Delhi District Court
State vs Kasim Etc on 29 January, 2025
IN THE COURT OF SH. RAJ KUMAR,ADDITIONAL SESSIONS
JUDGE-05, CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions Case No. 28594/2016 Old no. 41/13)
CNR no. DLCT01-001329-2012
State Vs 1. Kasim S/o Mohd. Hassan
R/o B-54, Pandav Nagar, Delhi
2. Bablu @ Badre Alam s/o Moti-ur-Rehaman
A-334, Pandav Nagar, Delhi
3. Raza Hassan Kadri S/o Haidar Hussain Kadri
R/o 7786/114, Katra Atmaram, Chamelian
Road, Delhi.
........ Accused persons
FIR No. 82/2012
Police Station Ranjit Nagar
Charge-sheet filed Under Section U/s 364/364A/120B/34 IPC
Charges framed against accused U/s 364/364A/120B IPC
persons
Date of institution of case 18.08.2012
Date of conclusion of arguments 14.01.2025
Judgment reserved on 14.01.2025
Judgment Pronounced on 29.01.2025
Decision Acquittal
In view of the circular bearing No. 73362-73488/Rules/ Gaz./2024
dated 18.12.2024, the accused has been informed of the availability of
free legal aid services for pursuing further remedies, if any.
SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 1 of 48
Contact Address of CDLSA:- Room no. 287, Tis Hazari Courts, Delhi
Judgment
BRIEF FACTS OF THE CASE OF THE PROSECUTION
1. The case of the prosecution, in brief, is that all the three accused persons namely Kasim s/o Mohd. Hassan, Badre Alam @ Babloo S/o Moti-ur-Rehman and Raja Hassan Kadri S/o Haider Hassan Kadri, on or before 20.05.2012 at B-604, Kathputli Colony, Delhi, within the jurisdiction of PS Ranjeet Nagar entered into a criminal conspiracy to do an illegal act of kidnapping of minor child "Z"(identity has been withheld with a view to protect identity) for the purposes of ransom and in furtherance of their criminal conspiracy kidnapped minor child "Z"(identity has been withheld with a view to protect identity) and made a call for ransom of Rs. 5 lacs and thus all of them committed the offence u/s 364/364A IPC R/W Section 120B of IPC.
REGISTRATION OF THE FIR, INVESTIGATION AND CHARGE SHEET
2. The criminal machinery of the State, in the case in hand, was put into motion on receipt of the information on 20.05.2012 in respect of the missing of a child namely "Z"(identity has been withheld with a view to protect identity) aged about three years. The said information was received at about 08:25 PM and the caller had received the call from mobile no. 69921063 to the effect as to whether, the informant wanted the kidnapped child dead or alive. The information so received was deduced into SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 2 of 48 writing vide DD no. 25A and the investigation of the case was assigned to IO SI Ranveer Singh.
3. The FIR bearing no. 82/2012 u/s 364/364A/120B/34 IPC dated 20.05.2012 has been lodged at the instance of the complainant Anish Khan(the name of the complainant has been mentioned as Hanish Khan as well in the charge sheet and in the evidence as well), the father of the kidnapped child, who alleged that he was residing at House no. B-604, KP Colony, Kanander Colony, Pandav Nagar, Delhi along with his family and was a Magician by profession. It was alleged that he was present at his home on 20.05.2012 and at about 07:52 PM, he received a call on his mobile number 9999287259 from mobile no. 69921063 in respect of the kidnapping of his child "Z"(identity has been withheld with a view to protect identity) and the caller asked him as to whether he wanted the kidnapped child dead or alive. When the complainant enquired about the caller, the caller disconnected the mobile phone. When the complainant asked about the whereabouts of his son from his wife Hasina, she disclosed that at about 05:00 PM, the minor child "Z"(identity has been withheld with a view to protect identity) had gone to bring some eatables after having Rs. 2/- from her and when the above said child did not return, a call to the police at 100 number was given. The complainant has given the description and age of the kidnapped child as five years wearing Sherwani kurta, blue jeans and slippers. The kidnapped child has been stated to be about 2½ feet of height, having round face and with two front teeth broken. It SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 3 of 48 was alleged that the child "Z"(identity has been withheld with a view to protect identity) was kidnapped.
4. The IO of the case SI Ranveer Singh along with Ct. Sher Singh reached at the residence of the complainant after receipt of DD entry no. 25A, statement of the complainant was recorded and the FIR was lodged u/s 364 of the IPC initially.
5. As per the charge sheet, the address of the phone number 69921063 from which the call was given by the kidnappers on the mobile phone of the complainant, was located at booth no. 867, Gali no. 10, Harijan Basti, Anand Parbat, Delhi and the owner of the above said STD booth namely Sh. Pappu disclosed that a boy aged about 25 years having a stout body, who was accompanied by a boy aged about 5 years, had given a call from the above said STD booth at about 08:00 PM but no important clue could be obtained about the caller. Thereafter, on the mobile phone bearing no. 9999287259 of the complainant in the night of 20.05.2012 itself at about 09:45 PM, a ransom call was received from mobile number 9266551290, whereby, Rs. 5 lacs were demanded in ransom and the caller was asked to reach at Filmistan Cinema, if he wanted his child alive. The complainant Anish Khan identified the voice of the caller as that of his neighbour Kasim. A raiding party was prepared and trap was laid. The complainant arranged the money from his relatives and known ones, etc., kept the same in a bag and together with the police officials waited at the Filmistan Cinema till 04:30 AM on SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 4 of 48 21.05.2012 for the kidnappers but when the kidnappers failed to turn up, the trap was removed.
6. As per the charge sheet, the complainant on his mobile number 9999287259, at about 09:45 AM on 21.05.2012, received a ransom call of Rs. 5 lacs from mobile number 9212858628 and the kidnappers asked the complainant to come up to the stairs of Filmistan Cinema by 10:30 AM. The complainant recorded the voice of the caller in the mobile phone of his brother and expressed confidence to the effect that the voice of the caller was certainly that of Kasim. Raiding party was again prepared, trap was again laid at Filmistan Cinema at about 10:15 AM and two public witnesses namely Amit Khan and Zakir Hussain were included in the raiding party for identifying the accused/ kidnapper Kasim. The complainant Anish Khan was having a bag with money in his hands and he waited for the kidnappers at the stairs of Filmistan Cinema. At about 02:00 PM on 21.05.2012, the accused Kasim accompanied by accused Badre Alam were seen coming to the spot from the side of Chamelian Road, Delhi and they were identified by the complainant and they were apprehended by the police officials. The above said two accused persons disclosed that the third accused, who was their associate, namely Arshi(Raza Hassan Kadri) was waiting for them along with the kidnapped child. It was also disclosed that the kidnapped child was kept in the custody of the third accused Arshi at House no. 7786/ 114, Katra Aatmaram, Chamelian Road, Delhi. The IO of the case along with the staff came to the spot and at the SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 5 of 48 instance of the accused persons namely Kasim and Badre Alam @ Bablu, the kidnapped child "Z"(identity has been withheld with a view to protect identity) was recovered from the possession of the third accused Arshi from house no. 7786/ 114, Katra Aatmaram, Chambelian Road, Delhi. All the three accused persons were arrested, CDR was obtained and the CD of the voice recording of the accused Kasim was also obtained. Challan was prepared against the three accused persons u/s 364/364A/120B/34 IPC.
7. After completion of the investigation, the charge sheet was filed.
COGNIZANCE
8. Perusal of the record of the case reveals that the cognizance of the offences was taken by the ld. CMM, Delhi vide orders dated 01.09.2012.
