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Delhi District Court

State vs Shubham Kashyap@Preet on 31 May, 2024

 IN THE COURT OF RAJ KUMAR: ADDL. SESSIONS JUDGE 05 :
     CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI

CNR No. DLCT01-006791-2021
SC No. 305/2021
FIR No. 698/2020
PS Kotwali
U/s 363/370(4)/368/120-B IPC

                State Vs. Shubham Kashyap @ Preet & Anr.

1. SC No. of this case           : 305/2021
2. Date of commission of offence : 25.11.2020
3. Name and address of accused : 1. Shubham Kashyap @ Preet
                                     S/o Late Sh. Rakesh Kashyap
                                     R/o Mohalla Roshanpuri Sarkari
                                     School Ke Samne, Gali Thana
                                     Ranipur, Dak Bahdra, District
                                     Haridwar, Uttarakhand.
                                     2. Nisha Khan
                                     W/o Sh. Chatar Singh
                                     R/o T-591, 1st Floor, Baljeet
                                     Nagar, Delhi.

4. Offence complained of                   : U/s 363/370(4)/368/120-B IPC
5. Plea of accused                        : Pleaded not guilty and
                                             claimed trial.
6. Final order                            : 31.05.2024
7. Date of institution                    : 26.01.2021
8. Date of such order                      : 31.05.2024


                                    JUDGMENT

1. The criminal machinery of the state was put into motion on receipt of DD entry no. 23A dated 26.11.2020 at 10:10 hours which was assigned to ASI Raj Kumar.

2. The above said FIR bearing no. 698/2020 dated 26.11.2020 PS Kotwali was initially registered u/s 363 of the IPC at the instance of the complainant Smt. Tahir Bano, wherein, she alleged that presently she was residing at Footpath, Chandani Chowk, in front of Baptist Church, Chandani Chowk, Delhi. The complainant has further stated that eight years ago, she was married with one Salim and from the marriage, three children were born out. It has been further stated that two female children namely Zeenat and Rehnuma and one male child namely Sarfaraz were born out of the above said wedlock. The husband of the complainant Salim was in the habit of consuming alcohol and the complainant was not being treated well by him. The complainant being offended by the cruel behavior of her husband, left her matrimonial home after leaving her two female children at her parental home. The complainant together with his male child aged about two years started residing at Delhi at the above said address four months back and started earning her livelihood by begging alms. The complainant together with his male child used to reside and sleep at the above said address on the footpath in front of Baptist Church, Chandani Chowk, Delhi. The complainant became acquainted with the above said accused Preet aged about 24-25 years who was also residing at the footpath in front of Baptist Church, Chandani Chowk, Delhi. The complainant was not aware about the permanent address of the accused Preet. The complainant along with his son Sarfaraz and the accused Preet came at Kodiya Bridge on 25.11.2020 and by leaving her son State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.2/25 Sarfaraz aged about two years in the custody of the accused Preet went to Patri(pavement) outside Old Delhi Railway Station for the purposes of purchasing some clothes. When the complainant returned at about 05:20 PM from Old Delhi Railway Station after purchasing clothes, then, she found that the accused Preet along with her son Sarfaraz had disappeared.

3. She gave description of her minor son Sarfaraz as aged about two years, height 2ft, fair complexion, thin body, round face having haircut from the side. The complainant also described that her son Sarfaraz was also wearing a read colour jacket and white coloured pants. The complainant showed the apprehension that her minor son Sarfaraz was kidnapped by the accused Preet. The complainant tried to search out her minor son on her own but when she was not able to do so, she lodged the above said FIR on 26.11.2020.

