# Bhoora Khan @ Bhalu v. State Of U.P

- **Citation:** (2016) 7 ILRA 442
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-07-29
- **Bench:** Bala Krishna Narayana, Ravindra Nath Kakkar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhoora-khan-bhalu-v-state-of-u-p-44083
- **Pages:** 16

## Headnote

Criminal Law -Criminal Appeal - Section 364A IPC - Abduction - Ransom - missing report dated 20.6.2006
- first information report dated 1.7.2006 - demand of Rs.40 lakhs - abducted victim - recovery of abducted
victim - house of accused Shamshad - arrest on the spot - identification parade not conducted - not named
in the first information report - identification for the first time before court - wrong identity of name -
statement under Section 313 Cr.P.C. - incriminating evidence not put - recovery memo - site plan - material
contradiction - no independent public witness - no recovery of looted articles - call details - electronic
evidence - prosecution failed to prove beyond reasonable doubt - benefit of doubt - conviction set aside -
acquitted.

These appeals have been preferred against the judgment and order dated 28.1.2009 passed by the Additional
Sessions Judge/F.T.C. No.1, Aligarh passed in S.T.No.1083 of 2006 convicting the appellants under Section
364A IPC and sentencing them to undergo life imprisonment with fine of Rs.10,000/-(Para 1)

To appreciate the contentions raised by the learned counsel for the parties, it would be expedient to go
through the facts of this case. Briefly stated, the prosecution case is that Dr. Shaista Mannan Wasanwala
lodged a missing report of her husband Dr. Mannan Abdul Hussain Wasanwala on 20.6.2006 at about 22:50
hrs. at police station Civil Lines, Aligarh, stating that when her husband did not return home from his clinic at
Venus Tower till 8:30 P.M. she tried to contact him on mobile but his mobile was found to be switched off and
despite all possible efforts, his whereabouts could not be known. Again on 1.7.2006, she lodged a first
information report at police station Civil Lines narrating the entire event of abduction of her husband Dr.
Mannan Abdul Hussain Wasanwala referring to a call dated 24.6.2006 by some unknown person demanding
Rs.40 lakhs ransom for release of her husband Dr. Mannan Abdul Hussain Wasanwala followed by such
frequent calls with a threatening to eliminate her husband if the money was not tendered. Being panicked
and awe-struck, she made all efforts to arrange the money but could not succeed. The report further referred
to the last call dated 1.7.2006 from one Shaimuddin, who had threatened that her husband would be killed if
the ransom money was not paid by tomorrow. On the basis of the first information report dated 1.7.2006 as
well as the missing report dated 20.6.2006, a case was registered as Case Crime No.263 of 2006 under
Section 364A IPC at Police station Civil Lines, Aligarh and special report of the incident was sent to the higher
authorities. The police swung into action and the investigation proceeded and Rajesh Kumar Dwivedi, SHO
Civil Lines, who was the Investigating Officer, recovered Dr. Mannan Abdul Hussain from the clutches of
abductors the same day at about 9.30

## Text

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442 INDIAN LAW REPORTS ALLAHABAD SERIES

Apex Court in its judgment Bishundeo Poddar and others Vs. State of Bihar, 2003 Cri.L.J.1558 has
held:

"Be that as it may, the fate of the case does not depend on what the Investigating
Officer or the prosecutor ought to have done and evidence ought to have been led. The fate depends
on the evidence which is on record."

21. We have carefully examined all material on record and we believe that prosecution has
been able to prove its case beyond all reasonable doubts despite the existence of minor
discrepancies. We also believe that core of medical evidence is in-consonance with the oral
testimony. The ocular testimony rendered by prosecution witnesses is highly credible. The presence
of witnesses on the spot has been established. Considering all facts and circumstances we believe
that prosecution has been able to bring home the guilt of accused by credible and trustworthy
evidence.

22. The judgment and order dated 28.2.1983 passed by Vth Additional Sessions Judge,
Hamirpur in S.T. No.221 of 1980 (State Vs. Bachchu & another) arising out of Crime No.55 of
1980, P.S. Khanna, District Hamirpur does not require any interference. The criminal appeal is,
accordingly, dismissed. Appellant Bachchu is on bail, his bail bonds are cencelled and he is
directed to surrender in the court below to serve the remaining period of his sentence. Let a copy of
this order be sent to concerned Court through Sessions Judge, Hamirpur for compliance within ten
days. The concerned court will thereafter report the compliance to this Court within a month.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.07.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE RAVINDRA NATH KAKKAR, J.