SUPPLY OF COPIES AND COMMITTAL
9. Copies of the charge sheet and the documents annexed with the charge sheet were supplied to the accused persons in compliance of Section 207 of the Cr.P.C. and the matter was committed to the court of Sessions by the orders dated 15.09.2012 passed by the ld. CMM, Delhi. Vide orders dated 21.09.2012 passed by the ld. Sessions Judge, Delhi, the case was assigned to the court of Sessions.
CHARGE
10.Finding a prima facie case against the accused persons namely Kasim, Badre Alam @ Bablu and Raja Hasan Kadri, vide orders SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 6 of 48 dated 16.10.2012, the charges u/s 364/364A/120B of the IPC were framed against the above said three accused persons for kidnapping the minor child "Z"(identity has been withheld with a view to protect identity) for ransom.
PROSECUTION WITNESSES
11.In order to prove its case, the prosecution has examined as many as 18 witnesses in total.
i. PW1 is ASI Naresh, the Duty Officer who recorded the FIR bearing no. 82/2012 dated 20.05.2012 PS Ranjeet Nagar, Delhi on receipt of the rukka through Ct. Sher Singh sent by IO SI Ranveer Singh. During the testimony of this witness, copy of the FIR was exhibited as Ex. PW1/A, the endorsement on the rukka was exhibited as Ex. PW1/B and the certificate u/s 65B of the Indian Evidence Act was exhibited as Ex. PW1/C and DD no. 25A received at 08:25 PM on 20.05.2012 as Ex. PW1/D. During the cross-examination, PW1 has stated that he did not participate in the investigation of the present case except the recording of the FIR.
ii. PW2 is Ct. Sher Singh, through whom, the rukka was sent for registration of the FIR and who went to the spot i.e. at B-604, KP Colony, Pandav Nagar, Delhi on 20.05.2012 with IO SI Ranveer Singh after receipt of DD no. 25A at about 08:25 PM on 20.05.2012. PW2 has stated that the IO after making enquiries from the complainant recorded his statement, prepared the tehreer and handed over the same to him for SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 7 of 48 registration of the FIR. After registration of the FIR, PW2 again reached at the spot, handed over the copy of the FIR and original tehreer to SI Ranveer Singh. PW2 along with the IO reached at Gali no. 10, Arjun Basti, Anand Parbat to make enquiry from the owner of phone no. 69921063. One Sh. Pappu @ Chuni Lal, the owner of the above said phone, who was running STD booth stated that one person had made the telephonic call from the said number at about 08:0 PM. Thereafter, PW2 along with the IO and the above said Pappu @ Chuni Lal came to the police station. Complainant again received a call at his mobile number 9999287259, whereby, he was directed to reach at Filmistan Cinema along with Rs. 5 lacs. Complainant came to the PS with Rs. 2.15 lacs, raiding party was prepared which came to Filmistan Cinema. IO SI Ranveer was acting as the auto driver and the complainant was sitting in the said auto but the kidnappers failed to come to the spot and the raiding party again came back to the police station after waiting at Filmistan Cinema till 04:30 AM on 21.05.2012. IO recorded the statement of PW2. During the cross-examination by the ld. Counsel for the accused Raza Hasan Kadri, PW2 has stated that he does not have any knowledge of the second call regarding ransom received by the complainant.
PW2 has not been cross-examined by the ld. Counsel for the accused Kasim and Badre Alam @ Bablu.
SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 8 of 48 iii. PW3 is the minor child "Z" and his testimony has been recorded without oath. In his examination in chief, the minor child PW3 has stated that at about 05:00 PM, his grandmother had sent him to buy cigarettes from the market on the day of the incident. He had gone alone to the shop of the cigarette. His uncle Kasim met him and asked him to accompany him as he would provide him an ice cream. After providing him an ice cream, Kasim took him in a park and after staying in the park for some time, he took him to Filmistan and thereafter, Kasim took him in the room of one Rishi. He was asked to sleep and when he woke up in the morning, Hasim(brother of Kasim) also reached there. Hasim and Kasim took PW3 with them by holding his hand and PW3 was made to sit near a water tap near Filmistan by Kasim. Brother of Kasim asked him to leave the said place to New Delhi. PW3 was noticed by his Tau Anit, who came in a vehicle, while he was sitting near the tap. Thereafter, his tau informed the police, police reached at the place and he was taken to the police station by the police. Then his father also came to the police station and took PW3 with him to the house. PW3 identified one of the accused as Kasim who took him away from the place when he had gone to purchase cigarettes. PW3 also pointed out towards the accused Bablu @ Badre Alam who also accompanied accused Kasim when he was taken away. PW3 also pointed out towards the third accused Raza Hassan Kadri who was seen by PW3 at the room as he was locking the door. PW3 SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 9 of 48 again stated that when he was taken to the room by Kasim, the accused Raza Hasan Kadri was opening the lock of the said room.
Certain leading questions were put to PW3 by the ld. Addl. PP for the State with the permission of the court. PW3 admitted it to be correct that when he was taken by Kasim, accused Bablu was also accompanying him at that time. Accused Raza Hasan was not accompanying them when he was taken by the accused Kasim. PW3 has admitted it to be correct that he was interrogated by the police and his statement was recorded by the police and thereafter, he was examined by the ld. MM u/s 164 of the Cr.P.C.. PW3 has further stated that he told the Ld. MM in his statement u/s 164 of the Cr.P.C. that when he was going to a shop to purchase some articles, Kasim met him and he asked him to accompany him for providing an ice cream. PW3 accompanied Kasim and he took him to his room. PW3 has admitted it to be correct that when Kasim took him to his room, Bablu and one another boy accompanied them. They left him in the said room and thereafter he slept. When he woke up, the brother of Kasim namely Hasim also came there. He had not stated in his statement u/s 164 of the Cr.P.C. that at the said room, his father and three police officials came there and brought them to the police station. PW3 has further stated that Kasim and Bablu came to the police station and were apprehended by the police.
SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 10 of 48 During the cross-examination of PW3 by the ld. Counsel for the accused Badre Alam and Raza Hasan, PW3 has stated that he was brought to Filmistan area by Hasim, brother of Kasim. PW3 has again stated that he was brought to the Filmistan by the accused Kasim and he was made to sit near a water tap. PW3 has further stated that all the three accused persons were present at the room where he had slept. PW3 knew accused Kasim as he used to visit his house. Accused Kasim used to take him for providing some eatables earlier. Kasim used to work with his uncle. After providing him ice cream, Kasim took him in a park near his house. He was not threatened or beaten by him. PW3 has further stated that the other accused besides Kasim only met him at the room, where, he was confined. PW3 has denied the suggestion that the accused persons Badre Alam and Raza Hasan Kadri were not present at the room where he was confined by Kasim. PW3 has denied the suggestion that he was taken by Kasim straightaway from the park to Filmistan. PW3 has further stated that accused Bablu met them in the park, whereas, Rishi met him at the room.
In the cross-examination done by ld. Counsel for the accused Kasim, PW3 has stated that he knew the accused Kasim for many years. PW3 has admitted it to be correct that accused Kasim used to come to his home. PW3 has admitted it to be correct that accused Kasim used to get him chocolate and toffee. Accused Kasim used to play with him and he also used SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 11 of 48 to go out with him. PW3 has admitted it to be correct that on 20.05.2012, he went out along with the accused Kasim and thereafter, he came back to home. PW3 has admitted it to be correct that accused Kasim never threatened him or scolded him at any point of time. PW3 further states that he does not remember whether the police officials gave him chocolate before making statement in the court. PW3 has denied the suggestion that he deposed in the court at the instance of police officials who gave him the chocolate and asked him to depose against the present accused persons. PW3 has denied the suggestion that he was not made to sit near a water tap near Filmistan by accused Kasim.
iv. PW4 is Anish Khan S/o Sh. Ashik Khan, the complainant and father of the kidnapped child "Z". This witness has stated that his name has been wrongly mentioned as Hanish Khan in the list of witnesses.