4. As per the charge sheet, rukka was prepared by ASI Raj Kumar, FIR was got lodged and investigation was taken up. ASI Raj Kumar along with the complainant reached at Kodiya Bridge, SPM Marg, Delhi, prepared the site plan and tried to obtain the information about the kidnapped child Sarfaraz and the accused Preet. ASI Raj Kumar accompanied by the complainant reached at Footpath, Chandani Chowk, in front of Baptist Church, Chandani Chowk, Delhi to obtain information about the accused Preet. Someone residing at the footpath provided mobile number 8800933287 of the accused Preet to ASI Raj Kumar who obtained the CDR and the CAF pertaining to the above said State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.3/25 mobile no. It was found that a call was made form the above said mobile no. 8800933287 to mobile no. 8006300689 on 26.11.2020. The CAF of the above said mobile no. 8006300689 was obtained and the above said mobile number was found to be in the name of one Shekhar R/o House no. 73, Saharanpur, Kukabi, PS Nangal, Tehsil Deoband, Saharanpur, UP. As per the charge sheet, ASI Raj Kumar went to the House of Shekhar who disclosed that the real name of the accused Preet was Shubham Kashyap. Shekhar further disclosed that accused Shubham Kashyap was resident of Haridwar and he was a distant relative of Shekhar. Shekhar further disclosed that the accused Shubham Kashyap used to visit the house of Shekhar off and on and he had visited previous night to the house of Shekhar and left his house in the morning but he was not accompanied by any child. During investigation, ASI Raj Kumar and the complainant came to labour chowk, Chandani Chowk, Delhi on 28.11.2020 and the complainant identified the accused Preet who was present at Labour Chowk, Chandani Chowk, Delhi as the person who kidnapped her child. ASI Raj Kumar together with his accompanying staff arrested the accused Shubham @ Preet and from his possession Rs. 4,400/- and mobile phone Make Samsung Duos, black colour, were seized.

5. Disclosure statement of the accused Shubham @ Preet was recorded by the IO ASI Raj Kumar who disclosed that he had sold the minor child Sarfaraz to the accused Nisha Khan for a sum of Rs. 20,000/- out of which he had received Rs. 10,000/-

and the rest of Rs. 10,000/- were to be paid later on by the accused Nisha to him. The minor child was handed over by the accused Shubham to the accused Nisha on 25.11.2020 at about 04:00 -05:00 PM at GPO. Accused Shubham Kashyap disclosed the mobile number of the accused Nisha as 7060034241. Sections 370/34 of the IPC were later on added in the above said FIR which was initially registered u/s 363 of the IPC

6. IO, in the charge sheet, has further submitted that the CDR of the above said mobile no. 7060034241 pertaining to the accused Nisha was obtained and as per the CDR analysis, ASI Raj Kumar went to the address T-591, First Floor, Baljeet Nagar, Delhi accompanied by the accused Shubham @ Preet. The child Sarfaraz was recovered from the possession of the accused Nisha Khan w/o Sh. Chhatar Singh R/o T-591, First Floor, Baljeet Nagar, Delhi, from the room inside the above said house. Disclosure statement of the accused Nisha Khan was also recorded by the IO. The minor child was produced before the Child Welfare Committee-3, Kingsway Camp, Delhi and the minor child was kept at Holy Cross Social Service Centre, Dheerpur, Delhi. Birth certificate of the child was got verified from Medical Superintendent, Haribaksh Kavantiya Hospital, Shastri Nagar, Jaipur, Rajasthan.

7. After completion of the investigation, charge sheet was filed by the IO.

8. Perusal of the record of the case reveals that after compliance of Section 207 of the Cr.P.C., the matter was committed to the Court of Sessions.

9. Vide orders dated 29.04.2022, charges were framed against the above said accused persons namely Shubham Kashyap @ Preet and Nisha Khan u/s 363/370(4)/368/120B of the IPC.

10.In order to prove its case, the prosecution has examined as many as eight witnesses.

11.PW1 is Smt. Tahir Bano @ Shayra, who is the complainant and at whose instance, the FIR in question was lodged. PW1 has proved her complaint dated 26.11.2020 as Ex. PW1/A, on the basis of which, the FIR, in question, was lodged.

