STATE OF HP vs GULFAM @ GULLU

( 2026:HHC:19756 )
IN THE HIGH COURT OF HIMACHAL PRADESH,
High Court of H.P.
SHIMLA
Cr. Appeal No. 442 of 2014
Judgment reserved on 26.02.2026
th
Date of decision: 26 May, 2026
State of H.P. …Appellant
Versus
Gulfam @ Gullu …Respondent.
Coram
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
The Hon’ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting? Yes
For the Appellant: Mr.J.S. Guleria, Deputy Advocate General.

For the Respondent: Ms.Preetika Thakur, Advocate vice
Mr.Varun Chauhan, Advocate.
Vivek Singh Thakur, Judge
The State has preferred this appeal against judgment dated
19.4.2011 passed by the Sessions Judge, Solan in Sessions Trial No.3-
S/7 of 2011 titled State of HP vs. Gulfam @ Gullu in case FIR No. 281 of
2010 dated 24.11.2010 registered in Police Station Sadar Solan under
Sections 364(A), 302 and 201 of Indian Penal Code whereby respondent
has been acquitted after facing the trial.
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2 Prosecution story is that on 11.10.20201 7 years old
High Court of H.P.
Mohammad Sahil son of PW2 Mohammad Ali went to Government
Central Primary School, Chambaghat, District Solan, but did not return in
the evening after school hours whereupon, family, relatives and friends of
family made unsuccessful attempts to search Mohammad Sahil and lastly
at about 7.35 PM, PW2 Mehboob Ali submitted an application
(Ext.PW2/A) in Police Chowki City Solan whereupon Daily Diary Report
No. 23, dated 11.10.2010 (Ext.PW25/A) was recorded about missing of
Mohammad Sahil. PW2 Mehboob Ali, on next day, informed his father-
in-law PW1 Noor Hasan about missing of Sahil.
3 PW1 Noor Hasan informed PW2 Mohammad Ali that on
27.10.2010, he had received a call demanding Rs. 3 lacs ransom for
releasing Sahil and on next day i.e. 28.10.2010, he again received a call
inquiring about arrangement of ransom, whereupon PW2 Meboob Ali
(father of Sahil) along with his brother Mohammad Yakku and brother-in-
law Mohammad Irphan (PW26) went to Muzaffarnagar (Uttar Pradesh) to
the house of PW1 i.e. in-laws of PW2. Again an unsuccessful attempt
was made to trace the child. After a week, a call was received by
Mohammad Ali, a friend of PW2 Mahboob Ali (not examined), a friend of
PW2 Mahboob Ali demanding ransom to hand over the child and
Mohammad Ali was asked by caller to come to Muzaffarnagar along with
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ransom money and thereafter have a child. Thereafter, PW2 (Mehboob
High Court of H.P.
Ali) approached the Senior Superintendent of Police, Muzaffarnagar and
narrated the whole story, whereupon caller mobiles were put on
observation by Uttar Pradesh Police and thereafter, Uttar Pradesh Police
directed to get the FIR registered first at Solan, whereupon PW26
Mohammad Irphan came to Solan and filed an application (Ext.PW24/A)
in Police Station Sadar Solan, narrating therein the entire facts including
receipt of telephonic ransom calls on mobile of Noor Mohammad and
mother of Sahil. On the basis of which, FIR No. 281 of 2010 dated
24.11.2010 (Ext.PW24/B) was registered by PW24 SHO Chaman Lal
under Section 364-A IPC and in this regard, endorsement Ext.PW24/C
was made by PW24 Chaman Lal on application at 8.40 PM.
4 On 25.11.2010 PW7 SHO Ravinder Kumar, I.O. along with
HC Kishan Chand, C. Sanjeev Kumar, PW22 C.Yashwant Singh and
complainant PW26 Mohammad Irphan went to the office of
Superintendent of Police, Muzaffarnagar and SOG Branch for inquiring
about name and address of telephone/SIM holders from which ransom
money was demanded. In this regard, information was supplied by PW28
Ankit Chaudhary and statements of PW28 Ankit Chaudhary and PW1
Noor Hasan were also recorded. Ransom calls were received from
Mobile No.7895996094 and 9568859763. After tracing the identity of SIM
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holders, Mobile No. 7895996094 was found in the name of Jai Bhagwan
High Court of H.P.
and Mobile No. 9568859763 was found belonging to Sukh Pal son of
Kishan Lal of Muzaffarnagar.
5 To verify the identity and address, Police Party went to
village Kadipur, Police Station Bhopa, and accordingly, Sukh Pal was
contacted and statement was recorded under Section 161 Cr.P.C. and on
given address or in entire said Mohalla, no person namely Jai Bhagwan
was found in existence.
