Allahabad High Court
Nadeem And Another vs State Of U.P. on 3 March, 2020
Equivalent citations: AIRONLINE 2020 ALL 1341
Bench: Ramesh Sinha, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 31.1.2020 Delivered on 03.03.2020 Court No. - 1 Case :- CRIMINAL APPEAL No. - 4561 of 2014 Appellant :- Nadeem And Another Respondent :- State of U.P. Counsel for Appellant :-Mahendra Prakash,Dhruv Narayan Mishra,Gautam Kumar Banerji,Kamal Dev Rai,Mumtaz Ali,Pradeep Kumar,Shad Khan Counsel for Respondent :- Govt.Advocate,Shishir Kumar Tiwari Hon'ble Ramesh Sinha,J.
Hon'ble Ajit Kumar,J.
(Per Sinha 'J.' for the Bench)
1. The present Criminal Appeal has been preferred against the judgment and order dated 17.10.2014, passed by the Additional Sessions Judge, Court No.4, Bulandshahr in S.T. No. 893 of 2012, arising out of Case Crime No.307/80 of 2011 (State Vs. Nadeem & another) convicting and sentencing the appellant Nadeem for the life imprisonment along with fine of Rs.10,000/- for the offence under Section 364A I.P.C. and in default of payment of fine six months additional imprisonment to each of the appellants and for the offence under Section 411 I.P.C. three years rigorous imprisonment and fine of Rs.3,000/- and in default of fine two months further imprisonment. The accused Mazhar for the offence under Section 379 I.P.C. has been sentenced for three years rigorous imprisonment with Rs.3000/- fine and in default of fine two months additional imprisonment. All the sentences in respect of both the appellants shall run concurrently.
2. The prosecution case as has been set out in the FIR lodged by the informant (here-in-after referred to as 'complainant) Shahabuddin with an allegation that in the night of 15.4.2011 at 9 P.M. an unknown person came to his house who disclosed his name as Alam and had conversation with him relating to work of embroidery and for getting an order of export and the business transaction got settled with 5% commission.The said person had brought cold-drink with him which he offered to the complainant and both of them consumed the same while they were having conversation. After they had talk with each other they went to sleep at 2 A.M. in the night. Alam also slept with the complainant. Along with the complainant, his son namely, Rehan aged about 4 years also slept. In the morning when the complainant got awakened at 8 A.M. then he saw that the person by the name of Alam had disappeared along with the son of the complainant, namely, Rehan. He made hectic search of them but all went in vain and hence, he lodged the FIR of the incident with a prayer for appropriate action to be taken.
3. In pursuance of the written report (Ext.Ka.1) submitted by the complainant Shahabuddin at Police Out Post Nai Mandi, Police Station Kotwali Dehat, District Bulandshahr against the unknown person, namely, Alam, a First Information Report was registered as Case No. 307/80 of 2011, under Section 363 I.P.C. on 16.4.2011. Chik FIR was prepared as Ext. Ka.10.The information about the registration of the FIR was also endorsed in G.D.No.15 at 12.20 P.M. as Ext. Ka.11 on 16.4.2011.
4. During investigation on 17.4.2011, the case was converted under Section 364A I.P.C. from Section 363 I.P.C. The said fact was further endorsed in the G.D. No.6 of the concerned police station at 6.20 P.M. (Ext. Ka.13) (on 17.4.2011).
5. On 17.4.2011, the police team of Police Station Jagatpuri Delhi had arrested the accused-appellants Nadeem and Mazhar and at the pointing out of the accused Nadeem, the abductee son of the complainant, namely, Rehan was recovered from house No.F161/Gali No.5, Shastri Park, Delhi.The police of Police Station Jagatpuri Delhi also recovered a Motorola mobile phone from the possession of the appellant Nadeem.
6. The Investigating Officer on receiving an information about the arrest of the appellants Nadeem and Mazhar, recovery of the abductee Rehan and mobile phone by the police of Police Station Jagatpuri Delhi went there along with the complainant Shahabuddin.The police of Police Station Jagatpuri Delhi had given the supurdgi of the abductee Rehan to his father Shahabuddin on 17.4.2011. The said facts were also endorsed in G.D. No.22 at 2135 hours (Ext. Ka. 4) dated 17.4.2011 and the offence under Sections 328, 379, 411 I.P.C. were also added in the present case.
7. After investigation the Investigating Officer submitted charge sheet (Ex.Ka.15) under Sections 364A, 379, 411 328 I.P.C. in the Court against the two appellants and one Chand Khan.
8. The charges were framed against the accused appellants-Nadeem and Mazhar for the offence under Sections 364A, 379, 411 328 I.P.C. by the trial Court and the appellants denied the prosecution case and claimed their trial.
9. The prosecution in support of its case examined PW1- Shahabuddin (complainant of the case), PW2-Smt. Zahira wife of Shahabuddin, PW3- S.I. Hasrat Ali, PW4-Constable Sipahi Lal, PW5-S.I. C.P. Singh, PW6-S.I. Rajveer Singh Chauhan and PW7-Inspector Siddharth Tomar.