12.PW2 is W Ct. Annu and this witness has stated that she had joined the investigation with HC Manoj Kumar and IO ASI Raj Kumar on 26.11.2020 as she was posted as Constable with PS Kotwali on 26.11.2020. This witness visited Saharanpur and Roorkee, in search of the accused Shubham Kashyap along with the investigating team. This witness has further stated that they came back to Delhi on 28.11.2020 and went to Labour Chowk, Chandani Chowk in search of the accused accompanied by the complainant Tahir Bano. The complainant identified the accused Shubham Kashyap and he was arrested by the IO.

13.PW3 is ASI Devinder, the Duty Officer who recorded the FIR on 26.11.2020 at the instance of ASI Raj Kumar who handed over the Tehrir to him. The FIR has been exhibited as Ex. PW3/A, endorsement by PW3 on the Tehrir has been exhibited as Ex.

PW3/B and the certificate u/s 65B of the Indian Evidence Act has been exhibited as Ex. PW3/C.

14.PW4 is HC Manoj Kumar who joined the investigation with IO ASI Raj Kumar on 26.11.2020. This witness has deposed that he along with IO ASI Raj Kumar, W Ct. Mamta and complainant went to Bulandshahar, UP and when they reached near Bulandshahar, W Ct. Mamta fell ill and they returned back to PS Kotwali. W Ct. Annu joined the raiding party and then the raiding party went to Roorkee, Haridwar. This witness has further stated that the IO obtained the CAF of the mobile phone of the accused and the IO came to know that the accused Preet had made a call on 26.11.2020. As per CAF, the identity of the receiver was revealed as Shekhar. As per this witness, the raiding team enquired Shekhar who disclosed that the original name of the accused Preet was Shubham Kashyap. This witness has further stated that on 28.11.2020, he along with IO, W Ct. Annu and complainant went to labour Chowk in search of the accused, the complainant pointed out towards the accused Preet @ Shubham who was apprehended by the IO. This witness has identified the accused Shubham correctly. This witness has further stated that IO seized the mobile phone from the accused Shubham vide seizure memo Ex. PW4/A which bears his signatures at point A. IO seized Rs. 4,400/- vide seizure memo Ex. PW4/B bearing the signatures of PW4 at point A. IO arrested accused Shubham vide arrest memo Ex. PW4/C. The personal search memo of the accused Shubham has been exhibited as Ex.

PW4/D. This witness has further stated that further investigation of the case was handed over to SI Satish Kumar to analyze the CDR of the mobile phone of the accused Shubham @ Preet and thereafter, he directed PW4 and W Ct. Manisha to accompany him to Baljeet Nagar. This witness has further deposed about the arrest of the accused Nisha Khan and the recovery of the child from the possession of the accused Nisha Khan. The seizure memo of the mobile phone of the accused Nisha Khan has been exhibited as Ex. PW4/E, the arrest memo of the accused Nisha Khan as Ex. PW4/F and the disclosure statement of the accused Shubham @ Preet has been exhibited as Ex. PW4/G. The mobile phone of the accused Nisha Khan has been exhibited as Ex. P-1; the mobile phone of the accused Shubham @ Preet has been exhibited as Ex. P-2 and the recovery of the amount of Rs. 4,400/- from the accused Shubham has been exhibited as Ex. P-3.

15.PW5 is W Ct. Manisha who joined the investigation with the second IO SI Satish Kumar on 28.11.2020. This witness has exhibited the disclosure statement of the accused Nisha Khan as Ex. PW5/A and the personal search memo of the accused Nisha as Ex. PW5/B.

16.PW6 is ASI Raj Kumar who is the first IO of the present case and this witness has deposed on the lines of the investigation carried out by him. This witness has exhibited the endorsement on the complaint( Ex. PW1/A) as Ex. PW6/A and the application moved by him before the Child Welfare Committee for keeping the child State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.8/25 in some welfare home as Ex. PW6/B. As per this witness, the application was filed by him on 01.12.2020.