Criminal Appeal No.- 525 Of 2009
&
Connected With Other Cases

Bhoora Khan @ Bhalu ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
Imran Ullah, Manindra Pal Singh, Mukhtar Alam, Shyamal Narain

Counsel for the Respondent:
Govt. Advocate
7 All. Bhoora Khan @ Bhalu Vs State Of U.P.
443
Criminal Law -Criminal Appeal - Section 364A IPC - Abduction - Ransom - missing report dated 20.6.2006
- first information report dated 1.7.2006 - demand of Rs.40 lakhs - abducted victim - recovery of abducted
victim - house of accused Shamshad - arrest on the spot - identification parade not conducted - not named
in the first information report - identification for the first time before court - wrong identity of name -
statement under Section 313 Cr.P.C. - incriminating evidence not put - recovery memo - site plan - material
contradiction - no independent public witness - no recovery of looted articles - call details - electronic
evidence - prosecution failed to prove beyond reasonable doubt - benefit of doubt - conviction set aside -
acquitted.

These appeals have been preferred against the judgment and order dated 28.1.2009 passed by the Additional
Sessions Judge/F.T.C. No.1, Aligarh passed in S.T.No.1083 of 2006 convicting the appellants under Section
364A IPC and sentencing them to undergo life imprisonment with fine of Rs.10,000/-(Para 1)

To appreciate the contentions raised by the learned counsel for the parties, it would be expedient to go
through the facts of this case. Briefly stated, the prosecution case is that Dr. Shaista Mannan Wasanwala
lodged a missing report of her husband Dr. Mannan Abdul Hussain Wasanwala on 20.6.2006 at about 22:50
hrs. at police station Civil Lines, Aligarh, stating that when her husband did not return home from his clinic at
Venus Tower till 8:30 P.M. she tried to contact him on mobile but his mobile was found to be switched off and
despite all possible efforts, his whereabouts could not be known. Again on 1.7.2006, she lodged a first
information report at police station Civil Lines narrating the entire event of abduction of her husband Dr.
Mannan Abdul Hussain Wasanwala referring to a call dated 24.6.2006 by some unknown person demanding
Rs.40 lakhs ransom for release of her husband Dr. Mannan Abdul Hussain Wasanwala followed by such
frequent calls with a threatening to eliminate her husband if the money was not tendered. Being panicked
and awe-struck, she made all efforts to arrange the money but could not succeed. The report further referred
to the last call dated 1.7.2006 from one Shaimuddin, who had threatened that her husband would be killed if
the ransom money was not paid by tomorrow. On the basis of the first information report dated 1.7.2006 as
well as the missing report dated 20.6.2006, a case was registered as Case Crime No.263 of 2006 under
Section 364A IPC at Police station Civil Lines, Aligarh and special report of the incident was sent to the higher
authorities. The police swung into action and the investigation proceeded and Rajesh Kumar Dwivedi, SHO
Civil Lines, who was the Investigating Officer, recovered Dr. Mannan Abdul Hussain from the clutches of
abductors the same day at about 9.30 P.M. Recovery memo was prepared on the spot and accused
Shamshad, Alimuddin and Bhura Khan alias Bhalu were arrested on the spot. The police took them on remand
and the other accused were arrested on the basis of confessional statement of the above accused. Dr.
Mannan was medically examined, site plan was prepared, statements of arrested accused were recorded and
they were medically examined, mobile call details of the accused were investigated. After completion of
investigation, Investigating Officer submitted charge sheet against accused persons under Section 364A IPC
and a separate charge sheet under Section 364A IPC, against absconding accused Lalu alias Uvesh and Chand
Khan was also submitted before the court. The learned Chief Judicial Magistrate took cognizance on the
charge sheet and committed the case to sessions court for trial of accused. Thereafter, charges were framed
by the trial court against the accused under Sections 364A and 120B IPC. They denied charges and claimed
trial.(Para 2)

On the other hand, learned Additional Government Advocate supported the judgment of the trial court and
submitted that the order of conviction and sentence recorded by the court below needs no interference. The
prosecution has fully established its case that the appellants abducted Dr. Mannan Abdul Hussain for ransom
on 20.6.2006, threatened to kill Dr. Mannan if ransom of 40 lakhs was not paid by his wife. on phone
frequently. It was also submitted that the prosecution has proved its case beyond reasonable doubt and the
judgment of the court below is perfectly legal based on cogent reasons. The prosecution has also proved that
on 1.7.2006 abducted victim Dr. Mannan was recovered from the clutches of the accused from the house of
accused Shamshad by and the police arrested the accused appellants from the spot. Moreover, the factum of
444 INDIAN LAW REPORTS ALLAHABAD SERIES

abduction of Dr. Mannan and his recovery was not challenged by the defence side. It was lastly contended
that the ingredients of the offence under Section 364A IPC are proved beyond reasonable doubt and the
judgment and order of the court below requires no interference and the appeals filed by the appellants are
liable to be dismissed.(Para 17)

Held :(Para 31,47-51)

