Calcutta High Court (Appellete Side)
Noor Mohammed @ Shahbaz @ Sikender & Ors vs State Of West Bengal on 27 March, 2025
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT OF CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Debangsu Basak
and
The Hon'ble Justice Md. Shabbar Rashidi
CRA No. 144 of 2018
Noor Mohammed @ Shahbaz @ Sikender & Ors.
Vs.
State of West Bengal
With
CRA No. 143 of 2018
Ishaq Ahmed @ Dilshad @ Jaheer @ Hasan @ Musha & Ors.
Vs.
State of West Bengal
With
CRA No. 476 of 2018
Mujammel Sk. @ Akram @ Akka
Vs.
State of West Bengal
2
For the appellant nos. 1& 2
in CRA 144 of 2018 : Mr. Muzahid Ahmed, Adv.
For the appellant
in CRA 476 of 2018 : Mr. Sahid Uddin Ahmed, Adv.
For the appellant no. 4
in CRA 144 of 2018 : Kallol Mondal, Ld. Sr. Adv.,
Amicus Curiae
: Krishan Ray, Adv.
: Souvik Das, Adv.
: Mr. Anamitra Banerjee, Adv.
For the appellant no. 1
in CRA No143 of 2018 : Mr. Masum Ali Sardar, Adv.
For the appellant nos. 2
& 3 in CRA 143 of 2018 : Mr. Krishan Ray, Adv.
Amicus Curiae
: Mr. Sekhar Mukherjee. Adv.
: Mr. Anindya Chowdhury, Adv.
: Mr. Subhajit Mukherjee, Adv.
: Ms. Isita Kundu, Adv.
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For the State : Mr. Saswata Gopal Mukherjee, Ld.
Sr. Advocate, Special P.P.
: Mr. Neguive Ahmed, Adv.
: Mr. Madhusudan Sur, Adv.
: Mr. Dipankar Paramanick, Adv.
Heard on : January 16, 2025
Judgment on : March 27, 2025
Md. Shabbar Rashidi, J.:
1. These three appeals are in assailment of judgment of
conviction dated December 8, 2017 and order of sentence dated
December 12, 2017 passed in Sessions Trial No. 14 (10) of 2012
corresponding to Sessions Case No. 65 (01) of 2003.
2. By the impugned judgment and order, the appellants
were convicted for the offences punishable under Sections
364A/342/120B of the Indian Penal Code, 1860. All the eight
appellants were sentenced to undergo imprisonment for life and
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fine of ₹. 3, 00, 000/- (Three lakh) each, and in default of
payment of fine, the appellants were to undergo simple
imprisonment for two years each, for the offence punishable
under Section 364A/120B of the Indian Penal Code. The
appellants were also sentenced to undergo imprisonment for one
year each, for the offence punishable under Section 342/120B of
the Indian Penal Code.
3. One Partha Pratim Roy Burman, on July 25, 2001 at
10.00 am, one of the Directors of Khadim Goup of companies, left
his house for his factory at Kasba Industrial Estate, by his TATA
Safari vehicle bearing Registration No. WB-02K/4706 being
driven by the driver Naba Kumar Mondal. After staying there for
15/20 minutes, he left for his godown at 37, Topsia Road. On
way to the godown, when the he reached near a mosque at C.N.
Roy Road at about 11.30 am, the vehicle of said Partha Pratim
Roy Burman was intercepted by a Maruti-800 vehicle. Two armed
miscreants accompanied by some 2/3 other miscreants, came
out of the said Maruti vehicle and hit on the front and right side
window of the TATA Safari. Thereafter, the aforesaid miscreants
forcibly dragged Partha Pratim Roy Burman outside his vehicle
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and took him in to the Maruti-800 vehicle and fled away taking
him along. The miscreants are said to be talking in Hindi.
4. Following the incident, the driver of the vehicle of Partha
Pratim Roy Burman, namely Naba Kumar Mondal, first, went to
Parama Police Investigation Centre and thereafter went to the
house of Partha Pratim Roy Burman. A written complaint was
lodge with Tiljala Police Station by Sidhartha Roy Burman,
brother of the victim.
5. On the basis of such written complaint, Tiljala Police
Station Case No. 223 dated July 25, 2001 under Section
364A/307/341/120B of the Indian Penal Code and 25/27 of the
Arms Act was started. The police took up investigation and on
completion thereof, submitted chargesheet against 35 accused
persons under Section 364A/307/236/379/411/341/120B of
the Indian Penal Code. The case was committed to the court of
Sessions after taking cognizance of the offences.
6. However, the present appellants absconded the trial for
which trial was split up and in the first phase was taken up
against 22 accused persons. The present appellants were later
brought to book and stood trial. Charges under Section
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364A/342/120B of the Indian Penal Code were framed against
the appellants herein to which, the appellants pleaded not guilty
and claimed to be tried.
7. In order to establish the charges against the present
appellants, prosecution examined as many as 68 witnesses in all.
In addition, prosecution also relied upon several documentary
evidences, which were admitted in evidence at the trial and
marked as Exhibits.
8. The owner of the flat being 21/B Gorachand Lane,
Kolkata, deposed as PW1. He stated that the building where the
said flat was situated belonged to his father who died in 2010. In
March 2001 one flat on the top floor was lying vacant. There was
advertisement published for letting out the flat. Mahmood
Hassan had a talk with PW1 and his father and agreed to take
the flat on rent. As agreed he deposited ₹. 50,000/- as security
deposit and took possession of the flat. He kept his belongings in
the flat; however, he was personally not residing therein. One
Bablu and Ansar used to reside there on behalf of Mahmood
Hassan. Their guests used to visit the flat. PW1 also stated that
in the end of 2001, police brought Mahmood Hassan to the
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rented flat. He was not having the keys for which the padlock
had to be broken in presence of PW1, his father and other local
people. Mahmood Hassan identified the articles kept in the said
flat which were seized by the police. PW1 proved his signature
and that of his father on the seizure list and labels attached to
the seized articles. The amount of security money was also
returned to Mahmood Hassan which was also seized. PW1 also
identified the seized article. He identified the two accused Bablu
and Ansar in dock.
9. A Taxi driver was examined as PW2. He stated that on
July 25, 2001, while he was waiting for passengers at the
42/42A bus stand facing bypass, a middle aged man came
running to his taxi and asked PW2 to take him to Salt Lake. On
his way, the said passenger asked for the nearest police station
and asked PW2 to take him to the police station. PW2 took him
to Parama police station. He entered the police station and after
sometimes he came out and asked PW2 to take him to Salt Lake.
The passenger disclosed his name as Naba Kumar Mondal. He
told PW2 that he was the driver of Khadim Shoe Company and
that some 4-5 persons abducted the owner of Khadim Shoe
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Company from his car to another vehicle. Thereafter, PW2 left the
said Naba Kumar Mondal at the house of employer.
10. Another taxi driver deposed as PW3. He stated that on
August 2, 2001 at about 2 pm, he was standing with his taxi at a
tea stall at Nager Bazar, Kazipara. At that time, one person came
there by a rickshaw and asked PW3 to take him to his
destination. On being agreed, the said person asked for ₹. 2/- to
pay to the rickshaw puller. PW3 provided him ₹. 10/- whereupon,
the said person paid to the rickshaw puller and boarded the taxi
and asked PW3 to take him to salt lake. The said person was tall
with fair complexion and was having bandage on his left hand.
PW3 left the said person at his house at Salt Lake. He entered
into his house. Thereafter, one person came out of the house and
paid him the taxi fare. PW3 also stated that there were so many
persons assembled at the house of his passenger. From the
assembled crowd and the reporters, PW3 came to know that the
passenger he left at Salt Lake, was Partha Roy Burman, the
proprietor of Khadim shoe company.
11. PW4 is a chance witness. He stated that on July 25,
2001, he was at a tea stall at C. N. Roy Road and saw a Maruti-
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800 car standing at such place facing bypass. He however, could
not remember the registration number of said vehicle. PW4
further stated that he saw TATA Safari which was coming from
by-pass end was blocked in front of Maruti car and some 3-4
persons forcibly dragged a gentleman from TATA Safari and took
him into the Maruti car. They fled away towards by-pass. The
driver of TATA Safari fled away after the incident, leaving his
vehicle. PW4 however, denied knowing Sona, Nausad and Chunu
Mian of his locality. The witness was declared hostile and in his
cross examination by the prosecution, he denied having made
any statement before police to the effect that the 3-4 miscreants
who committed the incident were talking to Sona, Nausad and
Chunu Mian of his locality and that the miscreants committed
the offence at the instigation of said Sona, Nausad and Chunu
Mian of his locality. PW4 later came to know that the person,
who was abducted, was the proprietor of Khadim Shoe Company.
He also stated that he was not able to identify the miscreants.
12. The van-rickshaw puller was examined as PW5. He
stated that in the month of Sraban 2001, on a Thursday at about
1.30/2 pm, he was standing near a club at Arjunpur. He saw a
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blue colour Maruti Van coming from the side of V.I.P Road. A tall
man with fair complexion, wearing white pajama-punjabi and
having bandage on his left hand got off the Maruti Van. PW5 left
the said person at Nager Bazar, Kazipara more. A yellow color
taxi was standing there. The passenger called the taxi driver and
asked him to pay off the van-rickshaw fare. He paid ₹. 10/- and
PW5 returned the change. Later, he came to know that the
person he carried by his van-rickshaw was Partha Roy Burman,
the proprietor of Khadim Shoe Company. PW5 however, could
not remember the registration number of the blue Maruti Van.
13. A local resident deposed as PW6. He stated that he used
to work as a labourer. On November 24, 2001 while he was
returning to Kheyada Bazar Road after finishing his job, he saw a
vehicle standing at a distance. He went there and found two
persons tied with ropes. They got down from the car with other
persons. PW6 was informed that there was going to be a search
and he was requested to be a witness. The persons tied with the
ropes searched out a green color sheet smeared with mud and
water. A seizure list was prepared to which PW6 put his
signature. PW6 identified his signature on the seizure list as well
11
as label attached to the seized sheet. He also identified the
recovered sheet. He identified the person at whose instance, the
sheet was recovered as Arsad Khan.
14. PW7 did not add any value to the prosecution case.
Defense declined to cross examine such witness.
15. PW8 is another seizure list witness. He testified the
recovery of two number plates of the vehicle from the canal as
shown by two persons tied with ropes. He put his Thumb
Impression on the seizure list. He identified the recovered
number plates in court.
16. PW9 is an employee of a garment shop. He stated that on
July 25, 2001 at about 1.00/1.30 p.m. one person speaking
Hindi, came to his shop and purchased a shirt. He also saw a
bare bodied person inside a white color car standing near his
shop. The person who purchased the shirt, later, drove away the
car. PW9 identified the shirt purchased from his shop and the
bare bodied person was identified as Arsad Khan in court.
17. A motor mechanic who used to work in Pal Automobiles
at 92, Raja S.C. Mallick Road deposed as PW10. He stated that
on July 25, 2001 at mid-day, while he was at the garage, one
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person came with a Maruti 800 and got a damaged backlight
changed. PW10 also saw another person sitting inside the car
who gave him ₹. 30/- He identified Noor Mohammed as the
person sitting inside the car.
