of PS Gopal Garh. The car was seized by PW10 vide seizure memo Ex.PW10/A. Thereafter, victim Bhuwan drove the vehicle and took the witness to the spot from where the abovenumbered car was 'snatched' by the culprits from him. Regarding the deposition of PW 10 in regard to showing the place of snatching of the car (by the accused) which Bhuvan was driving, it needs to be highlighted that there is no statement by the victim that the car was snatched by the accused.
The witness has also stated that he again joined investigation of the present case and in the company of IO and Staff of AATS reached Gopal Garh, Bharatpur on 7.8.2013. On reaching Bharatpur, after waiting for about an hour, accused came there on foot who was apprehended by the AATS Staff on being signaled by the Result: Acquitted Page 24 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) IO. The accused was arrested, his personal search was conducted in which two mobile phones and cash of Rs.2,000/ was recovered from the possession of the accused. The witness has further stated that the mobile phone make Nokia C5 Ex.P2 was seized by the IO vide seizure memo Ex.PW10/B. In cross examination, Witness stated that after recovering the car from PS Gopalgarh, the car was deposited with PS Vikaspuri. He admitted that no DD entry was made by him regarding departure or arrival on 7.8.2013 when he went as a part of arresting team. He further stated that the arresting team went in 2 private Innova cars.
PW 11 SI Sandeep Yadav has deposed about further investigation of the case being handed over to him on 16.4.2014. The chargesheet in the case had already been filed by the previous Investigating Officer before the Court. PW 11 had collected certified copies of relevant call details and after placing them on record, had filed the supplementary chargesheet before the Court. Witness deposed that since the other associates of accused Aslam, namely Aneesh, Arshad and Padam could not be arrested, they were declared proclaimed offenders after following due process of law.
Result: Acquitted Page 25 of 53State Vs. Aslam Khan FIR 241/2013 (57088/2016) In cross examination, he simply denied stock suggestions regarding manipulations of CDR's.
PW 12 Smt. Kalsum has deposed that neither had she subscribed to any mobile number at any point of time nor had applied for connection of any mobile phone, and that she had also not provided her identification details for subscribing to any mobile phone in her name for use by somebody else.
In her cross examination, witness deposed that she does not have a telephone connection in her house.
PW 13 ASI Madan Singh deposed that on the directions of SHO and the IO, he reached Village Udelawas, PS Gopal Garh, Bharatpur, Rajasthan at about 12.00 noon 1.00 PM on 8.10.2014 in connection with investigation of the present case where he met PW12 Smt. Kalsum from whom he made inquiries.
In cross examination, witness deposed that he recorded the statement Ex.PW13/DA of Smt. Kalsum at her residence on 9.10.2014 but could not say whether the said statement was signed by Smt. Kalsum or thumb marked by her. The witness however, later on, Result: Acquitted Page 26 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) admitted that Ex.PW13/DA does not bear thumb impression of Smt.Kalsum.
PW 14 SI Johnson Jacob, the Investigating Officer (IO) of the case deposed that at about 7.30 PM on 30.7.2013, complainant (PW2) Vinod Oberoi lodged his complaint vide statement Ex.PW2/A regarding abduction of his son Bhuvan Oberoi on the basis of which FIR was registered. The mobile No.991010117 of Bhuvan from which the ransom call was made, was put on surveillance which was traced to Village Chhapra, PS Pahari, District Bharatpur, Rajasthan. Consequent thereto, three raiding teams were constituted under the supervision of ACP, Vikas Puri, which were headed by SHO PS Vikas Puri, SHO PS Uttam Nagar and Insp. Maninder Singh of Special Cell, West District. All the three teams moved on 31.7.2013 for District Bharatpur in four private vehicles.
The witness also deposed that the complainant (PW2) was advised to reach Firozpur Zirka, to deliver the ransom amount for the rescue of his son (victim) Bhuvan. The police officials met the complainant on the way to Firozpur Zirka who informed them that the abductor has not come at the designated place since he had found out Result: Acquitted Page 27 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) that complainant was in touch with the police. The abductor then asked the complainant to reach Alwar and threatened him not to bring the police and was then further directed to reach "Nagar", District Bharatpur. However, the police officials kept on following the complainant while maintaining a safe distance. The complainant kept on waiting for about two hours for the abductor on reaching the main market in the "Nagar" but no one came there to collect the ransom amount. The complainant then received a phone call from his son Bhuvan about his reaching PS Pahari. Thereafter, the complainant along with the police officials reached PS Pahari, recorded the statement of victim Bhuvan and brought him to PS Vikas Puri and got him medically examined. (This is in contradiction to the deposition of PW 1 as also PW2 on 2 material aspects. First, the complainant did not accompany the Police to reach out to the victim. As per PW 1, his father met him the next morning of his release, at 8 am. Second, as per PW 2, victim Bhuvan only told him about being released from captivity whereupon he walked upto a village. There is no mention in the statement of PW 2 that Bhuvan called him up after reaching PS Pahari).