1. Tested on the anvil and touchstone of the aforesaid principles, we find that there is substance (force) in the
arguments of the learned counsel for the accused appellant Baseem Akhtar because admittedly, the accused
Baseem Akhtar was not arrested on the spot where the recovery of the abducted victim Dr. Mannan Abdul
Hussain is allegedly made by the prosecution. It is also an admitted fact that the name of accused Baseem
Akhtar first came to light during investigation in the confessional statement of co-accused Shamshad and he
was arrested on the execution of warrant 'B' at Delhi jail and transit remand was granted and he was finally
taken into judicial custody on 11.8.2006 by the Chief Judicial Magistrate having jurisdiction whereas the
occurrence is of 20.6.2006 and recovery of the abducted victim was of 1.7.2006. It is also the defence
version that he was kept baparda. Inspite of this admitted fact identification parade was not conducted on the
accused during investigation. The accused in his statement under Section 313 Cr.P.C. specifically stated that
since he was not named in the first information report and arrest was made by the Delhi police on execution
of warrant 'B', he moved an application on 18.6.2006 claiming identification which was not done. Perusal of
record shows that for the first time during trial of the case, PW-3 abducted victim Dr. Mannan Abdul Hussain
Wasanwala recognised Baseem Akhtar but with wrong identity of name. It is also relevant to mention that Dr.
Mannan was abducted on 20.6.2006 and the police recovered him on 1.7.2006 and accused Baseem Akhtar
was arrested by the Delhi police on the execution of warrant 'B' issued by the Magistrate having jurisdiction
and was taken in judicial custody on 11.8.2006. While the statement of PW-3 Dr. Mannan Abdul Hussain was
recorded on 30.7.2007 after lapse of considerable time from the date of the incident on 20.6.2006 and more
so the accused was recognised by wrong name before the court. This itself is indicative of a fact that there is
a serious omission (lapse) prejudicing the right of the accused charged for an offence under Section 364A
IPC.

2. After the close scrutiny of the evidence tendered by the prosecution in this case and considering the
peculiar facts and circumstances of this case, it can be safely concluded that abduction of Dr. Mannan Abdul
Hussain Wasanwala is a proved fact but the prosecution has miserably failed to prove beyond reasonable
doubt the presence and involvement of the appellants accused in the commission of the crime under Section
364A IPC.
3.Microscopic analysis of the entire case will transpire that in order to justify the encounter of accused
Saimuddin, his close relatives have been falsely implicated in this case. Short reasons thereof are as follows:

No identification proceedings conducted on accused Baseem Akhtar after his arrest. More so, his identification
for the first time before the trial court by PW-3 victim Dr. Mannan Abdul Hussain Wasanwala after a long
lapse of more than one year found to be defective as the two accused were not identified by correct name.
Another peculiar feature of the case is that statement under Section 164 Cr.P.C. had not been recorded.
Mode and manner of recovery of the abducted victim and arrest of three accused persons on the spot are
highly doubtful.
Recovery memo of the abductee was found to be doubtful.
No independent public witness of recovery of the abducted victim.
No recovery of looted articles nor recovery of Maruti Zen of the victim.
Material laches/lapse in preparation of the site plan.
Major contradiction/discrepancy/variation in the statements of the prosecution witnesses and lastly
chain of link evidence particularly that of electronic evidence is not proved.
7 All. Bhoora Khan @ Bhalu Vs State Of U.P.
445
4. Under the facts and circumstances as stated above, the evidence of the prosecution witnesses is neither
cogent nor credible or trustworthy hence cannot be believed.

5. For the foregoing reasons, in our view the appeals filed by the appellants deserve to be allowed and are,
accordingly, allowed. The judgment and order dated 28.1.2009 convicting and sentencing the accused
appellants are set aside and the accused appellants are acquitted for the offence under Section 364A IPC.
Accused appellants Baseem Akhtar @ Banti and Bhoora Khan @ Bhalu who are in jail be released, if not
detained in any other case. Accused appellants Shamshad and Alimuddin who are on bail, their bail bonds are
cancelled and sureties stand discharged. Compliance of the provisions of Section 437A Cr.P.C. be ensured.

6. Let a certified copy of the judgment and order be sent to the Chief Judicial Magistrate concerned for
compliance report. The lower court records be returned for compliance.

Case Law discussed:

1. Vinod vs. State of Rajasthan (Para 20)
2. Akram Khan v. State of West Bengal (Para 21)
3. Vaidivelu v. State of Maharashtra AIR 1957 SC 614 (Para 24)
4. Musheer Khan alias Badshah Khan v. State of Madhya Pradesh 2010 (74) ACC 150 (Para 25)
5. Vijay Chinee v. State of Madhya Pradesh (2010) 6 SCJ 492 (Para 26)
6. Dana Yadav alias Dahu and others vs. State of Bihar 2002 SCC (Cri) 1698 (Para 32)
7. Sukhjit Singh vs. State of Punjab 2015 (1) SCC (Cri) 76 (Para 34)
8. Shaikh Maqsood v. State of Maharashtra (2009) 6 SCC 583 (Para 34)

(Delivered by Hon'ble Ravindra Nath Kakkar, J.)