10. The prosecution further relied upon the documentary evidence such as written report submitted by the Shahabuddin (Ext. Ka.1), Chik FIR (Ext. Ka.10), copy of G.D. by which FIR was registered (Ext. Ka.11), site plan (Ext. Ka.12), G.D. regarding converting of case being G.D.No.6 at .20 hrs. dated 17.4.2011 (Ext. Ka.13), G.D. dated 18.4.2011 being No.20 at 21.35 hours. (Ext. Ka.14), Supurdginama (Ext. Ka.5), copy of G.D. by which police force of police station Jagatpuri Delhi proceeded for the recovery and arrest of the accused being Ext. Ka.2, recovery memo of appeal (Ext. ka.7), recovery memo of abductee Rehan (Ext. Ka.4). The documents relating to the arrest and search of the accused (Ext. Ka.6 to 9) and charge sheet (Ext. Ka.15).
11. The statements of the accused under Section 313 Cr.P.C. was recorded by the trial Court and the appellants in their statements denied the prosecution case and submitted that they were not named in the FIR. They stated that PW3-S.I. Hasrat Ali has wrongly endorsed in the G.D. regarding proceeding for the arrest and recovery of the victim and have wrongly proved the same. The appellant Nadim has further stated that no mobile phone was recovered from his possession nor, the abductee child was recovered from his possession. The appellants have further stated that the police in order to save the accused Chand has colluded with the complainant and has falsely implicated them in the present case.
12. The appellant Mazhar has also stated before the trial Court that no recovery of the abductee child was made from his possession nor, the abductee was with him.
13. PW1- Shahabuddin in his deposition before the trial Court has reiterated the prosecution as stated in the FIR. He stated that his wife after consuming the cold drink was in a state of unconsciousness. He made a search of his son, namely, Rehan in the nearby areas but he could be traced out and after taking 2-3 persons along with him went to Police Out Post Nai Mandi for lodging the F.I.R. and while the report was being written by him, at that moment on his other mobile a phone call was received from his mobile which was stolen and it was told to him that his son has been abducted and if he wants him back then he would pay Rs.5 lacs. He further informed the person concern calling on the mobile that he was a very poor person and at that time the phone was cut. He further stated before the trial Court that he had submitted a written report at the police Out Post and proved the same as Ext. Ka.1 which was in his hand writing and signature.Thereafter, a police team was constituted for the search of his son. On 17.4.2011 he received an information from the Police Station Jagatpuri, Delhi that they had recovered one child and he was called by them at once. On receiving the said information he reached there and saw the appellants Nadeem and Mazhar and his son Rehan there. The police told him that his son was recovered from possession of the said two accused and thereafter the police handed over his son to him. He further deposed before the trial Court that the accused had abducted his son for a ransom of Rs.5 lacs.
14. PW1 in his cross-examination has stated that in the present case the complicity of his brother Chand was disclosed by the two appellants. This witness has admitted that in S.T. No.1094 of 2011 (State Vs. Chand Khan) he had come for recording of his evidence and his statement was recorded.Chand Khan was the resident of Village Parwana. Chand Khan was arrested by the police for kidnapping/abduction of his child and he has given the statement before the trial Court that Chand Khan was not involved in the abduction/kidnapping of his son. He further admitted the fact that the accused Chand Khan is his real brother and he has stated that he was not involved in the incident and because of which he made deposition before the trial Court that Chand Khan was not involved in the kidnapping/abduction and he had also not seen Chand Khan at the police station. He further admitted that in the present case, the police have also made Chand Khan as accused along with the two appellants. No identification parade of the two appellants was conducted in jail and they were shown to him at the police station. He denied the suggestion that Chand Khan was his real brother and on account of which he deliberately did not depose against him. He further denied the suggestion that at the instance of the police personnel who showed the appellants he has falsely implicated the appellant Mazhar.
15. He admitted the fact that the first call which he had received was made from his mobile No.9358699811 which was taken by the accused Mazhar and the other mobile on which he received call its number is 9358018276. On the said phone he had conversation. The phone call which was received by him was after he had written the report. From the other side on the phone he heard a voice that if he wants his child back then Rs.5 lacs be paid. He further submitted that he had not seen the persons who abducted his child and had seen them after his child was recovered. He admitted that he did not see any one kidnapping or abducting his child and at the police station the Police Inspector had shown him the appellants and told him that the said two appellants had kidnapped/abducted his son. He denied the suggestion that the accused Mazhar had not visited his house. He further stated before the trial Court that the appellant Nadeem had not come with the appellant Mazhar at his house.
16. In his cross-examination, this witness has further admitted that the accused appellant Nadeem belongs to his village and there was no enmity with him but stated that 10-12 years ago accused Nadeem had committed theft in his house and the said matter was compromised in Panchayat. He denied the suggestion that on account of the enmity with the accused Nadeem he was implicated in the present case.