The witness has further deposed that a call was received Result: Acquitted Page 28 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) on 1.8.2013 by Mr. Nissar Ahmad Khan, registered owner of car Maruti Ritz bearing registration No. DL 9C AA4361, from the officials of PS Gopal Garh to the effect that the abovesaid stolen car has been found lying abandoned in the area of PS Gopal Garh. As per the IO, Mr. Nissar Ahmed informed the complainant who further informed the IO about the same whereupon HC Rakesh accompanied victim Bhuvan Oberoi to collect the car on 3.8.2013 from PS Gopalgarh. During investigation, it was revealed to the Witness that mobile No. 7568057990 from which the call was received by victim Bhuvan before his abduction, was registered in the name of Smt. Kalsum which phone was being used by Aslam Khan.
PW 14 further deposed that a team of police officials of PS Vikas Puri and of ATS Staff, West District was constituted which proceeded in two vehicles to PS Gopal Garh on 7.8.2013 in search of Aslam Khan. The secret informer met them at Gopal Garh Chowk who informed that Aslam Khan would be passing from Gopal Garh Chowk at about 3.30 PM on the same day. Aslam Khan was spotted approaching towards Gopal Garh Chowk at about 3.40 PM and was apprehended. On interrogation, the accused admitted that he was one of the persons who had abducted victim Bhuvan. The site plan of the Result: Acquitted Page 29 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) place of arrest of accused Aslam Khan was prepared by the IO and was relied upon as Ex.PW14/B. PW 14 also disclosed about conducting personal search of the accused and of recording his disclosure statement.
The witness in the company of HC Rakesh, Const. Inder Singh and Const. Mahavir took accused to his village Laddam Ka, District Bharatpur where the accused pointed out the place where he had detained victim Bhuvan. The pointing out memo of the place where accused had detained the victim was prepared by the IO and relied upon as Ex.PW14/F. The witness also identified the seized articles. The witness moved application Ex.PW14/D for conducting identification test of the accused but the accused refused to participate.
In cross examination, IO admitted that no date, month or year was mentioned in the disclosure statement of the accused (Ex. PW 7/E). He denied that statement of PW 7 HC Ajay Kumar (arrest witness) had been manipulated. He gave the sequence of various memos prepared at the time of arrest of the accused i.e. Ex. PW7/C Arrest memo followed by Ex. PW7/A regarding recovery of mobile phone, personal search memo Ex. PW7/B, memo regarding recovery Result: Acquitted Page 30 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) of Rs. 2000 Ex. PW 7/D, and disclosure statement Ex. PW7/E (in that order). He also deposed regarding preparation of site plan (Ex. PW 14/B) and pointing out memo of the place where victim Bhuvan was allegedly kept (Ex. PW14/F).
IO further deposed in cross examination that the police teams left in search of Bhuvan at 12.30 am on 31.7.2013 but they could not find anyone in village Chapri. Eventually they reached Ferozepur Jhirka at 5 am and then met complainant at 12.30 pm. From there they drove to Alwar and then finally to village Nagar where they waited alongwith the complainant for 2 hours. After waiting for 2 hours, Complainant told them that his son had reached PS Pahari whereupon they reached PS Pahari at 8 pm and he recorded the statement of Bhuvan at 8.30 pm. The IO also stated that when the mobile phones were recovered from accused at the time of his arrest, both the phones were having SIM card (but PW 10 HC Rakesh had deposed that at the time of seizing the mobile phones from the accused, no SIM Cards were recovered).
All the incriminating circumstances were put to the accused in his statement U/s 313 Cr.P.C wherein he denied the Result: Acquitted Page 31 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) allegations of contacting victim Bhuvan at any point of time for selling the gold bricks and/or making of any ransom call for release of the victim. He showed his ignorance about registration of the present case against him and stated that he has been falsely implicated in the present case. He has taken the plea that during police custody, he was shown to the witness which was the reason for him declining to be a part of identification parade. The accused opted not to lead any evidence in his defense.
