NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 11 OF 2013
[Arising out of Special Leave Petition (Crl.) No.1636 of 2012]
MD. FAIZAN AHMAD @ KALU … Appellant
Versus
THE STATE OF BIHAR … Respondent
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. This appeal, by special leave, arises out of judgment and order dated
7/9/2005 passed by the Additional Sessions Judge, FTCI, Begusarai in
Sessions Trial No.304 of 2003. In the said Sessions Case, the appellant
(A1) along with Mohd. Naushad Alam and Mohd. Sultan (A2 and A3
respectively) was tried for offences punishable under Section 364A read
with Section 149 and Section 120B of the Indian Penal Code (for short, “the
IPC”). Accused Mohd. Dawood, Sahini Khatoon and Tabbasum Aara (A4, A5 and
A6 respectively) were tried for offences punishable under Section 368 read
with Section 149 and Section 120B of the IPC.
3. Learned Sessions Judge convicted the appellant and A2 and A3 under
Section 364A read with Section 149 of the IPC and sentenced them to undergo
rigorous imprisonment for life. They were also sentenced to pay fine of
Rs.10,000/-. On failure to deposit the fine, they were directed to undergo
simple imprisonment for one year. They were also convicted under Section
120B of the IPC and sentenced to undergo rigorous imprisonment for life.
A4, A5 and A6 were convicted under Section 368 read with Section 149 of the
IPC and under Section 120B of the IPC. They were sentenced to undergo
rigorous imprisonment for life and to pay a fine of Rs.10,000/-. On
failure to deposit the fine, they were directed to undergo simple
imprisonment for one year. They were also convicted for offence under
Section 120B of the IPC and sentenced to undergo rigorous imprisonment for
life. All the sentences were ordered to run concurrently. Being aggrieved
by the said judgment and order, the appellant and the other accused
preferred appeals to the Patna High Court. The Patna High Court by
judgment dated 14/09/2011 confirmed the order of conviction and sentence
and dismissed the appeals. The said judgment is challenged in this appeal
by the appellant (A1).
4. PW-5 Sazia, aged about 8 years, is the daughter of PW-11 Takki Imam
and PW-6 Shirri, aged about 7 years, PW-7 Rehan, aged about 5 years and
Arfa Jamal, aged about 3 years are the children of PW-4 Nusrat Bano.
According to the prosecution, on 5/10/2002, these children returned from
Masjid at about 4.00 p.m. after completing their studies. They went out to
play. As the children did not return till 6.00 p.m. PW-11 Takki Imam and
PW-4 Nusrat Bano started searching for them all over, but in vain. At
about 9.00 p.m. on the same day, PW-11 Takki Imam went to Sahebpur Kaml
Police Station and lodged his FIR. We shall deal with the evidence of PW-
11 Takki Imam and the FIR lodged by him, a little later but suffice it to
say, at this stage, that PW-11 Takki Imam, inter alia, stated in the FIR
that he suspected that the appellant had played a role in the disappearance
of the children. Investigation was started on the basis of PW-11 Takki
Imam’s complaint. Statements of PW-5 Sazia, PW-6 Shirri and PW-7 Rehan
were recorded under Section 164 of the Code of Criminal Procedure, 1973 by
PW-10 Nagendra Tripathi, the then Judicial Magistrate, Begusarai. Pursuant
to the statement made by Dawood (A4), the children were recovered on
8/3/2003 i.e. after about 5 months from the tunnel (Surang) made in the
house of Sultan (A3). At the trial, the prosecution placed heavy reliance
on the evidence of PW-1 Ziauddin and PW-4 Nusrat Bano, who are the parents
of PW-6 Shirri, PW-7 Rehan and Arfa Jamal. Reliance was also placed on the
evidence of PW-11 Takki Imam. Evidence of PW-5 Sazia, PW-6 Shirri and PW-7
Rehan proved to be crucial. The appellant denied the prosecution case.
5. Learned Sessions Judge convicted and sentenced the appellant as
aforesaid. As stated by us, the said order having been confirmed by the
High Court, the appellant is before us.
