State Of H.P. vs Gulfam @ Gullu

Vivek Singh Thakur, J

The State has preferred this appeal against judgment dated 19.4.2011 passed by the Sessions Judge, Solan in Sessions Trial No.3-S/7 of 2011 titled State of HP vs. Gulfam @ Gullu in case FIR No. 281 of 2010 dated 24.11.2010 registered in Police Station Sadar Solan under Sections 364(A), 302 and 201 of Indian Penal Code whereby respondent has been acquitted after facing the trial.

2 Prosecution story is that on 11.10.20201 7 years old Mohammad Sahil son of PW2 Mohammad Ali went to Government Central Primary School, Chambaghat, District Solan, but did not return in the evening after school hours whereupon, family, relatives and friends of family made unsuccessful attempts to search Mohammad Sahil and lastly at about 7.35 PM, PW2 Mehboob Ali submitted an application (Ext.PW2/A) in Police Chowki City Solan whereupon Daily Diary Report No. 23, dated 11.10.2010 (Ext.PW25/A) was recorded about missing of Mohammad Sahil. PW2 Mehboob Ali, on next day, informed his father¬in-law PW1 Noor Hasan about missing of Sahil.

3 PW1 Noor Hasan informed PW2 Mohammad Ali that on 27.10.2010, he had received a call demanding Rs. 3 lacs ransom for releasing Sahil and on next day i.e. 28.10.2010, he again received a call inquiring about arrangement of ransom, whereupon PW2 Meboob Ali (father of Sahil) along with his brother Mohammad Yakku and brother-in-law Mohammad Irphan (PW26) went to Muzaffarnagar (Uttar Pradesh) to the house of PW1 i.e. in-laws of PW2. Again an unsuccessful attempt was made to trace the child. After a week, a call was received by Mohammad Ali, a friend of PW2 Mahboob Ali (not examined), a friend of PW2 Mahboob Ali demanding ransom to hand over the child and Mohammad Ali was asked by caller to come to Muzaffarnagar along with ransom money and thereafter have a child. Thereafter, PW2 (Mehboob Ali) approached the Senior Superintendent of Police, Muzaffarnagar and narrated the whole story, whereupon caller mobiles were put on observation by Uttar Pradesh Police and thereafter, Uttar Pradesh Police directed to get the FIR registered first at Solan, whereupon PW26 Mohammad Irphan came to Solan and filed an application (Ext.PW24/A) in Police Station Sadar Solan, narrating therein the entire facts including receipt of telephonic ransom calls on mobile of Noor Mohammad and mother of Sahil. On the basis of which, FIR No. 281 of 2010 dated 24.11.2010 (Ext.PW24/B) was registered by PW24 SHO Chaman Lal under Section 364-A IPC and in this regard, endorsement Ext.PW24/C was made by PW24 Chaman Lal on application at 8.40 PM.

4 On 25.11.2010 PW7 SHO Ravinder Kumar, I.O. along with HC Kishan Chand, C. Sanjeev Kumar, PW22 C.Yashwant Singh and complainant PW26 Mohammad Irphan went to the office of Superintendent of Police, Muzaffarnagar and SOG Branch for inquiring about name and address of telephone/SIM holders from which ransom money was demanded. In this regard, information was supplied by PW28 Ankit Chaudhary and statements of PW28 Ankit Chaudhary and PW1 Noor Hasan were also recorded. Ransom calls were received from Mobile No.7895996094 and 9568859763. After tracing the identity of SIM holders, Mobile No. 7895996094 was found in the name of Jai Bhagwan and Mobile No. 9568859763 was found belonging to Sukh Pal son of Kishan Lal of Muzaffarnagar.

5 To verify the identity and address, Police Party went to village Kadipur, Police Station Bhopa, and accordingly, Sukh Pal was contacted and statement was recorded under Section 161 Cr.P.C. and on given address or in entire said Mohalla, no person namely Jai Bhagwan was found in existence.

6 During inquiry, it was found that ransom calls were made by using Mobile bearing EMI number with last digits of 0290. It was further found that for sometime, the same mobile was used with SIM No.9997567714 issued in the name of Pappu, who is father of PW4 Kallu alias Pradeep and PW12 Praveen.