I have heard Ms. Nimmi Sisodia, Ld. Addl. PP for State and Sh. S.P. Singh Chaudhary, ld. Counsel for accused Aslam Khan.
Ld. Additional Public Prosecutor for the State submitted that the testimony of the victim Bhuvan alone is sufficient to convict the accused since the victim supported the prosecution case in all material terms and also identified the accused in the Court as the person who had abducted him i.e. in his chief examination. (At this stage, it is important to highlight that accused had refused to participate in the TIP proceedings during the investigation stage.) Result: Acquitted Page 32 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) Further, the mobile phone records also provide convincing evidence regarding the culpability of accused in the alleged crime.
On the other hand, ld. Counsel for the accused highlighted the following infirmities in the prosecution case -
1. Victim Bhuvan (PW1) in his cross examination deposed that he saw Aslam for the first time in the police station and thus patently contradicted himself in his cross examination which puts a doubt on the truthfulness of his examinationinchief. In view of the contradiction, there is a possibility that Witness was pressurized by the IO to identify the accused.
2. Friend of Bhuvan i.e. Anubhav Narula on whose mobile phone accused Aslam is alleged to have initially called posing as Zakir Hussain, was never even questioned by the police, leave alone citing him as a witness.
3. Akansha, alleged cousin of Bhuvan in whose Maruti Ritz car Bhuvan is said to have gone to meet Zakir Hussain (Aslam) to strike a deal regarding gold bricks, was never questioned by the police nor cited as a witness.
Result: Acquitted Page 33 of 53State Vs. Aslam Khan FIR 241/2013 (57088/2016)
4. The car - Maruti Ritz, was in registered ownership of Nassir Hussain but neither was his statement recorded nor was he cited as a witness.
5. Investigating officer collected no documents regarding the ownership of Akansha regarding the Maruti Ritz car.
6. The mobile phone SIM no. 7568057990, through which the police allegedly tracked Aslam is not registered in the name of Aslam but in the name of Ms. Kalsum who denied any association with Aslam. She even denied having ever applied for a mobile connection even though her documents of identity were collected by the police from the telephone company.
Rival submissions have been carefully considered and prosecution evidence has been scanned threadbare.
Before proceeding to discuss the infirmities in prosecution evidence and cross examination of the PW's, it is important to highlight that the primary argument on behalf of the prosecution was that victim Bhuvan had identified the accused in Result: Acquitted Page 34 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) court during recording of his examinationinchief. Ld. Addl. Public Prosecutor further argued that even though in his cross examination the victim changed his version but it appeared that the accused had influenced the victim in some manner by the time victim appeared for his cross examination since there was a gap of about two months between the recording of examinationinchief and cross examination of victim (as PW1). The argument of ld. Addl PP with regard to winning over of the victim by the accused is not strong enough to overcome the contradiction in the testimony of PW 1. The whole purpose of cross examination is to test the veracity of witness's testimony recorded in examinationinchief. Especially in a criminal trial, cross examination by the accused is his most important right. If a 'reasonable doubt' is created during the cross examination of PW's, the benefit has to go to the accused. The trial court can ofcourse discard the contradictions in the cross examination if it finds the same to be either not material or irrelevant or unexplainable by the prosecution. However, the prosecution has tried to present a presumption of victim having been won over in view of the fact that in his examinationinchief, he supported the prosecution version which presumption, this Court is not inclined to accept for Result: Acquitted Page 35 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) the reason that an equally forceful argument based on presumption was put forth by the ld. Counsel for the accused to the effect that victim was pressurized by the IO to identify the accused.