17. PW2-Smt. Zahira, wife of Sahabuddin and mother of the abductee in her examination-in-chief has stated that on 15.4.2011 accused appellant Mazhar in the night at about 9 p.m. had come to her house and disclosed his name as Alam. Accused Mazhar had talked her husband regarding the work of embroidery. The accused Mazhar had also brought cold-drink with him and had offered the cold drink to her and her husband and thereafter both of them consumed the same and the other bottle of cold drink was consumed by the appellant Mazhar himself. Accused Mazhar along with her husband Shahabuddin and son Rehan had slept in the room situated on the ground floor and she had slept in a room which was on the upper floor. After consuming the cold-drink she became unconscious and in the morning when she along with her husband got awakened, accused Mazhar and her son Rehan were not seen. Thereafter they made a search about the two but they could not be traced out. Her son Rehan was kidnapped/abducted by the accused Nadeem and Mazhar and from their possession her son was recovered by the Delhi Police.
18. She further deposed before the trial Court that she saw the accused Mazhar for the first time in her house when he had come along with the cold-drink and disclosed his name as Alam and thereafter she has seen him before the trial Court on the date fixed in the trial. Her husband after returning from Delhi had told her that Rehan was recovered from the possession of the appellants Nadeem and Mazhar by the Delhi Polie and her son was abducted for a ransom of Rs.5 lacs.
19. In her cross-examination, this witness has stated that a person by the name of Alam had come to her house alone at 9 p.m. and the investigating officer recorded her statement about the incident under Section 161 Cr.P.C. Alam had brought three bottles of cold-drink. She had not gone to Delhi and her husband alone had gone to Delhi. She did not remember whether she had shown empty bottles of cold-drink to the Investigating Officer because she was unconscious. She further stated that she was not aware of the fact whether her husband had taken the bottle of cold-drink when he went for lodging the report along with him. She further submitted that she did not see any of the accused taking away her son. The Investigating Officer had recorded her statement under Section 161 Cr.P.C. after a month. She has given a statement under Section 161 Cr.P.C. to the Investigating Officer that her son was handed over to her by the police. She admitted that Chand is her real Devar and she in her statement under Section 161 Cr.P.C. has stated to the Investigating Officer that the Chand was not involved in the kidnapping/abduction of her son and if the Investigating Officer has written the same she could not tell the reason. Nadeem did not visit her house, 10-12 years ago Nadeem had committed a theft in her house and before the incident of theft the appellant Nadeem often used to come to her house and after the incident of theft he never came back again. Nadeem was the resident of Village Parwana and she does not know what the Nadeem do. After the incident of theft her husband did not feel annoyed. Nadeem had committed theft of Rs.25000/- and he had returned Rs.10,000-12,000/- and rest of the amount was settled in the Panchayat. She further deposed that her husband used to earn Rs.10,000/- per month at the time of incident and they also own a house in the city which is of 56 Sq. Yard and besides the same they do not have any house or plot. At the time of the incident, they did not have Rs.2-4 lacs either in their house or in the Bank.
20. She denied the suggestion that Nadeem was implicated in the present case because of the incident of theft in which Nadeem was involved, on account of which her husband has lodged a false report against him. At the time of the incident she had seven children and as on date she also has seven children.Rehan used to sleep with his father. Usually they used to wake up in the early morning, but the night on which Alam had come to her house, they woke up at 6 a.m. She denied the suggestion that the entire prosecution story was conspired by her along with her husband falsely implicating the innocent persons. She further denied the suggestion that as the Chand was her real Devar hence she has not deposed against him.
21. In her cross-examination, she has stated that she became conscious on the next day at about 2-2.30 p.m. and after regaining consciousness she started searching her son and she had also searched her son at Bulandshahr. The police had not called her for identification parade nor, had conducted any identification parade of the accused before the Magistrate. She denied the suggestion that she had not seen the appellant Mazhar nor, Mazhar had abducted or kidnapped her son. Her husband carries on a business and she does not help her husband in his business.
22. PW3-S.I. Hasrat Ali has deposed before the trial Court that he was posted as Sub Inspector at Police Station Jagatpuri, Delhi on 17.4.2011 and he proceeded vide D.D.No.18A at 12.20 hrs from the police station and along with him Sub Inspector C.P. Singh, Head Constable Balveer and Jeetaman also accompanied him. He has proved his leaving of the police station in G.D. (Ext. Ka.2) and proved the same. He further stated that on that date at about 12 noon he received an information from the Constable Jilyad that some persons have kidnapped/ abducted a child from U.P. and have brought to Delhi and are trying to get a room on rent within the jurisdiction of police station Jagatpuri and if raid is made then the child could be recovered. On the basis of the said information, instructions were taken from the Station House Officer of the concerned police station. Thereafter, he along with the police force reached at 40 Feet Jagatpuri Road near a mosque where a person had arrived and on the pointing out of informer the police force arrested the accused. On his arrest, the accused disclosed his name as Nadeem, son of Fateh Mohammad, resident of Parwana, Police Station Khanpur, District Bulandshahr and from his right side pocket/trouser which he was wearing, a mobile phone was recovered on the spot and he prepared its recovery memo and thereafter read the same to the witness. The recovery memo of the mobile phone has been proved by him as Ext. Ka.3.