17.PW7 is the second IO SI Satish Kumar who joined the investigation of the present case on 28.11.2020. This witness has stated that the CDR of the mobile phone of Nisha Khan were analyzed and as per the CAF record the mobile phone of Nisha Khan, her address was found to be of UP. PW7 has further stated that on analyzing the CDR of her mobile phone, it was found that she was in regular touch with a person namely Chhatar Singh who was resident of Delhi and on 28.11.2020, he along with HC Manoj, W Ct. Manisha and accused Shubham went to the house of Chhatar Singh situated at T-591, First Floor, Baljeet Nagar, Delhi. As per this witness, the child was recovered from the possession of the accused Nisha Khan from the above said address. The recovery memo of the child has been exhibited as Ex. PW7/A and the supplementary disclosure statement of the accused Shubham Kashyap has been exhibited as Ex. PW7/B.

18.PW8 is Ct. Sonu who produced in the court the orignal register no. 19 and this witness has deposed that on 26.11.2020, one mobile phone make Samsung and cash of Rs. 4,400/- was deposited with the then, MHC(M) and entry in this regard at serial no. 4906 has been exhibited as Ex. PW8/A(OSR). This witness has further stated that on 26.11.2020, one mobile phone make Intex with copy of the seizure memo were deposited with the then MHC(M) by SI Satish Kumar and the entry in register no. 19 at serial no. 4911 has been exhibited as Ex. PW8/B(OSR).

19.The detailed testimonies of the prosecution witnesses shall be discussed during the later part of this judgment.

20.Statements of both the accused persons namely Preet @ Shubham Kashyap and Nisha Khan have been recorded u/s 313 of the Cr.P.C.. The accused persons in their respective statements u/s 313 of the Cr.P.C. have denied all the incriminating evidence put to them and have taken the stand that they have been falsely implicated in the present matter. The accused Nisha Khan has stated that the child was not recovered from her possession.

21.No evidence in defence has been led by the accused persons.

22.I have carefully gone through the entire material available on record and the submissions of the ld. Counsels for the accused persons and that of the ld. Addl. PP for the State.

23.The gist of the allegations against the accused persons is that on 25.11.2020, at about 05:00 PM, the minor child Sarfaraz, son of the complainant was abducted by the accused Preet @ Shubham Kashyap from the lawful custody of the complainant and the minor child was later on recovered on 28.11.2020 from the custody of the accused Nisha Khan at about 11:45 AM from her residence bearing no. T-591, First Floor, Baljeet Nagar, Delhi.

24.During the course of arguments, Ld. Addl. PP for the State has argued that the complainant who has been examined as PW1, has categorically identified the accused Preet @ Shubham Kashyap as the offender, who had kidnapped her minor son on 25.11.2020 from Kodiya Bridge, Chandani Chowk, Delhi at about 05:00 PM. It has been further argued that the accused Preet @ Shubham State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.10/25 Kashyap was apprehended from Labour Chowk, Chandani Chowk, Delhi at about 08:30 AM on 28.11.2020. It has been further argued that the minor child Sarfaraz was recovered from the possession of the accused Nisha Khan from the house of Chhatar Singh, the husband of the accused Nisha Khan on 28.11.2020 at about 11:45 AM and the recovery of the minor child has been proved with the aid of the testimony of PW7 IO SI Satish Kumar, PW6 First IO ASI Raj Kumar, PW5 W Ct. Manisha and PW4 HC Manoj Kumar. Ld. Addl. PP for the State has further argued that the testimony of the police witnesses cannot be thrown out by the court merely on the ground that they are the police officials, if otherwise, the testimonies of the police officials is reliable and trustworthy. It has been further argued that the prosecution has been able to bring home the guilt of the accused persons with the aid of the testimony of the complainant who has been examined as PW1 and the testimonies of the police officials who have been examined as PW2 to PW8.