7 It is further case of prosecution that on inquiry, Praveen revealed that one Gullu @ Gulfam (respondent), a friend of his brother PW4 Kallu @ Pradeep, had given his mobile having EMI number of last digit of 0290 to his brother PW4 Kallu for keeping the same along with his clothes.

8 On revealing aforesaid facts, Kallu @ Pradeep (PW4) was interrogated whereupon he disclosed that respondent Gulfam @ Gullu had asked him to associate with respondent for kidnapping a person from a village near Chandigarh with offer to pay Rs.50,000/- in lieu of that, to him i.e. Kallu @ Pradeep. This offer was disclosed by Kallu @ Pradeep to his employer/mason PW11 Surender @ Kala, who, in turn, advised Kallu @ Pradeep not to indulge in such activities.

9 According to prosecution, it was further disclosed by Kallu that respondent Gulfam @ Gullu came to him after sometime to take back his mobile and clothes and at that time, Kallu @ Pradeep inquired Gulfam about fate of proposed kidnapping plan of the person whereupon respondent Gulfam told him that no such person was kidnapped but he had kidnapped a child from Solan Himachal Pradesh and asked Kallu @ Pradeep to keep the kidnapped child with Kallu's sister and brother-in-law with offer to pay some amount to them in lieu thereof.

10 As per prosecution, thereafter on 28.11.2010, respondent Gulfam was called for interrogation from his house and during interrogation, he kept on misleading the police and ultimately on 30.11.2010 respondent Gulfam confessed that he had kidnapped Sahil from Solan and killed him by throttling and thereafter dead body was thrown in Ganga Nehar Chitora, whereupon respondent Gulfam was arrested and produced before the Magistrate on 1.12.2010. Thereafter, he was sent in police remand for 8 days.

11 On 3.12.2010, respondent Gulfam made a disclosure statement that he could identify the place from where he lifted the child and purchased the Kurkure packet to offer to Sahil for kidnapping him. Disclosure statement of respondent Gulfam Ext.PW2/B was reduced into writing under Section 27 of Indian Evidence Act which was signed by witnesses PW9 Chander Mohan and PW2 Mehboob Ali and it was also signed by respondent. On the same very day, respondent Gulfam led the police to Chambaghat and identified the Rehri from where he purchased the Kurkure, and also identified the spot, 25 feets away from that Rehri, from where by enticing with packet of Kurkure, he kidnapped the child. In this regard, memo Ext.PW2/C was prepared which was signed by witnesses PW3 Kesari and PW2 Mehboob Ali. Statement of PW4 Pradeep @ Kallu (Ext.PW4/A) was also recorded under Section 164 Cr.P.C. before the Magistrate on 3.12.2010.

12 On 3.12.2010 Investigating Officer submitted an application Ext.PW8/A to the Head Master of Government Central Primary School, Chambaghat, Solan for supplying the date of birth of Sahil with submission that said child was kidnapped on 11.10.2010 and was killed by kidnapper near Muzaffarnagar in Uttar Pradesh. In response to this letter, School Leaving Certificate of Sahil (Ext.PW8/B) was issued by the School.

13 On 4.12.2010, Investigating Office along with police officials, PW26 Mohammad Irphan and respondent went to Muzaffarnagar. On 4.12.2010 disclosure statement Ext.PW13/H was recorded by Investigating Officer in presence of PW4 Pradeeep @ Kallu and PW26 Mohammad Irphan wherein respondent stated that on 11.10.2010, after kidnapping the child, he had stayed for two nights in Guest House situated in front of Muzaffarnagar Railway Station. It was signed by respondent. On 4.12.2010, respondent Gulfam, accompanying the police party in police vehicle, asked to stop the vehicle in front of Railway Station, Muzaffarnagar and led the police party along with Mohammad Irphan to a Guest House by saying that on 11th and 12th October, 2010, he had stayed in this Guest House by paying Rs.25 per bed. In this regard, memo Ext.PW10/A was reduced into writing which was signed by PW10 Seeta Ram, owner of Guest House, and PW26 Mohammad Irphan as well as respondent Gulfam.

