# Nadeem & Anr. (In Jail) v. State of U.P

- **Citation:** Criminal Appeal No. 4561 of 2014
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-03
- **Case number:** Criminal Appeal No. 4561 of 2014
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nadeem-anr-in-jail-v-state-of-u-p-46460
- **Pages:** 16

## Headnote

Criminal Law - Indian Penal Code - Section
364A, 411, 379 - Appeal against conviction.

Held :- Lack of evidence- No evidence
demand of ransom conviction under section
364A
IPC
set
aside.
(Para
65)
3-5 All. Nadeem & Anr. Vs. State of U.P.
655
Section 365 IPC - evidence on record proves
commission of offence under section 365 IPC.
Hence trail court's judgment modified (para 66)

Appeal partly allowed. (E-2)

List of Cases Cited:-

## Text

_Characters 0–39,804 of 54,268. This is a partial read: ask again with offset=39804 for what follows._

654 INDIAN LAW REPORTS ALLAHABAD SERIES
common intention cannot be applied to the
other accused though present on the spot.

16. Now we may observe with
wisdom that in the matters of ascertaining
prevalence of common intention among all
the accused not only the evidence but the
surrounding circumstances have also got
their positive roles and in case it all if taken
as a whole a reflection immediately
emerges that each one present on the spot
must have known the nature of the offence
intended by the group, it being so each one
forming the group shall be imputed with
the same intention that was the animus
working in the mind of one who executed
the plan and it is established law that
common intention may also develop on the
spot itself. Here prior concert among the
accused is proved by the way the offence
was committed and manner of offence is
self-explanatory. In this case the preconcert among all the assailants is well
established by the very description of the
incident as well as the manner and style of
the incident itself as emerging in testimony
that all the assailants appeared on the spot
from the sugarcane field of Faiyaz
possessing country made gun in their
respective hands, no matter if one shot was
fired by one among the four assailants. If it
so occurred and the same has been proved
by the prosecution witnesses by cogent
testimony then the only outcome is that all
the assailants shared the common intention
to kill and to kill the victim and nothing
else. That being the position, claim of the
appellant that they remained silent on the
spot and never shared the common
intention with the main assailant is not
acceptable. The trial court has rightly held
that the case is one attracting application of
section 34 I.P.C. and by virtue of
application of section 34 I.P.C. rightly
recorded finding of conviction under
section 302 I.P.C. against the accusedappellants which finding of conviction
cannot be interfered by us, consequently,
this appeal lacks merit and the same is
dismissed.

17. In this case, appellants are on bail.
Their bail bonds and sureties are cancelled.
They shall be taken into custody forthwith
for serving out the sentence imposed upon
them.

18. Let a copy of this order/judgment
be certified to the court below for necessary
information and follow up action.
----------
(2020)03-05ILR A654
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.03.2020

BEFORE
THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Criminal Appeal No. 4561 of 2014

Nadeem & Anr. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Mahendra Prakash, Sri Dhruv Narayan
Mishra, Sri Gautam Kumar Banerji, Sri
Kamal Dev Rai, Sri Mumtaz Ali, Sri Pradeep
Kumar, Sri Shad Khan

Counsel for the Opposite Party:
A.G.A., Shishir Kumar Tiwari

Criminal Law - Indian Penal Code - Section
364A, 411, 379 - Appeal against conviction.

Held :- Lack of evidence- No evidence
demand of ransom conviction under section
364A
IPC
set
aside.
(Para
65)
3-5 All. Nadeem & Anr. Vs. State of U.P.
655
Section 365 IPC - evidence on record proves
commission of offence under section 365 IPC.
Hence trail court's judgment modified (para 66)

Appeal partly allowed. (E-2)

List of Cases Cited:-

1. Ashwani Dubey Vs. St. of U.P., (2016) 97
ACC 229

2. Mahesh Vs. St. of U.P., (2016) 96 ACC 775,

(Delivered by Hon'ble Ramesh Sinha, J.)

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).
656 INDIAN LAW REPORTS ALLAHABAD SERIES

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
3-5 All. Nadeem & Anr. Vs. State of U.P.
657
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
658 INDIAN LAW REPORTS ALLAHABAD SERIES
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
3-5 All. Nadeem & Anr. Vs. State of U.P.
659
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, 1012 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
660 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
3-5 All. Nadeem & Anr. Vs. State of U.P.
661
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 1⁄2 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
662 INDIAN LAW REPORTS ALLAHABAD SERIES
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 crossexamination 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 1520 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
3-5 All. Nadeem & Anr. Vs. State of U.P.
663
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 crossexamination 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 Incharge 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
664 INDIAN LAW REPORTS ALLAHABAD SERIES
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 PW2Smt. 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 PW2Smt. Zahira, wife of Shahabuddin and the
3-5 All. Nadeem & Anr. Vs. State of U.P.
665
mother of the abductee child, in her crossexamination 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.