25.Whearas on the other hand, ld. Counsels for the accused persons have argued that the prosecution has utterly failed to prove its case against the accused persons. It has been further argued that no independent witness was joined or examined by the prosecution either at the time of the arrest of the accused persons or at the time of the recovery of the child from the accused Nisha Khan. It has been further argued that the medical of the child who was allegedly recovered on 28.11.2020 was not got done by the IO of the case and even the site plan of the alleged house of State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.11/25 Nisha Khan, from where the recovery of the child was done, was not prepared. It has been further argued that nothing has been placed on record by the prosecution to prove that the minor child was allegedly sold by the accused Shubham Kashyap @ Preet to the accused Nisha Khan for an amount of Rs. 20,000/-. It has been further argued that though CDR has been placed on record but the same has not been proved and exhibited by the prosecution and as such, the same cannot be read into evidence. It has been further argued that the CAF of the alleged three mobile numbers which have been mentioned by the IO in the charge sheet has not been placed on record at all. It has been further argued that neither the person from the pavement(patri) who had given the mobile no. 8800933287 allegedly belonging to the accused Shubham has been examined by the prosecution as a witness nor the ownership of the three mobile numbers allegedly belonging to the accused Shubham, Shekhar and the accused Nisha Khan has been proved. It has been further argued that the address of the house of Chhatar Singh was not given to the IO by the accused Shubham @ Preet and as such, it has not been proved as to how the alleged address from where allegedly the child was recovered was obtained by the IO. It has been further argued that the accused Nisha Khan was allegedly in contact with Chhatar Singh but Chhatar Singh has not been examined by the prosecution as a witness. It has been further argued that the Nodal Officers from the concerned Cellular Companies have neither been cited nor have been examined as witnesses by the State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.12/25 prosecution in order to prove the CDRs. It has been further argued that as per PW4, HC Manoj, Chhatar Singh husband of accused Nisha Khan was present at the home, at the time of recovery of the child but Chhatar Singh has neither been cited as a witness nor been examined by the prosecution. It has been further argued that there are material contradictions in the testimonies of the complainant and the police witnesses. It has been further argued that prosecution has not been able to prove the guilt of the accused persons beyond any reasonable doubt either by the ocular evidence or by the circumstantial evidence. It has been further argued that the chain of circumstances is not complete and there are a number of missing links in the chain of circumstances and the ocular evidence is not sufficient enough to bring home the guilt of the accused persons.

26.The complicity of the accused persons could have been proved by the prosecution either by the ocular evidence or by the circumstantial evidence.

27.In the case in hand, as per the case of the prosecution, the minor child Sarfaraz was recovered from the possession of the accused Nisha Khan from House bearing no. T-591, First Floor, Baljeet Nagar, Delhi on 28.11.2020 at about 11:45 AM on the basis of the electronic surveillance of the mobile numbers of the accused persons. SI Satish Kumar, the IO of the case, who has been examined as PW7, in the cross-examination done on 19.04.2024, has categorically admitted that the above said address was not disclosed by the accused Shubham Kashyap @ Preet. As per State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.13/25 PW7, ASI Raj Kumar who has been examined by the prosecution as PW6 had already collected the CDRs of the mobile phones of the accused persons and the same were analyzed by him. PW7 has further stated that he sent the request to the cellular company for providing the CDR of the mobile phone of the accused Nisha Khan and as per CAF record of the mobile phone of the accused Nisha Khan, her address was found to be of UP. PW7 has further stated that on analyzing the CDR of the mobile phone of the accused Nisha Khan, it was found that she was in regular touch with a person namely Chhatar Singh and as such, the IO accompanied by HC Manoj, W Ct. Manisha and accused Shubham went to the house of Chhatar Singh i.e. T-591, First Floor, Baljeet Nagar, Delhi from where the recovery of the minor child was done from the accused Nisha Khan.

28.In the light of the above said testimony of the IO of the case, it becomes pertinent to discuss the circumstantial and electronic evidence pertaining to the mobile phones of the accused persons, which ultimately, led to the recovery of the minor child Sarfaraz from the possession of the accused Nisha Khan on 28.11.2020. Circumstantial And Electronic Evidence Pertaining To The Mobile Phones Of The Accused Persons

29.In the charge sheet, three mobile numbers have been mentioned by the IO of the case. Mobile number 8800933287 is stated to be pertaining to the accused Shubham Kashyap @ Preet; mobile no. 8006300689 is stated to be pertaining to one Shekhar, R/o House no. 73, Kukabi PS Nangal, Tehsil Deoband, Saharanpur, State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.14/25 UP(relative of the accused Shubham Kashyap) and mobile no. 7060034241 which is stated to be pertaining to the accused Nisha. As per the prosecution, mobile number 8800933287 was given to the IO of the case by a person who was resident of Patri(pavement), in front of Baptist Church, Chandani Chowk, Delhi, where the complainant and the accused Shubham Kashyap were allegedly residing.