14 On 5.12.2010, vide disclosure statement (Ext.PW13/A) respondent Gulfam, in presence of witnesses PW13 Mahboob and PW26 Mohammad Irphan had stated that on 15.10.2010, after killing Sahil by throttling at about 3.30 PM, he had thrown him in Chitora Nehar and his school bag was also thrown in Nehar. Whereas mobile phone and two SIMS, after breaking, were also thrown by him in a water channel Rajwah and before that, he had kept child one day and night at Railway Station, Khatoli and another day and night, on 14.10.2010, in ruined place (Khandahar) in Muzaffarnagar with submission that he had exclusive knowledge of same and he could identify the places. In this regard, memo Ext.PW13/G was prepared and same was signed by PW13 Mahboob and PW26 Mohammad Irphan as well as respondent Gulfam. Thereafter, Gulfam led the police party and witnesses PW13 Mahboob and PW26 Mohammad Irphan to a small bridge i.e. culvert and asked to stop the vehicle and had identified a big canal known as Rajwah by saying that he did not recollect the date but he had thrown his both SIMs and mobile phone after breaking at that place, by coming from his house on motorcycle, in the fast flow of water. In this regard, memo Ext.PW13/B was prepared.

15 On 5.12.2010 itself, police party and witnesses were led by respondent Gulfam to a place 1 Km before Chatoda Jhal and after alighting from the police vehicle, took all of them towards Nehar below the road and identified the spot where he had killed Sahil on 15.10.2010 by throttling and had thrown dead body and school bag of Sahil in Nehar. In this regard, memo Ext.PW13/C was prepared. Same was signed by PW22 C. Sanjeev Kumar and PW26 Mohammad Irphan. At aforesaid place, during identification of place of throwing dead body and school bag in the canal, at about 8 metres away on North side of said spot, one copy was found with print on the cover as 'Dayanand Adarsh Vidalaya Solan HP' with photo of school and on pagination, 56 pages were found therein and on page No.1 in the Index, in English, name of Tanya Sharma, XII rough copy and below that Mohammad Sahil and mobile numbers of three persons were written. From Page 3 to 23, English was written and from page 24 to 38 homework done by Mohammad Sahil, identified by his uncle (Foofa of Sahil) PW26 Mohammad Irphan, was found. Last pages from 35 to 38 homework done on 10.10.2010 was found. Copy was taken in possession vide memo Ext.PW13/E which was signed by witnesses PW13 Mahboob, PW22 Constable Sanjeev and PW26 Mohammad Irphan as well as respondent Gulfam.

16 On 5.12.2010, Gulfam had also identified the Bench where he had spent night on 13.10.2010 along with Mohammad Sahil by leading the police party and witnesses to the spot. Memo Ext.PW13/F prepared in this regard was witnessed by PW13 Mahboob, PW26 Mohammad Irphan and was also signed by respondent Gulfam.

17 Gulfam also identified ruins (khandahar) where he spent night on 14.10.2010 along with child. Memo Ext.PW13/G prepared in this regard was signed by PW13 Mahboob and PW26 Mohammad Irphan and also by Gulfam.

18 As per prosecution, note-book (copy) of Sahil recovered from spot, where his dead body of Sahil along with school bag was disclosed to have been thrown by Gulfam, was initially copy of PW20 Tanya studying in Dayanand Adarsh Vidyalya Solan in 10+2 class residing in a rented accommodation at Chambaghat. During shifting of their house from Chambaghat to Sabathu road, she sold her old books and exercise books to scrap dealer i.e. father of PW16 Safina studying in 9th class, who was neighbour of Sahil. Safina and Sahil were taking assistance of PW17 Rajni for their studies who was helping the children along with Sufina and Sahil in tuition class. Safina gave the copy to Sahil and the said copy was recovered from Chitora Nehar.

19 PW14 Nirmal Sharma, Class Teacher of Sahil in Government Central Primary School, PW15 Afsana mother of Sahil, PW16 Safina and PW17 Rajni identified the hand writing of Sahil in last pages of this exercise book/copy.