23. This witness further stated that on the information given by the accused Nadeem, police force reached at the House No.F161, Gali No.5 Shastri Park, Delhi and on entering the house the police team saw that one person was sitting along with a child and on seeing him, the accused Nadeem told that the person who was sitting with the child was his companion Mazhar. The police team arrested the accused Mazhar along with the child at 1.50 p.m.The accused Mazhar told the name of the child as Rehan, son of Shahabuddinn, resident of Sayana Bas Stand, Bulandshahr. The child was aged about 3-4 years. The recovery memo of the child was also prepared by him in his hand writing and thereafter he read over the same to the witness who also signed along with the accused persons. He proved the recovery memo of the abductee Rehan as Ext.Ka.4.
24. This witness further deposed that the police team brought the accused along with the child at police station Jagatpuri and informed the Police Out Post Nai Mandi, Police Station Kotwali Dehat about the arrest of the accused and recovery of the child and the same was also endorsed in the G.D. No.20A dated 17.4.2011 of the police station Jagatpuri. On the same day, he handed over the kidnapped/abducted child Rehan to his father Shahabuddin, for which he also prepared a Supurdginama and proved the same as Ext. Ka.5, which was in hand writing and signature. He further produced the the accused on 18.4.2011 before the Metropolitan Magistrate, Karkarduma, Delhi in the Court and papers regarding the arrest of the accused and their search was prepared by him in his hand writing and signature and proved the same as Ext. Ka.6 to 9. Disclosure statements of the accused Mazhar and Nadeem were written by him separately.
25. In his cross-examination, this witness has stated that when the police team arrested the accused Nadeem, there was no person from the public had stopped near the police team. He admitted that at the time of arrest of the accused Nadeem it was a day time and people were moving on the road. He further admitted that they tried to stop some of the persons from the public for taking him as witness but because of the paucity of time he did not enquire about the name of the persons of the public who were stopped by him.
26. He further admitted that till the information was given by the police informer, no FIR was registered at the police station about the incident. The police informer had told that at Police Station Bulandshahr the case has been registered. He admitted the fact that it is true that in his statement he has not stated that the case was registered. The accused Nadeem was not made Baparda whereas the accused Mazhar was kept in Baparda. He stated that as the Nadeem was seen by many persons hence, he was not kept Baparda.
27. He denied the suggestion that the mobile phone which was recovered from Nadeem, had been in fact given by the family members of the abductee child and the same was not recovered from Nadeem. He did not remember that besides mobile phone any other article was recovered from accused Nadeem or not. He further denied the suggestion that the abductee child was not recovered from the accused persons and further that the child was recovered from some other place or the child was given by his family members and recovery of the child has been shown falsely.
28. He further submitted that how many persons were there in the house, he did not remember. The door of the house was not bolted from inside. He further did not remember that how many stories were constructed in the said house and how many rooms were there in the said house. When they pushed the door of the house they reached in the same room where the child was found. He along with the police team stayed in the house for about ½ hours but neither the witness from public came there nor he called them. At 3 p.m. after returning to the police station, an information was sent to the father of the child and parents of the child came in the evening to him. He did not record the confessional statement of the accused before the Magistrate at the police station nor informed the Magistrate about it that the accused confessional statement is to be recorded. He further denied the suggestion that he did not arrest the accused from the spot nor the abductee child was recovered from the possession of the accused.
29. PW4- Constable Sipahi Lal in his deposition before the trial Court has stated that on 16.4.2011 he was posted as Constable Clerk in the Police Out Post Nai Mandi, Police Station Kotwali Dehat,District Bulandshahr and on the said date he registered Case Crime No.307/80/2011, under Section 363 I.P.C. of which Chik FIR is in his hand writing and signature. He further endorsed about the registeration of the FIR in G.D.No.15 at 12.20 hrs. on 16.4.2011. He proved the Chik FIR (Ext. Ka.10) and G.D.No.15 (Ext. ka.11).
30. In his cross-examination, this witness has stated that on the basis of the written report submitted by the informant, he registered the FIR and for investigation he has written the name of S.I.Rajvir Singh Chauhan (Ext.Ka.10) which makes endorsement about the same in red ink, has not been written by him.
31. PW5-S.I.C.P.Singh has stated before the trial Court that he was the member of the police team which had arrested the accused persons along with the abductee child. He has proved the G.D. Ext.Ka.2, recovery memo of mobile Ext. Ka.3, recovery memo of the abductee child Rehan Ext. Ka.4, Supurdginama Ext. Ka.5, arrest memo of the accused persons along with their search memo Ext. Ka.6 to 9 and he was present when the accused persons were produced before the Court.
32. This witness has further stated that the accused Nadeem was arrested first and thereafter on the pointing out of the accused Nadeem, accused Mazhar was arrested from whose custody abductee child was also recovered.
33. In his cross-examination, this witness has stated that the police team had tried to request the witnesses from the public but they could not find any witness. He stated that it was a day time and many persons of the public were moving around, hence, they did not ask any of the persons of the public regarding their names nor enquired from the persons of the neighbouring house from where the recovery was made because of the paucity of time.
34. On a query being made by the Court what does he mean by 'paucity of time', then he answered, as the child was to be recovered quickly. He stated that at the time when the accused Nadeem was arrested, abductee child Rehan was not found along with him and in the present case along with the two accused, Chand was also an accused. He further stated that he did not know that in the incident of kidnapping whether the uncle of the abductee, namely, Chand was involved or not and again he stated that the police team was also told that one accused by the name of Chand was also involved in the present case.This witness denied the suggestion that none of the accused persons were arrested from the spot nor, any child was recovered from the spot.
