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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 11  OF 2013 [Arising out of Special Leave Petition (Crl.) No.1636 of 2012]

MD. FAIZAN AHMAD @ KALU … Appellant

Versus

THE STATE OF BIHAR … Respondent

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

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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

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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

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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

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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 to be  

acquitted.  Mr. Samir Ali Khan, counsel for the State of Bihar,  

on the other hand, supported the impugned judgment.  

7. Since learned counsel for the appellant has pitched his  

case very high and stated that there is no evidence against  

the appellant at all, we have carefully perused the evidence.  

In  the  complaint,  PW-11  Takki  Imam  stated  that  the  

appellant was employed in the telephone booth of his cousin  

PW-4 Nusrat Bano.   PW-4 Nusrat Bano removed him from  

service due to his bad conduct.  He further added that he  

has no enmity with anyone else except the appellant and,  

therefore,  he  suspects  that  the  appellant  must  be  behind  

this abduction.  Thus, the FIR is based only on suspicion.  In  

his evidence in the court, PW-11 Takki Imam reiterated the

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same story.  He stated that PW-4 Nusrat Bano had removed  

the appellant  from the job because of  his  activities.   The  

appellant  used to  come to  the  village and threaten  PW-1  

Ziauddin, husband of PW-4 Nusrat Bano and, therefore, he  

was  convinced  that  the  appellant  had  a  hand  in  the  

kidnapping.   He  stated  that  the  appellant  used  to  meet  

Naushad (A2) and Sultan (A3) but in the cross-examination,  

he  stated  that  he  could  not  tell  the  date  on  which  the  

appellant met Naushad (A2) and Sultan (A3). His evidence  

does not connect the appellant to the abduction at all.  

8. PW-1 Ziauddin supported PW-11 Takki Imam about the  

appellant being employed in the telephone booth of PW-4  

Nusrat Bano. He also stated that the appellant was removed  

from job because of his bad behaviour.  He described how  

the  appellant  used  to  get  drunk  and  threaten  them.   He  

stated that on the day of incident, the appellant was seen  

riding  a  bicycle  in  the  locality.   After  the  abduction  of  

children, a phone call was received in his house.  Someone  

said  on  the  phone  that  “your  child  has  been  kidnapped,  

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inform/talk to you later”.  He further stated that at 10.00 O’  

Clock,  another  call  was  received  saying  “you  all   

pester/disturb  Kalu  by  sending  police,  has  Master  Saheb   

come?” He then referred to the phone call received by him  

on  7/10/2002  at  12  O’  Clock  making  a  demand  of  

Rs.50,000/-.  After referring to the calls received by him, he  

referred  to  the  search  made by  him for  the  children  and  

stated that on 7/03/2003, the police arrested Dawood (A4)  

and  pursuant  to  the  statement  made  by  him,  the  police  

visited Sultan (A3) and Tabbasum Aara (A6)’s house.  The  

children  were  found  tied  with  chains  in  the  underground  

tunnel of the house of Tabbasum Aara (A6).  In the cross-

examination,  he  stated  that  the  appellant  worked  in  his  

booth  from  2001  to  2/1/2002.   He  paid  him  a  salary  of  

Rs.700/- per month.  He stated that the appellant fired at  

Iftikhar.   But,  he  added  that  Iftikhar  had  not  made  any  

complaint.  He stated that the appellant had got drunk, eight  

days  prior  to  the  date  on  which  he  had  sent  him out  of  

employment.  He added that he was not aware of any case  

registered against the appellant.  He stated that he has not

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made  any  complaint  about  the  threats  given  by  the  

appellant.   He  clarified  that  the  telephone  call  was  

anonymous.   He stated that  he had seen Tabbasum Aara  

(A6)  visiting  the  appellant’s  house,  but  he  could  tell  the  

exact time and date.  Thus, the evidence of this witness does  

not, in any way, involve the appellant in the abduction of the  

children. It appears that this witness also suspected that the  

appellant was behind the abduction.   

9. PW-4  Nusrat  Bano  confirmed  that  the  appellant  was  

employed in her telephone booth and she had removed him  

from the job because he used to get drunk and his conduct  

was not  good.   According to her,  Nushad (A2)  and Sultan  

(A3) used to visit the booth.  In the cross-examination, she  

reiterated  the same story.   She stated  that  they  had not  

complained about the threats given by the appellant.  It is  

difficult to connect the accused with the abduction on the  

basis of the evidence of this witness.    

10.  It  is  now necessary  to  go  to  the  evidence of  three  

children, who were abducted.  All the three children stated

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that Chanda, daughter of Tabbasum Aara (A6) had come to  

call  them and that they were given laddoos to eat at her  

house.  They described how Tabbasum Aara (A6) took them  

to the tunnel and how chains were put on their feet.  They  

stated  that  they  were  beaten  up  and  burnt  with  candle.  