PW4, in his examination-in-chief, has stated that his son i.e. the minor child "Z" was sent by the mother of Anish Khan to purchase some eatable articles from Kiryana shop at about 08:00 PM on 20.05.2012. At around 07:45 PM, he received a call on his mobile no. 9999287259 from STD number and the caller told him that if he wanted his child, then, he should make efforts to locate his son. PW4 searched about his son but could not find him. A call to the hundred number was given by PW1 and the FIR in question was lodged at the instance of PW4 as per his statement Ex. PW4/A. Thereafter, PW4 again SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 12 of 48 received a call in the night hours on the same day and a demand of Rs. 5 lacs was made from him for release of his son and the amount was to be paid near Filmistan Cinema. PW4 borrowed an amount of Rs. 2.25 lacs from his relatives, kept the said amount in a bag and thereafter, police accompanied him to the area of Filmistan. They reached in the area of Filmistan at about 12:00 midnight, no call was received, waited there till 04:30 AM but none came. Thereafter, PW4 returned back to his house. PW4 again received a call at about 09:00 AM and the caller asked him to reach again at the fixed place. PW4 immediately went to the police station and the police accompanied him to the area of Filmistan. PW4 has stated that the police had already apprehended two boys at Filmistan as they were moving in the vicinity of Filmistan area. They were interrogated by the police and they disclosed that the child was kept by them in the room of their friend. PW4 remained at Filmistan and the police officials took both the apprehended boys and got recovered the child and handed over to him. Later on PW4 came to know that the child was recovered from the third accused Arshi.
PW4 was cross-examined by the ld. Addl. PP for the State and in his cross-examination, he denied the suggestion that he had told the police in his statement Ex. PW4/A that he had received a call on his mobile from the landline number 69921063. PW4 has denied the suggestion that he had told the SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 13 of 48 police that unknown caller told him that he wanted his child dead or alive. PW4 has denied the suggestion that he had told the police in his statement that the police traced the address of the landline number as booth no. 867 Gali no. 10, Harijan Basti, Anand Parbat, Delhi. PW4 does not recollect that the ransom call was made by the caller from mobile number 9266551290. PW4 has denied the suggestion that the police investigated Chunni Lal owner of landline number 69921063. PW4 does not recollect whether the PCO owner told the police that he had seen the child in the custody of one strong built up person. PW4 has admitted it to be correct that conversation regarding kidnapping and ransom of the amount was tapped by the police from the mobile phone of SHO. PW4 has again stated that the conversation was tapped on the mobile phone of his friend. PW4 has denied that he identified the voice of Kasim. PW4 has denied the suggestion that he had told the police in his statement that Kasim had kidnapped his son with the help of his friend with the intention to kill him. PW4 admitted his signatures on the recovery memo Ex. PW4/B of his child and on the pointing out memo of the place Ex. PW4/C. However, PW4 has stated that he does not remember the contents of the said memos as he is illiterate. PW4 admitted his signatures on the pointing out memo of House no. 7786/ 144, Katra Atmaram, Delhi as Ex. PW4/D but PW4 denied the contents of the same. PW4 admitted his signatures upon the seizure memo of the CD Ex. PW4/E but SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 14 of 48 he denied the contents of the same. PW4, after the playing of the CD Ex. P1, stated that the voice was not that of the accused Kasim.
In the cross-examination done by Ld. Counsel for the accused Kasim, PW4 has admitted it to be correct that the minor child 'Z' was not sent by his mother to purchase some articles from market in his presence. PW4 has admitted it to be correct that the police had not interrogated the accused persons in his presence at any point of time. PW4 has admitted it to be correct that the accused persons were not arrested in his presence. PW4 has admitted it to be correct that the custody of minor child "Z" was handed over to him by his brother Amit Khan. PW4 has admitted it to be correct that the proceedings were done by the police officials in the police station and his signatures were obtained in the police station but he is not aware about the contents being an illiterate person. PW4 has admitted it to be correct that he knows the accused Kasim since his childhood.
In the cross-examination of PW4 done by ld. Counsel for the accused Badre Alam and Raza Hasan Kadri, PW4 has admitted it to be correct that he and his brother after coming from Police Station at around 10:00 PM on 20.05.2012 did not visit any place except searching of the minor child "Z" in the colony.
v. PW5 is Amit Khan, the brother of the complainant Anish Khan and this witness in his examination-in-chief, has stated SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 15 of 48 that when they went to Filmistan at about 10/10:30 AM on 21.05.2012, he himself and Hashim(brother of Kasim) asked about the minor child "Z" and he told them that the minor child was with him and thereafter, the minor child was brought by Kasim. PW5 has further stated that the police officials were also roaming in the area of Filmistan, he made a call from his mobile to the police informing them about the recovery of the minor child from Kasim. Police came there and took Kasim and his associates and the minor child with them. PW4 has further stated that the police interrogated Kasim and his two associates and thereafter, he does not know as to what had happened.
PW5 was resiling from his previous statement and as such, he was cross-examined by the ld. Addl. PP for the State but even in his cross-examination done by the ld. Addl. PP for the State, PW5 has stated that police did not record his statement u/s 161 of the Cr.P.C. Mark PW5/A on record. PW5 has denied the suggestion that the voice of the caller was recorded or that he had heard the voice of the caller patiently or that after hearing the voice, he identified the voice as that of accused Kasim. PW5 has admitted it to be correct that accused Kasim had kidnapped his nephew "Z" for ransom. By way of volunteer, PW5 has stated that he along with Haseen(Hashim), brother of the accused Kasim apprehended Kasim and Bablu and at that time, police was not with them and thereafter, they called the police. Accused Kasim and Bablu told them that SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 16 of 48 they had kidnapped the victim "Z" for ransom and kept him at house no. 1786/ 114, Katra, Atmaram, Chamelian Road in the custody of the third accused Raza Hasan Kadri. In the cross-examination done by ld. Counsel for the accused Kasim, PW5 has admitted it to be correct that his brother did not make any complaint to the police in his presence. PW5 has admitted it to be correct that his brother Anish Khan had not received any call regarding the ransom in his presence and that no recording of any conversation was held in his presence and that the police did not recover the child in his presence from any of the accused and that they had no problem with Kasim if he played with their kids and went around here and there. PW5 has admitted it to be correct that he was not instructed on phone to reach at Filmistan Cinema. PW5 further states that he cannot identify the voice of Kasim. In the cross-examination done by ld. Counsel for the accused kasim and Badre Alam, PW5 has admitted it to be correct that the accused Kasim is very much familiar with them and used to visit them frequently. PW5 has admitted it to be correct that the accused Badre Alam and Raza Hasan Kadri never made any threatening calls or ransom calls either to him or to his brother. PW5 has admitted it to be correct that neither he himself nor his brother visited the place of alleged confinement during investigation of the case. PW5, by way of volunteer, has stated that they had apprehended the accused Kasim who disclosed about the whereabouts of the child and SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 17 of 48 the child was recovered near Filmistan from a room in the custody of Bablu and Raza Hasan Kadri. PW5 has denied the suggestion that the child was not rescued from the custody of accused Raza Hasan Kadri and Bablu. PW5 has denied the suggestion that the child was found standing on the staircase of Filmistan Cinema.
vi. PW6 is Chuni Lal @ Pappu, the owner of the PCO booth and this witness, in his examination-in-chief, has stated that on 20.05.2012 in the evening at around 08:00 PM, Kasim(correctly identified) had come to his PCO for making a call. Wireless phone was installed in his PCO and he does not know as to what he talked on the phone as he took out the wireless phone outside of the PCO.