6. Mr. Manish Kumar Saran, counsel for the appellant contended that so
far as the appellant is concerned, this is a case of no evidence. He has
been involved in this case on the basis of hearsay evidence and, hence, he
deserves to be acquitted. Mr. Samir Ali Khan, counsel for the State of
Bihar, on the other hand, supported the impugned judgment.
7. Since learned counsel for the appellant has pitched his case very
high and stated that there is no evidence against the appellant at all, we
have carefully perused the evidence. In the complaint, PW-11 Takki Imam
stated that the appellant was employed in the telephone booth of his cousin
PW-4 Nusrat Bano. PW-4 Nusrat Bano removed him from service due to his bad
conduct. He further added that he has no enmity with anyone else except
the appellant and, therefore, he suspects that the appellant must be behind
this abduction. Thus, the FIR is based only on suspicion. In his evidence
in the court, PW-11 Takki Imam reiterated the same story. He stated that
PW-4 Nusrat Bano had removed the appellant from the job because of his
activities. The appellant used to come to the village and threaten PW-1
Ziauddin, husband of PW-4 Nusrat Bano and, therefore, he was convinced that
the appellant had a hand in the kidnapping. He stated that the appellant
used to meet Naushad (A2) and Sultan (A3) but in the cross-examination, he
stated that he could not tell the date on which the appellant met Naushad
(A2) and Sultan (A3). His evidence does not connect the appellant to the
abduction at all.
8. PW-1 Ziauddin supported PW-11 Takki Imam about the appellant being
employed in the telephone booth of PW-4 Nusrat Bano. He also stated that
the appellant was removed from job because of his bad behaviour. He
described how the appellant used to get drunk and threaten them. He stated
that on the day of incident, the appellant was seen riding a bicycle in the
locality. After the abduction of children, a phone call was received in
his house. Someone said on the phone that “your child has been kidnapped,
inform/talk to you later”. He further stated that at 10.00 O’ Clock,
another call was received saying “you all pester/disturb Kalu by sending
police, has Master Saheb come?” He then referred to the phone call received
by him on 7/10/2002 at 12 O’ Clock making a demand of Rs.50,000/-. After
referring to the calls received by him, he referred to the search made by
him for the children and stated that on 7/03/2003, the police arrested
Dawood (A4) and pursuant to the statement made by him, the police visited
Sultan (A3) and Tabbasum Aara (A6)’s house. The children were found tied
with chains in the underground tunnel of the house of Tabbasum Aara (A6).
In the cross-examination, he stated that the appellant worked in his booth
from 2001 to 2/1/2002. He paid him a salary of Rs.700/- per month. He
stated that the appellant fired at Iftikhar. But, he added that Iftikhar
had not made any complaint. He stated that the appellant had got drunk,
eight days prior to the date on which he had sent him out of employment.
He added that he was not aware of any case registered against the
appellant. He stated that he has not made any complaint about the threats
given by the appellant. He clarified that the telephone call was
anonymous. He stated that he had seen Tabbasum Aara (A6) visiting the
appellant’s house, but he could tell the exact time and date. Thus, the
evidence of this witness does not, in any way, involve the appellant in the
abduction of the children. It appears that this witness also suspected that
the appellant was behind the abduction.
9. PW-4 Nusrat Bano confirmed that the appellant was employed in her
telephone booth and she had removed him from the job because he used to get
drunk and his conduct was not good. According to her, Nushad (A2) and
Sultan (A3) used to visit the booth. In the cross-examination, she
reiterated the same story. She stated that they had not complained about
the threats given by the appellant. It is difficult to connect the accused
with the abduction on the basis of the evidence of this witness.
10. It is now necessary to go to the evidence of three children, who
were abducted. All the three children stated that Chanda, daughter of
Tabbasum Aara (A6) had come to call them and that they were given laddoos
to eat at her house. They described how Tabbasum Aara (A6) took them to
the tunnel and how chains were put on their feet. They stated that they
were beaten up and burnt with candle. They stated that they were given
salt and bread to eat. PW-5 Sazia stated that during five months and three
days, when they were in the tunnel, Tabbasum Aara (A6) used to beat them.