6 During inquiry, it was found that ransom calls were made by
using Mobile bearing EMI number with last digits of 0290. It was further
found that for sometime, the same mobile was used with SIM
No.9997567714 issued in the name of Pappu, who is father of PW4 Kallu
alias Pradeep and PW12 Praveen.
7 It is further case of prosecution that on inquiry, Praveen
revealed that one Gullu @ Gulfam (respondent), a friend of his brother
PW4 Kallu @ Pradeep, had given his mobile having EMI number of last
digit of 0290 to his brother PW4 Kallu for keeping the same along with
his clothes.
8 On revealing aforesaid facts, Kallu @ Pradeep (PW4) was
interrogated whereupon he disclosed that respondent Gulfam @ Gullu
had asked him to associate with respondent for kidnapping a person from
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a village near Chandigarh with offer to pay Rs.50,000/- in lieu of that, to
High Court of H.P.
him i.e. Kallu @ Pradeep. This offer was disclosed by Kallu @ Pradeep to
his employer/mason PW11 Surender @ Kala, who, in turn, advised Kallu
@ Pradeep not to indulge in such activities.
9 According to prosecution, it was further disclosed by Kallu
that respondent Gulfam @ Gullu came to him after sometime to take
back his mobile and clothes and at that time, Kallu @ Pradeep inquired
Gulfam about fate of proposed kidnapping plan of the person whereupon
respondent Gulfam told him that no such person was kidnapped but he
had kidnapped a child from Solan Himachal Pradesh and asked Kallu @
Pradeep to keep the kidnapped child with Kallu’s sister and brother-in-law
with offer to pay some amount to them in lieu thereof.
10 As per prosecution, thereafter on 28.11.2010, respondent
Gulfam was called for interrogation from his house and during
interrogation, he kept on misleading the police and ultimately on
30.11.2010 respondent Gulfam confessed that he had kidnapped Sahil
from Solan and killed him by throttling and thereafter dead body was
thrown in Ganga Nehar Chitora, whereupon respondent Gulfam was
arrested and produced before the Magistrate on 1.12.2010. Thereafter,
he was sent in police remand for 8 days.
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11 On 3.12.2010, respondent Gulfam made a disclosure
High Court of H.P.
statement that he could identify the place from where he lifted the child
and purchased the Kurkure packet to offer to Sahil for kidnapping him.
Disclosure statement of respondent Gulfam Ext.PW2/B was reduced into
writing under Section 27 of Indian Evidence Act which was signed by
witnesses PW9 Chander Mohan and PW2 Mehboob Ali and it was also
signed by respondent. On the same very day, respondent Gulfam led the
police to Chambaghat and identified the Rehri from where he purchased
the Kurkure, and also identified the spot, 25 feets away from that Rehri,
from where by enticing with packet of Kurkure, he kidnapped the child. In
this regard, memo Ext.PW2/C was prepared which was signed by
witnesses PW3 Kesari and PW2 Mehboob Ali. Statement of PW4
Pradeep @ Kallu (Ext.PW4/A) was also recorded under Section 164
Cr.P.C. before the Magistrate on 3.12.2010.
12 On 3.12.2010 Investigating Officer submitted an application
Ext.PW8/A to the Head Master of Government Central Primary School,
Chambaghat, Solan for supplying the date of birth of Sahil with
submission that said child was kidnapped on 11.10.2010 and was killed
by kidnapper near Muzaffarnagar in Uttar Pradesh. In response to this
letter, School Leaving Certificate of Sahil (Ext.PW8/B) was issued by the
School.
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13 On 4.12.2010, Investigating Office along with police officials,
High Court of H.P.
PW26 Mohammad Irphan and respondent went to Muzaffarnagar. On
4.12.2010 disclosure statement Ext.PW13/H was recorded by
Investigating Officer in presence of PW4 Pradeeep @ Kallu and PW26
Mohammad Irphan wherein respondent stated that on 11.10.2010, after
kidnapping the child, he had stayed for two nights in Guest House
situated in front of Muzaffarnagar Railway Station. It was signed by
respondent. On 4.12.2010, respondent Gulfam, accompanying the police
party in police vehicle, asked to stop the vehicle in front of Railway
Station, Muzaffarnagar and led the police party along with Mohammad
th th
Irphan to a Guest House by saying that on 11 and 12 October, 2010,
he had stayed in this Guest House by paying Rs.25 per bed. In this
regard, memo Ext.PW10/A was reduced into writing which was signed by
PW10 Seeta Ram, owner of Guest House, and PW26 Mohammad Irphan
as well as respondent Gulfam.