20 During investigation, Investigating Officer with handicam had recorded the entire proceedings which was convered into DVD by PW23 Sanjeev Kumar who was working in A.P. Global Vision Computer, The Mall, Solan, who produced DVD (Ext.PW23/A) in evidence.

21 PW21 Shashi Kant Verma, Nodal Officer, Idea Cellular Limited had supplied call details of mobile cell Nos. 95688-59763 for period from 1.10.2010 to 19.11.2010 (Ext.PW21/A), copy of customer application form (Ext.PW21/B) and ID (Ext.PW21/C), customer application of Cell No. 96390-28531 (Ext.PW21/D), photo ID (Ext.PW21/E) and call details of Cell No. 95688-59763 from 6.10.2011 to 26.11.2011 (Ext.PW21/F). PW18 Devinder Verma produced on record the call details of Cell No.7895996094 from 1.10.2010 to 26.11.2010 Ext.PW18/A billing address of Jai Bhagwan Ext.PW18/B, IMEI number (International Mobile Equipment Identity) (Ext.PW18/C), photo identity (Ext.PW18/D) as well as call details of Mobile No.9997567714 (Ext.PW18/E) from 16.10.2010 to 22.10.2010 and photo identity of subscriber (Ext.PW18/F). He also produced call details of Mobile No.9816690285 from 1.10.2010 to 26.11.2010 (Ext.PW18/G) and photo identity (Ext.PW18/H).

22 On completion of investigation, he prepared the challan and final report under Section 173 Cr.P.C. and presented before the Magistrate, who committed the same to the Sessions Court. On the basis of evidence on record, charge against Gulfam was framed under Sections 364-A, 302 and 201 IPC. Thereafter, for not pleading guilty, respondent, after facing trial, has been acquitted.

23 Prosecution has examined 28 witnesses, whereas after recording statement under Section 313 Cr.P.C., no evidence has been lead in defence.

24 The prosecution case hinges upon the following facts:-

(A) Ransom calls received by PW1 Noor Hasan on Mobile No. 96390-28531 issued in the name of PW7 Gulzar but used by PW1 Noor Hasan from cell No.7895996094 issued in favour of Jai Bhagwan and 95688-59761 issued in the name of Sukh Pal, but alleged to be used by Gulfam;

(B) Identification of Gulfam by seller of Kurkure to Gulfam as a purchaser of Kurkure on 11.10.2010;

(C) Disclosure statement of Gulfam Ext.PW2/B regarding identification of Rehri wherefrom, Kurkure were purchased and spot of kidnapping the child;

(D) Disclosure statement Ext.PW13/H regarding Guest House where he spent two nights on 11th and 12th October, 2010 with child;

(E) Disclosure statement Ext.PW13/A regarding identification of spot of killing and throwing the child as well as school bag in Nehar; throwing of mobile phone and two SIM in a canal at Rajwah, Bench on Railway Station used for spending night on 13.10.2010 at Muzaffarnagar and spot in ruins where he spent night on 14.10.2010 with child, and

(F) Recovery of exercise book (rough copy) of Mohammad Sahil (victim) from the spot of killing and throwing victim and his school bag in Nehar.

25 With regard to ransom calls by respondent Gulfam, statements of PW1 Noor Hasan, PW2 Mahboob Ali, PW15 Afsana and PW26 Mohammad Irphan along with their depositions in Court, call detailed record produced in Court and complaint submitted for registration of FIR are relevant.

26 In complaint Ext.PW24/A, it has been categorically stated that PW1 Noor Hasan @ Noor Mohammad received ransom calls from Phone No.95688-95763 on his mobile No. 9639028331 and PW1 Noor Mohammad was receiving repeated calls on his mobile and in a call received from same number i.e. 7895996094, mother of Sahil had heard cries of her child and PW2 Mehboob Ali had also informed complainant PW26 Mohammad Irphan that calls were being received from 78959996094 repeatedly and further that mobile Nos.9568895763 and 7895996094 belonged to culprits. Complaint was filed on 24.11.2010. Therefore, as apparent from the complaint, the calls were being received by PW1 Noor Mohammad, PW2 Mahboob Ali and PW15 Afsana till November, 2010 and during this period, Afsana had heard cries of her child on her mobile.