35. This witness in his cross-examination has further stated that when the police team raided the house for the recovery of the child then 20-30 persons had arrived there and again stated that 15-20 persons arrived. The recovery memo was prepared at the place of occurrence. No person of the public was made as witness and 15-20 persons of the public who had arrived at the place of occurrence they did not enquire about their names nor other members of the team asked about their names from them. The recovery memo was signed by him but it did not mention that the accused were kept Baparda.
36. The house from where the child was recovered, he did not know about its area and also that how many stories were constructed in the said house. He further cannot state how many rooms were constructed in the said house from which the accused was arrested he did not remember and it took about 15 minutes to prepare the recovery memo. He denied the suggestion that the accused was not given the copy of recovery memo and further denied that the accused was not arrested on the spot nor the child was recovered and for some unknown reasons, false arrest has been shown.
37. PW6- S.I. Rajvir Singh Chauhan has stated before the trial Court that he was posted as In-charge of the Police Out Post Nai Mandi, Police Station Kotwali Dehat, District Bulandshahr on 16.4.2011 and he had taken over the investigation of the present case and after taking over the investigation he recorded the statement of the informant Shahabuddin and other witnesses and recorded the same in the case diary and further visited the place of occurrence, prepared the site plan at the pointing out of the informant, which is in his hand writing and signature and proved the site plan as Ext. Ka.12. On 17.4.2011, he received a message from mobile phone No.9711449810 that a child by the name of Rehan has been kidnapped/ abducted and police of police station Jagatpuri, Delhi has recovered him along with two accused who have confessed about the incident of kidnapping/abduction of the child.
38. He further stated that this witness along with Constable Vijendra Singh and Shahjad Singh proceeded from Police Out Post to Delhi and they also taken the informant Shahabuddin who was asked to reach at Anoop Shahr and from where he accompanied them to Police Station Jagatpuri, Delhi and reached there.
39. The informant on reaching at the Police Station Jagatpuri after seeing the accused, informed the police that he was the same person who had come to his house in the night and stayed. He recorded the statements of the accused persons in the case diary and further recorded the statements of S.I. Hasrat Ali, S.I. C.P.Singh, Head Constable Balvir Singh, Constable Jeetpal Singh under Section 161 Cr.P.C.
40. On 18.4.2011, he took transit remand of the accued Mazhar and Nadeem. On 17.4.2011, offence under Section 328, 379 & 411 I.P.C. was added and on the same day the case was converted from Section 363 I.P.C.to 364A I.P.C. and the same was also endoresed in the G.D. Ext. Ka.13. On 18.4.2011, the recovery of Motorola mobile phone which was taken from the Police Station Jagatpuri, the same was submitted by him to the police malkhana and also mentioned about the adding of the offence under Sections 328, 379 & 411 I.P.C.in the G.D. Rapat No.22 at 11.35 hrs. and proved the same as Ext. Ka.14. He also proved the recovery of the mobile phone Motorola as material Ext. Ka.1, which was recovered from the accused Nadeem before the trial Court. This witness has further stated that on 21.4.2011, he recorded the statement of the accused Chand in the case diary and thereafter the investigation of the case was transferred from him.
41. This witness in his cross-examination has stated that neither the recovery of the child nor the recovery of mobile phone was made in his presence. The accused were not brought Baparda from Delhi nor the accused were handed over to him Baparda. Except the informant he did not record the statement of any of the witnesses of fact. The informant had not seen any accused taking away his child. He did not submitted charge sheet against the accused and only prepared the site plan at the pointing out of the informant. He also admitted the fact that the accused Chand has been acquitted in the present incident and he was aware of the fact after going through the records.
42. PW7-Inspector Siddharth Tomar has deposed before the trial Court that on 25.4.2011 he was posted as Inspector In-charge of Police Station Kotwali, District Bulandshahr and under the orders of the C.O.City he had taken over the investigation of the case. On 5.5.2011, he recorded the statement of the witness Zahira wife of the informant, under Section 161 Cr.P.C. and after investigation he submitted charge sheet against the accused Nadeem, Mazhar & Chand in Case Crime No.307/80/11, under Sections 364A, 379, 328, 411 I.P.C. and proved the charge sheet as Ext. Ka.15 which is in his hand writing and signature.
43. In his cross-examination, this witness has stated that as the accused Chand was also involved in the present case hence, he submitted charge sheet against him also. He did not record the statement of the accused nor visited the place from where the abductee child was recovered. He was not aware of the fact that the accused Chand was the real brother of the father of the abductee. He was also not aware of the fact that the trial of the accused Chand was separated being S.T.No.1094/11 in the Court of Additional Sessions Judge, Court No.19 (F.T.C.) from where he was acquitted. He denied the suggestion that he carried on a wrong investigation and submitted wrong charge sheet.