In so far as the infirmities highlighted by the ld. Defense counsel are concerned, which have been highlighted above, ld. State counsel has not been able to give any explanation at all except regarding non identification of the accused in the cross examination of PW 1 which explanation is also not convincing enough, as already observed above. Reverting to the testimonies of PW's, the infirmity in the testimony of PW 1 started in his examinationinchief itself, as has been noted by this Court. PW 1 deposed that after reaching the brick kiln in village Sikri, he met 2 boys who blindfolded him and made him sit between the driver and pillion on a motorcycle. The witness however failed to depose as to what was the reason for him to agree to be blindfolded? There was no allegation that Victim was threatened by those 2 persons or beaten up. He could have easily resisted being blindfolded. Further, the witness stated that after driving for 7 - 8 kms, the persons driving him stopped in the middle of a jungle, took out a pistol and threatened him and then again Result: Acquitted Page 36 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) started to drive. The lacuna of not being threatened at the initial stage was thus sought to be covered up by this statement which really had no coherence. Surprisingly, though the victim had been blindfolded, he knew that they covered a distance of 7 - 8 kms before halting briefly and then further drove for 2 3 kms till they reached a hut like house. Victim deposed that after being blindfolded, they drove for 30 40 mins at a speed of 25 - 30 kms. However, when asked whether the road was metalled or rough, he denied knowledge regarding the same. It is indeed strange that despite being blindfolded, he knew the duration for which the motorcycle was driven, the speed at which it was driven and even the distance covered but could not state a simple fact regarding the condition of the road when infact that was the only aspect that he could have actually felt/observed as a rider, assuming that he was blindfolded. Still further, it is strange that victim could give description of the place where he was kept i.e. hut like house, when infact he was blindfolded when he was taken inside and was again blindfolded when he was taken out for being released. In this regard it needs a highlight that the site plan of the place where victim was allegedly kept does not show any forest area nearby; infact it appears to be a residential area of a village.
Result: Acquitted Page 37 of 53State Vs. Aslam Khan FIR 241/2013 (57088/2016) In his cross examination, victim deposed that he was called only once to the police station to identify the accused but he could not identify him since the accused always remained in muffled faces before him. In his examination in chief, there is no such statement that the accused had covered his face. He further deposed that he was neither given any injury while in captivity nor his legs and hands were tied up which effectively disproves the charge u/s 394 IPC.
Remaining cross examination of PW 1 is required to be discussed alongwith the testimony of PW 2 since the improbability of the prosecution case becomes glaring by the time the cross examination of PW 2 concluded.
Further in his cross examination, PW 1 deposed that he was released by the abductors on the night of 31.7.2013 since they informed him (PW1) that his father had taken the assistance of police. He was dropped off to an unspecified location on a motorcycle from where he walked about an hour to reach a Village. He met a villager Result: Acquitted Page 38 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) from whose phone he called up his father. What is surprising is that despite making a call to his father on the night of 31.7.013, neither did he make an effort to reach out to his father nor his father made any effort to reach out to him immediately. As per PW 1, he met his father next morning at 8 am in police station i.e. 1.8.2013. He also deposed that it was the villager who called up the police. This aspect is even stranger since as per the testimony of Complainant PW 2, he was already in touch with the police since the evening of 30.7.2013 but instead of him informing the police about the release of victim, it is the undisclosed villager who called up the police. Ultimately, victim met Delhi police personnel at 11 pm on 31.7.2013. Infact, PW 1 contradicted himself on the aspect of meeting his father since in his statement to the police, he stated that his father came alongwith Delhi Police officials and met him at PS Pahari whereas in court testimony he deposed that his father came to meet him on 1.8.2013 at 8 am. This contradiction is too glaring to be ignored. There is also contradiction with regard to the place and time of recording of statement of Bhuvan. IO maintains that the statement was recorded at 8.30 pm on 31.7.2013 at PS Pahari whereas Bhuvan stated that he met Delhi police officials at 11 pm and that his statement was recorded at PS Result: Acquitted Page 39 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) Vikaspuri on 1.8.2013. The statement itself bears the date of 31.7.2013.
PW2 (Complainant and father of the victim) in his chief examination deposed that the deal was struck with the abductor for 3 lacs as ransom amount which was to be paid on 1.8.2013. On 1.8.2013, he started out at 8 am alongwith the cash and eventually, after repeated driving instructions from the abductor, reached Alwar at 6 pm. At this stage, the contradiction in the testimony of PW 1 and PW 2 becomes obtrusive. PW 1 deposed that on the night of 31.7.2013, he had already been released and even met Delhi police at 11 pm in police station Pahari by 11 pm the same night. Prior to that, he had already spoken to his father and then subsequently met him at 8 am in the morning on 1.8.2013 whereas PW 2 deposed that at 8 am on 1.8.2013 he started from his home for giving ransom amount. If PW 1 had already been released by 31.7.2013 and even met his father at 8 am in the morning of 1.8.2013, what was the purpose of complainant moving out on 1.8.2013 to handover the ransom amount to the abductors? PW 2 gave a detailed version of Result: Acquitted Page 40 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) how police also met him at Alwar on 1.8.2013 at 6 pm in search of victim whereas if PW1 is to be believed, he was already in the safe custody of Delhi police by 11 pm on 31.7.2013.