1. These appeals have been preferred against the judgment and order dated 28.1.2009
passed by the Additional Sessions Judge/F.T.C. No.1, Aligarh passed in S.T.No.1083 of 2006
convicting the appellants under Section 364A IPC and sentencing them to undergo life
imprisonment with fine of Rs.10,000/-.

2. To appreciate the contentions raised by the learned counsel for the parties, it would be
expedient to go through the facts of this case. Briefly stated, the prosecution case is that Dr. Shaista
Mannan Wasanwala lodged a missing report of her husband Dr. Mannan Abdul Hussain
Wasanwala on 20.6.2006 at about 22:50 hrs. at police station Civil Lines, Aligarh, stating that
when her husband did not return home from his clinic at Venus Tower till 8:30 P.M. she tried to
contact him on mobile but his mobile was found to be switched off and despite all possible efforts,
his whereabouts could not be known. Again on 1.7.2006, she lodged a first information report at
police station Civil Lines narrating the entire event of abduction of her husband Dr. Mannan Abdul
Hussain Wasanwala referring to a call dated 24.6.2006 by some unknown person demanding Rs.40
lakhs ransom for release of her husband Dr. Mannan Abdul Hussain Wasanwala followed by such
frequent calls with a threatening to eliminate her husband if the money was not tendered. Being
panicked and awe-struck, she made all efforts to arrange the money but could not succeed. The
report further referred to the last call dated 1.7.2006 from one Shaimuddin, who had threatened that
her husband would be killed if the ransom money was not paid by tomorrow. On the basis of the
first information report dated 1.7.2006 as well as the missing report dated 20.6.2006, a case was
446 INDIAN LAW REPORTS ALLAHABAD SERIES

registered as Case Crime No.263 of 2006 under Section 364A IPC at Police station Civil Lines,
Aligarh and special report of the incident was sent to the higher authorities. The police swung into
action and the investigation proceeded and Rajesh Kumar Dwivedi, SHO Civil Lines, who was the
Investigating Officer, recovered Dr. Mannan Abdul Hussain from the clutches of abductors the
same day at about 9.30 P.M. Recovery memo was prepared on the spot and accused Shamshad,
Alimuddin and Bhura Khan alias Bhalu were arrested on the spot. The police took them on remand
and the other accused were arrested on the basis of confessional statement of the above accused.
Dr. Mannan was medically examined, site plan was prepared, statements of arrested accused were
recorded and they were medically examined, mobile call details of the accused were investigated.
After completion of investigation, Investigating Officer submitted charge sheet against accused
persons under Section 364A IPC and a separate charge sheet under Section 364A IPC, against
absconding accused Lalu alias Uvesh and Chand Khan was also submitted before the court. The
learned Chief Judicial Magistrate took cognizance on the charge sheet and committed the case to
sessions court for trial of accused. Thereafter, charges were framed by the trial court against the
accused under Sections 364A and 120B IPC. They denied charges and claimed trial.

3. The prosecution examined PW-1 constable Anil Kumar, PW-2 Dr. Shaista Mannan
Wasanwala, PW-3 Dr. Mannan Abdul Hussain Wasanwala, PW-4 Sunil Kumar Tyagi, Inspector
Special Task Force, PW-5 Yogendra Singh Bhati, SI, S.O.G. Team, PW-6 Rajesh Kumar Dwivedi,
SHO Civil Lines and PW-7 Ram Pal Singh Inspector to prove the prosecution case. After the
prosecution evidence was over, statements of the accused under Section 313 Cr.P.C. were recorded
by the trial court.

4. DW-1 Mohd. Kesar Masood and DW-2 Dr. Salim Ahmad were examined as defence
witnesses.

5. PW-1 Constable Anil Kumar proved the photo copy of GD entry of the missing report,
exhibit Ka-1, which was given on 20.6.2006 at about 22.50 hrs. by Dr. Shaista Mannan
Wasanwala, wife of abducted victim Dr. Mannan Abdul Hussain Wasanwala to the police station.
This witness deposed that photo copy of the missing report was prepared from original missing
report which was enclosed with original GD.

6. PW-2 Dr. Shaista Mannan Wasanwala proved the missing report paper no. exhibit Ka-2.
She stated before the court that she had received first threat call on 24.6.2006 informing abduction
of her husband Dr. Mannan Abdul Hussain Wasanwala (the victim) and demanding Rs.40 lakhs as
ransom and she also made to talk with her husband on the same day. She stated in her oral
testimony that prior to recovery of the victim on 1.7.2006, she had given a written report
mentioning how her husband had been abducted on 20.6.2006 and Rs.40 lakhs was demanded for
his ransom at Police Station Civil Lines. PW-2 has proved the written report as exhibit Ka-3.