18. A relative of convict Mizanur Rahman was examined as
PW11. He stated that he, accompanied by one Ali Hossain
introduced Mizanur Rahman to one Rafiquddin who was the
owner of a house at village Pakuria. He was told that a
businessman from Kolkata wanted to purchase the building for
business. However, PW11 later came to know that Mizanur
Rahman purchased the said house for business purpose. He
identified Mizanur Rahman in court.
19. The said companion of PW 11, namely Ali Hossain
deposed as PW12. He however, did not add any value to the case
of the prosecution.
20. A resident of Khan para deposed as PW13. He stated that
on July 4, 2001 he was called upon by one of his relatives
namely Rafiquddin at his house. There he was introduced with
two persons namely Mizanur Rahman and Jamil Hassan. He was
informed that Rafiquddin was selling his house, which, Jamil
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and the boss of Mizanur Rahman named Mehmood Hassan
agreed to purchase. Part payment of the consideration was made
on that day and PW13 scribed an agreement to such effect in
their presence according to the instructions of Rafiquddin and it
was signed by him. Mizanur Rahman and Jamil Hassan took the
deed to get the signature of Mehmood Hassan thereon.
Thereafter, the key of the house was handed over by Rafiquddin
to Mizanur Rahman and Jamil Hassan and they took possession
of the house. The purchasers carried out certain renovation work
in the house after such purchase and at that time, PW13 was
introduced by Rafiquddin with Mehmood Hassan.
21. PW13 further stated that on July 25, 2001, while he was
standing near a mosque, he saw a white Maruti car bearing
Regn. No. 8771 came to the said house and after the afternoon
prayers, the said car left the house, Mehmood Hassan and some
other persons sitting therein. On November 6, 2001, PW13 found
the said house surrounded by police and Mehmood Hassan was
arrested. They entered into the house by breaking open the lock.
After sometimes police left the house with Mehmood. At the
request of police, PW13 and one Julfikar accompanied the police
14
to the house of Mizanur. He was not present then. Police made a
search and found the stamp paper containing the agreement for
purchase of the house which was seized by police. PW13 signed
on such seizure list. PW13 identified the agreement as well as his
signature on the seizure list. He also stated that on November 24,
2001, police recovered some syringe, injection, saline tube and
bottles and some hairs, digging earth, as shown by Mehmood
Hassan from a portion of the house sold by Rafiquddin. PW13
identified his signatures on the seizure list to that effect. He also
accompanied Rafiquddin and Julfikarand one Ruhul Kuddus to
Bhawani Bhawan at the time of delivering the deed of the house
and the earnest money as well as the money handed for
purchase of motorcycle to the police. He proved his signature on
the seizure lists and on the labels attached to seized articles. He
also identified the seized articles. PW13 identified Mizanur
Rahman in court.
22. A teacher and brother-in-law of Mizanur Rahman, was
examined as PW14. He stated that in April 2001 he came to
know that Mizanur Rahman got a good assignment for which his
income increased. Mizanur Rahman purchased a motorcycle
15
belonging to PW14 for ₹. 28, 000/- in August 2001. Later, PW14
also came to know that Mizanur Rahman was involved in the
abduction of the owner of Khadim Company. He also got a boat
prepared. In November 2001, PW14 was asked by CID to deposit
the money he received from Mizanur Rahman which was seized
under a seizure list. He proved his signature on the seizure list.
23. A villager was examined as PW15. He stated that Mizanur
Rahman used to run a radio repairing shop. On his query, he
was reported by Mizanur Rahman that he had earned an
assignment for which his shop used to remain closed. PW15 also
stated that he saw Mizanur Rahman getting a boat prepared by
engaging persons in September 2001. In November 2001 police
conducted raid at the house of Mizanur Rahman. Thereafter, he
heard that Mizanur Rahman was an accused in the abduction
case of the owner of Khadim Company. He showed the boat to
police and identified his signature on the seizure list. He
identified Mizanur Rahman in court.
24. A resident of village Pakuria deposed as PW16. He is a
seizure list witness. He stated to be witness to the articles seized
from the house of Rafiquddin along with other witnesses. He
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identified his signatures on the seizure list as well as labels
attached to the seized articles.
25. PW 17 is another seizure list witness. He was present
when the house of Rafique Khan was searched and several
articles were seized by the police. He proved his signature on the
seizure list as well as the labels attached to the seized articles.
26. PW 18 did not add any value to the case of the
prosecution. He stated that he did not know anybody name Sohel
Ahmed.
27. PW 19 stated that in July 2001 at about 10 AM, some
persons visited the house of Rafique. Rafique informed PW 19
that he had sold his house to a businessman from Calcutta. He
was also informed that one Mizanur Rahman was the mediator.
He also stated that in the next week, at the request of Mizanur
Rahman, he left him and two other persons to Maltipur by his
motor van. At the request of Mizanur Rahman, he again left him
along with four unknown persons to the house of Rafique in the
evening at about 7 PM. PW 19 also stated that on his way, he
became acquainted with the said unknown persons who were
Akram, Aslam, Naim, Dilsad, Mahmud Hassan, Zamir Hassan,
17
Khalid, Akib, Omar Moulana and many others. PW 19 also stated
that in November 2001, police conducted raid at the house of
Rafique led by Mahmoud Hassan and at the house of Mizanur
Rahman. He further stated that he along with others signed on
the seizure list through which several articles were seized by
police. He also stated that he was informed by Rafique that the
persons, whom, PW 19 carried through his motor van, were
involved in the abduction of the owner of Khadim Shoe Company.
PW 19 also stated to have identified Noor Mohammad @Shahbaz
in the TI Parade. He also identified him in court. Besides, he
identified Mizanur Rahman, Akram, Naim, Dilsad and Arsad. PW
19 also proved his signature on the seizure list and label
attached to the seized articles.
28. Brother-in-law of the victim deposed as PW20. This
witness was declared hostile by the prosecution. He stated that
his brother-in-law Partha Ray Burman went missing on July 25,
2001. In his cross examination on behalf of the prosecution,
PW20 denied having made any statement before police on August
2, 2001. He however, admitted having visited Hyderabad and
returned therefrom. He denied having paid any money to hawlah
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operator but stated that the victim returned by a taxi on August
2, 2001.
29. One medical officer deposed as PW21. He collected blood
samples of the victim Partha Roy Burman in 2002 at the
instructions of Chief Medical Officer of Health. He proved the
signatures on blood donor card.
30. One nephew of the victim was examined as PW22. He
stated that he was an employee of Khadim Shoe Company in the
year 2001. The victim Partha Roy Burman and his brother were
then directors of the company. The company had its godown at
Topsia and the manufacturing unit was situated at Kasba. He
also stated to have heard that on July 25, 2001, Partha Roy
Burman went missing. This witness was also declared hostile by
the prosecution and in his cross examination; he denied having
made any statement before the police.
31. The de facto complainant deposed as PW23. He stated
that he along with his brother Partha Roy Burman were the
directors of Khadim Shoe Company. He however, stated that
between July 25, 2001 and August 2, 2001, his brother was
missing while he was on his usual visit to the office. He further
19
stated that he came to know from newspaper reporting that his
brother was abducted by some persons. He denied having
received any call from Dubai over his residential telephone. This
witness as well, was declared hostile by the prosecution. In his
cross examination on behalf of the prosecution, he denied having
made any statement before police. Having also denied having
stated before police that he had talks regarding ransom with a
Hindi speaking person at Dubai and that ransom was paid.
PW23 proved the written complaint.
32. He however, could not identify the mobile phone alleged
to be seized from him or his voice recorded in a cassette. He also
failed to identify his conversation recorded in cassettes and
played in court. PW23 also stated that he came to know later
that his victim brother had bullet injury on his hand and he
received such injury when he was taken by some people. He
heard that his brother returned home by a taxi.
33. A cousin brother of the victim Partha Roy Burman was
examined as PW24. He stated that his cousin brothers Partha
Roy Burman and Sidhartha Roy Burman were directors of
Khadim Shoe Company in 2001. He used work in the said
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company. He also stated that as per his knowledge, Partha Roy
Burman went missing on July 25, 2001 while on his way to office
and he heard that some persons took away Partha Roy Burman.
PW24 was also declared hostile by the prosecution and he denied
having made any statement before police on July 31, 2001. He
however, could not remember if he stated in his statement
recorded in court that he might have stated to police that 4/5
miscreants took away Partha Roy Burman on July 25, 2001
detaining his car at C. N. Roy Road.
34. An employee of Khadim Shoe Company deposed as
PW25. He stated that Partha Roy Burman was one of the
company’s directors. The said Partha Roy Burman went missing
on a day in July 2001. He could not identify his signature on the
seizure list dated July 31, 2001. He however, could not
remember if he made any statement before police to the effect
that Partha Roy Burman was kidnapped by some miscreants on
July 25, 2001 and that one Raju from Dubai made a ransom call
or that a cassette containing recorded voice of Partha Roy
Burman was recovered from toilet of Hind Cinema. He failed to
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identify his signature on the seizure lists by which the cassettes
and mobile phone were seized by police.
35. The victim Partha Roy Burman deposed as PW26. He
stated that on July 25, 2001 he was moving to the company’s
godown at Topsia from factory at Topsia in his car driven by
Naba. When he was at C. N. Roy Road near a bus stand,
suddenly his way was blocked by a vehicle. Some 2/3 armed
persons tried to drag him out of his car. When he instructed his
driver to move, the front glass of his car was broken with
something thrown. He also heard firing sound and both his
hands sustained bleeding injuries. Thereafter, he said that he
had injury on his left hand. Soon after, he was dragged out of his
car and placed in the rear seat of the vehicle standing in front of
his car and black spectacles were placed on his eyes. He was
given to drink something and thereafter lost his senses.
Regaining senses, PW26 found himself in a dark room. He used
to be provided with bottle and pot for urination and latrine. He
was under regular medical checkup and provided with saline. He
was provided with a helper with the help of whom PW26 changed
his wearing apparel as his hand was injured.
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36. PW26 also stated that one day he was taken with black
spectacles and left at a place wherefrom he took a rickshaw and
came to Jessore Road. Therefrom, he took a taxi for Salt Lake.
The taxi driver paid the rickshaw fare at his request. After
reaching his house, taxi driver was paid with the taxi fare by the
gate keeper. He was under treatment at Woodland Nursing Home
between August 2, 2001 and August 15, 2001. He however, could
not remember if any message was recorded in a cassette during
his captivity. PW26 was declared hostile by the prosecution.
37. PW26 though, could not remember if he gave several
statements before the police regarding the ransom money and
recording of certain private answers to questions in order to
confirm his captivity with the convicts but he confirmed making
statement before police. He proved his signature on the blood
donor card. He failed to identify the water bottle, spectacles etc.
PW26 stated that he could not identify the persons involved in
his abduction or the persons who were present during his
captivity.
38. A medical officer from Woodland Multi Specialty Hospital
deposed as PW27. He stated that one Partha Roy Burman was
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admitted in the hospital with gunshot injuries on his hands on
August 2, 2001 and was discharged on August 15, 2001. He
proved the medical treatment documents prepared in his pen.
