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Supreme Court of India
AFTAB ALAM & RANJANA PRAKASH DESAI, JJ.
MD. Faizan Ahmad @ Kalu – Appellant
Versus
The State of Bihar – Respondent
Criminal Appeal No.11 of 2013 [Arising out of Special Leave Petition (Crl.) No.1636 of 2012]
Decided On : 03-01-2013
Facts of the Case :
Appellant along with co accused persons was prosecuted herein in the instant case for kidnapping children of PWs 11,6 and 4 and keeping them in a tunnel for five months. Trial Court convicted accused persons for said offences .Appeal thereagainst was Dismissed by High Court.
B. Present appeal has been filed against said order of High Court.
Findings of the Court :
The material witnesses had expressed suspicion but there was not a single credible piece of evidence linking the appellant to the crime in question. Offence was grave as 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 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, hence, erred in convicting the appellant. No evidence on record to establish that infuriated by his removal from service and non-payment of dues, appellant masterminded the plot to abduct the children or played any active role in abducting them. High Court got 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.Impugned order of High Court was set aside as far as appellant was concerned .Appeal was allowed
Result : Appeal allowed
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
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