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TMI Blog2013 (1) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Indian Penal Code ). 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 Indian Penal Code. 3. Learned Sessions Judge convicted the Appellant and A2 and A3 under Section 364A read with Section 149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. They were also sentenced to pay fine of ₹ 10,000/-. On failure to deposit the fine, they were directed to undergo simple imprisonment for one year. They were also convicted u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence 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 sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 reiter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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