39. An officer of police deposed as PW28. He stated that on
July 26, 2001 he was asked by Inspector of police M. A. Rasid to
perform duties with Sub-Inspector Firoz Hossain. He was also
provided with eight telephone numbers with a direction to
intercept calls and note the conversations with relevant GD
entries in this regard. He accordingly performed the duty
between July 26, 2001 and July 31, 2001 and recorded GD
Entries. He proved the said GDEs. As directed, PW28 also
verified the ownership of a vehicle from the motor vehicle
department and submitted his report. He also stated that the
investigation officer received two cassettes from one Tapan Babu.
He proved his signature on such seizure list. Some emails were
recovered from a computer as per the user identification and
passwords provided by convict Asif Reza Khan and Akib Ali
which were also seized under seizure lists. One FAX message
received from Central Bureau of Investigation was also seized
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under a seizure list. PW28 proved his signature on such seizure
lists.
40. Another police officer was examined as PW29. He stated
that he was a member of Special Investigation Team in
connection with Tiljala Police Station Case No. 223 dated July
25, 2001. As directed by the investigating officer of the case, he
started monitoring of five mobile and two landline numbers. He
recorded the conversations in cassettes and lodge necessary
GDEs in this regard. He proved the seizure lists by which the
cassettes and the GDEs were seized. He also sent the cassettes to
Forensic Science Laboratory and received the report thereof.
PW29 also stated that he recorded statements of several
witnesses. He also proved the seizure lists, through which,
visiting card and documents from motor vehicles department
were seized.
41. A wireless operator Assistant Sub-Inspector of Police
deposed as PW30. He stated that in August 2001, he was
attached to Computer Section of CID, Bhawani Bhawan. While
working as such, at the request of investigating officer of the
case, he took out printout of some email messages from the email
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id of accused Asif Reza Khan, Akib Ali Khan and Aslam Khan
which were seized under proper seizure lists. He proved his
signatures in the seizure lists as well as the printout of the email
messages and also identified the accused in court.
42. One Noor Ahmad Molla deposed as PW31. He stated that
in the year 2000 he was a vegetable seller. One of his neighbours
Jalal Molla @ Omar Bhai told him that one of his friends had
Shoe Company at Kolkata and he would arrange one job in the
said factory. A few days later, Omar Bhai took him to Park Circus
and introduced him with one Mirza Bhai who told him that he
was not getting a house. PW31 also stated that after 3/4 months,
Omar Bhai again took him to Park Circus station. There he went
to meet with Mirza Bhai at the top floor of a building at 21 B,
Gorachand Lane. There he met one Abdullah. There were shoe
boxes on the table. Thereafter, PW31 was engaged by Omar Bhai
for cooking for the persons visiting the house at a remuneration
of ₹. 1500/- per month. Besides PW31, one Abdus Salam was
also kept in the said house for cooking purpose.
43. PW31 also stated that some 20/25 persons used to come
into the house, stay there for some time and then used to go
26
away. They used to talk regarding abduction of proprietor of
Khadim Shoe Company and about his release getting ransom.
They also talked that for the purpose of abduction, they needed a
room, vehicle and arms. PW 31 informed the same to Omar Bhai
whereupon, he told him not to divulge it to anyone and to do his
job. He identified the persons visiting that house as Asif Reza
Khan, Abdullah, Sikandar, Mansur, Shahjahan, Shahbaz,
Akram, Naim, Aslam, Dilsad, Abdur Rahman, Akib Ali, Happy
Singh, Abdul Khalek and many others.
44. He further stated that on July 23, 2001 at about 9/10 in
the morning, there was a large scale meeting in the said room.
Asif Reza Khan allotted the duties to everyone. He instructed
Akram, Sikandar, Mansur, Shahjahan and Omar Bhai that
proprietor of Khadim Shoe Company would be kept in Bhut
Bunglow at Haroa. Mirza Bhai instructed Shahbaz, Aslam,
Maruf, and Abu Ubaida for abduction of Khadim proprietor from
C. N. Road. Thereafter, all the persons left the room. PW31 also
stated that on July 24, 2001, few of them and some others again
met in the room at 10/11 a.m. and discussed and thereafter left.
On July 25, 2001 Abdullah alone came to the room in the night.
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On the following day i.e. July 26, 2001 two persons came to the
room in search of Abdullah and Mirza Bhai but they were not
present. Abdullah alone came back in the night and asked for
some food. Thereafter Abdullah told PW31 that since no one was
coming, he would return to his house. In the following morning
PW31 returned to his house.
45. PW31 further stated that after 8/9 days Omar Bhai came
to his house. PW31 asked for some money from him which he
promised to give on the following day. They, however, did not
meet thereafter. After 9/10 months, police visited the house of
PW31 and arrested him. He recorded his statements before police
as well as before Magistrate. He proved his signatures thereon.
PW31 identified Shahjahan, Shahbaz, Akram, Naim, Dilsad and
Aslam who disclosed their names as Mizanur Rahman, Noor
Mohammed, Muzammel Sk. Tarique Mahmood, Isaq Ahmed and
Arsad Khan respectively. He however, could not identify Akhtar
Hossain as the person who was present in the meetings.
46. PW32 is the other person engaged as cooking aid besides
PW31. He stated that in 2001 he used to impart private tuition.
One Jalal Molla used to teach in Madrasa. In June 2001, Jalal
28
Molla offered him to work as a cook for a remuneration of ₹.
1500/- p.m. to which PW32 agreed. Jalal Molla took him to the
top floor of a five storied building at 21B, Gorachand Lane, Park
Circus and introduced him with Mirza Bhai @ Asif Reza Khan. He
found another person Noor Ahmed Molla working as cook. He
further stated that some 25/30 persons used to come and stay in
the flat. The names of such persons, PW32 came to know as
Shahbaz, Aslam, Mozammel, Mizanur, Dilsad, Naim, Khalek,
Abdullah, Sadakat, Farasat, Safique, Amir Reza and many
others.
47. PW32 also stated that the aforesaid persons used to talk
regarding abduction of Khadim Karta for ransom. On July 23,
2001 at about 11 a.m. there was a meeting in the said room.
Mirza Bhai gave instructions regarding their duties in the
abduction of Khadim Karta. He further stated that it was
discussed in the meeting that after abduction, Partha Roy
Burman would be kept in Bhoot Bunglow guarded by Muzammel,
Mizanur, Sekender, Moulana Mansur, Moulana Jalal. Naim and
Dilsad were given the duty of collecting people. Aslam, Shahbaz
and Marup were directed by Mirza Bhai to abduct Khadim Karta.
29
Zahid was to perform the duties of driver. Mirza Bhai directed
Safiq to keep watch on the road where abduction was to be
performed. Akhtar was to supply arms from Haryana through
Farasat.PW32 also stated that the persons who were to guard the
Bhoot Bunglow left the flat in the same night.
48. PW32 also stated that after the meeting, he along with
Abdullah, Noor Ahmed and Mirza Bhai remained in the flat. On
the same day at about 7 p.m. Farasat came with the arms and
vehicle. PW32 got scared seeing the arms. He reported it to Mirza
Bhai whereupon, he was threatened. On July 24, 2001 all the
persons except those having duties at Bhoot Bunglow again
assembled in the flat. Their duties were reiterated and thereafter
they left leaving PW32 and PW31. PW32 then fled away. He
further stated that after 15/20 days Abdullah came to his village
to meet Jalal. He came to know that the abduction was carried
out successfully. Khadim karta was released on payment of 3
Crore 75 Lakh. A sum of 1 Crore 25 Lakh remained due. Jalal
threatened PW32 not to discuss the incident with anyone. PW32
also stated that subsequently, he came to know that Noor Ahmed
Molla and Jalal Molla were arrested. PW32 approached the police
30
and thereafter, recorded his statement. He was also called for
test identification parade where he identified Shahbaz. PW32 also
identified the accused Mizanur, Mozammel, Shahbaz, Dilsad,
Naim and Aslam in court, who stated their name as Mizanur
Rahman, Mozammel Sk. Noor Mohammed, Isaq Ahmed, Tariq
Mehmood and Arsad Khan respectively.
49. One accused Bablu Zafar @ Sekender was examined as
PW33. He stated that in the year 2001 he used to reside at 26,
Mafizul Islam Lane. Arif Reza Khan was his childhood friend and
used to reside at Mafizul Islam Lane. He further stated that Asif
Reza Khan proposed him for a big job but he did not agree. After
few days PW33 came to know that Asif Reza Khan was arrested
and was taken to Delhi. After 5/6 years Asif Reza Khan returned
from Delhi and told him for a big job to be performed by both of
them. PW33 then was a social worker. Asif Reza Khan used to
provide him monetary help. He introduced PW33 with the driver
of a Maruti vehicle standing near Hotel Delhi Darbar at Ripon
Street namely Azhar Bhai. Later he came to know his name as
Aftab Ansari. He directed PW33 to act according to his
31
instructions and asked to meet later. He came back. Asif Reza
Khan used to visit him frequently used to give him money.
50. After sometime, Asif Reza Khan came to PW33 and asked
to be ready for the job. He instructed not to disclose anything to
his family members. He informed his family that he was going to
Allahabad and they would not contact him. He accompanied Asif
Reza Khan to the top floor of a building at 21B, Gorachand Lane
on July 23, 2001. He found some persons in the room. He was
introduced by Asif Reza Khan to Sekender. PW33 resided in the
said room for about a month and talked with other persons there
regarding abduction of a person. On one day, as per the
instructions of Asif Reza Khan, PW33 accompanied by
Shahjahan went to Bhoot Bunglow at village Haroah where there
were 2/4 persons from before. PW33 also stated that Asraf and
Abdus Salam were working as cook at 21B, Gorachand Lane.
Besides, Shahbaz, Sahjajan, Akram, Aslam, Naim and others
used to reside in the said house. Abdullah, Akram, Moulana
Mansur, Sahjajan and PW33 were present at Bhoot Bunglow.
Asif told him that he would bring one person to Bhoot Bunglow
who would be residing with them.
32
51. PW33 also stated that in the noon of July 25, 2001, a car
entered into Bhoot Bunglow. He saw from upstairs that Asif Reza
Khan, Abu Ubaida and Shahbaz were getting down from the car.
Being called by Asif Reza Khan, PW33 came down and found a
fair complexion person sitting inside the car with bleeding
injuries on both his hands wrapped with cloth. Asif Reza Khan
identified the said person as Partho Roy Burman, proprietor of
Khadim Shoe Company and asked him to take the person
upstairs. He then gave money to Sahbaz to bring some medicine
as advised by Abu Ubaida who was doctor. The injuries were
bandaged by Abu Ubaida. PW33 also stated that since then, he
along with Akram, Sehbaz, Mansur and Asif used to stay at
Bhoot Bunglow. Asif used to come and go. One day, PW33 heard
Asif saying Partho Roy Burman to answer certain questions in
order to make his family believe that he was there. Partho Roy
Burman accordingly, gave the answers and requested his family
members to act according to the directions of the accused
persons. Such answers were recorded in a tape recorder. After
some days, Asif Reza Khan told the victim that he had talks with
33
his family members and he would be released soon on payment
of money.