They stated that they were given salt and bread to eat. PW-5  

Sazia stated that during five months and three days, when  

they were in the tunnel, Tabbasum Aara (A6) used to beat  

them.  She stated that Naushad (A2), Sultan (A3), Daud (A4)  

and Shahini (A5) used to come there. PW-6 Shirri also gave  

the gory details of the children’s confinement in the tunnel.  

She stated  that  Dawood (A4)  and an  old  woman used to  

come  there.   After  narrating  similar  details,  PW-7  Rehan  

stated  that  Tabbasum Aara  (A6)  and Sultan  (A3)  used  to  

come to meet them.  Thus, none of the children stated that  

the appellant used to visit them.  It is pertinent to note that  

PW-1 Ziauddin stated that the appellant was working in his  

telephone booth and was familiar with his children.  Since  

the appellant was known to PW-6 Shirri and PW-7 Rehan -  

the children of PW-1 Ziauddin, they would have referred to

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him if he had visited them.  PW-11 Takki Imam stated that  

he had seen the appellant riding a bicycle in the locality on  

the day of incident.  None of the witnesses have claimed that  

they had seen the appellant on that day nearby the house of  

the  prosecution  witnesses.   In  any  case,  on  the  mere  

statement made by PW-11 Takki Imam that he had seen the  

appellant  riding a bicycle,  it  cannot be concluded that  he  

was involved in the abduction of children.  PW-1 Ziauddin  

stated that the anonymous caller  told him that they were  

harassing the appellant.  The investigating agency has not  

traced  the  calls.   The  callers  have  not  been  identified.  

Therefore,  merely  on  the  basis  of  the  said  call,  the  

appellant’s  involvement  cannot  be  held  proved.   The  

material witnesses have expressed suspicion but there is not  

a single credible piece of evidence linking the appellant to  

the crime in question.  We have no manner of doubt that the  

offence is grave; 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  with  a  firm  hand,  but  the

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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, therefore, erred in convicting the  

appellant.   

11. We are distressed to  note that  by affirming the  trial  

court’s  order,  the  High  Court  has  compounded  the  error.  

The circumstances which the High Court has taken against  

the  appellant  are:   (a)  the  fact  that  the  appellant  was  

employed in the telephone booth of PW-4 Nusrat Bano; (b)  

that  he  was  removed  from  the  service  due  to  his  

misconduct; (c) that he used to give threats and claim his  

dues from  PW-4 Nusrat Bano and her husband; (d) that on  

the day of incident he was seen in the locality; and (e) that  

after  the  incident  telephone  call  was  received  by  the  

prosecution  witnesses  warning  them  not  to  harass  the  

appellant.  According to the High Court all this indicates a  

well  conceived  plan  with  role  assigned  to  everyone.   We  

have already noted that except PW-11 Takki Imam nobody  

has said that the appellant was seen in the locality on the

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day  of  incident.   That  he  was  employed  in  PW-4  Nusrat  

Bano’s telephone booth and was removed from the service  

because of his bad conduct appears to be true.  But, even if  

the story  that  he used to  give threats  to  the prosecution  

witnesses  and  demand  his  dues  is  accepted,  it  does  not  

further the prosecution case.  There is no evidence on record  

to establish that infuriated by his removal from service and  

non-payment of dues, the appellant masterminded the plot  

to abduct the children or played any active role in abducting  

them.   If  a  telephone  call  was  received  making  ransom  

demand and making grievance about alleged ill-treatment of  

the appellant,  the police should have traced the calls and  

identified  the  caller.   The  police  have  failed  to  do  so.  

Criminal  courts  recognize only  legally  admissible  evidence  

and  not  farfetched  conjectures  and  surmises.   The  High  

Court’s observation that there was a pre-conceived plan  to  

abduct the children would not be applicable to the appellant  

because  there  is  nothing  on  record  to  establish  that  the  

appellant  met  the  co-accused  and  planned  a  strategy  to  

abduct the children and demand ransom.  His case stands on

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a different footing from that of the other accused.  The case  

of the other accused will have to be dealt with on its own  

merit.   The  High  Court  was  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.  If a criminal  

court  allows its  mind to  be swayed by the gravity  of  the  

offence and proceeds to hand out punishment on that basis,  

in the absence of any credible evidence, it would be doing  

great violence to the basic tenets of criminal jurisprudence.  

We hope and trust that this is just an aberration.   

12.  In the result,  we allow the appeal and set aside the  

impugned order.   The appellant – Md. Faizan Ahmad @ Kalu  

is ordered to be released forthwith, if he is not required in  

any other case.  

13. The appeal is disposed of in the afore-stated terms.  

……………………………………………..J.     (AFTAB ALAM)

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……………………………………………..J. (RANJANA PRAKASH DESAI)

NEW DELHI JANUARY 3, 2013