30.As per PW4 HC Manoj Kumar, PW6 ASI Raj Kumar and PW7 SI Satish Kumar, the CAF and CDRs of the above said three mobile numbers were obtained by the first IO and even by the second IO but I am of the opinion that it has been rightly argued by the ld. Counsels for the accused persons that the CAF of any of the mobile numbers has not been placed on record. To my mind, it has also been rightly argued by the ld. Defence counsels that the CDRs have not been proved and exhibited, though, the same have been placed on record. None of the Nodal Officers from any of the cellular companies has either been cited as a witness or examined by the prosecution in order to prove the CDRs of the above said mobile numbers.

31.Furthermore, it has to be seen that even the person who had given the mobile number of the accused Shubham Kashyap to the IO of the case, has not been examined by the prosecution as a witness. Even Shekhar, R/o Kukabi, the alleged relative of the accused Shubham Kashyap has not been examined by the prosecution as a witness. PW7 IO of the case has categorically stated that the address i.e. T-591, First Floor, Baljeet Nagar, Delhi was not State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.15/25 given by the accused Shubham Kashyap and the same was obtained on the basis of the CDR pertaining to the mobile phone of Chhatar Singh. Chhatar Singh has not been examined as a witness by the prosecution. Even the mobile number of Chhatar Singh has not been mentioned by the IO in the entire charge sheet.

32.As such, I am of the opinion that it has not been proved by the prosecution at all that the above said three mobile numbers were used by the two accused persons namely Shubham Kashyap @ Preet, by the accused Nisha Khan and by Shekhar. In the considered opinion of this court, it has not been proved by the prosecution that the address T-591, First Floor, Baljeet Nagar, Delhi was obtained by the IO on the basis of the electronic surveillance of the above said mobile numbers.

33.As per the case of the prosecution, the complainant PW1 Tahir Bano identified the accused Shubham Kashyap at Labour Chowk, Chandani Chowk, Delhi on 28.11.2020 and at her instance, the accused Shubham Kashyap was arrested. The arrest memo of the accused Shubham Kashyap Ex. PW4/C on record shows that the accused Shubham Kashyap was arrested at 08:30 AM on 28.11.2020. The minor child was recovered on the same day i.e. on 28.11.2020 at 11:45 AM.

34.It is surprising to note that at the time of recovery of the minor child Sarfaraz from the possession of the accused Nisha Khan at 11:45 AM on 28.11.2020 and at the time of the arrest of the accused Nisha Khan on 28.11.2020 at 11:45 AM, the State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.16/25 complainant was not present, despite the fact that she was present at 08:30 AM on 28.11.2020 itself at the time of arrest of the accused Shubham Kashyap. The recovery memo of the child has not been signed by any of the members of the raiding party except the IO SI Satish Kumar and the two accused persons namely Shubham Kashyap and Nisha Khan. The arrest memo of the accused Nisha Khan bears the signatures of W Ct. Manisha and the personal search memo of the accused Nisha Khan also bears the signatures of W Ct. Manisha but the recovery memo of the child does not bear the signatures of W Ct. Manisha as well. There is no explanation, in the opinion of this court, as to why, the complainant did not accompany the IO of the case at the time of the recovery of the minor child Sarfaraz, particularly when, the complainant was accompanying the IO of the case together with the rest of the police officials throughout in search of the minor child. PW7, IO of the case, categorically admits in the cross- examination that he was not having any photograph or any other identity proof of the minor child Sarfaraz at the time of his recovery. PW7 states that co-accused Shubham was with them to identify the minor child and co-accused Shubham has put his signatures on the recovery memo but I am of the opinion that the above said story put forward by the IO does not appear to be reliable and trustworthy, keeping in view the above said discussion.