In the cross-examination, PW6 has stated that despite the guidelines issued by Delhi Police, he was not maintaining the register of caller of the calls made from his PCO. PW6 has further stated that police took him to the police station and he was detained in the police station for one night till Kasim was not apprehended. PW6 has denied the suggestion that he was deposing falsely with a view to implicate falsely the accused Kasim as he was threatened by the SHO and he was put under pressure. PW6 has admitted it to be correct that when accused Kasim came to his PCO for making the call, no child was with him.
vii. PW7 is Zakir Hussain, the uncle of the complainant PW4 Anish Khan. PW7, in his examination-in-chief, has stated that SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 18 of 48 on 21.05.2012, he had come to know from neighbours that son of Anish Khan namely "Z" had been kidnapped by someone and the kidnapper had raised demand of Rs. 5 lacs as ransom. On 21.05.2012, Anish Khan further informed him that he had received a phone call at about 09:45 AM from kidnappers about the ransom call of Rs. 5 lacs for releasing his son "Z". PW7 along with the police, complainant Anish and his brother Amit reached at Filmistan, kept waiting but nobody turned up. However, at about 02:00 PM, they noticed that accused Kasim and Bablu(correctly identified by PW7) were coming from the front side and both of them were apprehended immediately. Police made enquiries. Both of them disclosed that they had kept "Z" with their associate's house no. 7786/114, Katra Atmaram, Chamelian Road and on receipt of this information, they along with the police and both the accused persons reached at the said house and the kidnapped child "Z" was recovered from the possession of the third accused Arshi, who was also correctly identified by PW7. All the three accused persons were arrested by the police.
In the cross-examination done by ld. Counsel for the accused Kasim, PW7 has stated that he does not know as to which mobile phone was used by Anish on 21.05.2012 and he was not knowing even the colour of the said mobile phone. PW7 has further stated that the police had done the writing work in the police station, though, some enquiries were made by the police at Filmistan from Master "Z". PW7 has further stated SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 19 of 48 that Anish had taken Rs. 5 lacs with him when he had gone to Filmistan. PW7 has further stated that he had not counted the said amount.
In the cross-examination done by ld. Counsel for the accused Badre Alam and Raza Hassan Kadri, PW7 has stated that he himself has not heard the said call but the ransom call was attended by Anish in his presence. PW7 has further stated that Anish was at a distance of 5 ft from him when he had attended the said phone call. PW7 has admitted it to be correct that he was not able to hear the talks which took place between Anish and the caller who had demanded Rs. 5 lacs but Anish had told him that ransom of Rs. 5 lacs was being demanded from him. PW7 has further stated that when he went second time at about 02:00 PM to Filmistan on 21.05.2012, the police had already recovered Master "Z" and Master "Z" was not recovered in his presence. PW7 has further stated that none of the accused persons was arrested in his presence. PW7 cannot say whether Master "Z" was recovered from the house of Raza hassan kadri or not.
viii.PW8 is HC Mahender Singh, the member of the raiding party, which was constituted on 21.05.2012 consisting of SI Ranveer Singh, ASI Ranbir, Ct. Ravinder, Ct. Attar Singh, Ct. Subhash, Ct. Anil, Inspector Joginder Singh and he himself. Inspector Joginder Singh briefed the facts of the case to the team members and told them that they had to go to Filmistan for apprehending the kidnappers of "Z" and for recovery of SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 20 of 48 the kidnapped boy. Anish Khan, father of the kidnapped boy, Amit Khan and Zakir also accompanied them. At about 10:00 AM, all of them reached to Filmistan. PW8 has stated that Anish Khan was carrying a bag containing Rs. 1.15 lacs. This witness has deposed about the apprehension of the accused Kasim and Bablu at the instance of Amit Khan and Anish Khan, recovery of the kidnapped boy from House no. 7786/114, Katra Atmaram, Chamelian Road from the custody of the third accused Raza Hassan Kadri. During the testimony of this witness, the arrest memos of the three accused persons were exhibited as Ex. PW8/A, Ex. PW8/B and Ex. PW8/C; their personal search memos Ex. PW8/D to Ex. PW8/F and their disclosure statements as Ex. PW8/G to Ex. PW8/I. The pointing out memos were exhibited as Ex. PW8/J to Ex. PW8/L and the pointing out memo of the STD booth was exhibited as Ex. PW8/M. In the cross-examination done by the ld. Counsel for the accused Kasim, PW8 has stated that IO has not requested any independent person at Filmistan to join investigation of the case. PW8 has admitted it to be correct that Filmistan cinema Hall is situated on the main road and a lot of vehicles and pedestrians pass through that road. PW8 has further stated that he had apprehended the accused Kasim while ASI Ranbir had apprehended the accused Bablu. PW8 has further stated that the signatures of any local person were not obtained on the recovery memo Ex. PW4/B at the time of the recovery of the SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 21 of 48 child. IO had not recorded statement of any neighbour of house no. 7786/114, Katra Atmaram, Chamelian road. Local police officials of PS Hindu Rao were not joined during the proceedings conducted at that place.
In the cross-examination done by ld. Counsel for the accused Raza Hassan Kadri and Badre Alam, PW8 has stated that he had not stated in his statement that father of the kidnapped boy was carrying bag containing of Rs. 1.15 lacs cash. ix. PW9 is Israr Babu, the alternate Nodal Officer from Vodafone mobile services Limited and this witness proved on record the CAF pertaining to mobile number 9999287259 as Ex. PW9/A and has stated that the said mobile phone was registered in the name of the complainant Anish Khan. The photocopy of the election i-card of the subscriber Anish Khan was exhibited as Ex. PW9/B. The CDR of the above said mobile phone w.e.f. 19.05.2012 to 21.05.2012 was collectively exhibited as Ex. PW9/C. In the cross-examination, PW9 has admitted it to be correct that no audio recording of the calls as shown in the CDR Ex. PW9/C was available with the company.
x. PW10 is Ct. Ravinder Kumar who was also the member of the raiding party on 21.05.2012 and this witness has exactly deposed on the same lines on which PW HC Mahender Singh has deposed.
In the cross-examination done by the ld. Counsel for the accused Badre Alam and Raza Hassan Kadri, PW10 has stated SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 22 of 48 that he does not know if neighbours of the house from where missing child was recovered were joined in the investigation or not.
In the cross-examination done by the ld. Counsel for the accused Mohd. Kasim, PW10 has stated that his statement was recorded on 21.05.2012 from where the boy was recovered but he does not remember the exact time. PW10 has further stated that Anish Khan was carrying Rs. 5 lacs when they left the police station. PW10 has admitted it to be correct that when accused Kasim was apprehended, the missing child was not with him at that time. PW10 has further stated that no one had come to collect the money from Anish Khan in between 10:00 AM to 02:00 PM and no phone call was received from Anish Khan in between this period in his presence. PW10 has admitted it to be correct Kasim was apprehended on the identification of Amit Khan. PW10 has further stated that no statement of Anish Khan and Amit Khan was recorded in his presence prior to leaving the police station for Filmistan. PW10 has further stated that he does not know the name of the STD booth owner.
xi. PW11 is Ct. Kuldeep Singh who was also a member of the raiding team on 21.05.2012 headed by SHO Inspector Joginder Singh who has been examined as PW17 and this witness has also deposed on the same lines on which PW8 and PW10 have deposed.
SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 23 of 48 xii. PW12 is ASI Ranbir Singh who was also one of the members of the raiding team and this witness has also deposed on the same lines on which PW8, PW10 and PW11 have deposed. PW12, in his examination-in-chief, has stated that Anish Khan had brought Rs. 2.15 lacs which were collected by him through his relatives which were kept in a bag and thereafter, they proceeded for Filmistan Cinema and took positions there. In the cross-examination, PW12 has stated that Master "Z" was recovered accused Kasim but he does not know whether Kasim was the owner of that house or not. PW12 further states that he does not remember if any neighbour of 7786/114 were called at the time of recovery of the child or not. xiii.PW13 is Ct. Attar Singh, one more member of the raiding party which was constituted on 21.05.2012 and this witness has also deposed exactly on the same lines on which PW8, PW10, PW11 and PW12 have deposed.
xiv.PW14 is Mohd. Zafar Ali and this witness has stated that in the year 2012 he used to sit in a shop of mobile accessories at T-404B, Chamelian Road, near Filmistan, Delhi. PW14 has stated that police had come to his shop in the evening and made enquiries from him, if somebody had made call from the said shop. PW14 told them that he was unaware regarding the said fact.
PW14 was cross-examined by the ld. Addl. PP for the State as he was resiling from his previous statement recorded by the police u/s 161 of the Cr.P.C. and in his cross-examination, SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 24 of 48 PW14 denied the suggestion that he had stated to the police that on 21.05.2012, the police brought the accused Kasim who was present in the court on that day to his shop or that he told the police that in the night when he was closing his shop, accused Kasim had come to his shop while running and told that he had to make some emergency call or that when he asked for his ID, he told his mother was seriously ill or that on humanitarian grounds, he allowed him to make a call. PW14 has denied that he identified the accused Kasim before the police as the same person who called on the mobile number 9999287259 from his STD booth. The statement of PW14 u/s 161 of the Cr.P.C. was exhibited as Ex. PW14/A, during cross-examination of this witness.
xv. PW15 is Mohd. Aslam and his testimony is exactly on the same lines as that of PW14. The statement of PW15 recorded by the police u/s 161 of the Cr.P.C. has been exhibited as Ex. PW15/A during the cross-examination of this witness and this witness also resiled from his previous statement u/s 161 of the Cr.P.C..
xvi.PW16 is Sh. Asif Ali and this witness has stated that he had given one room on rent of House no. 7786/ 114, Katra Aatmaram, Chamelian Road, Delhi to one Sh. Haider Ali Qadri, father of the accused Raza Hassan Kadri ten years prior to 2012. PW16 has admitted it to be correct that he had not seen any child in custody of the accused Raza Hassan Kadri in the tenanted premises and was recovered by the police.
SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 25 of 48 In the cross-examination, PW16 has admitted it to be correct that police had not recovered any child in his presence from the tenanted premises. PW16 has admitted it to be correct that accused Raza Hassan Kadri was not arrested by the police in his presence.
xvii. PW17 is Inspector Jogender Singh, head of the raiding party and this witness has also deposed exactly on the same lines on which PW8, PW10, PW11 and PW12 have deposed.
xviii. PW18 is IO of the case SI Ranveer Singh and this witness has deposed on the lines on which investigation was done by him and on the lines of the charge sheet filed by him. During the testimony of this witness, the site plan of the place from where the child was recovered was exhibited as Ex. PW18/A, carbon copy of the statement of the child recorded u/s 164 of the Cr.P.C. was exhibited as Ex. PW18/B and the transcripts of the calls recorded by the complainant and the accused Kasim was exhibited as Ex. PW18/C. In the cross-examination, PW18 has stated that the complainant was able to arrange a sum of Rs. 2.15 lacs but he had not enquired from the complainant as to from where, he had arranged the said amount. PW18 has further stated that the complainant had brought the said money in a black coloured leather bag but he neither seized the said bag nor obtained the same. PW18 has admitted it to be correct that Filmistan and its surrounding area is a public prone area.
SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 26 of 48 PW18 has further stated no CCTV cameras were installed near the place of the raid.
DOCUMENTS RELIED UPON BY THE PROSECUTION
12.Following documents have been relied by the prosecution:-
i. Copy of the FIR as Ex. PW1/A. ii. Endorsement on the rukka as Ex. PW1/B. iii. Certificate u/s 65B of the Indian Evidence as Ex. PW1/C. iv. DD no. 25A dated 20.05.2012 as Ex. PW1/D. v. The Statement recorded by the police of PW4 Anish Khan, on the basis of which, the FIR was lodged as Ex. PW4/A. vi. The recovery memo pertaining to the child "Z" as Ex. PW4/B. vii. The pointing out memos where the child was kept after kidnapping as Ex. PW4/C and Ex. PW4/D. viii.Seizure memo of the CD seized by the police as Ex. PW4/E. ix. The CD pertaining to the conversation in between the accused Kasim and the complainant Anish Khan as Ex. P1. x. The statement of PW5 Amit Khan recorded by the police u/s 161 of the Cr.P.C. as Mark PW5/A. xi. The arrest memos of the three accused persons Kasim, Raza Hassan Kadri and Badre Alam @ Bablu as Ex. PW8/A to Ex.
PW8/C; their personal search memos as Ex. PW8/D to Ex. PW8/F; their disclosure statements as Ex. PW8/G to Ex. PW8/I; the pointing out memos of the STD booths as Ex. PW8/J to Ex. PW8/M. xii. The photocopy of the CAF of mobile no. 9999287259 of the complainant as Ex. PW9/A; the photocopy of the election i-
SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 27 of 48 card of the complainant Anish Khan as Ex. PW9/B and the CDR of the above said mobile on 19.05.2012 to 21.05.2012 as Ex. PW9/C. The certificate u/s 65B of the Indian Evidence Act regarding the genuineness of the above said CDR as Ex. PW9/D. xiii.The statement of PW14 Mohd Zafar Ali u/s 161 of the Cr.P.C. as Ex. PW14/A. xiv.The statement of PW15 Mohd Aslam u/s 161 of the Cr.P.C.
as Ex. PW15/A. xv. The site plan prepared by the IO of the place from where the child was recovered as Ex. PW18/A, the carbon copy of the statement of the child recorded u/s 164 of the Cr.P.C. as Ex. PW18/B and the transcript of the calls as Ex. PW18/C. DOCUMENTS ADMITTED BY THE ACCUSED PERSONS
13. The accused persons on 04.06.2019, admitted the orders dated 26.05.2012 passed by ld. MM as Ex. C-1 and the statement of the Victim "Z" u/s 164 of the Cr.P.C. as Ex. C-2.
STATEMENT OF THE ACCUSED U/S 313 OF THE Cr.P.C.
14.After conclusion of the PE, the statements of the accused persons namely Kasim, Badre Alam @ Bablu and Raza Hassan Kadri were recorded, whereby, the three accused persons denied all the incriminating evidence put to them.
15.The accused Kasim in his statement u/s 313 of the Cr.P.C. took the plea that he was working with the complainant Anish Khan, father of the minor child Master "Z" and some amount pertaining to his salary and commission was due on the complainant Anish SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 28 of 48 Khan and when he demanded the same from him, the present false case was lodged.
16.The accused Badre Alam @ Bablu in his statement u/s 313 of the Cr.P.C. took the plea that he was falsely implicated in the present case and he was not known to the co-accused Kasim. It has been further stated that he was only knowing the co-accused Raza Hassan Kadri, being the resident of the said area and he was lifted from Pandav Nagar, arrested and falsely implicated in the present case.
17.The accused Raza Hassan Kadri, in his statement u/s 313 of the Cr.P.C. also took up the plea that he was falsely implicated in the present case and he was not knowing the co-accused Kasim. He was only knowing the co-accused Bablu being the resident of the same area and on the day of the incident, at about 02:00 PM, when he was taking lunch in his room along with his friend Farman, he was lifted from the said room, arrested and falsely implicated in the present case.
18.All the three accused persons opted to lead the evidence in defence.