7. PW-3 is the abducted victim Dr. Mannan Abdul Hussain Wasanwala whose testimony
narrates entire incident, therefore, his evidence is most important, material and this witness can be
said to be a star witness of the prosecution case. But his testimony requires to be tested with utmost
7 All. Bhoora Khan @ Bhalu Vs State Of U.P.
447
care and caution which we will deal with later on as the whole prosecution story revolves around
his sole testimony. Exhibit ka-4 Supurduginama is proved by this witness by identifying his
signatures.

8. PW-4 Sunil Kumar Tyagi, who is the Inspector in Special Task Force, U.P. Field Unit,
Meerut in his statement before the Court stated about the formation of a joint police team
comprising Deputy Superintendent of Police, Aligarh, Shri Indrajit Singh, District Police S.O.G.
Inspector Shri Ashok Kumar and Shri Rajesh Kumar Dwivedi, Inspector, Police Station Civil
Lines, Aligarh as members to trace the whereabouts of the abducted victim. PW-4 Sunil Kumar
Tyagi further stated that on an information received on 1.7.2006 that the abducted victim was
detained in the house of accused Shamshad situated at Mohalla Brahmanpuri, Qasba Atrauli and
the ransom was being demanded by the gang of accused, he along with Sub-inspector Shakti Singh,
Jitendra Kumar, Rajiv Dwivedi, Head Constable Yogesh, Munesh, Rakesh and Constable Jagdish,
Rajendra, Sarvesh and Commando K.P.Singh and Driver Jaiveer, S.O.G.Inspector Ashok Kumar
and Rajesh Kumar Dwivedi. P.S. Civil Lines, came to Atrauli and contacted Inspector Devendra
Singh there. Further the entire police force was constituted into three teams one under the
supervision of PW-4 Sunil Kumar Tyagi, the second under the supervision of Inspector Ashok
Kumar, and the third team was under the supervision of Inspector Rajesh Kumar Dwivedi from
where they jointly reached to the house of Shamshad at about 9:30 in the night and raided the
house. On this two persons sitting on the roof of the house, opened fire upon the police party with
an intention to kill and jumped from the roof and taking ride on the motorcycle standing nearby ran
away from there. They were chased by the two police teams headed by Inspector Sunil Kumar and
Inspector Ashok Kumar. Resisting the chase, accused sitting on the pillion of the motorcycle
continuously fired at the police party and moving ahead they threw their motorcycle on the
roadside and taking shelter of dugs and bushes, the accused persons started indiscriminate firing
upon the police party. The police party also resorted to firing and warned them to surrender. After
close of the firing between the accused and, the police, one accused was found to be injured and the
other succeeded in fleeing away form the spot. This resulted into an encounter of the injured
accused who was later on identified as Shaimuddin of Dibai by Constable Munesh and Rakesh.
Thereafter, information of this incident was sent to the police station Atrauli. Empty cartridges
found on the spot were collected and kept under seal and lateron on kept in the police station and
Case Crime No.307 of 2006 was registered under Section 307 IPC at P.S. Atrauli.

9. PW-5 Yogendra Singh, the Sub-inspector S.O.G. Team is a witness of recovery of
abducted victim Dr. Mannan from the house of accused Shamshad and also witness of the recovery
of incriminating article from the arrested accused Shamshad, Bhura, Alimuddin on the spot. From
the possession of accused Shamshad one countrymade pistol along with two live cartridges was
recovered while from accused Bhura a Rampuri knife and from accused Alimuddin a key of the
room where abducted victim Dr. Mannan had been detained was recovered. Recovery memo was
prepared on the spot which was proved as Exhibit Ka-6.

10. PW-6 Rajesh Kumar Dwivedi who is the Investigating Officer supported the
prosecution case in his oral testimony and proved the recovery memo as exhibit Ka-5. He also
448 INDIAN LAW REPORTS ALLAHABAD SERIES

proved the lock and key recovered from accused Alimuddin as Exhibits-2 and 3, call details of
accused Shaimuddin with Parvez as exhibits 4 to 15, copy of G.D. containing interrogation of
Parvez as Exhibit-7 and the site plan of the spot as Exhibit-Ka 6.

11. Inspector Ram Pal Singh, who is another Investigating officer has been examined as
PW-7 by the prosecution. Ram Pal Singh in his evidence before the court stated that he conducted
further investigation on 8.8.2006, he prepared and proved the site plan/spot memo regarding
recovery of the abducted victim Dr. Mannan Abdul Hussain which is Exhibit-8 and after
completion of investigation filed charge sheet which has been proved as Exhibit Ka-9.