44. On cross-examination made on behalf of the accused Mazhar from him, he has stated that the name of the accused Chand came during the course of investigation. There is no endorsement in the C.D. that the accused Mazhar and Nadeem were kept Baparda or any identification was held regarding them. He admitted that the FIR was registered against unknown persons. He denied the suggestion that he had not carried out the investigation in a fair manner and wrongly submitted charge sheet against the accused Nadeem and Mazhar.
45. After considering the prosecution evidence and defence version, the trial Court convicted and sentenced the accused Nadeem and Mazhar for the offence under Sections 364A, 379 & 411 I.P.C. and acquitted them of the charges under Section 328 I.P.C. as the prosecution has failed to prove its case for the said offence.
46. Being aggrieved by the impugned judgment and order passed by the trial Court, by which the accused/ appellants have been convicted and sentenced, they have preferred the instant appeal.
47. Heard Sri Shad Khan, learned counsel for the appellant Nadeem-appellant No.1, Sri Gautam Kumar Banerjee, learned Amicus Curiae for the appellant no.2- Mazhar and Sri Gaurav Pratap Singh, learned A.G.A. appearing for the State and perused the lower court record.
48. Learned counsel appearing for appellant no.1 has submitted that from perusal of the F.I.R. It is evident that the same was lodged under Section 363 I.P.C. by the complainant against unknown person and there was no allegation of ransom for the kidnapping/abduction of the child of the complainant (PW1) Shahabuddin. He pointed out that in the statement under Section 161 Cr.P.C. of the complainant also, there appears to be no mention for the demand of ransom for the return of the child and the statement of PW2-Smt. Zahira, wife of Shahabuddin, whose statement under Section 161 Cr.P.C. was recorded after one month of the incident. It was mentioned that some ransom was demanded from them on a mobile phone, which is an afterthought.
49. He thus argued that in the FIR as well as in the statement of the informant recorded under Section 161 Cr.P.C., there was no allegation regarding demand of ransom from the complainant and for the first time before the trial Court PW1 Shahabuddin has stated that when he had written over the FIR then he received a call on his mobile phone from the mobile phone, which was taken away by the accused while abducting his son that if he want return of the child then Rs.5 lacs be paid today. He submitted that the fact regarding demand of ransom money was made subsequently just to improve the prosecution case to give a serious colour of the incident by the complainant in collusion with the police personnel.
50. He next submitted that during the course of investigation it has been found that one person by the name of Chand was also made an accused in the present case who happens to be the uncle of the abductee child and real brother of PW1 Shahabuddin and against whom the police has also submitted charge sheet in the present case along with two appellants and the trial of the accused Chand was separated being S.T. No.1094 of 2011 which ended in his acquittal as the informant and his wife did not depose against the said accused Chand as they have stated that he was not involved in the incident.
51. He further submitted that PW2-Smt. Zahira, wife of Shahabuddin and the mother of the abductee child, in her cross-examination has further admited that her husband was doing the work of embroidery and could hardly only earn Rs.10,000/- per month and they had only a small house and further they did not have any bank balance to the tune of Rs.2-3 lacs. In such circumstances, the financial position of the informant was not sound which could require the accused to demand such a huge amount of Rs.5 lacs from him.
52. He further argued that the abductee child was recovered by the police of Police Station Jagatpuri, Delhi from a house and at the time of arrest of the accused Mazhar along with the child at Delhi no independent witness of the said recovery has been shown though from the evidence of PW3 Hasrat Ali and PW5 S.I. C.P.Singh shows that many persons of the public had arrived and were available but the police made a lame excuse that the child was to be recovered hence due to paucity of time they did not take any public witness for making the recovery of the abductee child and arrest of the accused Mazhar from the house.
53. He argued that so far as the arrest of the accused Nadeem by the police is concerned, that too appears to be a false one as no independent witness of his arrest or of the recovery of the mobile phone was made part of his arrest or recovery of Motorola mobile phone though he was also arrested from a busy place where the witnesses were easily made available. All the witnesses of arrest of the two accused appellant and recovery of the abductee child are the police witnesses, hence, the said recovery and their arrest appears to be a false one.
54. It was further argued that the prosecution has tried to conceal the origin of the incident as the trial Court found that the first part of the incident could not be proved by the prosecution where it has been stated by PW1 Shahabuddin that one person by the name of of Alam had come to his house for business purposes on the evening on 15.4.2011 and had also assured him for getting export deal. He had come with cold-drink bottles with him and offered the same to PW1 and his wife PW2 who consumed the same and the cold drink was also consumed by the said person in the evening and thereafter when the said person had stayed back in their house and slept in the night, had walked out with the son of the informant, who on the next morning found that the said person and his minor son Rehan were not traceable, on which the informant after great search lodged the FIR of the incident.
55. Therefore, the prosecution case with respect to the offence under Section 328 I.P.C. could not be proved by the prosecution by the cogent evidence, hence, the trial Court has acquitted the appellant for the offence under Section 328 I.P.C.
56. Learned counsel for the appellants besides the above arguments has lastly argued that even if the prosecution case is taken at its face value, the conviction of the appellants under Section 364A I.P.C. is not sustainable in the eyes of law and the case would not travel beyond Section 365 I.P.C. He further argued that the appellants have been convicted for life imprisonment under Section 364A I.P.C. and have served out about 9 years in jail and the maximum punishment provided under Section 365 I.P.C. is 7 years and, therefore, the appellants be released by modifying/altering their conviction and sentence under Section 365 I.P.C. from Section 364A I.P.C. as the prosecution has failed to establish that the child was abducted by the two appellants for payment of ransom.