DEFENCE EVIDENCE
19.The three accused persons have led the evidence in defence by examining four witnesses. Accused Kasim led the evidence of DW1 Tufel Ahmad and this witness in his examination-in-chief stated that he was Imam in Masjid situated at Pandav Nagar and the minor child "Z" was studying in the Masjid under him. The father of the minor child "Z" introduced the accused Kasim as the SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 29 of 48 uncle of "Z" to him and stated that in his absence, the accused Kasim would take his son from Masjid to home. DW1 further stated that it was within his knowledge that Anish Khan, father of "Z" had taken a sum of Rs. 2.50 lacs to Rs. 3 lacs from Kasim and accused Kasim was working under Anish Khan. Whenever Kasim and Anish Khan used to visit Masjid for prayers, he had seen them altercating over the issue of money. Anish Khan and Kasim arranged a panchayat and he was the member of the panchayat. Anish had undertaken to return the money to accused Kasim in the Panchayat.
In the cross-examination, DW1 has stated that he was not maintaining any attendance register regarding the students who used to visit Masjid for studies. He had not brought any documentary evidence to show that victim "Z" was studying in the Masjid.
20.The accused Badre Alam led the evidence of Mohd. Tanvir Alam as DW2 and in his examination-in-chief, DW2 stated that he was knowing the accused Badre Alam @ Bablu for the last many years as he was residing in his neighbourhood. DW2 further stated that on 21.05.2012, at about 05:00 PM, while he along with the accused Badre Alam @ Bablu were present near Bus Stand Pandav Nagar, few police officials came and forcibly took away accused Bablu @ Badre Alam.
In the cross-examination, DW2 admitted it to be correct that he was knowing the accused Bablu @ Badre Alam for the last about ten years. DW2 further stated that he did not lodge any complaint SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 30 of 48 with the police when the accused Badre Alam was forcibly lifted by the police from Bus Stand Pandav Nagar.
21.The accused Raza Hassan Kadri examined two witnesses in his defence Mohd. Farman as DW3 and Mohd. Meraj as DW4. DW3 in his examination-in-chief, took the plea that he was knowing the accused Raza Hassan Kadri for the last many years. DW3 was not remembering the exact date, month or year but he was present in the room of accused Raza Hassan Kadri when few police officials came and forcibly took away accused Raza Hassan Kadri.
In the cross-examination, DW3 admitted it to be correct that he was knowing the accused Raza Hassan Kadri for the last about ten years. DW3 further stated that he did not lodge any complaint with the police when the accused Raza Hassan Kadri was forcibly lifted by the police from his room.
22.DW4 Mohd. Meraj has also deposed exactly on the same lines on which DW3 has deposed.
FINAL ARGUMENTS
23.During the course of final arguments, ld. Addl. PP for the State has argued that by the aid of the testimony of the four main star witnesses, PW3(Victim "Z"), PW4 Anish Khan(the complainant and father of the victim), PW5 Amit Khan(uncle of the victim) and PW7 Zakir Hussain(uncle of the complainant Anish Khan), the prosecution has been able to prove the guilt of the accused persons beyond any reasonable doubt.
SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 31 of 48
24.Whereas, on the other hand, ld. Counsel for the accused persons has vehemently argued that PW7 Zakir Hussain has turned hostile and the testimonies of PW3, PW4 and PW5 are not reliable and trustworthy at all because there are a number of material contradictions in their testimonies. It has been further argued that no voice sample has been proved on record by the prosecution and no recovery has also been proved. It has been further argued that no public witness was joined by the prosecution either at the time of the arrest of the accused persons or at the time of recovery of the minor child "Z" despite the availability of the same. It has been further argued that the accused persons have been falsely implicated as the accused Kasim was having some business transactions with the complainant Anish Khan, the father of the minor child "Z".
INGREDIENTS OF THE OFFENCE
25.The accused persons have been charge sheeted for the offence punishable under Section 364/364A of the IPC R/w Section 120B of the IPC. Section 364 of the IPC defines kidnapping or abducting in order to murder. The necessary ingredients of Section 364 of the IPC are that the accused kidnapped or abducted any person and such kidnapping or abduction was committed either for the purposes of murdering or for the purposes of putting the kidnapped or abducted person in the danger of being murdered. Section 364A of the IPC deals with kidnapping for ransom which is an aggravated form of the offence of kidnapping or abducting. The essential ingredients of SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 32 of 48 Section 364A of the IPC are that the accused kidnapped or abducted a person, the accused kept such person under his detention, the accused threatened to cause hurt to such person or caused death or hurt to him with a view to compel either the government or any foreign state or intergovernmental organization or any other person to do or abstain from doing any act or to pay ransom. Section 120B of the IPC deals with the punishment of criminal conspiracy. The prosecution, in order to establish a charge of criminal conspiracy, must prove an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
ANALYSIS AND FINDING
26.The settled law is that the burden to prove the case beyond any reasonable doubt lies on the shoulder of the prosecution. The accused persons have a right to maintain silence in the trial. Every accused person is to be presumed innocent until proved guilty. The burden of proof is on the prosecution to prove its case by leading cogent, convincing and reliable evidence so as to prove the guilt of the accused persons beyond any reasonable doubt. The accused persons cannot be convicted on the basis of merely probabilities or presumptions. Suspicion, howsoever grave, cannot take the place of proof. Benefit of doubt has to be given to the accused.
27.The present case is squarely based on the ocular evidence of four main star witnesses of the prosecution i.e. of PW3(Victim "Z"), PW4 Anish Khan(the complainant and father of the victim), PW5 SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 33 of 48 Amit Khan(uncle of the victim) and PW7 Zakir Hussain(uncle of the complainant Anish Khan).
OCULAR EVIDENCE OF THE WITNESSES
28.The question, as to how, the ocular testimony of the witnesses has to be appreciated by a court has been discussed in detail in the judgment titled as Shahaja @ Shahajan Ismail Mohd. Shaikh Vs. State of Haryana cited as 2022 Live Law (SC) 596, relied upon by the ld. Addl. PP for the State. In the said judgment, the Hon'ble Apex court of the Land has summarized in brief the principles governing the appreciation of ocular evidence in para no. 27 thereof as under:-
" 27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 34 of 48 III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 35 of 48 rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. "
29.In the light of the ratio of the above stated judgment, now let this court analyze the evidence of the above said four main and star witnesses of the prosecution. This court has to consider and see as to whether the evidence of the main four star witnesses, if read as a whole, appears to be reliable and trustworthy or not, of course by ignoring the minor discrepancies on trivial matters not touching the core of the case.
30.The material aspects of the testimonies of PW3, PW4, PW5 and PW7 have already been narrated hereinabove while mentioning in brief the evidence led by the prosecution.
31.PW3 the minor child "Z" is the victim himself. In his examination-in-chief, PW3 has stated that he was recovered from near a water tap near Filmistan by his uncle Anit(in fact Amit Khan is the uncle of PW3 and his name has been mentioned as SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 36 of 48 Anit). PW3 has further stated that his uncle informed the police that the child was in his possession.
32.The place of recovery of the minor child "Z" as stated by him in his examination-in-chief, is in contradiction to the place of recovery as per the case of prosecution. As per the case of the prosecution, the kidnapped child was recovered from the possession of the accused Arshi i.e. Raza Hassan Kadri from the premises bearing no. 7786/814, Katra Atmaram, Chamelian Road, Delhi.
33.Furthermore, it has to be seen that PW3, in his statement recorded u/s 164 of the Cr.P.C., has stated that the accused Kasim was having visiting terms with his family and after providing him icecream on the day of the incident, he took him to a room in which the accused Kasim, Bablu and one more person were there and thereafter, he was rescued by his father and three police officials. The examination-in-chief of PW3 is diametrically opposite to his examination-in-chief, as in his examination-in- chief, PW3 has stated that he had not stated in his statement u/s 164 of the Cr.P.C. that his father and three police officials came to the room and brought him to the police station.