12. After close of the prosecution evidence, statements of all the charged accused were
recorded under Section 313 Cr.P.C. Accused Alimuddin stated in his evidence that he along with
his brother Shaimuddin, and brother-in-law Shamshad was arrested on 30.6.2006 and on 2.7.2006
he came to know that his brother Shaimuddin was encountered by the police and they had been
falsely charged. He also stated that there was no recovery of any incriminating article whatsoever
from him. Accused Parvez in his statement under Section 313 Cr.P.C. that he was falsely
implicated due to political enmity. He requested for his identification on 5.9.2006 which has not
been done. Accused Bhura in his statement under Section 313 Cr.P.C. stated that on 1.7.2006 at
about 1:00 O. Clock in the night, the police took him from his house and asked him to become a
witness of the encounter of accused Shaimuddin which he refused and hence he had been falsely
nabbed in this case. He also stated that there was no recovery of any incriminating material from
his possession. Accused Baseem Akhtar in his statement under Section 313 Cr.P.C. stated that he
was not named in the first information report, he was arrested by the Delhi police and was kept
baparda but the Aligarh police falsely implicated him to show its good work. He also stated that
though he moved an application on 18.6.2006 for his identification, but the same was not done.
Accused Shamshad in his statement under Section 313 Cr.P.C. stated that he along with his
brother-in-law Alimuddin and Saimuddin (Alimuddin's brother) was arrested from Alimuddin's
house at Dibai on 30.6.2006 and on 2.7.2006 he came to know that Saimuddin was encountered by
the police. He further stated that he has been falsely implicated in this case and nothing
incriminating was recovered from his possession.

13. In support of defence case, DW-1 Mohd. Qaisar Masood and DW-2 Dr. Salim Ahmad
have been examined. Dw-1 Mohd. Qaisar Masood who is the brother of accused Parvez stated that
the police forcibly took Parvez from the house on 7.7.2006 with respect to which a telegram was
sent to the Senior Superintendent of Police on the same day which is paper no.34 kha/2 followed by
another telegram dated 8.7.2006 to the Senior Superintendent of Police. On 9.7.2006 he sent
telegrams to the Chairman, Minority Commission and the Human Right Commission which are
paper nos.34 kha/4 and 34 kha/5.

14. DW-2 Dr. Salim Ahmad who is known to accused Parvez stated that the police took
Parvez from his house on 7.7.2006 due to political enmity.
7 All. Bhoora Khan @ Bhalu Vs State Of U.P.
449
15. After hearing learned counsel for the parties, the trial court found accused Baseem
Akhtar, Alimuddin, Shamshad and Bhura guilty for the offence under Section 364A IPC and
sentenced them to undergo life imprisonment and fine of Rs.10,000/- each and acquitted accused
Parvez under Section 364A IPC and 120B IPC and being aggrieved by the judgment and order of
the court below dated 28.1.2009, the present criminal appeal has been preferred.

16. Learned counsel for the appellant Baseem Akhtar contended that the impugned
judgment and order is against the evidence on record, the appellant was falsely implicated in this
case as he had nothing to do with the aforesaid crime in question. Learned counsel next submitted
that no identification parade was conducted on the appellant and the prosecution miserably failed to
prove the presence and involvement of the accused appellant at the place of the occurrence. It is
next submitted that incriminating evidence against the appellant has not been put forth while
recording statements under Section 313 Cr.P.C. Learned counsel for the other appellant made
submissions that the impugned judgment is wholly illegal, arbitrary and unjustified, the appellant
has been falsely implicated and the judgment and order passed by the court below is against the
weight of evidence on record and is liable to be set aside.

17. On the other hand, learned Additional Government Advocate supported the judgment of
the trial court and submitted that the order of conviction and sentence recorded by the court below
needs no interference. The prosecution has fully established its case that the appellants abducted
Dr. Mannan Abdul Hussain for ransom on 20.6.2006, threatened to kill Dr. Mannan if ransom of 40
lakhs was not paid by his wife. on phone frequently. It was also submitted that the prosecution has
proved its case beyond reasonable doubt and the judgment of the court below is perfectly legal
based on cogent reasons. The prosecution has also proved that on 1.7.2006 abducted victim Dr.
Mannan was recovered from the clutches of the accused from the house of accused Shamshad by
and the police arrested the accused appellants from the spot. Moreover, the factum of abduction of
Dr. Mannan and his recovery was not challenged by the defence side. It was lastly contended that
the ingredients of the offence under Section 364A IPC are proved beyond reasonable doubt and the
judgment and order of the court below requires no interference and the appeals filed by the
appellants are liable to be dismissed.

18, We have heard Shri Sudeep Harkauli and Shri N.I.Jafri learned counsel for the
appellants and Shri Ashish Pandey, learned A.G.A. assisted by Ms. Manju Thakur for the State and
have given our anxious and most thoughtful consideration to the rival submissions of both the
parties and have also perused the impugned judgment and have gone through the evidence on
record.

