Sitara v. The State of NCT of Delhi

judgment.

¶11We are not undertaking the exercise of reproducing the arguments oflearned counsel for the appellants, inasmuch as, we are finding force in most of these arguments. Therefore, to avoid repetition, we propose to go ahead with our reasons in accepting these appeals and to demonstrate that in our opinion, the prosecution has miserably failed to prove the charge beyond reasonable doubt. Infact the prosecution story is replete with shaky dispositions, serious loopholes and alarming gaps the benefit where of has to go to the accused persons. While recording our reasons, we shall simultaneously advert to the arguments advanced by learned counsel for the appellants as well as Mr. Lovkesh Sawhney, APP who appeared on behalf of the State. Our reasons are as follows:-

(i) From the very start, the prosecution case fizzles out on analyzing the attitude and conduct of Sagir Ahmed, the father of the kidnapped child. He deposed that on 28th June, 2006 at about 4.00 p.m., his son Furkan, aged about 8 years, had gone out to play in the gali but he did not come back home till about 7.00 p.m. Version of the complainant is that he had searched him in the locality but he could not be traced. Strangely, he did not take any further steps thereafter. A minor and young child of eight years goes missing but the father is not bothered even when his son does not return the home entire night. Not only that, even on the next date till 4.00 p.m., he did not show any anxiety about his missing child. He did not go to the police to report the matter. He did not state as to what steps he took to trace out his child on 29th June, 2006. He has maintained a stoic silence as if he was in a meditating state for 24 hours. He does not take any initiative by making serious attempt to locate his child but comes to know about the alleged kidnapping of his child only when he receives a telephone call at the STD booth of PW-1 Page 6of14 t·, . ' " " ..L II Alimuddin on 29th June, 2006 at 4.00 p.m. This conduct of the father, for 24 hours, whose child has gone missing, puts a question mark on the credibility of the prosecution story as to whether child at all was missing. Clearly, the factum of not lodging FIR for 24 hours is down-played by the learned Addl. Sessions Judge and conveniently glossed over. The learned Addl. Sessions Judge has observed in this behalf "It is the normal conduct of a person to search for child, if the child is missing in the neighbourhood and wait for some time for the return of the child and once one is very sure that child would not return, one goes for the police report". Again what is not appreciated is that it would be not a normal conduct of a father to wait endlessly even when after his search attempts, he has not been able to trace the child. What the abnormal conduct is that a father of eight years of child would keep quite and would not report the matter to the police for 24 hours and even when the child did not return whole night and the next day till

4.00 p.m. Curiously, even thereafter, as per the version of the father, he comes to know about the whereabouts of the child when he received STD Call alleging kidnapping. Till that time, he was in slumber. It is this abnormal conduct of a father which has escaped attention of the learned Addl. Sessions Judge.

(ii) In the entire prosecution story, it has not come on record as to how the kidnapping took place. After the alleged recovery of the child from the house of appellant Sitara, neither the accused persons were questioned on this aspect nor anything from Furkan was elicited. This is really strange and major lapse in the prosecution version.

(iii) Investigation of the case was as shady and as shoddy as possible. As per the version of PW-2, he received second call on his mobile phone and he informed the police about the same. His mobile phone was not checked to see as to whether any such call had been received. Had it a Page 7of14 A .&l. ... a L u .I l , a J. I ...