Further cross examination of PW 2 is almost comical. The reason why PW 2 was asked to keep driving was that the alleged abductors got to know that police assistance has been sought. Abductors kept telling the complainant to drive on different routes so as to lose the police teams. However, as per PW 2 the police kept following him. Eventually, when the complainant reached Nagar, after waiting there for 2 hours for abductors to show up, complainant was again told by the abductors that they knew that police was following him but insisted that ransom money be paid. Though the complainant told them that he was returning and would come again the following day to deliver the ransom, the abductors 'requested' him to pay the money that he was carrying but the complainant still returned for home. This part of the cross examination of PW 2 is ludicrous, to say the least. It is impossible to believe that despite abductors clearly having knowledge that complainant was being followed by police and infact at the last stop, the police was actually Result: Acquitted Page 41 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) with the complainant for 2 hours, the abductors were literally pleading with the complainant to pay the ransom amount.
Still further, PW 2 claims that when he was returning home, Victim Bhuvan (PW 1) called up the complainant and asked him whether he is coming to get him or not, and also informed him that 'kidnappers' have got to know that police assistance has been sought. However, within half hour, Bhuvan again called up to inform that he had been freed. This again is contradictory to the testimony of PW 1, on the point of time as well as date. PW 1 deposed that he had informed his father (complainant) of his release on 31.7.2013 night itself whereas PW 2 deposed that he was informed by Bhuvan in the evening of 1.8.2013 about his release, when he was returning home without paying ransom. Also, as per PW2, the gap between Bhuvan's first call to the complainant when he was returning home without paying ransom and the 2nd call informing complainant about his release, is half hour whereas in his cross examination, PW 1 deposed that he was first taken on motorcycle from his place of captivity to an unspecified location where he was let off and from where, PW 1 walked for an hour before approaching a village and meeting a Result: Acquitted Page 42 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) villager there from whose phone he called up his father. This meant that even by a conservative estimate, there was a gap of at least 1½ hours between the two calls. This discrepancy could not be explained by the ld. Prosecutor.
Ms. Swati who appeared as PW 3, is the sister of the victim. Her deposition was also in conflict with PW 2 since she also deposed that she met Bhuvan on 1.8.2013 at 10.30 am in the police station. She further deposed that Bhuvan was having injuries though Bhuvan himself stated that he did not suffer any injuries. In any case, no MLR is on record regarding medical examination of Bhuvan. Her examination is relevant for 3 reasons. First, she gave an application to the police but which application was not filed on judicial record and hence its contents are not known and consequently neither is the purpose of the said application. Second, she deposed that custody of Bhuvan was not handed over till 3 pm on 1.8.2013 because of paper work. Infact they went back from police station without Bhuvan and came back at 3 pm for taking his custody. Third, she denied the suggestion that Complainant/father gave beatings to Bhuvan in the police station.
Result: Acquitted Page 43 of 53State Vs. Aslam Khan FIR 241/2013 (57088/2016) The reason for not handing over of Bhuvan to his family/ complainant as stated by PW 3 Swati appears to be false. The fact that complainant/ father and sister came to meet Bhuvan in police station in the morning of 1.8.2013 even though he had been freed at about 9
- 9.30 pm the previous night coupled with the fact that the complainant/father went back even on 1.8.2013 without taking the custody of Bhuvan is indicative that the family of Bhuvan was not convinced that Bhuvan had actually been abducted. The suggestion that Bhuvan was given beatings by the father and the statement of PW 3 that Bhuvan was having injuries, when viewed in this backdrop, appears to be relevant. Another noteworthy contradiction in the testimony of PW 3 is that she stated that Bhuvan was rescued from captivity by Police whereas the prosecution case itself is that he was freed by the abductors and he practically walked upto the police himself.
HC Rakesh, PW 10, was a witness to the recovery of car (Maruti Ritz) from P.S. Gopalgarh and was also a witness to the arrest of accused Aslam. He deposed that alongwith mobile phones, Rs. 2000 in cash were recovered from the accused. Significantly, no Result: Acquitted Page 44 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) DD entry of 3.8.2013 was exhibited regarding proceeding to PS Gopalgarh for recovering the car nor any DD entry of 7.8.2013 (date of arrest of accused) was exhibited regarding departure or arrival from the police station. Absence of any DD entry regarding the recovery of car from Gopalgarh also puts a doubt on whether the car was ever recovered from PS Gopalgarh.