19. Before dealing with the pending appeals, it would be relevant to refer to the provisions
of Section 364A IPC and the relevant proposition of law covering decision under these appeals.
Section 364A is alluded below:

"364A. Kidnapping for ransom, etc.-Whoever kidnaps or abducts any person or
keeps a person in detention after such kidnapping or abduction and threatens to cause death or
450 INDIAN LAW REPORTS ALLAHABAD SERIES

hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person
may be put to death or hurt, or causes hurt or death to such person in order to compel the
Government or any foreign State or international inter-governmental organisation or any other
person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or
imprisonment for life, and shall also be liable to fine."

20. In the case of Vinod vs. State of Rajasthan, Manu/SC/70052008, the Hon'ble Apex
Court has held that to attract the provisions of Section 364A IPC what is required to be proved is:-

(i) that accused kidnapped or abducted a person.
(ii) kept him under detention after such kidnapping or abduction.
(iii) that kidnapping under this section was for ransom.

21. Similar view was expressed by the Hon'ble Apex Court in the case of Akram Khan v.
State of West Bengal Manu/SC 1470/2011.

22. The word 'ransom' means as per Concise Oxford English Dictionary, 2002, p. 1186 'to
hold some-one captive and demand payment for their release. Money paid to have a kidnapped
person released. So the person abducted or kidnapped must be in the custody of the person at the
time demand of ransom is made.

23. CJ Fletcher Moulten once observed that proof does not mean rigid mathematical
formula that is impossible. Further proof must mean such evidence as would induce a reasonable
man to come to a definite conclusion.

24. In Vaidivelu v. State of Maharashtra AIR 1957 SC 614 the Hon'ble Apex Court
classified witnesses into three categories: (1) wholly reliable (2) wholly unreliable and (3) neither
wholly reliable nor wholly unreliable. In this category of witnesses the court have to be
circumspect and have to look for corroboration in material particulars by reliable testimony direct
or circumstantial.

25. In Musheer Khan alias Badshah Khan v. State of Madhya Pradesh, 2010 (74) ACC
150 the Hon'ble Apex Court held that identification test meant for purposes of helping investigating
agency to ensure that it is proceeding in right direction it is not substantive.

26. In Vijay Chinee v,. State of Madhya Pradesh (2010) 6 SCJ 492 the Hon'ble Supreme
Court held that evidence of a witness must be read as a whole and the cases are to be considered in
totality of the circumstances. It further held that men may tell lies but circumstances do not.

27. Apart from it it is a trite law that in arriving at the conclusion about the guilt of the
accused charged with a commission of the crime, the court has to judge the evidence by yardstick
of probabilities its intrinsic worth and the animus of witnesses. Every case in the final analysis
would have to depend upon its own facts.
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451
28. It is established law that every case has to be appreciated on its own fact and in the light
of evidence led by the parties. The court has to examine the cumulative effect of evidence in order
to determine as to whether the prosecution has been able to establish its case beyond reasonable
doubt or that the accused is entitled to the benefit of doubt. The court has to examine the evidence
in its entirety. The court cannot just take an aspect of the entire evidence.

29. It is settled legal proposition that even the sole testimony of a witness can form basis of
conviction provided it finds corroboration from other physical factors and circumstances. It is also
well settled that it is not necessary for the defence to prove its case with same rigour as the
prosecution is required to prove its case and it is sufficient if the defence succeeds in throwing a
reasonable doubt on the prosecution case which sufficiently enables the court to reject the
prosecution version.

30. It is also a well settled legal proposition that a reasonable doubt is not an imaginary,
trivial, or merely possible doubt but a fair doubt upon reason and common sense and it must grow
out of the evidence in the case and it is quality of each individual circumstance that is material and
that would essentially depend upon quality of evidence.

31. Tested on the anvil and touchstone of the aforesaid principles, we find that there is
substance (force) in the arguments of the learned counsel for the accused appellant Baseem Akhtar
because admittedly, the accused Baseem Akhtar was not arrested on the spot where the recovery of
the abducted victim Dr. Mannan Abdul Hussain is allegedly made by the prosecution. It is also an
admitted fact that the name of accused Baseem Akhtar first came to light during investigation in the
confessional statement of co-accused Shamshad and he was arrested on the execution of warrant 'B'
at Delhi jail and transit remand was granted and he was finally taken into judicial custody on
11.8.2006 by the Chief Judicial Magistrate having jurisdiction whereas the occurrence is of
20.6.2006 and recovery of the abducted victim was of 1.7.2006. It is also the defence version that
he was kept baparda. Inspite of this admitted fact identification parade was not conducted on the
accused during investigation. The accused in his statement under Section 313 Cr.P.C. specifically
stated that since he was not named in the first information report and arrest was made by the Delhi
police on execution of warrant 'B', he moved an application on 18.6.2006 claiming identification
which was not done. Perusal of record shows that for the first time during trial of the case, PW-3
abducted victim Dr. Mannan Abdul Hussain Wasanwala recognised Baseem Akhtar but with wrong
identity of name. It is also relevant to mention that Dr. Mannan was abducted on 20.6.2006 and the
police recovered him on 1.7.2006 and accused Baseem Akhtar was arrested by the Delhi police on
the execution of warrant 'B' issued by the Magistrate having jurisdiction and was taken in judicial
custody on 11.8.2006. While the statement of PW-3 Dr. Mannan Abdul Hussain was recorded on
30.7.2007 after lapse of considerable time from the date of the incident on 20.6.2006 and more so
the accused was recognised by wrong name before the court. This itself is indicative of a fact that
there is a serious omission (lapse) prejudicing the right of the accused charged for an offence under
Section 364A IPC.
452 INDIAN LAW REPORTS ALLAHABAD SERIES