She stated that Naushad (A2), Sultan (A3), Daud (A4) and Shahini (A5) used
to come there. PW-6 Shirri also gave the gory details of the children’s
confinement in the tunnel. She stated that Dawood (A4) and an old woman
used to come there. After narrating similar details, PW-7 Rehan stated
that Tabbasum Aara (A6) and Sultan (A3) used to come to meet them. Thus,
none of the children stated that the appellant used to visit them. It is
pertinent to note that PW-1 Ziauddin stated that the appellant was working
in his telephone booth and was familiar with his children. Since the
appellant was known to PW-6 Shirri and PW-7 Rehan - the children of PW-1
Ziauddin, they would have referred to him if he had visited them. PW-11
Takki Imam stated that he had seen the appellant riding a bicycle in the
locality on the day of incident. None of the witnesses have claimed that
they had seen the appellant on that day nearby the house of the prosecution
witnesses. In any case, on the mere statement made by PW-11 Takki Imam
that he had seen the appellant riding a bicycle, it cannot be concluded
that he was involved in the abduction of children. PW-1 Ziauddin stated
that the anonymous caller told him that they were harassing the appellant.
The investigating agency has not traced the calls. The callers have not
been identified. Therefore, merely on the basis of the said call, the
appellant’s involvement cannot be held proved. The material witnesses have
expressed suspicion but there is not a single credible piece of evidence
linking the appellant to the crime in question. We have no manner of doubt
that the offence is grave; the children were abducted and kept in a tunnel
for over five months and anonymous calls were made for ransom. Accused
whose involvement in such crimes is proved must be dealt with with a firm
hand, but the seriousness or gravity of the crime must not influence the
court to punish a person against whom there is no credible evidence. The
trial court, therefore, erred in convicting the appellant.
11. We are distressed to note that by affirming the trial court’s order, the High Court has compounded the error.
The circumstances which the
High Court has taken against the appellant are:
(a) the fact that the
appellant was employed in the telephone booth of PW-4 Nusrat Bano;
(b) that
he was removed from the service due to his misconduct;
(c) that he used to
give threats and claim his dues from PW-4 Nusrat Bano and her husband;
(d)
that on the day of incident he was seen in the locality; and
(e) that after
the incident telephone call was received by the prosecution witnesses
warning them not to harass the appellant.
According to the High Court all
this indicates a well conceived plan with role assigned to everyone.
We
have already noted that except PW-11 Takki Imam nobody has said that the
appellant was seen in the locality on the day of incident.
That he was
employed in PW-4 Nusrat Bano’s telephone booth and was removed from the
service because of his bad conduct appears to be true.
But, even if the
story that he used to give threats to the prosecution witnesses and demand
his dues is accepted, it does not further the prosecution case.
There is
no evidence on record to establish that infuriated by his removal from service and non-payment of dues, the appellant masterminded the plot to abduct the children or played any active role in abducting them.
If a
telephone call was received making ransom demand and making grievance about alleged ill-treatment of the appellant, the police should have traced the calls and identified the caller.
The police have failed to do so.
Criminal courts recognize only legally admissible evidence and not farfetched conjectures and surmises.
The High Court’s observation that
there was a pre-conceived plan to abduct the children would not be
applicable to the appellant because there is nothing on record to establish
that the appellant met the co-accused and planned a strategy to abduct the
children and demand ransom.
His case stands on a different footing from
that of the other accused. The case of the other accused will have to be dealt with on its own merit.
The High Court was carried away by the
heinous nature of the crime and, in that, it lost sight of the basic
principle underlying criminal jurisprudence that suspicion, however grave,
cannot take the place of proof.
If a criminal court allows its mind to be
swayed by the gravity of the offence and proceeds to hand out punishment on
that basis, in the absence of any credible evidence, it would be doing
great violence to the basic tenets of criminal jurisprudence.
We hope and
trust that this is just an aberration.
12. In the result, we allow the appeal and set aside the impugned order.
The appellant – Md. Faizan Ahmad @ Kalu is ordered to be released
forthwith, if he is not required in any other case.
13. The appeal is disposed of in the afore-stated terms.
……………………………………………..J.
(AFTAB ALAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
NEW DELHI
JANUARY 3, 2013