It has already been observed above, while discussing the testimony of PW 10 (regarding recovery of car from PS Gopalgarh) that recovery of car as depicted by the prosecution itself is doubtful. It needs a highlight that if the prosecution is unable to prove that the victim actually travelled to village Chapri in the car borrowed from his cousin, the entire alleged occurrence has to be disbelieved.
IO had further deposed that the police teams left in search of Bhuvan at 12.30 am on 31.7.2013 but they could not find anyone in village Chapri. Eventually they reached Ferozepur Jhirka at 5 am and then met complainant at 12.30 pm. From there they drove to Alwar and then finally to village Nagar where they waited alongwith the complainant for 2 hours. After waiting for 2 hours, Result: Acquitted Page 45 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) Complainant told them that his son had reached PS Pahari whereupon they reached PS Pahari at 8 pm and recorded the statement of Bhuvan at 8.30 pm. The IO also stated that when the mobile phones were recovered from accused at the time of his arrest, both the phones were having SIM card. On both these aspects i.e. recording of statement of Bhuvan at 8.30 by the Delhi Police team in PS Pahari and mobile phones recovered from accused having SIM cards, there is material contradiction amongst the testimonies of prosecution witnesses. Regarding presence of SIM cards in the mobile phones recovered from the accused, PW 10 deposed that at the time of seizing the mobile phones, no SIM card was recovered. Regarding recording of statement of Bhuvan at 8.30 pm at PS Phari on 31.7.2013, same is in contradiction to the statement of PW 1 that he met Delhi Police officials at 11 pm on 31.7.2013 and his statement was recorded in PS Vikas Puri on 1.8.2013.
Few other contradictions further falsify the prosecution version. As per the prosecution version, when the complainant approached the police officials, the mobile number of Bhuvan from which alleged abductor was repeatedly calling, was immediately put Result: Acquitted Page 46 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) on surveillance and within an hour, the police was able to track the location of Bhuvan's mobile phone. If the mobile location was tracked within an hour, what stopped police from apprehending the accused immediately since location of Bhuvan remained static and all calls to complainant Vinod Oberoi were being made from the phone of Bhuvan. Police claims to have moved on 31.7.2013 at 12.30 am to trace Bhuvan and yet it was unable to trace the victim even though it kept searching for over 18 hours despite the alleged abductors never changing their location and using a single phone number to communicate with the complainant. What is even more comical is that abductors even knew the number of police vehicle which was trailing the complainant and further informed about the same to complainant but the police could not trace a static mobile phone even though its location had been tracked.
It has already been highlighted above that it seems almost improbable that despite being informed by his son at 11 pm on 31.7.2013 that he had been released from captivity, father/complainant Vinod Oberoi waited till 8 am on 1.8.2013 to meet him. Further, PW 2 himself did not state in his testimony that he had Result: Acquitted Page 47 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) informed IO/police teams that Bhuvan had been freed despite being in constant touch with the police. Even assuming that police had been informed regarding release of Bhuvan by the complainant, why did the complainant not accompany the police to PS Pahari? Instead, as per PW 1 as also PW 3 Swati (sister of victim), complainant and his daughter met Bhuvan at 8 am on 1.8.2103. Another very relevant aspect deserves a highlight. The phone number of Swati i.e. 9811670075 was actually in the name of Chhattar Pal whose connection with Swati could not be established by the prosecution. Further, even the phone number of Complainant was in the name of Ms. Shakara who again could not be connected to the Complainant. It is not understandable as to how Investigating Officer depicted their phone numbers to be of Swati and Complainant respectively. The CDR of Anubhav Narula was never filed which could in some manner connect him with the accused. In any case, once the phone numbers of Swati and Complainant have been found to be of un connected persons, the prosecution case that ransom calls were received on these numbers further suffers substantially. Lastly, regarding the ownership of Maruti Ritz Car, the car was infact released on superdari to Nissar Ahmed after he moved an application Result: Acquitted Page 48 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) before the court. In his application, Nissar did not say a word about having sold off the car to Akansha, as was deposed by the Investigating Officer in his cross examination which further falsifies the prosecution case. Infact, in reply to the application moved by Nissar Ahmed, the IO did not oppose the same and submitted that he had no objection to the car being handed over to its true owner. This further shows that IO was well aware that Akansha was not the owner of the car and yet in his evidence, he kept on asserting that the car belonged to Akansha. Since Nassir Ahmed was never questioned, there is no clarification as to how the car came to be seized by Gopalgarh Police officials. Infact, it is not even clear whether at all the car was seized by GopalGarh police station. The seizure memo was not signed by any witness, not even by Bhuvan who allegedly accompanied PW 10 Rakesh to take the custody of the car. No witness from Gopal Garh police station deposed about its seizure from a brick kiln. Thus at every step of analysis, the prosecution version only appears to be more and more improbable.