27 Whereas, in the Court, PW1 Noor Hasan has stated that he received two mobile calls on his mobile phone No. 96390-28531 i.e. one on 27.10.2010 at about 10 AM and second on 28.10.2010 at about 8 AM and he has not uttered even a single word about ransom calls received by him thereafter. The deposition of PW2 Mahboob Ali, on this count, is also on same line. There is contradiction in averments made in complaint and statements of these witnesses. PW26, in his deposition in Court, is also silent about the details of dates on which calls were received. He, like PW1 Noor Hasan, PW2 Mahboob Ali and PW15 Afsana, is also silent about hearing of cries by mother of child on mobile.

28 Prosecution case is that Gulfam had killed the child on 15.10.2010. First ransom call has been received on 27.10.2010 and therefore, in case prosecution case is accepted to be true, cries of child must not have been heard by his mother after 15.10.2010, much less after 27.10.2010 as the child was killed on 15.10.2010, and thus, there was no chance of hearing the cries of child on 27.10.2010 or thereafter. This contradiction is irreconcilable.

29 It is the prosecution case that call details, photo IDs Ext.PW18/C, Ext.PW18/E, Ext.PW18/D and Ext.PW18/F were provided by Nodal Officer PW18 Devender Verma, But this evidence has been contradicted and demolished by prosecution witness PW28 C. Ankit Kumar who, at the relevant point of time,was posted as Constable SOG/Surveillance in the office of SSP Muzaffarnagar. In his deposition, he has stated that in November, 2010, on direction of SSP, Muzaffarnagar, he had provided these call details, photo IDs to the Himachal Police and had also supplied information of location of mobile Nos. 7895996094 and 9568859763 as well as 9997567714 at that time by extracting the same from computer used by him. These contradictions create doubt about veracity of investigation.

30 It is also apt to notice that aforesaid documents placed on record have not been signed and attested by anybody/Authority/Incharge, custodian of these documents nor requisite certificate, required to be issued under Section 65-B of Indian Evidence Act, has been appended therewith or proved separately. Though these documents cannot be taken into consideration for not having been proved in accordance with law, however, it is also matter of fact that as stated in complaint Ext.PW24/A, the calls from two numbers were being received till November, 2010, the aforesaid call details also indicate so. On ignoring the call details, for want of proving the same in accordance with law, there is not even an evidence of call received by PW1 on 27th and 28th October, 2010. Either there is no evidence on record or evidence on record is contradicting the deposition of witnesses related thereto creating again doubt against the prosecution story.

31 It has also come on record that cell phone No. 7895996094 was found to have been issued in favour of one Jai Bhagwan son of Atar Singh resident of House No. 218/1, Kotla 2, Meerapur, Jaansadh Muzaffarnagar (UP). Mobile No.9568859763 was found in the name of PW6 Sukh Pal son of Kismat Lal.

32 According to prosecution, no person named Jai Bhagwan son of Atar Singh was found in existence in the area of address given, whereas PW6 Sukh Pal was found on given address but he had stated that he was illiterate agriculturist and was not having any mobile phone or SIM being used in his name and he never purchased any mobile including SIM with further statement that his documents including revenue papers, Photo Identity Card had been lost in the bank at Bhopa. There is no documentary evidence to link these mobile numbers with Gulfam.

33 Prosecution has tried to connect Gulfam with these numbers with the help of mobile phone/equipment used for aforesaid two SIMs i.e. 7895996094 and 9568859763 by producing on record that same phone was used for using SIM No.9997567714 issued in the name of Pappu father of PW4 Kallu @ Pradeep and PW12 Praveen. The story putforth by prosecution is that mobile phone/equipment was kept by Gulfam with PW4 Kallu @ Pradeep for about one week and during that week, as mobile set of PW12 Praveen became out of order, the phone of Gulfam was used by PW12 Praveen by using his SIM. With this story, it is the claim of prosecution that Gulfam kept his phone with PW4, who allowed the same to be used by PW12 Praveen for using his SIM and thereafter phone was taken back by Gulfam and thus SIMs 7895996094 and 9568859763 used in said phone belonged to Gulfam and a conclusion has been drawn that ransom calls were made by Gulfam, and for his disclosure statement coupled with connection with mobile phone used for ransom calls, he is the person who had kidnapped and murdered Sahil.