52. On August 2, 2001, Asif Reza Khan and Abdullah
brought wearing apparel and asked PW33 and others to make
the victim wear it. They also told that money was received. Asif
Reza Khan put a black goggle on to the victim and someone
shaved his beard. On the query of PW33, Asif Reza Khan
informed him that a sum of ₹. 3 Crore 75 Lakh was received. The
victim Partho Roy Burman was placed in a car and it went away.
Asif Reza Khan also asked PW33 and other to leave Bhoot
Bunglow. He also stated that after a few days, he was arrested.
He was produced before the Magistrate where he recorded his
statement. PW33 proved his signatures on such statement. He
also identified accused Sahjahan, Akram, Sahbaz who identified
themselves as Mizanur Rahman, Muzammel Sk. And Noor
Mohammed respectively.
53. A retired official of WEBEL deposed as PW34. He stated
that he visited CID office at Bhawani Bhawan on requisition, in
connection with Tiljala P.S. Case no. 223 of 2001 on November
14, 2001, November 22, 2001 and on November 27, 2001.
34
Tanmoy Babu and ASI Pulak Babu were present there with three
different accused persons on each occasion whom he could not
identify. He further stated that some emails were downloaded
and printed by Tanmoy Babu in his presence on which he put
his signatures.
54. PW35 is the Judicial Magistrate who conducted the Test
identification Parade in connection with Tiljala P.S. Case No. 223
of 2001. Accused Akib @ Farasad Ali Khan and Arsad @ Aslam
were put on T.I. Parade. He narrated the manner in which the
T.I. Parade was conducted. PW35 also stated that witness
Makbul identified accused Arsad @ Aslam but failed to identify
the other suspect. Witness Asgar Ali identified Akib @ Farasad Ali
Khan but failed to identify the other suspect Arsad @ Aslam. He
proved the T.I. Parade report prepared in his pen and signature.
55. A retired ballistic expert was examined as PW36. He
stated that he examined an olive green TATA Safari vehicle and
certain ballistic exhibits in connection with Tiljala P.S. Case No.
223 dated July 25, 2001 in terms of request of DIG, CID. He
proved the reports submitted by him.
35
56. Another Judicial Magistrate was examined as PW37. He
recorded the confessional statement of accused Bablu Zafar @
Sikandar and Noor Ahmed Molla @ Asraf on May 18, 2002, that
of accused Abdul Khalek Mondal on May 22, 2002 and that of
accused Swati Paul @ Mousumi @ Sana Sk on Spetember 1,
2001. He sent the accused for reconsideration of their decision to
give confessional statement and thereafter, recorded their
statements under Section 164 of the Code of Criminal Procedure,
1973. PW37 narrated the different steps taken by him in
recordings such statements and proved the statements.
57. Accused Swati Paul @ Mousumi @ Sana Sk deposed as
PW38. She stated that as her husband used to get her in
immoral acts, she married to one of her fellow singer Jamil and
that is how, she became Sana Begum. She procured a passport
and went to Dubai for singing in hotels with Jamil. Later, Jamil
meted the same treatment upon her. She complained such
treatment to the floor manager of Grand Hotel, Dubai Abdur
Rahman. She later came to know that Jamil was sent to Mumbai
by Dubai Police. Abdur Rahman took her to the 2nd floor, Room
No. 2077 of a building near Grand Hotel namely Nehar Building
36
which was under possession of one Raju Bhai @ Farhan Mallik.
One day, PW 38 noticed Raju Bhai and Abdur Rahman talking to
several persons over telephone regarding extracting money and
also threatened them.
58. PW38 also stated that in March 2001 Raju Bhai left for
Pakistan. Abdur Rahman used to talk to him over phone. She
was informed by Abdur Rahman that he had talks with Raju
Bhai regarding abduction of someone. Abdur Rahman also told
her that his job was to kidnap people for ransom. He divulged
that there were talks to kidnap Khadim Jutawala. PW38 was
threatened by Abdur Rahman and was not allowed to contact her
family. On her request she was, however, taken to Mumbai on
July 6, 2001. On July 19, 2001 Abdur Rahman told PW38 that
he was leaving for Kolkata to kidnap Khadim Jutawala. On July
28, 2001 he returned Mumbai and told her that the job was
accomplished. He also reported her that it was the plan of his
boss Raju Bhai @ Farhan Mallik.
59. On July 31, 2001 Abdur Rahman told her to go to
Bangalore for singing. She left with her group on August 2, 2001.
On August 3, 2001, Abdur Rahman left Bangalore for collecting
37
money and returned on August 14, 2001. He then asked PW38 to
return to Mumbai. She did not agree for which Abdur Rahman
assaulted her with a bottle causing injuries on the fingers of her
left hand. She however, started for Mumbai on August 18, 2001
and reached on the following day. She was arrested from Mumbai
by CID, West Bengal on August 19, 2001. Mobile cover, chip
cards and other articles were seized from her under a seizure list
which she signed. She also identified the seized articles in court.
After necessary medical checkup she along with Abdur Rahman
was taken to Kolkata. She was produced before the Magistrate
where she recorded her statement. She proved her signatures on
such statement. She also identified the voice recordings of Raju
@ Farhan Mallick in court. PW38 also stated that she came to
know later that other name of Raju Bhai @ Farhan Mallik was
Aftab Ansari.
60. A police photographer deposed as PW39. He stated that
as requested by the investigating officer, he accompanied the
police party with an accused to village Pakuria as well as 21B,
Gorachand Lane and took certain photographs of the buildings
there on November 5, 2001. He also accompanied one finger
38
print expert to 21 B, Gorachand Lane and took photograph of
some finger prints. PW39 proved the negatives with photographs
developed by him.
61. A local from the scene of occurrence was examined as
PW40. He stated that in the year 2001 he had a shoproom cum
manufacturing unit at 16/1A, C. N. Roy Road. At about
9.30/10.00 a.m. on the date of incident, while sitting in his shop,
he heard a sound. He along with people in the locality came out.
He saw a white TATA Safari had hit a lamp post. He also saw a
Maruti 800 car there and 3/4 persons took down a person from
the TATA Safari and took into the Maruti vehicle. Thereafter, the
Maruti vehicle left the place with those persons together with the
persons brought down from the other vehicle. Police visited the
spot and recovered the vehicle as well as a used cartridge and a
hammer. It was seized under a seizure list which PW40 signed.
He identified the TATA Safari vehicle and other seized articles in
court. He later came to know that the person with beard who was
forcibly taken away was Partho Roy Burman. He however was not
able to identify the persons whom he saw abducting the victim.
39
62. Another police photographer was examined as PW41. He
accompanied Constable Subhasis Roy and others to C. N. Roy
Road on July 26, 2001 and took photographs of a white TATA
Safari vehicle bearing Registration No. WB-02/K-4706 and the
surrounding places. He identified the negatives and photographs.
He stated that there was a mosque and Mazar near the place of
occurrence.
63. A local person deposed as PW42. He stated that on July
25, 2001 at about 12.15/12.30 noon, while he was at his
business place at 35, Topsia Road he heard that owner of
Khadim was abducted. Hearing this he went to C.N. Roy Road
known as Sapgachi 1st Lane and saw a white TATA Safari had hit
a lamp post. Thereafter, a police officer Manik Babu came there
and wanted to have an inspection of the vehicle. In course of
such inspection, PW42 saw one of the glasses of the vehicle
broken. He also found a hammer without handle on the front
seat and bloodstained cloth on the rear seat and a brass made
hollow rounded material. Police seized the aforesaid articles
under a seizure list. PW42 put his signature on such seizure list.
40
PW42 proved his signature as well as the seized articles
including the vehicle in court.
64. A second hand car dealer deposed as PW43. He stated
that in the year 2001, he used to deal in second hand cars under
the name and style of Motortech. He further stated that in 2001
he purchased an old Maruti 1000 car from its owner Dr. Ashoke
Ganguly who signed on form 29 and 30 and delivered his identity
proof. The said car was sold to one purchaser after observing all
legal formalities and in September 2001 the purchaser resold the
car to the establishment of PW43. In November 2001, PW43 was
called upon by police at Bhawani Bhawan when he was informed
that the car was required in connection with a case. He brought
the car with its papers which were seized in connection with a
case of Tiljala police station. PW43 signed on the seizure list. He
proved the seizure list and purchase papers of the car.
65. The inspector-in-charge of police was examined as PW44.
He stated that on July 25, 2001 at about 11.55 a.m. while he
was on duty at Tiljala P.S. he received phone call from Bikash
Mondal, ASI of police of Parama investigation centre to the effect
that one Naba Kumar Mondal, driver of Partho Roy Burman
41
came to the centre and reported that Partho Roy Burman was
kidnapped by some miscreants on gunpoint at Sapgachi, C.N.
Roy Road. Being so informed, PW44 asked the said Bikash
Mondal to start checking the vehicles in the area. He also lodged
a GDE to that effect. He proved the GDE book. Thereafter, he
went to the spot with police force and found a white TATA Safari
standing there with broken wind screen and blood stains in the
said vehicle. He also found a hammer and a fire bullet cartridge.
PW44 also receive an RT message at about 1.05 p.m. that one
Sidhartha Roy Burman and Suman Burman Roy had come to
Tiljala P.S. to lodge a complaint over the incident. As per the
instructions of PW44, a formal First Information Report was
drawn up and specific case was started. He proved the formal
FIR and his endorsement thereon.
66. An employee of Railway deposed as PW45. He stated that
at the request of police, computerized generated reservation chart
of Howrah-Jodhpur Exp, S-5 coach for July 25, 2001 was
supplied from his office. It was seized by police under a seizure
list to which he signed. He proved the chart and his signature
42
thereon. It contained the names of accused Mujammel Sk. and
Rijjanur Rahman.
67. PW46 is an employee of a car dealing company. He did
not add any value to the prosecution case. He was not
interrogated by police in connection with this case.
68. The erstwhile owner of Maruti vehicle was examined as
PW47. He stated that he was a private homeopathy practitioner.
He purchased a Maruti 1000 car bearing Regn. No. WB-02/B-
8771 in January 1996. He sold the said car to one Sohel Ahmed
through a broker Bapi Mondal in January 2001 by signing on
necessary documents and forms. He proved the two sets of Form-
29 and Form-30 executed by him.
69. An official of Public Vehicles Department was examined
as PW 48. He stated that a CID officer visited his office in 2002
and wanted information regarding a vehicle. He could not
remember the Regn. No. of said vehicle but it was with WB-02/J.
With due permission of his superior, he handed over the
documents to the CID officer which was seized under a seizure
list. PW48 proved his signature thereon. He also proved the sale
certificate in respect of the Maruti vehicle Regn. No. WB-02/J-
43
9240 together with Form 19, Form 20, Form 21 and other
documents issued by Jalan Distributors.
70. A Sub-Inspector of police deposed as PW49. He stated
that on July 25, 2001, he was posted at Tiljala P.S. He received a
written complaint at about 11.30 a.m. lodged by one Sidhartha
Roy Burman and started Tiljala P.S. Case No. 223 dated July 25,
2001 under Sections 364A/307/34 of the Indian Penal Code and
25/27 of Arms Act. He filled up the formal First Information
Report. He proved the formal FIR and endorsement of his receipt
thereon.