Considering the testimony of PW 1 (victim), PW 2 (complainant), PW 3 (sister of victim) and PW 14 Investigating Result: Acquitted Page 49 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) Officer, and the lacunas pointed out by the ld. defense counsel (already highlighted at the outset), it is patent that the prosecution version is wholly unbelievable. Infact, what can be clearly gathered from the contradictions and infirmities in prosecution evidence (especially PW 1, PW2, PW 3 and PW 14), and lack of investigation on material aspects is that it is PW 1 who feigned his own abduction and probably, the father (complainant) got to know about it for which reason he approached the police. When PW 1 got to know that police has been involved which probably he was not expecting, he panicked and then cooked up a story of being released from captivity. It appears that the entire prosecution version has been framed to save PW 1 from criminal action of feigning his own abduction. Material witnesses who were very relevant to piece together the prosecution version i.e. Akansha (cousin of victim), Abhinav Narula (friend of victim) and Nassir Hussain (allged owner of Maruti Ritz car) were never examined. Infact, the investigation conducted was so deficient that prosecution has not even been able to prove that Bhuvan actually went to brick kiln near village Sikri from where he was actually abducted. It is not even certain whether 3 police teams were constituted on 31.7.2013 to find Bhuvan. There is no DDR entry in Result: Acquitted Page 50 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) this regard on record. Further, the police teams went in 3 private vehicles and not in police vehicles which also is unexplained. What is surprising is that even on 7.8.2013, when accused Aslam is said to have been arrested, the police team went in private vehicles for which again there is no explanation. Again there is no DDR entry on record regarding the departure or arrival of police team which went to arrest the accused.
The mobile number 7568057990 from which accused Aslam is said to have called up Abhinav Narula (friend of Bhuvan) could not be traced to Aslam. The Investigating Officer did not even investigate as to how identity documents of Ms. Kalsum (PW 12) were used for procuring this mobile number since she claimed that she never applied for the same. The IO has not been able to connect Ms. Kalsum with accused Aslam in any manner. Still further, regarding mobile number 9694330425 which was actually registered in the name of accused Aslam, neither PW 1 could state that he received a call from this number nor PW 2 could depose that he received calls from this number. Infact, as already highlighted, phone number of PW2 i.e. 9212908261 was actually in the name of Ms. Result: Acquitted Page 51 of 53 State Vs. Aslam Khan FIR 241/2013 (57088/2016) Shakara who could not be connected with the present case in any manner. Further, complete call records of phone in the name of Aslam i.e. 9694330425 were not filed. Though PW8 claimed to have filed the call details of mobile number of Aslam (9694330425) for the period 1.7.2013 till 7.8.2013 running into three pages (Ex.PW8/C collectively) but infact the call details pertain to the period 1.7.2013 till 7.7.2013 only. Investigating Officer, in his cross examination, very candidly and rather nonchalantly deposed that he did not feel the necessity of either taking the statements of Akansha, Abhinav or Nasir Hussain, or collecting documents regarding the actual ownership of the vehicle Maruti Ritz.
The cumulative effect of the infirmities in the prosecution version and the glaring contradictions in the testimonies of prosecution witnesses, coupled with lack of investigation on material aspects, leave no doubt in the mind of the court that accused has been falsely implicated. He is thus acquitted of all the Charges framed by this court.
Result: Acquitted Page 52 of 53State Vs. Aslam Khan FIR 241/2013 (57088/2016) He is directed to furnish PB/SB for Rs.10,000/ (Rupees ten thousand each) with one surety in the like amount, in view of Section 437A Cr.P.C.
Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of filing appeal, if any.
File be consigned to Record Room.
Announced in open Court ( AJAY GULATI )
on 25.05.2019 ASJ05(W)/THC
Delhi/ 25.05.2019 (k)
Result: Acquitted Page 53 of 53