¶11,I I II I A been correct, IO would have first examined the cell phone to find out from which number the call was received. No such attempt was made. More curiously, PW-2 deposed that he did not even remember his mobile phone number which had been purportedly "missed from my possession". On the day of occurrence at least, PW-2 was possessing the mobile phone. Learned counsel for the State tried to explain this lapse by submitting that due to paucity of time, the Investigating Officer possibly did not try to verify the version of PW-2 as he was concerned with the safety and recovery of the child. Even if it did not occur to the police to verify the version of PW-2 at that time as the police was more interested with in recovering the child, fact remains that no such attempt in this behalf was made even afterwards. If the mobile phone of the complainant had gone missing, he could have at least told the cell phone number to the police and on that basis record to the call received on the said cell phone and particularly call in question allegedly received at 9.00 p.m. could be collected from the service provider in order to ascertain the number and to connect the same with the accused. It was not done. It cannot be said as to whether this lapse is intentional or a grave omission. PW-2 even could not recall the mobile number while deposing in the court and did not reveal this number to the Court. Further, as pointed out above, statement of recovered child was not recorded at all to ascertain under what circumstances he was kidnapped; who were the persons who kidnapped him; what was the role of the different accused persons. We are pointing out this for the reason that as per PW-2 when he reached Mondoli Jungle with ransom money, he was approached by one person who met him and asked him about the money. Only after he handed over the black polythene bag to that person, "in the meantime two other persons also reached there". The first person whom he had handed over ... I L Page 8of14 .... . the money was Nadeem and other two persons were Mumtiaz and Kapil. Whether they were parties to the alleged conspiracy or had any role could be known from the statement ofFurkan. Furthermore, the Investigating Officer (PW-8) in his statement did not talk about the cell phone call at all.

(iv) Most material witness in the present case was Furkan, the child in question, who was allegedly kidnapped. He was not even cited as a witness and examined. He was eight years of old boy. PW-2 in his cross-examination claims that later on his son told him as to how he was kidnapped which indicates that child was capable enough to narrate the incident if it actually happened. This has given rise to legitimate argument by the appellants that prosecution story is cooked up and the appellants are framed in a false case. On the one hand, best witness is not examined. On the other hand reasonable doubt is created that a false case is foisted upon the appellants as it was difficult for the prosecution to take help of this child for setting up such a case against the appellants. Adverse inference can clearly be drawn against the prosecution for non-examination of this child and benefit thereof has to go to the appellants/ accused persons. We are not convinced with the reasoning given by the learned Additional Sessions Judge for not examining the child. Though, the learned Addi. Sessions Judge was conscious of the fact that a child was very important witness in this case which observation is specifically made in the impugned judgment, at the same time this lapse is toned down and side tracked by stating that non-citing of the child was not fatal to the prosecution case as the complainant had himself joined the investigation with the IO and no adverse inference could be drawn against the prosecution in this regard. This clearly amounts to trivializing the issue. The learned Addi. Sessions Judge has failed to appreciate that non-examining of the child • )y Page 9of14 ~-------~ -- -~ --- ---- • ii would be fatal more particularly when attendant circumstances or other evidence coming on record was not sufficient to establish the culpability of the accused persons. On the proper analysis of the whole evidence, it becomes abundantly clear that it is the said child who could have thrown light on various aspects if such a kidnapping had taken place at all.

(v) As pointed out above, PW-1 STD owner has not supported the prosecution version. He is the only independent witness in the entire case. Thus in the absence of any evidence, coming on record, it is not established that ransom call was made at all. We may also observe at this stage that in respect of so called ransom call, there are variations in the version of different witnesses which we shall point out at relevant stage hereafter. These factors also militate against the story of ransom.

(vi) Apart from the aforesaid aspects which put a serious dent on the prosecution story, following are the material contradictions m the testimony of some witnesses which would force us to conclude that charge against the appellants is not proved beyond reasonable doubt. These are:- ( a) As per PW-2, first call at STD booth was received on 29th June, 2006 at 4.00 p.m. After receiving this call, he went to police Station Gokul Puri and reported the matter to the police and got the FIR registered. After the registration of the FIR, the police officer instructed him to prepare a bundle of papers in the shape of bundles of currency notes. On the other hand, as per PW-s Ct. Ali Shabbar, it is Sub Inspector Om Pal Singh who prepared the bundles of fake currency notes. Further Sub Inspector Om Pal Singh has stated in his -..,....- ---,----,--- - -~- ---,-------- ------- ,.------------,- Page 10of14 w .. & .... ' Jl. ._ statement that he was not present at the time of preparation of the bundles.

(b) There is also contradiction in the manner in which child was allegedly recovered from Sitara's custody. One witness (PW-) stated that it happened in the presence of a lady police Constable Nisha where as other witness has stated that no lady police was present. Further, according to one version, when the house at Sangam Vihar where the child was purportedly kept was knocked, Sitara opened the door and came out and child was inside. Other version is that somebody else opened the door and child was in the lap of Sitara.