71. Another driver the victim deposed as PW50. He stated
that Partho Roy Burman had three cars. He was one of the
drivers along with Naba Kumar Mondal. On July 25, 2001 he
went on usual duly. Partho Roy Burman asked him to stay at the
house and started for his office in TATA Safari vehicle being
driven by Naba Kumar Mondal. At about 12.00/12.30 noon Naba
Kumar Mondal returned home by a taxi and informed that
Partho Roy Burman was kidnapped. PW50 identified the TATA
Safari vehicle in court.
44
72. The first investigating officer of the case was examined as
PW51. He stated that he was endorsed with the investigation of
Tiljala P.S. Case No. 223 dated July 25, 2001. In course of
investigation, he visited the place of occurrence at C.N. Roy Road
and found a TATA Safari standing at Sapgachi Lane near a lamp
post. The bumper and wind screen of the vehicle bearing Regn.
No. WB-02/K-4706 was broken. He prepared rough sketch map
with index of the place of occurrence which he proved. On
search, he recovered an iron hammer, empty cartridge. He sealed
and labeled the said articles and seized the same under proper
seizure list. He found bloodstains on the rear seat. He also
recorded the statement of witnesses. He proved the seizure list
and the seized articles. He also arrested Naba Kumar Mondal,
the driver of TATA Safari. Thereafter, he handed over the
investigation to CID, West Bengal.
73. An employee of Khadim group of companies deposed as
PW52. He took back the TATA Safari vehicle bearing Regn. No.
WB-02/K-4706 and documents of the vehicle on Zimmanama.
He proved his signature on Zimmanama. He also proved the
authorization letter. He produced R.C. book of the vehicle which
45
was seized. He proved his signature on such seizure list. He also
stated that the vehicle was in broken condition which was later
on repaired. He also identified the vehicle in court.
74. The car broker was examined as PW53. He stated that in
2001 he introduced Dr. Ashoke Ganguly to a vehicle dealer
Mahesh Agarwal for selling the car of Dr. Ashoke Ganguly.
75. PW54 is the senior scientific officer, foot print department
of Forensic Science Laboratory, Kolkata. He was specially trained
footprint expert. He further stated that in February 2002, his
department received 11 parcels in connection with Tiljala P.S.
Case No. 223 dated July 25, 2001 for examination. On
examination, PW54 opined the matching footprints belonging to
accused Arshad @ Aslam Khan, Akib @ Farasad and Asif Reza
Khan. He also identified the footprint of Partho Roy Burman. He
proved his report in this regard.
76. Another Judicial Magistrate who conducted the Test
Identification Parade in respect of accused Noor Mohammed @
Shahbaz @ Imam @ Sikandar @ Ahmed, was examined as PW55.
He stated that on August 2, 2001 he conducted TI Parade at
Alipur Central Correctional Home. Witness Abdus Salm identified
46
accused Noor Mohammed @ Shahbaz @ Imam @ Sikandar @
Ahmed by touching his chest. PW55 prepared a report in this
regard which he proved. He further stated that he again held
another TI Parade on August 24, 2001. Witness Zulfikar Ali
identified the accused Noor Mohammed @ Shahbaz @ Imam @
Sikandar @ Ahmed. He proved the report prepared in his pen and
signature.
77. A police officer working under CID deposed as PW56. He
stated that he used to receive Fax messages and hand it over to
Abdur Rashid, the investigating officer of the case. This witness
was declared hostile by the prosecution. In his cross examination
on behalf of prosecution, PW56 admitted having received fax
messages from CBI, Delhi, and other places on different dates
which were photocopied, signed and seized by him. He also
admitted receipt of audio cassettes which were seized. He proved
his signature on such seizure lists.
78. PW57 is the Judicial Magistrate. He stated that on
November 26, 2001 he recorded the sample audio voices of
accused Asif Reza Khan @ Rajan @ Maharaj @ Ibrahim Sah @
Samar Choudhury, Anita Routh and accused Irsad Khan @
47
Aslam Khan @ Masub in terms of directions of the Learned Sub-
divisional Judicial Magistrate on the prayer of the investigating
officer of Tiljala P.S. Case No. 223 dated July 25, 2001. Before
recording such voice samples, PW57 observed all legal formalities
which he narrated in his deposition. PW57 proved the audio
cassettes produced in court and his signature thereon.
79. An employee of Khadim Shoe Company deposed as
PW58. He stated that in July, 2001 he was working in the
godown of the company, however, did not state anything about
the incident.
80. A security guard at the godown of Khadim Shoe
Company at Topsia deposed as PW59. He stated that in
November 2001 police came to the godown where he was
performing duties with the person. The police made a search into
the entry register maintained at the gate. He further stated that
the said register was seized by police under a seizure list to
which he signed. He proved his signature on the seizure list as
well as the register seized by police. PW 59 also stated that on
November 7, 2001, he was on duty at the main gate and all
48
persons who entered into the godown put their signatures in the
register.
81. A sub- inspector of police deposed as PW 60. He stated
that in July 2001, he was instructed by his department to assist
Md. Abdur Rashid, the investigating officer of Tiljala P. S. Case
No. 223 dated July 25, 2001. He was instructed by the
investigating officer to ascertain the ownership of a vehicle
bearing Regn. No. WB – 02/B – 8771. As per the direction of
investigating officer, PW 60 visited the Public Vehicles
department and ascertained the details. He also recorded the
statement of Biswanath Mondal, Dr Ashok Ganguly, Sohel
Ahmed and others. He maintained a supplementary case diary of
what they were he had done as per the instruction of the
investigating officer which was later handed over to the
investigating officer on November 30, 2001.
82. A witness who signed on the seizure list dated August 8,
2001 was examined as PW 61. He proved his signature on the
seizure list dated August 8, 2001.
83. An employee of food and supplies Department was
examined as PW 62. He stated that on February 6, 2002, a police
49
officer came to his office and asked for some documents. PW 62
handed over the required documents to the police officer, which
was seized by him under a seizure list. He proved his signature
on such seizure list. He although, could not remember the exact
nature of the documents which were seized by the police officer.
84. A police officer attached to CID deposed as PW 63. He
has stated in his the position that being instructed by his
superiors, he went to Mumbai in connection with the
investigation of Tiljaila P. S. Case No. 223 dated July 25, 2001.
In course of investigation and on the basis of the user of
suspected telephone number, PW 63 arrested Swati Pal and
Abdul Rahman. He also arrested Jamil Ahmad all from Mumbai.
The sites arresting the aforesaid accused persons, PW 63 also
recovered and seized several documents like a passport,
photographs, mobile phone, SIM cards etc. in respect of the
arrested accused persons. He seized several documents under a
seizure list. PW 63 proved the seizure list. PW63 also arrested
Abdul Rashid from Delhi and his passport was seized.
85. PW 63 also visited Patna, Mumbai and Delhi in course of
investigation of the case. He also arrested accused Shahid Azmi
50
from Mumbai. Accused Amir Reza Khan could not be arrested,
however, cash money and mobile phones were recovered from his
residence which were seized. PW 63 accompanied the
investigating officer of the case to different places of the country
like Delhi, Gujarat, Patna, Meerut in connection with the
investigation of the case and seized several articles.
86. The then Inspector of Police deposed as PW64. He was a
member of Special Investigation Team. On August 3, 2001 at the
requisition of the investigating officer M. A. Rashid, PW64
proceeded to Hyderabad for verification of a mobile number
which was involved in payment of ransom. Upon investigation,
PW64 came to know that Abdul Karim @ Karimuddin, Mahbub
Ali @ Kaizer, Khaja Altaf Kureshi @ Mahesh, Mohammed
Ishaque, Paban Maheshwari and Paban Kapadia played role in
receiving the ransom money and sending the same to Raju at
Dubai through Hawala. He submitted his report in this regard to
the investigating officer.
87. PW64 also stated that as per requisition of the
investigating officer dated August 14, 2001, he along with others
again proceeded to Hyderabad to effect arrest of Abdul Karim @
51
Karimuddin, Mahbub Ali @ Kaizer, Khaja Altaf Kureshi @
Mahesh @ Mukesh, Mohammed Ishaque, Paban Maheshwari.
Raids were conducted with the help of STF, Hyderabad and on
August 17, 2001 he arrested Abdul Karim @ Karimuddin,
Mahbub Ali @ Kaizer. On interrogation Abdul Karim @
Karimuddin disclosed that he received instructions from Raju at
Dubai to receive ₹. 3 Crore from the person staying in Room
No.666 at Hotel Taj Krishna. Accordingly, the money was
received by him through Mahbub Ali @ Kaizer and one Balla and
it was transferred to Dubai through Hawala with the help of
others namely Altaf Kureshi @ Mahesh @ Mukesh, Mohammed
Ishaque, Paban Maheshwari. A sum of ₹. 1.40 Crore as well as
mobile phones were also recovered from Abdul Karim which was
seized by PW64. He proved the seizure list in this regard. He also
identified the bundle of notes and other articles seized.
88. He also arrested Khaja Altab Qureshi and Md. Ishaq on
August 17, 2001 and Pawan Maheshwari on August 21, 2001. A
sum of ₹. 2 lakh and mobile phone was also recovered from the
possession of Pawan Maheshwari. Seizure list in this regard was
52
proved by PW64. All such articles were handed over to the
investigating officer.
89. The Senior Scientific Officer of Forensic Science
Laboratory, Kolkata who examined the painted sun glasses was
examined as PW65. He proved the report prepared by him after
examination.
90. The then Home Secretary to the Government of West
Bengal deposed as PW66. He stated that as per the requests of
Inspector General of CID, West Bengal he authorized interception
of several phone numbers, for the purpose of investigation of this
case, in terms of the provisions of Indian Telegraph Act, 1885. He
proved the several office orders issued from his office authorizing
such interception.
91. A Senior Scientific Officer of CFSL, CBI, New Delhi
deposed as PW67. In such capacity, he examined several audio
cassettes sent to his department for such purpose. In his
deposition, he narrated the description of the sealed packets
received for such purpose and the method applied for
examination thereof. Upon examination of the samples, he
opined that the voice samples contained in the cassettes matched
53
with the voices of Aftab Ahmed Ansari, Akib @ Farasat, Arsad @
Aslam Khan, Asif Reza Khan and that of Sidhartha Roy Burman.
However, he could not find the voice samples matching with the
voices of Abdul Karimuddin, Mahboob Ali @ Kaizer, Babloo @
Anwar Firoz, Khaja Altaf Ahmed Qureshi, Md. Ishaq, Pawan
Maheshwari, Usinor Ghosh, Happy Singh and Abdur Rahman.
PW67 proved the report prepared in his pen and signature. He
also identified and proved the sample cassettes and other articles
received by his office for the purpose of examination.
92. The investigating officer deposed as PW68. He narrated
the different steps taken by him during investigation. He was
endorsed with the investigation of the case. Being so endorsed,
he visited the place of occurrence as well as house of the victim.
He also interrogated the informant and other family members of
victim. The informant confided in PW68 that he received a call
from Dubai asking him to buy a new mobile which he did
accordingly. Later, on the second visit of PW68 to the house of
victim, a phone call was received from Dubai on the newly
purchased mobile demanding a ransom of ₹. 20 Lakh.