34 Jai Bhagwan is unknown identity. PW6 Sukh Pal examined as witness, nowhere connects Gulfam with SIM number issued in favour of Sukh Pal. PW4 Kallu @ Pradeep whose statement was also recorded under Section 164 Cr.P.C., has deposed in Court that he was forced to make statement before the Court. He has categorically stated that he was brought by police to Solan for about 7-8 days before and he was threatened that if he did not give statement Ext.PW4/A (under Section 164 Cr.PC) before the Court, then he would be impleaded as an accused in the case. He has further stated that he was advised by police to claim before the Court that he was making statement without fear and pressure but voluntarily. He was kept in Police Station for 5 days before recording of his statement before the Magistrate. He has stated that he did not know anything about this case.

35 His brother PW12 Praveen has completely denied the prosecution story and has stated that he never used the mobile of Gulfam for using his SIM. Therefore, link between mobile phone used with SIM Cell No. 9997567714 owned by Pappu (father of PW4 Pradeep and PW12 Praveen) is missing. In case PW12 Praveen did not use the mobile of Gulfam then mobile phone with IME used for making ransom calls by Cell Nos. .7895996094 and 9568859763 were not belonging to Gulfam. It is for PW4 and PW12 or their father Pappu to explain that how the phone equipment, used by Praveen, was used for making ransom calls rather it creats suspicion that either PWs 4 and 12 were culprits only or were also involved in kidnapping and murder of Sahil.

36 Story of prosecution is also demolished by PW4 Kallu @ Pradeep by stating that he had deposed on the advise of police under threat that for not making such statement, he would be arrayed as an accused. This story is also demolished by mason PW11 Surender @ Kala who was employer of PW4 Kallu @ Pradeep, by not supporting the claim of prosecution. He has been subjected to cross examination after declaring hostile on request of learned Public Prosecutor for resiling from his earlier statement. But nothing material could be elucidated from his exhaustive cross examination. He has denied the prosecution story in toto.

37 It is also noticeable that as per prosecution case, after kidnapping on 11.10.2010 child was killed on 15.10.2010 and in between he was kept in Guest House, on a Bench of Railway Station and in ruins. It is not a case of prosecution that someone-else was also involved in commission of offence and therefore, during the time, when he met PW4 Kallu @ Pradeep, 7 years old child could not have been left alone. Therefore, offer by Gulfam alleged to be made to PW4 Kallu @ Pradeep appears to be concocted as it was not possible for Gulfam during that period to come to PW4 and to make such offer and in case, as can be drawn from the complaint and other material on record regarding making of calls on or after 27.10.2010, the child was alive on or before 27.10.2010, then also it is anti-thesis to the prosecution story and for that reason also, prosecution story is to be disbelieved.

38 Mobile No. 96390-28531 was found in the name of PW7 Gulzar but in his deposition in Court this witness has stated that he was using mobile SIM No. 9027145696 and he was declared hostile for resiling from his earlier statement and subjected to cross examination on request of learned Public Prosecutor. But in cross examination, he has categorically stated that he had not given SIM No.9639028531 to PW1 Noor Hasan against his photo identity. In his cross-examination, nothing in favour of prosecution could be elucidated.