Non-Joining of the Public Witnesses State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.17/25

35.PW4 HC Manoj, PW6 ASI Raj Kumar and PW7 SI Satish Kumar have categorically admitted that public persons were available at the time of the arrest of the accused Shubham Kashyap. The house from where the recovery of the minor child was done is situated in a thickly populated area as per PW7. PW4 HC Manoj has categorically admitted that Chhatar Singh husband of the accused Nisha Khan was present at the house, at the time of recovery of the minor child. No written notice was given to any of the independent or public witnesses either by the first IO or by the second IO. From the testimony of the prosecution witnesses, it is apparent that the public witnesses were available at the time of arrest of the accused persons and even at the time of the recovery of the child Sarfaraz but none of the public witnesses has been joined by the IO either at the time of the arrest of the accused persons or at the time of the recovery of the minor child Sarfaraz. In these circumstances, I am of the opinion that it has been rightly argued by the ld. Counsels for the accused persons that non-joining of the public witnesses is fatal to the case of the prosecution, in case it is proved that the public witnesses were available. While holding so, I am fortified by the following observations of the Hon'ble Supreme Court of India in the matter titled as Hem Raj v. State of Haryana cited as AIR 2005 SC 2110, wherein, it has been observed as under:-

"The fact that no independent witness though available, was not examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.18/25 witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of thealleged eye-witnesses raise serious doubts on thepoint of their presence at the time of actualoccurrence, the unexplained omission to examine theindependent witness would assume significance."

36.So far as the circumstantial evidence is concerned, it has to be seen that the Hon'ble Apex Court of the Land in the judgment titled as Sharad Birdhi Chand Sharda Vs. State of Maharashtra cited as AIR 1984 SC 1622, has laid down the five golden principles, which are as follows:-

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; [163D]

2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; [163G]

3. The circumstances should be of a conclusive nature and tendency;[163G]

4. They should exclude every possible hypothesis except the one to be proved; and [163H]

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

[164B] State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.19/25

37.In the case in hand, in the light of the above said discussion, I am of the opinion that there are a number of missing links in the chain of circumstances and the chain of circumstances is not complete so as to bring home the guilt of the accused persons.

38.Now, coming to the ocular evidence, it is true that the complainant Smt. Tahir Bano @ Shayra, who has been examined as PW1, is the main and star witness of the prosecution. It is also true that PW1, in her examination-in-chief, states that on 28.11.2020, she identified the accused Shubham Kashyap @ Preet at Company Bagh. As per the case of the prosecution, the accused Shubham Kashyap was arrested from Labour Chowk, Chandani Chowk, Delhi, allegedly where the complainant and the above said accused used to reside on the pavement in front of the Baptist Church, Chandani Chowk, Delhi.

39.As stated hereinabove, the chain of circumstances in the form of the electronic evidence pertaining to the mobile phones of the accused persons, is not complete in the case in hand. As such, I am of the opinion that the testimony of the complainant PW1 is required to be that of sterling quality.

40.It has to be seen that the Hon'ble Supreme Court of India in the matter titled as Ganesan Vs. State Represented by its Inspector of Police in Criminal Appeal No. 680 of 2020 (Arising from S.L.P.(Criminal) No.4976/2020) has discussed about the qualities of a witness who can be stated to be of a sterling quality as under:-

"9.3 Who can be said to be a "sterling witness", has been dealt with and considered by this Court in the case of Rai Sandeep alias Deepu v. State (NCT of Delhi), (2012) 8 SCC 21. In paragraph 22, it is observed and held as under:

"22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position 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 relevant 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 crossexamination of any length and howsoever strenuous it may be and under no circumstance should give 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 committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.21/25 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 12 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 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 offender guilty of the charge alleged." On evaluating the deposition of PW3

- victim on the touchstone of the law laid down by this Court in the aforesaid decisions, we are of the opinion that the sole testimony of the PW3 - victim is absolutely trustworthy and unblemished and her evidence is of sterling quality."