54
93. Before endorsement of investigation to PW68, the case
was investigated by Tiljala P.S. and several articles including
damaged TATA Safari vehicle, hammer, used cartridge etc. were
seized which was identified by PW68. He also interrogated several
persons in the locality and recorded statement of witnesses
under Section 161 of the Code of Criminal Procedure and
prepared rough sketch map with index of the place of occurrence.
He also applied for phone tapping with the concerned authorities
under due permission from superiors. He collected information
regarding ownership of the vehicles involved in the incident and
received the seized articles. He also took steps for sending
relevant materials including recorded telephonic conversations to
Forensic Science Laboratory for examination and collected
reports thereof. PW68 secured arrest of several accused persons
from different places in the country. He procured police custody
of some of the accused persons and interrogated them. He also
obtained voice samples, footprints etc. of some of the accused
persons, sent it for examination and collected reports in this
regard from the experts. Later on, the investigation of the case
ended in chargesheet.
55
94. According to the case of the prosecution, on July 25,
2001, the proprietor of Khadim Shoe Compay, Partho Roy
Burman was going to his godown from the factory, after starting
from his house, by his TATA Safari vehicle being driven by his
driver Naba Kumar Mondal. When he was passing through C. N.
Roy Road, his vehicle was intercepted by some unknown
miscreants. Due to such interception, his vehicle dashed against
a lamp post causing damage to the vehicle.
95. Thereafter, the unknown miscreants dragged the said
Partho Roy Burman out of his car to which he protested. In the
proceeding, the miscreants fired a shot causing bleeding injuries
on his hands. Nevertheless, he was dragged out and taken into a
Maruti vehicle belonging to the miscreants standing nearby. The
miscreants made him to board the Maruti vehicle and fled away
with him towards E.M. Byepass.
96. The driver of Partho Roy Burman first reported the
matter to Parama investigation centre and thereafter, he went to
the house of Partho Roy Burman and reported the incident.
Immediately, thereafter, brother of Partho Roy Burman, namely
56
Sidhartho Roy Burman lodged a complaint with Tiljala Police
Station following which investigation started.
97. It was further case of the prosecution that shortly after
the incident, the brother of the victim Partho Roy Burman, i.e.
Sidhartha Roy Burman received a phone call from Dubai on his
landline informing that Partho Roy Burman was abducted for
ransom. A sum of ₹. 20 Crore was demanded as ransom. In order
to assure the brother of the victim, the miscreants asked for
recorded questions which only victim could answer and recorded
answers to such questions were sent to the brother of the victim.
After the relatives of the victim were assured of victim being in
the captivity of the miscreants, there were several telephonic
conversations between the relatives of the victim and the
kidnappers. Such conversations were intercepted and recordings
were preserved, examined and found to be matching with the
voice samples of some of the kidnappers.
98. Materials on record also reveal that after execution of the
abduction plan, family friend of the victim as well as several
miscreants travelled to Hyderabad for delivery of ransom money.
The transaction was executed in a hotel there. A sum of ₹. 3.75
57
Crore was paid to the abductors by the family members of victim.
Thereafter, some of the miscreants arranged for transferring the
money to Dubai through Hawala. Such miscreants were arrested
from Hyderabad, Delhi and other places.
99. Learned advocate for the appellants submitted that some
of the appellants were arrested after undue delay on the basis of
Test Identification Parade. The TI Parade was also conducted
after undue and unexplained delay which gives rise to reasonable
suspicion to the credibility of such TI Parade. It was further
submitted that some of the accused persons turned approver in
the case and deposed for the prosecution. There is no evidence
on record to link the present appellants with the instant case
except the testimony of the approvers which is a weak piece of
evidence without corroboration from independent witnesses. The
approvers deposed but did not inculpate themselves in the
commission of the crime. As such, evidence of such approvers
cannot be relied upon to secure conviction of the appellants. As
to the proposition of delay in conducting the TI Parade, learned
advocate for the appellants relied upon (1970) 2 Supreme Court
Cases 128 (Budhsen & Anr. v. State of U.P.), (1999) 8
58
Supreme Court Cases 428 (Rajesh Govind Jagesha v State of
Maharashtra), (2019) 15 Supreme Court Cases 470 (Ankush
Maruti Shinde & Ors. V. State of Maharashtra), (2017) 11
Supreme Court Cases 150 (Md. Sajjad @ Raju @ Salim v State
of West Bengal) and (2018) 14 SCR 1161 (State of U.P. v Wasif
Haider etc.)
100. The learned advocate for the appellants also submitted
that the vital witnesses including the brother of the victim turned
hostile. Some of the witnesses, who accompanied the victim after
his release, made contradictory statements. Some of the material
witnesses deposed in the case after an inordinate delay. The
appellants have challenged the testimony of the witnesses as
incredible, who are said to be working in the alleged house where
the plan of abduction was mooted, as unbelievable. The said
witnesses identified the appellants for the first time in court and
not before. On such proposition, learned advocate for the
appellants relied upon (1979) 3 Supreme Court Cases 319
(Kanan v State of Kerala), (2003) 1 Supreme Court Cases 240
(Sarwan Singh v State of Punjab) and (2014) 12 Supreme
Court Cases 133 (Prakash v State of Karnataka).
59
101. Learned advocate for the appellants also stated that there
was unexplained delay in recording the statement of witnesses
under Section 161 of the Code of Criminal Procedure rendering
such statement wholly unreliable. In support of his contention,
learned advocate placed reliance on 2023 SCC OnLine SC 80
(Munnala v State of U.P.), (1996) 5 Supreme Court Cases 369
(Alil Mollah & Anr. v State of West Bengal), (2016) 4 Supreme
Court Cases 96 (Shahid Khan v State of Rajasthan). Relying
upon (2016) 16 Supreme Court Cases 418 (Harbeer Singh v
Sheeshpal & Ors) it was contended by learned advocate for the
appellants that a chance witness is a very weak evidence and
reliance cannot be safely placed on such witness. Learned
advocate for the appellants also cited (1976) 2 SCR 902 (Union
of India v M/s Chaturbhai M. Patel & Co.) and (2003) 12
Supreme Court Cases 377 (Mousam Singh Roy & Ors v. State
of West Bengal).
102. Relying upon (2014) 10 Supreme Court Cases 473
(Anvar P.V. v. P. K. Basheer & Ors), learned advocate for the
appellants contended that the proof of electronic evidence
produced on behalf of the prosecution was not done strictly in
60
accordance with Section 65 of the Indian Evidence Act, 1872.
Learned advocate for the appellants also submitted that
improvements of facts made by the witnesses at the time of
deposition should be looked into as a contradiction and should
not be relied upon to secure conviction of the accused. In support
of such contention, learned advocate for the appellants relied
upon 2024 INSC 19 (Darshan Singh v State of Punjab).
103. Learned advocate for the appellants also submitted that
the chain of circumstances leading to the guilt of the appellants
was not complete so far as the evidence on behalf of the
prosecution is concerned. Mere testimony of approvers could not
be the sole basis to prove the veracity of the prosecution case.
Moreover, evidence at the trial revealed that there were notable
inconsistency between the statements of the witnesses recorded
under Section 164 of the Criminal Procedure Code vis-à-vis their
statements at the trial.
104. Learned advocate for the State submitted that the
prosecution has been able to prove the case of the prosecution to
the effect that the victim that is proprietor of Khadim Shoe
Company was abducted for ransom by the accused persons
61
including the present appellants. There is unimpeachable
evidence on record that the present appellants were involved in
such crime. They have been identified by the witnesses doing
several acts in furtherance of the conspiracy. Relying upon
(2010) 2 Supreme Court Cases (CRI) 1385 (Sidhartha Vashisht
Vs State (NCT of Delhi) learned advocate for the state submits
that identification of an accused in court should not ordinarily be
disbelieved. Learned advocate for the state also relied upon
(2007) 2 Supreme Court Cases (CRI) 637 (Suman Sood alias
Kamaljeet Kaur Vs State of Rajasthan) on the proposition of
the extent and degree of proof of conspiracy laid down by the
Hon’ble Supreme Court.
105. The present appellants along with many other accused
persons hatched up a conspiracy to kidnap the victim i.e.
proprietor of Khadim shoe company for ransom. The conspiracy
was hatched up at different levels involving several persons and
included several different ways like physical meetings as well as
by exchanging email messages.
106. In the incident involved in this case, target was set at the
victim, arms and ammunition are said to have been arranged for
62
the purpose. Thereafter, at least two vehicles at the initial level
were arranged. One vehicle was used for the purpose of carrying
of Arms by some of the conspirators and the other vehicle was
used for abduction of the victim. Two houses were arranged, one
apparently for the stay of the conspirators and the other house
was used for keeping the victim in hiding after his abduction.
Another vehicle was arranged and used for the release of the
victim after realization of the ransom.
107. PW1 is the owner of the flat 21/B Gorachand Lane,
Kolkata. He testified the flat being taken on rent by Mahmood
Hassan. He also stated that he did not use the flat personally.
He has also stated that Bablu and Ansar used to reside in
such flat being authorized by Mahmood Hassan. It was
frequently visited by their guests.
108. The convict Mizanur Rahman was identified by PW11 as
the person who purchased a house belonging to Rafiquddin at
village Pakuria for business purpose. He along with one Ali
Hossain, introduced the said Mizanur Rahman to Rafiquddin,
the owner of the house. A relative of said Rafiquddin, PW 13
also identified Mizanur Rahman as the purchaser of a house
63
at village Pakuria, belonging to Rafiquddin. In fact, the said
PW13 scribed the purchase agreement on part payment of
consideration money being made. The said house was
supposed to be purchased by the boss of Mizanur Rahman
namely Mehmood Hassan. The agreement deed was taken by
Mizanur Rahman and Jamil Hassan for getting it signed by the
purchaser. Evidence on record also reveals that on July 25,
2001 afternoon; the purchaser Mehmood Hassan visited the
house with some other persons by a Maruti Car. Later, police
visited the said house on November 6, 2001, PW13 and
Mehmood Hassan was arrested. A search was also conducted.
PW13 along with Zulfiqar accompanied police to the house of
Mizanur Rahman. He was not present then, however, on
search conducted in his house, the deed of agreement was
recovered from the house of Mizanur Rahman. On November
24, 2002, police recovered some syringe, injection, saline tube
and bottles and some hairs were recovered as shown by
Mehmood Hassan. This witness identified Mizanur Rahman in
court.
64
109. PW19 testified that Rafiquddin, the owner of a house in
village Pakuria informed him that his house was purchased by
a businessman form Calcutta and that Mizanur Rahman was
the mediator in such transaction. He also stated that at the
request of Mizanur Rahman, he left Mizanur Rahman and
some other persons from the said house to Maltipur by his
motor van. At the request of Mizanur Rahman, PW19 again left
Mizanur Rahman along with four unknown persons to the
house of Rafique in the evening at about 7 PM. He identified
the said persons as Akram, Aslam, Naim, Dilsad, Mahmud
Hassan, Zamir Hassan, Khalid, Akib, Omar Moulana and
many others. He identified Mizanur Rahman, Akram, Naim,
Dilsad and Arsad in court. He also identified Noor Mohammad
@Shahbaz in the TI Parade as well as in court.