32. To substantiate his arguments learned counsel appearing for appellant Baseem Akhtar
has placed reliance on the decision of the Hon'ble Apex Court in the case of Dana Yadav alias
Dahu and others vs. State of Bihar, 2002 SCC (cri) 1698. In this case the Hon'ble Apex Court
observed that belated identification of the accused in court for the first time after more than 2 years
from the date of the incident should not form the basis of conviction, especially when the same is
not corroborated by previous statements made before the police or any other evidence. It was also
observed that ordinarily if an accused is not named in the first information report, his identification
by witnesses in court, should not be relied upon, especially when they did not disclose name of the
accused before the police, but to this general rule there may be exceptions as enumerated above.

33. Admittedly, in this case the incident is of 20.6.2006, abducted person was alleged to be
recovered on 1.7.2006. Accused Baseem Akhtar not named in the first information report was
arrested by the Delhi police on execution of warrant 'B' and then taken into custody on 11.8.2006 in
this case and for the first time he was recognized by PW-3 Dr. Mannan (abductee) during his
deposition before court on 30.7.2007. More so there is no corroborative/supportive evidence,
therefore, on the sole testimony of identification before court by PW3 conviction of accused
Baseem Akhtar cannot and should not sustain.

34. Apart from it learned counsel for the accused appellant Baseem Akhtar made
submissions that learned trial Judge has not complied with the basic requirements of Section 313
Cr.P.C. the requisite questions and the specific incriminating evidence which was against this
accused have not been put to the accused, as there is no evidence on record even remotely to show
that appellant Baseem Akhtar had abducted Dr. Mannan Abdul Hussain Wasanwala for ransom, In
support of his arguments, he placed reliance upon a decision of Hon'ble Apex Court in the case of
Sukhjit Singh vs. State of Punjab 2015 (1) SCC (Cri) 76, wherein the Hon'ble Apex Court laid
down that the statements of accused under Section 313 Cr.P.C. sis not an empty formality.
Incriminating material has to be brought to the notice of the accused under Section 313 Cr.P.C.
The Court also held that it can cause immense prejudice to him especially when there is no
evidence to establish his complicity in the alleged offence. Further, in Shaikh Maqsood v. State
of Maharashtra, 2009 (6) SCC 583, the Hon'ble Apex Court held that if no question was put to
the accused which established that he was the author of the crime, the effect of non putting of
appropriate question will be a good ground for setting aside of the conviction of the accused. The
Court further observed that the object of examination under this Section is to give the accused an
opportunity to explain the case made against him. This statement can be taken into consideration in
judging his innocence or guilt.

35. A perusal of the statement of accused Baseem Akhtar under Section 313 Cr.P.C. reveals
that general questions were put to him like that of the other co-accused whereas he being neither
named in the first information report nor arrested on the recovery spot, his identification for the
first time before court during statement of PW-3 Dr.Mannan Abdul Hussain after a long gap from
the incident. The evidence specifically of identification has not been put before him or any
incriminating evidence whatsoever regarding his presence and involvement in the commission of
crime has been brought to the notice of this accused. Appropriate questions which could establish
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453
that he was author of the crime had not been put before this accused hence we find substance in the
plea of the learned counsel for the appellant that no requisite question and incriminating evidence
which was against this accused have been put before him to establish that he was present and
involved in the commission of offence under Section 364A IPC. That being so, the conviction of
accused appellant Baseem Akhtar cannot be maintained and is liable to be set aside.

36. With regard to the criminal appeals of other co-accused, prosecution case is that Dr.
Mannan Abdul Hussain Wasanwala was abducted on 20.6.2006, he was forcibly taken to the house
of Shamshad. There victim was detained in a small room of a tubewell for four days,thereafter
shifted to other place for 8 days. The wife of the abducted victim first lodged a missing report on
20.6.2006, thereafter first information report of abduction for ransom was lodged on 1.7.2006 by
the wife of the abducted victim.