57. In support of his argument, learned counsel appearing for the appellant has placed reliance upon a judgment of this Court in case of Ashwani Dubey Vs. State of U.P., reported in (2016) 97 ACC 229 & Mahesh Vs. State of U.P., reported in (2016) 96 ACC 775, wherein this Court in a similar facts and circumstances has modified/altered the conviction and sentence from under Section 364A I.P.C. to Section 365 I.P.C.
58. Sri Gautam Kumar Banerjee, learned Amicus Curiae appearing for the appellant no.2 has adopted the arguments advanced by the learned counsel for appellant no.1.
59. Per contra, learned A.G.A. on the other hand, has vehemently opposed the arguments advanced by the learned counsel for the appellants and submitted that the appellant no.1 Nadeem was arrested by the police on 17.4.2011 and from his possession a motorola mobile phone belonging to the informant Shahabuddin was recovered and further he also confessed that the said mobile phone belonged to the informant Shahabuddin whose son was abducted by him along with his companion Mazhar, he further disclosed to the police that he can get the child recovered along with the accused Majahar. On the information given by the appellant Nadeem, the police reached to the house at Delhi and recovered the abductee child along with the accused Mazhar who was arrested by the police of police station Jagatpuri, Delhi and both the accused along with the abductee child were brought to the police station Jagatpuri, Delhi, thereafter an information was given by the police of the said police station to the concerned police station at Bulandshahr and the police of the concerned police station at Bulandshahr further took PW1 along with them and reached the police station Jagatpuri where they saw that the accused Mazhar who claimed himself to be the Alam, had visited his house on the day of the incident and identified him. PW1 further stated that it was he who had taken over his son in the night of 15/16.4.2011.The child was thereafter handed over to PW1 by the police of police station Jagatpuri, Delhi and the accused were brought from Delhi on transit remand to Bulandshahr and the case was converted from the offence under Section 363 I.P.C. to 364A I.P.C. and further offence under Sections 328, 379, 411 I.P.C. was also added in the present. After investigation the police submitted charge sheet for the offence under Sections under Sections 364A, 379, 411 328 I.P.C. and the accused were put to trial. He further argued that as the abductee child has been recovered from the possession of the appellant Mazhar on the information given by the appellant Nadeem from whom motorola mobile phone was recovered and from the said mobile phone a demand of ransom of Rs.5 lacs was made by the accused on the other mobile phone of PW1, as has been stated by PW1 and PW2 before the trial Court, hence, the trial Court has rightly convicted and sentenced the appellants for the offences in question.
60. We have given thoughtful consideration to the submissions advanced by the learned counsel for the parties and thoroughly perused the evidence on record.
61. It is an admitted fact that the FIR of the incident was lodged by PW1 Shahabuddin on 16.4.2011 at 12.20 hrs. for the offence under Section 363 I.P.C. against one unknown person namely, Alam for enticing and taking away his minor son by the said unknown person.The accused appellant Nadeem was arrested by the police on 17.4.2011 at 12.45 p.m. on the information given by the police informer and from his possession a motorola mobile phone which was of silver and gray colour being mobile No. RMRH 51500017908 was recovered and who disclosed that the said mobile phone belonged to the complainant Shahabuddin, resident of Bulandshahr and he confessed before the police that he along with his companion Chand son of Faqruddin of District Bulandshahr and Mazhar had abducted Rehan, aged about 3-4 years, son of Shahabuddin on 15/16.4.2011 at 3 a.m. (night hours) and the mobile phone of the informant/complainant which was recovered from him was taken away for demanding ransom. On the information and pointing out of the accused appellant Nadeem, the police raided the House No. F-161 Gali No.5, Shastri Park, Delhi. The police arrested the accused Majhor along with the son of the informant, namely Rehan and further recorded the statement of the accused Mazhar who has stated that he along with his companion Nadeem and Chand had abducted the son of the informant Rehan in the night of 15/16.4.2011 at 3 A.M. The police of Police Station Jagatpuri, Delhi thus arrested the accused along with the child and brought to the Police Station Jagatpuri, Delhi from where they informed the concerned police station of Bulandshahr regarding the arrest of the accused and recovery of the child. On which, the police of police station Kotwali Dehat,District Bulandshahr reached the Police Station Jagatpuri, Delhi along with the PW1 Shahabuddin who identified the person Alam who stated that the accused Mazhar was the person who had come to his house at 15.4.2011 disclosing his name as Alam for the purpose of getting an export order and had stayed in his house in the night and took away his son Rehan for which he lodged the FIR. The police thereafter handed over the abductee child to PW1 and prepared a supurdginama on 17.4.2011. The accused were produced before the before the Metropolitan Magistrate, Karkarduma, Delhi for transit remand on 18.4.2011 and thereafter they were brought to the District Bulandshar.