(c) Most glaring contradiction is the timings at which the second police party met PW-2 and the first raiding party at railway crossing, Mandoli. It has come in the statement of PW-8 Constable Arvind Kumar that they were instructed to proceed towards Mandoli Jungle at

8.00 p.m. and accordingly they started. Significantly, PW-2 stated in his statement that he received the call at

9.00 p.m. on his mobile phone when the caller told him to come to the jungle ofMandoli with ransom money. If this call was received at 9.00 p.m. by PW-2 and only at that time the place where the ransom was to be given was disclosed, how the police officers could be told at

8.00 p.m. to go to Mandoli jungle.

(vii) Other curious aspect which needs to be mentioned is the manner in which PW-2described the accused persons who came to receive the ransom. In this behalf, he has deposed as under:- "When I reached in Mandoli jungle one person met me and asked about the ransom money. I Page 11of14 .. ... told him that I had come with ransom money and handed over the black polythene bag to that person and in the meantime two other persons also reached there. Police officials apprehended all those three persons. The name of the person who came first to me and to whom I handed over the polythene bag was revealed as N adeem, accused present in the court today and the name of other two persons were revealed as Mumtyaz and Kapil, accused persons present in the court today.' The manner in which PW-2 narrated the incident gives an impression that he did not know the said three accused persons and it was revealed to him later that the person to whom he handed over the money was Nadeem and he was also told that other two persons were Mumtiaz and Kapil. Fact is that he knew Nadeem since his childhood and he also knew Kapil much long prior to the incident which he disclosed when specific questions were put to him in the cross examination. In fact he admitted that Nadeem had worked with him for about 20 days, whereafter he left the job and joined some other place. The manner in which he handed over the ransom money to N adeem also appears to be artificial. As per his version when "one person" (i.e. Nadeem) met him and asked him about money, he handed over the black polythene bag to that person. He did not even ask as to where his child was and whether he had brought his child with him or not or that he would give the money after the child is handed over to him or at least shown to him. He did not even ask as to where the child was kept. This shows, some what unnatural conduct on the part of a father who would hand over the ransom money without first ascertaining himself that his child was safe and would be handed over to them.

¶12No doubt, minor discrepancies in the statement of witnesses are to be ignored. It is also well settled legal position that doubts in the prosecution story are treated as reasonable. It is to be ensured that they are free from a zest for abstract speculation, or free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. When we apply these Page 12of14 -----~-~~ --- -- , j 1 .l. l I J J.. J IL tests to the facts of this case and take into consideration all the aforesaid aspects cumulatively, a reasonable and plausible doubt is established putting a question mark on the prosecution version. We may point out here that there are more inconsistencies in the testimonies of various witnesses which are ignored by the learned Addl. Sessions Judge as trivial and not very material. We have not been influenced by those inconsistencies viz. who hired the maruti van; how many persons sat in the maruti van; what route was followed by the police party to reach at mandolin phatak as we agree with the learned Addi. Sessions Judge. However, the inconsistencies discussed by us are quite material and could not have been wished-away by labelling them as minor in nature. Some of these inconsistencies infact go to the root of the matter and make the prosecution story questionable. Benefits of these inconsistencies have to be given to the appellants. Irresistible conclusion which is drawn from the aforesaid discussion is that the prosecution has not been able to prove that child Furkan was kidnapped by the accused persons with common intention to extract ransom money from the Furkan's father i.e Sagir Ahmed (PW-2).

¶13The learned Addi. Sessions Judge has disbelieved the testimony of different defence witnesses produced by the accused persons who had deposed that they had seen Furkan, boy in question, in the house of PW-2 and, therefore, he was not abducted. Though, not very convincing reasons are given for adopting this course of action, it is not necessary to deal with this aspect in view of our aforesaid discussion holding that in the first instance the prosecution itself has not been able to prove the guilt of the appellants beyond reasonable doubt.