41.Applying the ratio of the above stated judgment of the Hon'ble Supreme Court of India, the vital question is as to whether the testimony of PW1 i.e. of the complainant can be stated to be of sterling quality. I am of the opinion that the answer is in the negative.

42.It has to be seen that PW1 states that when she saw the accused Preet @ Shubham Kashyap in Company Bagh, then, she informed the police on the mobile phone regarding the presence of the accused in Company Bagh. However, the rest of the State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.22/25 prosecution witnesses from PW2 to PW7 including the IO of the case claimed that the complainant was accompanying them in the morning hours of 28.11.2020 when the accused Preet was apprehended. As such, the claim of the complainant to the effect that after identifying the accused at Company Bagh, she informed the police on the mobile phone is diametrically opposite to the stand of the IO and rest of the police officials. Furthermore, PW1 in the cross-examination, states that she saw the accused Preet in Company Bagh at 05:00 AM and then, she again states that it was about 12-1 PM. The arrest memo of the accused Shubham Kashyap shows the timing of his arrest as 08:30 AM on 28.11.2020. Furthermore, the complainant categorically states in the cross-examination that nothing was recovered from the possession of the accused Preet in her presence but the witnesses from PW2 to PW7 state that Rs. 4,400/- and a mobile phone which was not having any SIM was recovered from the possession of the accused Preet in the presence of the complainant.

43.The complainant i.e. PW1, in the cross-examination, states that she was knowing the accused Shubham Kashyap only one day prior to the date of the incident which is 25.11.2020. In her complaint, PW1 states that the accused Shubham Kashyap used to reside at the footpath, where she herself was residing and as such, she became acquainted with the accused Shubham Kashyap. As such, to my mind, it has been rightly argued by the ld. Counsels for the accused persons that it becomes highly State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.23/25 improbable to handover the custody of her child for the complainant to a person who became acquainted with her only one day prior to the date of the incident.

44. In the light of the above said discussion, I am of the opinion that the ocular evidence of PW1 cannot be stated to be of sterling quality so as to bring home the guilt of the accused persons.

45.To my mind, it has also been rightly argued by the ld. Counsels for the accused persons that the minor child Sarfaraz was not medically examined even after the alleged recovery. Though, the prosecution witnesses who are the police officials claim that the minor child along with her mother PW1 who is the complainant were sent for medical examination but nothing is there on record to show that the minor child was medically examined after his alleged recovery.

46.It is well settled law that the burden to prove the case, lies on the shoulder of the prosecution. Every accused person is to be presumed innocent until proved guilty. The burden of proof lies on the prosecution to prove its case by leading cogent, convincing and reliable evidence. The accused cannot be convicted merely on the basis of probabilities or presumptions. Suspicion, howsoever grave, cannot take the place of proof. The benefit of doubt has to be given to the accused.

47.In the light of the above said discussion, I have no hesitation to hold that the prosecution has failed to prove its case against the accused persons by leading cogent or convincing evidence and State Vs. Shubham Kashyap @ Preet & Anr. FIR No. 698/2020 PS Kotwali Page No.24/25 thus, it has failed to discharge the burden placed upon it and therefore, the accused persons are entitled to be exonerated.

48.Resultantly, the accused persons namely Shubham Kashyap @ Preet and Nisha Khan are hereby acquitted of the offences punishable u/s 363/370(4)/368/120B of the IPC.

49.Personal bonds submitted by the accused persons U/s 437A of the Cr.P.C. have already been submitted and accepted and the same shall remain in force for a period of six months from today.

50.File be consigned to record room, after necessary compliance.

       (Announced in the Open Court)
        (Judgment contains 25 pages)                          Digitally
                                                              signed by
                                                            RAJ KUMAR
                                                      RAJ   Date:
                                                      KUMAR 2024.05.31
                                                              16:06:49
                                                              +0530



                                                   (Raj Kumar)
                                              ASJ-05/Central District/
                                                THC/ 31.05.2024




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