34.PW3, in the cross-examination, done by ld. Counsel for the accused Badre Alam and Raza Hassan Kadri states that he was brought to the Filmistan Area by Hashim, brother of Kasim but he again states that he was brought to the Filmistan by the accused Kasim. PW3 further states that he was not threatened. From the cross-examination done by ld. Counsel for the accused SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 37 of 48 Kasim, to my mind, it is apparent tht PW3 has categorically admitted that the accused Kasim was familiar with him and he used to play with him. PW3 also used to go out in the company of the accused Kasim. PW3 has admitted it to be correct that on 20.05.2012, he went out along with the accused Kasim and thereafter, he came back to home. PW3 has admitted it to be correct that accused Kasim never threatened him or scolded him at any point of time.
35.It is true that the testimony of a child witness has to be appreciated with caution but in the light of the above said material contradictions pertaining to the place of recovery, etc., I have no hesitation to hold that PW3 has utterly failed to support the case of the prosecution to the effect that he was rescued from the possession of the accused Raza Hassan Kadri at the instance of the two accused persons Kasim and Badre Alam. PW3 has categorically stated that his uncle Amit Khan came at Filmistan and thereafter, the police was informed by his uncle Amit to the effect that the child was in his possession. The statement of PW3 absolutely falsifies the stand of the prosecution to the effect that the child was recovered from the possession of the accused Raza Hassan Kadri at the instance of Kasim and Badre Alam by the IO and the rest of the police officials who were the members of the raiding team.
36.PW4 is Anish Khan, the complainant and father of the victim "Z". PW4 has completely retracted and denied the contents of his statement Mark PW4/A which was recorded by the police. PW4 SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 38 of 48 has denied the suggestions that he had received call on his mobile from the landline number 69921063; that he had told to the police that unknown caller had told him as to whether he wanted his child dead or alive; that he had told the police in his statement that the police traced the address from where the call was made from landline number and he accompanied the DMS booth no. 867, Gali no. 10, Harijan Basti, Anand Parbat, Delhi owned by PW6 Pappu @ Chuni Lal and the rest of the contents of his statement as well. PW4 has categorically denied that he identified the voice of Kasim. PW4 has also denied that he had told the police in his statement that Kasim had kidnapped his son "Z" with the help of his friend with the intention to kill him and extort money. PW4 has denied the contents of the CD and categorically stated that the voice contained in the CD Ex. P1 was not that of the accused Kasim. PW4 has categorically stated that he was absolutely unaware about the contents of the recovery memo of the child Ex. PW4/B on record and the pointing out memos of the place of recovery Ex. PW4/C and Ex. PW4/D on record. PW4 also denied the seizure memo of the CD Ex. PW4/E on record. PW4 has admitted it to be correct in the cross-examination that the accused persons were not arrested in his presence and that the custody of the minor child "Z" was handed over to him by his brother Amit Khan. PW4 has admitted it to be correct that the proceedings were done by the police officials in the police station and his signatures were obtained in the police station itself. PW4 SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 39 of 48 is not aware about the contents of the proceedings done by the police officials in the police station.
37.Thus, PW4 has not only resiled from his previous statement in his examination-in-chief but even in the cross-examination, he has completely retracted from his previous statement and failed to support the case of the prosecution. The place of recovery of the child, the arrest of the accused persons, the voice of the accused Kasim allegedly recorded in the CD Ex. P1 have been belied by PW4 in his testimony and as such, PW4 has utterly failed to support the case of the prosecution.
38.PW5 Amit Khan, the uncle of the minor child "Z" has also utterly failed to support the case of the prosecution. This witness has stated that Hashim, the brother of the accused Kasim was his friend and they went to Filmistan on 21.05.2012 and he himself and Hashim asked the accused Kasim about the minor child "Z". Kasim brought "Z" at Filmistan and thereafter, he informed the police officials who were roaming in the area of Filmistan about the recovery of "Z" from Kasim. PW5 has admitted it to be correct that the police did not recover the child in his presence from any of the accused and no recording of any conversation was held in his presence. PW5 has again admitted it to be correct that his brother did not make any complaint to the police in his presence and that accused Kasim was very much familiar with them and used to visit them frequently. PW5 has denied the contents of his statement u/s 161 of the Cr.P.C. Mark PW5/A. As such, the examination-in-chief and cross-examination of PW5 SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 40 of 48 does not leave even an iota of doubt in the mind of the court to the effect that the testimony of PW5 has utterly failed to support the case of the prosecution and he has belied the case of the prosecution on the aspect of the recovery of the child "Z", on the aspect of the place of recovery and on the aspect of the ransom call as well.
39.PW7 Zakir Hussain has also failed to support the case of the prosecution. PW7 has categorically admitted it to be correct that none of the accused persons was arrested in his presence in the cross-examination which is diametrically opposite to his examination-in-chief to the effect that the three accused persons were arrested by the police and taken to the police station. However, PW7 has categorically stated that he did not know as to by whom, the minor child "Z" was kidnapped and he had only heard about the same in his locality. PW7 had to be cross- examined by the ld. Addl. PP for the State but in the cross- examination, he has admitted that he did not hear the talks which took place in between the caller who demanded the ransom of Rs. 5 lacs and the complainant Anish Khan. The child was not recovered by the police in his presence. As such, on the aspect of the recovery of the child and on the aspect of the place of recovery which are the two main aspects of the case of the prosecution, PW7 has not supported the case of prosecution.
40.Going by the above said discussion, I have no hesitation to hold that the testimonies of PW3, PW4, PW5 and PW7 are not only contradictory to the case of the prosecution but the same are SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 41 of 48 contradictory to each other as well. I am of the considered opinion that there are material contradictions in their testimonies which go to the root of the matter rendering their testimonies as untrustworthy and unreliable.
EVIDENCE OF THE STD BOOTH OWNERS
41.The prosecution in order to prove its case has examined three witnesses, who are the owners of the STD booths namely Chuni Lal as PW6, Mohd. Zafar Ali as PW14 and Mohd. Aslam as PW15. As per the case of the prosecution, the first call was received by the complainant PW4 Anish Khan on his mobile no. 9999287259 from landline number 69921063 at about 07:52 PM on 20.05.2012 and the owner of the STD booth of the above said landline is PW6 Chuni Lal. PW6 has retracted from his previous statement on the aspect that accused Kasim was accompanied by the child when he had come to his PCO for making a call. PW6 is not maintaining any register of the calls made from the PCO as per the guidelines issued by Delhi Police.
42.Thereafter, on the above said mobile number of the complainant, call was received from mobile number 9266551290 at about 09:45 PM on 20.05.2012 at about 09:45 PM, whereby, the ransom call of Rs. 5 lacs was made and then again, a call was received on the above said mobile number of the complainant from 9212858628 at 09:45 AM on 21.05.2012. The prosecution has examined PW14 Mohd. Zafar Ali and PW15 Mohd. Aslam but both the above said witnesses have retracted from previous statements recorded by the police u/s 161 of the Cr.P.C. exhibited SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 42 of 48 as Ex. PW14/A and Ex. PW15/A. Both the above said two witnesses PW14 and PW15 have categorically denied the suggestion in their cross-examinations by the ld. Addl. PP for the State to the effect that they had stated to the police that on 21.05.2012, the police got the accused Kasim to their shop or that the accused Kasim came to their shop for making a call. As such, the testimony of the above said STD booth owners, in the opinion of this court, is of no help to the case of the prosecution.