¶14The upshot of the aforesaid discussion would be to hold that the learned Addl. Sessions Judge has arrived at a wrong finding of guilt against the appellants and, therefore, conviction and sentence imposed upon the appellants is not sustainable. We accordingly allow the present appeal by setting aside the judgment and sentence awarded to the appellants. Page 13of14 1 1. . l L..l _l " L J. l J IL l I ll 1 I

¶15The appellants shall be released forthwith, if they are not wanted in any other case. APRIL 30, 2010. skb Page 14of14

* IN THE HIGH COURT OF DELHI AT NEW DELHI CRIMINAL APPEAL NOS. 647 & 749 OF 2009 CRIMINAL APPEAL NOS. 361 & 397 OF 2010 Judgment reserved on: 07.4.2010 % Date of Decision: 30.04.2010 1) CRIMINAL APPEAL NO. 647 OF 2009 NADEEM STATE through: ... Appellant Mr. J.S. Kanwar, Advocate VERSUS through: ... Respondent Mr. Lovkesh Sawhney, APP 2) CRIMINAL APPEAL NO. 749 OF 2009 SIT ARA through: VERSUS STATE through: ... Appellant Ms.Anita Abraham, Advocate ... Respondent Mr. Lovkesh Sawhney, APP 3) CRIMINAL APPEAL NO. 361 OF 2010 MUMTIAZ through: VERSUS STATE through: ... Appellant Mr.Siddaharth Aggarwal, Advocate ... Respondent Mr. Lovkesh Sawhney, APP 4) CRIMINAL APPEAL NO. 397 OF 2010 % KHALIL@ KAPIL through: VERSUS STATE through: CORAM:- Judgment reserved on: 13.4.2010 Date of Decision: 30.04.2010 ... Appellant Mr. Galib Kabir /Mr. A vninder Singh Advocate ... Respondent Mr. Lovkesh Sawhney, APP THE HON'BLE MR. JUSTICE A.K. SIKRI THE HON'BLE MR. JUSTICE AJIT BHARIHOKE 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? Page 1of14 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? A.K. SIKRI. J. 1. This appeal arises out of the conviction of appellants Nadeem, Khalil @ Kapil, Mumtaz and Sitara under Section 364 -A of Indian Penal Code, 1860 vide order dated 7th July, 2009 passed by learned Additional Session Judge. The appellants have been sentenced to undergo rigorous imprisonment for life, and to pay fine of Rs. 20,000/- each, and in default of payment of fine, to further undergo rigorous imprisonment of one year. 2. The matter relates to the alleged kidnapping of a child named Furkan, son of Sagir Ahmed (PW-2) and demand of ransom of Rs.5 lacs for releasing the said child. The prosecution version, unfolded through the testimony of certain witnesses examined before the Trial Court and believed by the Trial Court as well, is that on 28th June, 2006 at about 4.00 p.m., Furkan son of PW-2 who was aged 8 years, had gone out of the house to play in the gali. He, however, did not return back home till 7.00 p.m. PW-2 searched him in the locality but the child could not be traced. Next day, he came to know that his son was kidnapped when he received a telephone call on the telephone both of one Alimuddin (PW-1), a STD owner, on 29th June, 2006 at 4.00 p.m. That unknown caller on the said call informed PW-2 that his son had been kidnapped and ransom money of Rs. 5 lacs was demanded for return of the child. The caller also told him that he would call later to tell where the money was to be brought. The unknown caller told Sagir Ahmed that incase he complained to the police, his child Furkan would be killed. Still PW-2 Sagir Ahmed went ahead and reported the matter to the police. FIR (Ex.PW-2/ A) was registered under Section 364 -A IPC. After the registration of the FIR, the police officials instructed PW-2 Sagir Ahmed to prepare a bundle of paper in the shape of bundle of currency notes. 3. On the same day i.e. 29th June, 2006 at about 9.00 p.m. the complainant (PW- 2) again received a call at his mobile phone and he was told to bring Rs. 5 lacs at a given place in Mandoli jungle. On informing the police abo8ut this phone call, the Page 2of14 police officer reached at the house of the complainant at 9.10 p.m. Subsequently, the Investigating Officer namely Sub Inspector Om Pal Singh (PW-8) called another police official from police station to accompany them to the Mandoli Jungle where kidnapper had directed PW-2 to come along with the demanded money. 4. Thereafter, PW-2 along with the police party reached the Mandoli Village at the given place. They all went in maruti van pre-arranged by the Investigating officer. Police was at a little distance from the father of the child where kidnappers had asked him to come. When the father (PW