39 According to prosecution case, in presence of witnesses PW9HC Chander Mohan and PW2 Mahboob Ali.Gulfam disclosed about shop from where he purchased the Kurkure and kidnapped Sahil. In his statement, PW2 Mahboob Ali has stated that he had put his signatures on disclosure statement as well as memorandum of identification on the same day at Chambaghat Solan. Whereas, prosecution case is that disclosure statement was made in Police Station and Identification Memo was prepared after identification of spot where Gulfam was also identified by PW3 Kesari owner of Rehri wherefrom allegedly Kurkure were purchased. It has come on record that distance between Police Station and spot is about 1 Km. Further claim of prosecution, that Gulfam was identified by seller of Kurkure, has also been demolished by PW3 Kesari stating in cross examination stating that when police brought the accused he told the police that he could not recognize the person who had purchased the packet of Kurkure as number of persons used to visit his Rehari daily and he could not recognize each and every customer, moreover in his absence, sometimes his mother and sister also used to sit on Rehari. According to him, signatures on memorandum Ext.PW2/C were obtained in Police Post. This fact is again contradicting the statement of PW2, because according to him, signatures were put at Chambaghat. It is also apt to notice that PW2 Mahboob Ali is also having Rehari of 'golgappa' adjacent to Rehari of PW3 Kesari and they are known to each other, but despite that, even in his examination-in-chief PW3 Kesari has stated that police had brought a person by disclosing that packet of Kurkure had been purchased by that person whereupon he (PW3 Kesari) had disclosed that the said person might have purchased some packet of Kurkure. He has identified the accused as a person brought by police but in cross-examination he has clearly stated that he had not identified the person as a purchaser of Kurkure. His complete deposition reflects that for disclosure by police that he had purchased the Kurkure, he had signed the memo. He has also not identified Gulfam as kidnapper of Sahil. Therefore, disclosure statement Ext.PW2/B and Identification Memo Ext.PW2/C are not of any help to prosecution.

40 PW13/H is disclosure statement regarding identification of Guest House, where Gulfam and Sahil allegedly stayed on 11th and 12th October, 2010. This disclosure statement has been witnessed by PW26 Mohammad Irphan and PW4 Kallu @ Pradeep. PW4 Kallu @ Pradeep in his deposition in Court is completely silent about this disclosure statement and no request has been made to declare him hostile or cross- examination or re-examination him in order to prove his deposition with regard to disclosure statement Ext.PW13/H. Identification memo Ext.PW10/A has been witnessed by owner of Guest House PW10 Sita Ram as well as PW26 Mohammad Irphan. In his deposition, PW10 Sita Ram has categorically stated that he had not maintained any register for entry of guests in the Guest House and it is one Sahjad who used to provide cots to persons for staying in Guest House during night and he did not know to whom Sehjad had given cots during that night. According to him, on 4.12.2010 a person brought by Himachal Police was identified by Sehjad as a person who had stayed in Guest House in his absence along with child and he has identified Gulfam in Court as same person who was identified by Sehjad. This witness is completely silent about identification of child alleged to be accompanied with Gulfam, whereas according to Investigating Officer PW27, he had shown photograph of Sahil to Sehjad and Sehjad, on the basis of said photograph, had identified Sahil with statement that child was also having school bag with him. But PW10 Sita Ram is completely silent about this fact. Further according to PW10 Sita Ram, Sehjad was a son of beggar, who used to come to work in Guest House occasionally and his mother, as and when used to go for begging, was leaving her son with him or other shopkeepers or businessmen as a helping hand and Sehjad was working for different period in different shops after short intervals.

41 Another disclosure statement Ext.PW13/A has been relied upon by prosecution against Gulfam which has been witnessed by PW13 Mahboob and PW26 Mohammad Irphan and identification of spots in furtherance thereto vide memos Ext.PW13/B, Ext.PW13/C, Ext.PW13/F and Ext.PW13/G have also been witnessed and signed by these witnesses. PW13 Mehbood (not PW2 Mehboob) is resident of village situated at 10 Km away from Muzaffarnagar. How and in what circumstances, he came to be associated in investigation is also mystery. According to him, he is in business of purchase and sale of trees and on 5.12.2010 he came to Muzaffarnagar on account of his personal work, where Himachal Police met him and associated during investigation. He has categorically stated that PW26 Mohammad Irphan was known to him. In cross-examination, he has stated that PW26 Mohammad Irphan is husband of sister of PW2 Mahboob Ali (father of child) and Irphan is known to him since long as they had relations as well as business relations. PW26 Irphan in cross examination has stated that he did not know that PW13 Mahboob is forest contractor. He has stated that house of PW13 is about 10 Km from Muzaffarnagar and he had no relations with him nor he had business relationship. He has also denied that PW13 was from his relations and he was having business relations with him.