TESTIMONIES OF THE POLICE OFFICIALS
43.PW1 ASI Naresh is the duty officer who recorded the FIR, PW2 is Ct. Sher Singh who accompanied the IO to the spot. PW8 HC Mahender Singh, PW10 Ct. Ravinder Kumar, PW11 Ct. Kuldeep Singh, PW12 ASI Ranbir Singh, PW13 Ct. Attar Singh and PW17 Inspector Joginder Singh(In charge of the raiding team) are the witnesses to the investigation. PW18 is IO SI Ranveer Singh.
44.The above said witnesses to the investigation have deposed on the lines of the investigation done by them. PW8 has deposed about the arrest memo of the accused persons, about their personal search memos and about their disclosure statements. PW8 has further stated that he had apprehended the accused Kasim while ASI Ranveer had apprehended the accused Badre Alam. All the above said witnesses have stated that the complainant PW4 Anish Khan and PW5 Amit Khan were accompanying the raiding team and at the instance of PW4 and PW5, the accused persons were apprehended. However, it has SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 43 of 48 already been discussed hereinabove that not only PW4 and PW5 but PW3 and PW7 as well, who are the main and star witnesses of the prosecution have utterly failed to support the case of the prosecution.
45.PW10 Ct. Ravinder Kumar has stated that missing child was not with the accused Kasim at the time of his apprehension. PW13 Ct. Attar Singh has denied that minor child "Z" was recovered at the instance of the accused Kasim. PW12 ASI Ranbir Singh has stated that the minor child "Z" was recovered from the house of Kasim and as such, I am of the opinion that even on the aspect of the recovery of the child, there are vital contradictions in the testimonies of the police officials, who were the members of the raiding team.
46.As stated and discussed hereinabove, not only PW4 and PW5 but PW3, the victim "Z" himself have completely failed to support the case of the prosecution on the aspect of the ransom call on the aspect of the place of recovery of the minor child and on the aspect that the minor child was recovered from the possession of the accused Raza Hassan Kadri at the instance of the two accused persons namely Kasim and Badre Alam. The witnesses to the investigation as well have utterly failed to support the case of the prosecution so far as the ransom call and the recovery of the minor child are concerned. The fate of the testimony of PW18 the IO of the case, in the opinion of this court, is also the same as the IO of the case has also deposed on the same lines on which the members of the raiding team have deposed. As such, I am of the SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 44 of 48 opinion that the testimonies of the above said police officials as well has not been able to bring home the guilt of the accused persons beyond any reasonable doubt.
CONTRADICTIONS ON THE ASPECT OF THE AMOUNT
47.As per the case of the prosecution, the ransom call was given for an amount of Rs. 5 lacs. The complainant Anish Khan who has been examined as PW4 has stated that he borrowed an amount of Rs. 2.25 lacs, kept the same in the bag and thereafter, the police accompanied him to the area of Filmistan. PW7 Zakir Hussain has stated that PW4 was carrying with him an amount of Rs. 5 lacs. PW8 HC Mahender Singh, the member of the raiding team has stated that PW4 was carrying an amount of Rs. 1.15 lacs with him. PW10 Ct. Ravinder has stated that PW4 was carrying an amount of Rs. 5 lacs with him. PW11 Ct. Kuldeep has stated that PW4 was carrying a bundle of papers representing cash. PW17 Inspector Joginder Singh, the Incharge of the raiding team has stated that PW4 was carrying an amount of Rs. 2.15 lacs with him. PW18 SI Ranveer Singh has also stated that PW4 was carrying an amount of Rs. 2.15 lacs with him.
48.As such, on the aspect of the amount which was carried by PW4 Anish Khan to Filmistan, there are vital contradictions as mentioned hereinabove and thus, a serious doubt has been casted upon the case of the prosecution on this count as well.
TESTIMONY OF PW16 ASIF ALI
49.PW16 Asif Ali is the owner of House no. 7786/114, Katra Atmaram, Chamelian Road, Delhi but this witness is neither a SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 45 of 48 witness to the recovery of the minor child nor to the arrest of the accused persons and as such, in the considered opinion of this court, the testimony of PW16 is of no help to the case of the prosecution.
NON JOINING OF THE PUBLIC WITNESSES
50.PW7 Zakir Hussain has admitted it to be correct that some people were present at the spot near Filmistan where police was standing along with Master "Z". PW8 has also admitted that the cinema hall Filmistan was situated on the main door and lots of vehicles and pedestrians pass through that road. PW8 has further stated that IO had not requested any independent public person at Filmistan to join investigation of the case. PW8 has further stated that the signature of any local person were not obtained on the recovery memo Ex. PW4/B at the time of the recovery of the child. PW11 Ct. Kuldeep also states that neither any shopkeeper nor any resident was asked by the IO to join the investigation. PW18 IO of the case has also admitted it to be correct that the area of Filmistan and its surrounding area is a public prone area.
51.The testimonies of the prosecution witnesses, in the opinion of this court, specifically reveals that public persons were available at the time of arrest of the accused persons and also at the time of the recovery of the minor child "Z" but the public persons have not been joined either at the time of arrest of the accused persons or at the time of the recovery of the minor child "Z". PW4 the complainant Anish Khan has categorically denied the contents of the arrest memos, the personal search memos and the disclosure SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 46 of 48 statements of the accused persons. PW4 has also categorically failed to identify the voice of the accused Kasim from the CD Ex. P1.
52.The settled law is that non-joining of the public witnesses is fatal to the case of the prosecution despite the availability of the same as has been held in the case of "Hem Raj v. State of Haryana"
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 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 the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
DEFENCE EVIDENCE
53.As stated hereinabove, the accused persons have examined as many as four witnesses in defence. I am of the opinion that DW1 Tufail Ahmad(who has been examined on behalf of the accused Kasim) has failed to prove that the minor child "Z" was studying in the Masjid, wherein, DW1 was an Imam. I am also of the opinion that DW2 Mohd. Tanvir Alam, DW3 Mohd. Farman, DW4 Mohd. Mehraj have failed to prove that the accused Badre Alam was lifted from bus stand Pandav Nagar on 21.05.2012 or that accused Raza Hassan Kadri was lifted from the room forcibly by the police in DW3 Mohd. Farman was also there but the prosecution has utterly failed to prove its case on the aspect of SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 47 of 48 making the ransom call, on the aspect of recovery of the minor child "Z" from the possession of the accused Raza Hassan Kadri at the instance of the accused Kasim and Badre Alam and even the place of recovery of the minor child "Z" which is stated to be 7786/114, Katra Atmaram, Chamelion Road, Delhi. As such, even in the absence of defence evidence, the prosecution has not been able to prove the guilt of the accused persons beyond any reasonable doubt.
CONCLUSION
54.In the light of the above said discussion, I have no hesitation to hold that the prosecution has failed to prove its case against all the three accused persons namely Kasim, Badre Alam @ Bablu and Raza Hassan Kadri by leading convincing or cogent evidence and thus, it has failed to discharge the burden placed upon it and therefore, the accused persons are entitled to be exonerated.
55.Resultantly, the accused persons namely Kasim, Badre Alam @ Bablu and Raza Hassan Kadri are acquitted of the charges u/s 364/364A IPC R/w Section 120B of the IPC.
56.Bail bonds u/s 437A of the Cr.P.C. have already been furnished and accepted, which shall remain in force for a period of six months from today.
57.File be consigned to Record Room, after necessary compliance.
Digitally signedAnnounced in the Open Court RAJ by RAJ KUMAR
KUMAR Date: 2025.01.29
(Judgement contains 48 pages) 16:24:49 +0530
(Raj Kumar)
ASJ-05, Central District
Tis Hazari Courts, Delhi
29.01.2025
SC 28594/2016 State Vs. Kasim & Ors. FIR no. 82/2012 PS Ranjit Nagar Page no. 48 of 48