110. Such evidence go to show that two houses, one at 21/B
Gorachand Lane, Kolkata and another at village Pakuria were
arranged by Mehmood Hassan and the other appellants. It
also transpires that the two houses were frequented by many
of the appellants including Mizanur Rahman and Akram,
65
Aslam, Naim, Dilsad, Mahmud Hassan, Zamir Hassan, Khalid,
Akib, Omar Moulana, Mizanur Rahman and many others.
111. Such evidence go to show that two houses, one at 21/B
Gorachand Lane, Kolkata and another at village Pakuria were
arranged by Mehmood Hassan. It also transpires that the two
houses were frequented by many persons including Mizanur
Rahman and Akram, Aslam, Naim, Dilsad, Mahmud Hassan,
Zamir Hassan, Khalid, Akib, Omar Moulana, Mizanur Rahman
and many others. The said houses evidently, were arranged
and utilized for the purpose of execution of the job of
abduction of the victim Partho Roy Burman for ransom.
112. A conspiracy for abduction of Partho Roy Burman, the
proprietor of Khadim Shoe Company was already hatched up
and arrangement and houses and vehicle were part of such
conspiracy. PW31 stated that he was introduced by Jalal Molla
@ Omar Bhai to one Mirza Bhai. They engaged him as a cook
at 21 B, Gorachand Lane. While working as cook at 21 B,
Gorachand Lane, he stated that some 20/25 persons used to
come into the house, stay there for some time and then used
to go away. The aforesaid persons used to talk regarding
66
abduction of proprietor of Khadim Shoe Company and about
his release getting ransom. They also talked that for the
purpose of for the purpose of abduction; they needed a room,
vehicle and arms. PW31 informed such conversation to Jalal
Molla @ Omar Bhai whereupon he was asked not to divulge it
to anybody. He identified the persons visiting that house as
Asif Reza Khan, Abdullah, Sikandar, Mansur, Shahjahan,
Shahbaz, Akram, Naim, Aslam, Dilsad, Abdur Rahman, Akib
Ali, Happy Singh, Abdul Khalek and others which include the
appellants.
113. PW31 also testified that on July 23, 2001 at about 9/10
in the morning, there was a large scale meeting in the said flat
at 21B Gorachand Lane. In such meeting, the appellants were
very much present. The accused Asif Reza Khan was allotting
duties to different persons in such meeting. He instructed
Akram, Sikandar, Mansur, Shahjahan and Omar Bhai that
proprietor of Khadim Shoe Company would be kept in Bhut
Bunglow at Haroa. Mirza Bhai instructed Shahbaz, Aslam,
Maruf, and Abu Ubaida for abduction of Khadim proprietor
from C. N. Road. PW31 also stated that on the following day
67
i.e. July 24, 2001 some of the persons present in previous
meeting again met. A few days thereafter, he was arrested. The
account of the meeting narrated by PW31 establishes the
existence of conspiracy for abduction of the victim.
114. The defense was not able to dislodge the testimony of
PW31 either to the effect that he used to work as a cook at
21B Gorachand Lane which was a cause and occasion for him
being part of such conspiracy or his engagement as a cook by
the appellant Jalal Molla @ Omar Bhai. There were
suggestions advanced to such witness to the effect that he was
never engaged as and he never worked as a cook but such
suggestions remained unsubstantiated.
115. To the contrary, the testimony of PW31 received
corroboration from the other person who was also engaged as
cook to work in the said house at 21B Gorachand Lane. PW32
was also recruited as cook by the appellant Jalal Molla @
Omar Bhai. Jalal Molla took him to the top floor of a five
storied building at 21B, Gorachand Lane, Park Circus and
introduced him with Mirza Bhai @ Asif Reza Khan. There he
also met with the other person working as cook i.e. PW31. He
68
also corroborated that some 25/30 persons used to come and
stay in the flat whom he identified as Shahbaz, Aslam,
Mozammel, Mizanur, Dilsad, Naim, Khalek, Abdullah,
Sadakat, Farasat, Safique, Amir Reza and some others. PW32
also stated that the aforesaid persons used to talk regarding
abduction of Khadim Karta for ransom.
116. He has corroborated that on July 23, 2001 at about 11
a.m. there was a meeting in the said flat. Mirza Bhai gave
instructions regarding their duties in the abduction of Khadim
Karta. PW32 corroborated the theory of conspiracy but went
into details of the discussion in the said meeting. It was
discussed in the meeting that after abduction, Partha Roy
Burman would be kept in Bhoot Bunglow guarded by
Muzammel, Mizanur, Sekender, Moulana Mansur, Moulana
Jalal. Naim and Dilsad were given the duty of collecting
people. Aslam, Shahbaz and Marup were directed by Mirza
Bhai to abduct Khadim Karta. Zahid was to perform the duties
of driver. Mirza Bhai directed Safiq to keep watch on the road
where abduction was to be performed. Akhtar was to supply
arms from Haryana through Farasat. The persons who were to
69
guard the Bhoot Bunglow left the flat in the same night,
however PW32 along with Abdullah, Noor Ahmed and Mirza
Bhai remained in the flat.
117. PW32 also narrated that on the same day at about 7 p.m.
Farasat came with the arms and vehicle. The second meeting
state by PW31 was also corroborated by PW32. He also stated
that on July 24, 2001 all the persons, except those having
duties at Bhoot Bunglow i.e. Muzammel, Mizanur, Sekender,
Moulana Mansur, Moulana Jalal. Naim and Dilsad, again
assembled in the flat. Their duties were reiterated and
thereafter they left. Such evidence of PW31 and PW32 shows
the involvement of the appellants named by them in hatching
out a conspiracy to abduct the proprietor of Khadim Shoe
Company namely, Partho Roy Burman. The aforesaid
witnesses were very much present in the deliberations and
identified the other appellants with the specific roles allotted to
them.
118. PW33 was introduced by one of his childhood friend Asif
Reza Khan to one Aftab Ansari who instructed him to act in
accordance with his directions. He also was taken to 21 B,
70
Gorachand Lane where he resided for a month with many
others. He also stated about the conspiracy hatched up for
abduction of Partho Roy Burman. PW33 also testified that
under instructions, he went to Bhoot Bunglow. Besides
himself, Abdullah, Akram, Moulana Mansur, Sahjajan were
also in the said Bunglow. He also stated that the victim was
brought to Bhoot Bunglow by a car on July 25, 2001 noon. He
found a fair complexion man sitting inside the car with
bleeding injuries on his hands, who was identified by Asif Reza
Khan as Partho Roy Burman. Asif gave money to Shahbaz to
bring some medicine and Abu Ubaida, who was a doctor,
provided medical aid to the victim. This witness also testified
recording of private answers from Partho Roy Burman at the
instruction of Asif Reza Khan. This witness also testified that
Asif and Abdullah brought wearing apparel which PW33 and
others made the victim to wear. His beard was shaved and was
made to wear a black spectacle before the release of the victim
upon receipt of ransom money.
119. Upon scrutiny, we find the evidence of PW31, PW32 and
PW33 absolutely consistent so far as hatching out of
71
conspiracy and manner of its execution is concerned.
According to the testimony of PW32, the abduction was to be
carried out at C. N. Roy Road. A motor mechanic PW10
deposed to the effect that on July 25, 2001 at mid-day, while
he was at the garage, one person came with a Maruti 800 and
got a damaged backlight changed. PW10 also saw another
person sitting inside the car who gave him ₹. 30/- He identified
appellant Noor Mohammed as the person sitting inside the
car. A medical officer PW27 testified that he treated Partho
Roy Burman for gunshot injuries on his hand. PW40 deposed
to have seen the incident of abduction at 16/1A, C. N. Roy
Road. At about 9.30/10.00 a.m. He heard a sound and saw a
TATA Safari hitting a lamp post. Thereafter, some 3/4 persons
travelling in a Maruti 800 Car dragged out a person from TATA
Safari and forcibly took him into the Maruti car and fled away.
120. The cumulative effect of the aforementioned evidence
gives a clear interwoven chain of circumstances that leaves no
doubt that the appellants were involved in hatching up a
conspiracy of abducting Partho Roy Burman for ransom. They
acted in furtherance of such goal, each of the appellant
72
playing their specific role right from hatching up of the
conspiracy to the execution of the plan and even thereafter,
unto the release of the victim. To our estimation, the evidence
on record displays complete chain of circumstances leading to
the only inference that the appellants namely Noor
Mohammed @ Shahbaz @ Sikender, Jalal Molla @ Omar @
Babu Bhai, Mizanur Rahman @ Shahjahan, Mujammel Sk. @
Akram @ Akka, Ishaqe Ahmed @ Dilshad @ Jaheer @ Hassan
@ Musa, Arshad Khan and Tariq Mehmood @ Nayeem @ Ayub
@ Hazi herein, were the perpetrators of offence of abduction of
Partho Roy Burman for ransom as stipulated under Section
364A of the Indian Penal Code, 1860 in furtherance of a
conspiracy devised up in this regard, to the exclusion all
others.
121. Undoubtedly, after being abducted, Partho Roy Burman
was kept under captivity in Bhoot Bunglow aginst his will, in
furtherance of the conspiracy mooted by the aforesaid
appellants i.e. Noor Mohammed @ Shahbaz @ Sikender, Jalal
Molla @ Omar @ Babu Bhai, Mizanur Rahman @ Shahjahan,
Mujammel Sk. @ Akram @ Akka, Ishaqe Ahmed @ Dilshad @
73
Jaheer @ Hassan @ Musa, Arshad Khan and Tariq Mehmood
@ Nayeem @ Ayub @ Hazi, the aforesaid appellants are guilty
of the offence punishable under Section 342 read with Section
120 B of the Penal Code of 1860.
122. In Budhsen (Supra), the Hon’ble Supreme Court
observed that
“7. Now, facts which establish the identity of an
accused person………………………….
The power to identify, it may be kept in view, varies
according to the power of observation and memory of
the person identifying and each case depends on its
own facts, but there are two factors which seem to be
of basic importance in the evaluation of identification.
The persons required to identify an accused should
have had no opportunity of seeing him after the
commission of the crime and before identification and
secondly that no mistakes are made by them or the
mistakes made are negligible. The identification to be
of value should also be held without much delay. The
number of persons mixed up with the accused should
be reasonably large and their bearing and general
appearance not glaringly dissimilar. The evidence as
to identification deserves, therefore, to be subjected
74
to a close and careful scrutiny by the Court. Shri
Pratap Singh, Magistrate, who conducted the
identification, has appeared at the trial as PW 20.
The identification memo in respect of Naubat,
appellant, is Ex. Ka-20, dated October 21, 1967 and
in respect of Budhsen is Ex. Ka-21, dated October
28, 1967.”
123. In Rajesh Govind Jagesha (Supra) as well as in Ankush
Maruti Shinde (Supra) Hon’ble Supreme Court noted the
identification to be doubtful for unexplained delay in
conducting the Test Identification Parade.