62. During the course of investigation, the case was converted under Section 364A I.P.C. from Section 363 I.P.C. and offences under Sections 328, 379, 411 I.P.C. were added and after the investigation PW7 submitted charge sheet for the offene under Sections 364A, 379, 328, 411 I.P.C and the accused were put to trial who denied the charges and stated that in order to save the accused Chand, they have been falsely implicated in the present case by the informant PW1 Shahabuddin in collusion with the police.
63. The argument of learned counsel for the appellants has great significance and has substance that in the FIR as well as in 161 Cr.P.C. statement of the informant, there was no mention for demand of ransom by the accused persons for the return of the abductee child. In the statement of PW2 Smt. Zahira recorded under Section 161 Cr.P.C., it has been stated by her that a call for ransom of Rs.5 lacs was made for the return of the child but the said statement was recorded after one month of the incident just to improve the prosecution case and for the first time before the trial Court it has been stated by PW1 that a ransom call was made from his mobile phone which was taken away by the accused while kidnapping his son in the night of 15/16.4.2011 on his other mobile. Moreover, it has been stated by him that when he had written the report of the incident,he received a call on his mobile by which he was threatened by the accused and a demand of ransom of Rs.5 lacs was made for the return of his child, which has not been established by the prosecution by a cogent evidence.'
64. Moreover, the accused Chand whose complicity has also come into light in the statement of the two appellants regarding kidnapping/abduction of the child of the informant, who was uncle of the abductee and real brother of PW1 the informant, and though charge sheet was submitted against him for the offences in question, he was put to trial in S.T .No.1094 of 2011 before the competent Court, but the PW1 and PW 2 who are his real brother and sister-in-law (Bhabhi) of accused Chand have failed to depose against him and stated that Chand was not involved in the present case along with the two appellants and on the basis of which the trial Court has acquitted him, which also raises suspicion regarding testimony of the said two witnesses against the appellants that they had abducted the child of the complainant for a ransom. But, considering the fact and evidence led by the prosecution that the abductee Rehan has been recovered by the police from the custody of the appellant Mazhar on the pointing out of the accused appellant Nadeem on 17.4.2011 from a house at Delhi which stands to be proved from the testimony of PW3, PW4 & PW5 who raided the house from where the abductee child was recovered and they have deposed about the arrest of the accused appellant Nadeem and recovery of Motorola mobile phone from him and further he took the police team to the house at Shastri Park, Delhi from where the abductee along with the accused appellant Mazhar were found and further the documentary evidence available on record such as recovery memo, arrest memo etc. goes to show that they had kidnapped/abducted the son of the complainant with an intent to cause abductee secretly and wrongfully confined as it transpires from the prosecution evidence, hence, the contention of learned counsel for the appellants that no case under Section 364A I.P.C. is made out against the appellants as the prosecution has failed to prove its case beyond reasonable doubt that the abductee was kidnapped/abducted for a ransom, hence, their conviction and sentence under Section 364A I.P.C. is not all justified and their conviction and sentence may be altered to Section 365 I.P.C., holds merit and is acceptable.
65. In view of the foregoing discussions and after scanning the entire evidence on record including the testimony of the witnesses and other documentary evidence, we have no hesitation to hold that the conviction of the appellants under Section 364A I.P.C. by the trial Court is unsustainable as the trial Court has failed to appreciate from the evidence on record that there was no cogent and legal evidence regarding demand of ransom for kidnapping or abducting the child of the informant/complainant by the accused persons. Hence, the conviction and sentence of the appellants under Section 364A I.P.C. is against the evidence on record and is liable to be set aside by this Court, which is accordingly set aside. But this Court hold the conviction of the appellants under Section 365 I.P.C. They are sentenced to 7 years R.I. under Section 365 I.P.C. with a fine of Rs.10,000/- on each of them and in default of payment of fine they shall further undergo imprisonment of six months
66. The appellants are stated to be jail for more than 9 years. As the maximum sentence awarded under Section 365 I.P.C. is 7 years and appellants have already served out the imprisonment of surplus period as they are stated to be in jail for the last more than 9 years, hence, the payment of fine as has been ordered by this Court under Section 365 I.P.C. and by the the trial Court, the same shall be treated to be the imprisonment against the fine imposed on them, hence, they shall be released forthwith, if they are not wanted in any other case. The period of six months of additional imprisonment which they could have been required to undergo in case of default of payment of fine of Rs.10,000/- each has also been undergone by them, hence, they are not required to make any payment of fine. The judgement and order of the trial Court is modified to that extent.
67. Sri Gautam Kumar Banerjee, learned Amicus Curiae on behalf of appellant no.2-Mazhar be paid honorarium as per the Rules as he placed his papers regarding his appointment as Amicus Curiae by the Legal Service Authority for arguing the appeal on behalf of appellant no.2-Mazhar.
68. It is further directed that the accused appellants shall furnish bail bond with surety to the satisfaction of the Court concerned in terms of the provision of Section 437-A of Cr.P.C.
69. In view of the above, the appeal stands partly allowed.
70. Let the lower court record be transmitted to the trial Court concerned along with the certified copy of this order by the office for its information and compliance forthwith.
(Ajit Kumar, J.) (Ramesh Sinha,J.)
Order Date :-03.03.2020
NS