42 The note-book of Sahil has also been claimed to have been recovered from spot, where child was killed and thrown in Nehar along with school bag and it was taken in possession vide memo Ext.PW13/D. This memo has been signed as a witness and identified by PW13 Mahboob, PW22 Constable Sanjeev Kumar and PW26 Mohammad Irphan. It is noticeable that all other memos, except Ext.PW13/C identification of spot of killing and throwing Sahil and Ext.PW13/D recovery of note-book of Sahil, have been witnessed by PW13 Mahboob and PW26 Mohammad Irphan, but PW13/C has been witnessed by PW22 Constable Sanjeev Kumar and PW26 Mohammad Irphan only and PW13 Mahboob has not been made witness to this memo. Whereas, Ext.PW13/D has been reflected to have been witnessed by PW13 Mahboob, PW22 Constable Sanjeev Kumar and PW26 Mohammad Irphan. It again creates doubt about veracity of investigation. Because when all memos were witnessed by PW13 Mahboob and PW26 Mohammad Irphan why PW13 was left out in Ext.PW13/C and PW22 Sanjeev Kumar was added as witness on Ext.PW13/D.

43 It is also apt to record that exercise book recovered after 51 days near the Nehar from a place open to the space and it kept lying on ground or in the bushes from 15.10.2010 till its recovery on 5.12.2010. As rightly noticed by the Trial Court, condition of this exercise book Ext.PW13/A does not depict even an iota of evidence of deterioration or damage caused to the note-book which remained lying in open for 51 days particularly when it has come in evidence that during that time, it also rained. Even in absence of rain in the winter, it is not possible that an exercise note-book lying in open will not be damaged even to minimum extent. Further it is also matter of fact that this exercise book was not a book to be used in the school but was an exercise book (rough copy) alleged to be used by child during his tutions after school hours during evening. There is great probability that this exercise note-book was not in the bag of child, and it was in bag, how it fell near the Nehar away from spot of throwing and remained unchanged. Therefore, this piece of evidence is also doubtful.

44 Though PW14 Nirmal Sharma, Class Teacher, PW15 Afsana mother of Sahil and PW17 Rajni have identified the hand writing of Sahil on note-book but PW16 Safina has categorically denied the prosecution case that this copy was purchased by her father from Tanya as scrape and was handed over by her to Sahil. Tanya has also expressed her ignorance about handing over the copy by scrap purchaser to her daughter Safina and in turn, handing over the said copy by Safina to Sahil. Even if this aspect is ignored and for identification of handwriting of Sahil by PW14 Nirmal Sharma, PW15 Afsana and PW17 Rajni, this copy is treated to have been proved as exercise book of Sahil, for discussion herein-above, the recovery of book has not been proved from spot by leading a credible evidence rather the circumstances and condition of exercise book create cloud on prosecution story that this exercise book was recovered from the spot where Sahil was killed and thrown in Nehar. We have also perused the note-book on record, there has not even a slightest damage to it. The condition of exercise note-book depicts that it is like a note-book taken out from bag, shelf or almirah.

45 PW13 has stated that during identification of spots at Muzaffarnagar, Gulfam was travelling with police in the police vehicle and both of them i.e. PW13 Mahboob and PW26 Mohammad Irphan were following the police vehicle on motorcycle. Whereas according to PW26 Mohammad Irphan, both of them along with police officials and Gulfam had visited the spots in police vehicle only. This fact and contradiction with respect to relation and appearance of PW13 as a witness to all memos creates doubt about prosecution story as claimed.

46 The respondent has benefit of being acquitted by the Trial Court fortifying the presumption of innocence in his favour. Learned Deputy Advocate General has not been able to pin point any cogent, reliable and convincing evidence to rebut the presumption or making out any ground for interference in judgment of acquittal for reversing the same.

Accordingly, the appeal is dismissed along with all pending miscellaneous application(s), if any. The bail bonds stand discharged. The record of Trial Court be also transmitted forthwith.