124. In Mohd. Sajjad (Supra), the Hon’ble Supreme Court
observed that where there is an inordinate delay in holding a
test identification parade, the court must adopt a cautious
approach so as to prevent miscarriage of justice. The Hon’ble
Supreme Court considered the decision in the case of Lal
Singh vs State of U.P., to the following effect, that’s to say:
“43. It will thus be seen that the evidence of
identification has to be considered in the peculiar
facts and circumstances of each case. Though it is
desirable to hold the test identification parade at the
earliest-possible opportunity, no hard-and-fast rule
75can be laid down in this regard. If the delay is
inordinate and there is evidence probabilising the
possibility of the accused having been shown to the
witnesses, the court may not act on the basis of such
evidence. Moreover, cases where the conviction is
based not solely on the basis of identification in
court, but on the basis of other corroborative
evidence, such as recovery of looted articles, stand
on a different footing and the court has to consider
the evidence in its entirety.”
125. Similar principles with regard to inordinate delay in
conducting the test identification parade were laid down by the
Hon’ble Supreme Court in the case of Wasif Haider (Supra).
126. In the instant case, however, there might be a delay in
conducting the test identification parade but the identification
of the accused has been testified by learned Magistrate
conducting such parade. Moreover, no case was made out by
the appellants at the trial that the accused put on test
identification parade was shown to the witnesses before hand.
Not only that, the appellant accused persons were identified by
witnesses independent of test identification parade, at the trial
as their coconspirators and accomplice. They all worked
76
together in furtherance of their common object in a
conspiracy. That apart, independent witnesses, who saw the
appellants arranging for the houses, vehicles and event at the
time of occurrence have also identified the appellants. The
learned trial court has applied sufficient caution so far as
identification of the appellants at the trial is concerned.
127. PW32 identified appellant Shahbaz put on test
identification parade. He was not a witness who saw the
accused only once. He had actually lived with such accused
for days together in the house arranged for shelter of the
miscreants. At no stretch of imagination, such witness can be
said to have seen the said appellant for a brief period or for the
first time in court. In such circumstances, the Hon’ble
Supreme Court laid down the necessity of putting such
witness to test identification parade. In Sidhartha Vashisht
(Supra) it was observed by the Hon’ble Supreme Court that,
259. In Mullagiri Vajram v. State of A.P. [1993
Supp (2) SCC 198 : 1993 SCC (Cri) 496] it was
held that though the accused was seen by the
witness in custody, any infirmity in TIP will not
affect the outcome of the case, since the
77
depositions of the witnesses in court were
reliable and could sustain a conviction. The
photo identification and TIP are only aides in
the investigation and does not form substantive
evidence. The substantive evidence is the
evidence in the court on oath.”
128. For such reasons the ratio laid down in the case of
Kanan (Supra), Sarwan Singh (Supra) and Prakash (Supra)
cannot be made applicable in the facts and circumstances
obtaining in the present case.
129. In Munnalal (Supra), the Hon’ble Supreme Court noted
that,
“38. First, statement of PW-3 under section 161, Cr.
P.C. was recorded nearly 24 days after the incident.
Since the Investigating Officer did not enter the
witness box, the appellants did not have the occasion
to cross-examine him and thereby elicit the reason for
such delay. Consequently, the delay in recording the
statement of PW-3 in course of investigation, is not
referred to and, therefore, remains unjustified. The
possibility of PW-3, being fixed up as an eye-witness
later during the process of investigation, cannot be
totally ruled out.”
78
130. In the case at hand, however, the investigation officer
was extensively cross examined on behalf of the appellants.
Moreover, it is to be kept in mind that the present appellants
were absconding. Trial for some of the accused persons was
conducted and concluded much earlier. It is subsequent to the
present appellants brought to books, after much delay, the
second phase of trial was taken up. The facts obtaining in the
present appeal and corresponding trial are not identical with
that in the case of Munnalal (Supra).
131. Alil Mallick (Supra) was rendered in an altogether
different perspective where occurrence was reported after an
unexplained delay which is not the case in the present set of
appeals. For the self-same reasons of delay in recording the
statement of witnesses, the ratio in Shahid Khan (Supra) and
Harbeer Singh (Supra) cannot be applied in the present
proceeding given the nature of the incident and purport and
magnitude of investigation carried out firstly, by the local
police station and thereafter by the CID. It is trite law that
each case has to be looked into on the basis of facts and
circumstances obtaining in such case.
79
132. In M/s. Chaturbhai M. Patel & Company (supra) it was
laid down by the Hon’ble Supreme Court that,
“however suspicious may be the circumstances,
however strange the coincidences and however grave
the doubt, suspicion alone can never take the place of
proof. Such observation was laid down by the
Hon’ble Supreme Court in the facts of the said case
where the father had contracted a second marriage
and there was no close affinity between the
appellant and his father. The Hon’ble Court also
observed that there is absolutely no evidence to show
any prior meeting of mind between plaintiff and his
father before the consignment was sent either to
“Gujarat or Gaya so as to raise an inference that
these two persons had hatched up a conspiracy in
order to defraud the defendant”.
133. In Mousam Singha Roy (supra) the Hon’ble Supreme
Court noted that the circumstances relied on by the
prosecution were neither fully established nor were
inconsistent with the hypothesis of guilt of the accused. Such
circumstances did not exclude the hypothesis of innocence of
the accused for which the accused persons were found entitled
to benefit of doubt. In the case at hand, there are tangible
80
evidence that a conspiracy was hatched up between the
appellants and others for the abduction of the victim.
Explicitly, two houses were arranged for that purpose and
such arrangement has been proved by the prosecution with
the help of more than sufficient evidence. In fact, the evidence
laid down at the trial in the instant case, completely excludes
the hypothesis of innocence of the appellants.
134. In order to prove the case, certain email messages were
proved at the trial. Certain cassettes containing voice samples
of some of the appellants were admitted in evidence.
135. The principles laid down in Anvar PV (supra) require a
certificate as set out under Section 65 B of Indian Evidence
Act, 1872 for proof of electronic evidence. It was contended on
behalf of the appellants that the electronic evidence collected
in course of investigation of the case were produced and
proved in the trial court and the appellants were convicted on
the basis of such evidence. In absence of a certificate as
contemplated under Section 65 B of the Indian Evidence Act,
1872, the learned trial court was not justified in relying upon
or taking into consideration of such electronic evidence.
81
136. It is fact, in the instance case certain electronic materials
were collected and proved at the trial. However, besides one
cassette, which was alleged to be recorded and sent by the
appellants to the relative of the victim, all other electronic
evidence that is the phone recording of some of the accused
persons were done in course of the investigation case at the
behest of the investigating officer duly authorized by the
competent authority. The highest authority authorizing the
interception of the phone calls, the technical persons who
actually assisted in the phone recording were examined at the
trial. The persons involved in the execution of the recording of
telephone conversation have also deposed at the trial.
137. Besides that certain email messages were retrieved in
course of investigation. Such email messages were retrieved
under Section 27 of the Indian Evidence Act. The appellants
themselves provided credential for access to their email
accounts in their presence and print-outs of such email
messages were taken in their absence. The concerned
appellants had also put such signature on his email messages.
The officials who retrieved the email messages deposed to that
82
effect at the trial which according to us, seems to be
substantial compliance of Section 65 B of the Indian Evidence
Act.
138. Besides that so far as the present appellants are
concerned, evidence on record, leaving aside the electronic
evidence, seems to prove the only theory of guilt of such
appellants to the execution of all others.
139. Darshan Singh (supra) was rendered in the context that
the standard of prove to be met by an accused in support of
the defense taken by him under Section 313 of the Code of
Criminal Procedure is not beyond all reasonable doubt. The
burden lies on the prosecution to prove the charges beyond all
reasonable doubt. It was also held that the accused has
merely to create doubt and it is for the prosecution then to
establish beyond all reasonable doubt that no benefit can flow
from the same to the accused.
140. In the instance case the prosecution appears to be able to
prove that there was a conspiracy for abduction of Partha Roy
Barman for ransom. Prosecution has been able to prove that
there were meeting between the conspirators where the details
83
of the conspiracy were discussed and finalized. Prosecution
has been able to prove that the convict Pratha Roy Barman
was actually abducted in pursuance of such conspiracy
hatched up by the appellants and other accused persons. It
has also been proved at the trial that the victim sustained
threat injuries in the course of his abduction and he was
treated in such injuries on his release. It was also proved at
the trial that the victim was released upon receipt of the
ransom money. The prosecution has also been able to bring
on record which exclusively led to the theory of guilt of the
appellants. The appellants have also not been able to create a
reasonable doubt as to their involvement in the commission of
the offence during the course of cross-examination of the
prosecution witnesses or their examination under Section 313
of the Code of Criminal Procedure so as to reap a benefit out of
it on the basis of the theory of innocence. In such
circumstances the ratio laid down in the Darshan Singh are
not attracted in the facts of this case.
141. In the light of discussion made hereinabove, we find no
reason to interfere with the impugned judgment and order so
84
far as the appellants namely: 1) Noor Mohammed @ Sahabaz
@ Sikendar, 2) Jalal Molla @ Omar @ Babubhai, 3) Mizanr
Rahman @ Shajahan, 4) Mujammel Sk. @ Akram @ Akka,
5) Ishaque Ahmed @ Dilsad @ Jaheer @ Hassan @ Musha,
6) Arshad Khan, 7) Tariq Mehmood @ Nayeem @ Ayub @ Hazi.
142. So far as the role of appellant Akhtar @ Akhtar Hossain
@ Paloan @ Moulana Hossain is concerned, the evidence on
record does not place him either in Bhoot Bunglow or the flat
at 21B, Gorachand Lane at any point of time. None of the
prosecution witness has identified this appellant in court.
According to the evidence brought on record, he was supposed
to supply arms from Haryana for the execution of the plan. PW
32 stated in his deposition that Akhtar was to supply arms
from Haryana through Farasat. He also stated that Farasat
came with the arms and vehicle. The evidence on record also
discloses that arms were actually used in the incident and
Partho Roy Burman got injured by gunshot and was also
treated for such injuries upon his release. Nevertheless, we
could find nothing on record to establish that the arms
brought by Farasat were the arms used in the incident. There
85
is no evidence that the arms brought by Farasat were actually
supplied by appellant Akhtar @ Akhtar Hossain @ Paloan @
Moulana Hossain from Haryana. There is absolutely no
description of arms, alleged to be supplied by this appellant or
that of the arms used in the incident. If that be so, there
appears no evidence on record to link up the appellant Akhtar
@ Akhtar Hossain @ Paloan @ Moulana Hossain with the
incident in this case or the arms used therein. In such view of
the facts, we are afraid; we are not in a position to uphold the
conviction of the appellant Akhtar @ Akhtar Hossain @ Paloan
@ Moulana Hossain for the offences punishable under Section
364A/342/120B of the Indian Penal Code.
143. The three appeals being CRA 143 of 2018, CRA 144 of
2018 and CRA 476 of 2018 are accordingly disposed of in
terms of the observations made hereinabove. Consequently,
the convict Akhtar @ Akhtar Hossain @ Paloan @ Moulana
Hossain be set at liberty forthwith, if not wanted in connection
with any other case, subject to execution of a bond to the
satisfaction of the learned Trial Court which shall remain in
force for a period of six months, in terms of Section 437A of
86
the Code of Criminal Procedure. Consequently, connected
applications, including pending bail applications, if any, shall
stand dismissed.
144. Urgent photostat certified copy of this order, if applied
for, be supplied to the parties on priority basis upon
compliance of all formalities.
[MD. SHABBAR RASHIDI, J.]
145. I agree.
[DEBANGSU BASAK, J.]
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