14 On 5.12.2010, vide disclosure statement (Ext.PW13/A)
respondent Gulfam, in presence of witnesses PW13 Mahboob and PW26
Mohammad Irphan had stated that on 15.10.2010, after killing Sahil by
throttling at about 3.30 PM, he had thrown him in Chitora Nehar and his
school bag was also thrown in Nehar. Whereas mobile phone and two
SIMS, after breaking, were also thrown by him in a water channel Rajwah
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and before that, he had kept child one day and night at Railway Station,
High Court of H.P.
Khatoli and another day and night, on 14.10.2010, in ruined place
(Khandahar) in Muzaffarnagar with submission that he had exclusive
knowledge of same and he could identify the places. In this regard,
memo Ext.PW13/G was prepared and same was signed by PW13
Mahboob and PW26 Mohammad Irphan as well as respondent Gulfam.
Thereafter, Gulfam led the police party and witnesses PW13 Mahboob
and PW26 Mohammad Irphan to a small bridge i.e. culvert and asked to
stop the vehicle and had identified a big canal known as Rajwah by
saying that he did not recollect the date but he had thrown his both SIMs
and mobile phone after breaking at that place, by coming from his house
on motorcycle, in the fast flow of water. In this regard, memo Ext.PW13/B
was prepared.
15 On 5.12.2010 itself, police party and witnesses were led by
respondent Gulfam to a place 1 Km before Chatoda Jhal and after
alighting from the police vehicle, took all of them towards Nehar below
the road and identified the spot where he had killed Sahil on 15.10.2010
by throttling and had thrown dead body and school bag of Sahil in Nehar.
In this regard, memo Ext.PW13/C was prepared. Same was signed by
PW22 C. Sanjeev Kumar and PW26 Mohammad Irphan. At aforesaid
place, during identification of place of throwing dead body and school bag
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in the canal, at about 8 metres away on North side of said spot, one copy
High Court of H.P.
was found with print on the cover as ‘Dayanand Adarsh Vidalaya Solan
HP’ with photo of school and on pagination, 56 pages were found therein
and on page No.1 in the Index, in English, name of Tanya Sharma, XII
rough copy and below that Mohammad Sahil and mobile numbers of
three persons were written. From Page 3 to 23, English was written and
from page 24 to 38 homework done by Mohammad Sahil, identified by
his uncle (Foofa of Sahil) PW26 Mohammad Irphan, was found. Last
pages from 35 to 38 homework done on 10.10.2010 was found. Copy
was taken in possession vide memo Ext.PW13/E which was signed by
witnesses PW13 Mahboob, PW22 Constable Sanjeev and PW26
Mohammad Irphan as well as respondent Gulfam.
16 On 5.12.2010, Gulfam had also identified the Bench where
he had spent night on 13.10.2010 along with Mohammad Sahil by leading
the police party and witnesses to the spot. Memo Ext.PW13/F prepared
in this regard was witnessed by PW13 Mahboob, PW26 Mohammad
Irphan and was also signed by respondent Gulfam.
17 Gulfam also identified ruins (khandahar) where he spent
night on 14.10.2010 along with child. Memo Ext.PW13/G prepared in this
regard was signed by PW13 Mahboob and PW26 Mohammad Irphan and
also by Gulfam.
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18 As per prosecution, note-book (copy) of Sahil recovered from
High Court of H.P.
spot, where his dead body of Sahil along with school bag was disclosed
to have been thrown by Gulfam, was initially copy of PW20 Tanya
studying in Dayanand Adarsh Vidyalya Solan in 10+2 class residing in a
rented accommodation at Chambaghat. During shifting of their house
from Chambaghat to Sabathu road, she sold her old books and exercise
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books to scrap dealer i.e. father of PW16 Safina studying in 9 class,
who was neighbour of Sahil. Safina and Sahil were taking assistance of
PW17 Rajni for their studies who was helping the children along with
Sufina and Sahil in tuition class. Safina gave the copy to Sahil and the
said copy was recovered from Chitora Nehar.
19 PW14 Nirmal Sharma, Class Teacher of Sahil in
Government Central Primary School, PW15 Afsana mother of Sahil,
PW16 Safina and PW17 Rajni identified the hand writing of Sahil in last
pages of this exercise book/copy.
20 During investigation, Investigating Officer with handicam had
recorded the entire proceedings which was convered into DVD by PW23
Sanjeev Kumar who was working in A.P. Global Vision Computer, The
Mall, Solan, who produced DVD (Ext.PW23/A) in evidence.
21 PW21 Shashi Kant Verma, Nodal Officer, Idea Cellular
Limited had supplied call details of mobile cell Nos. 95688-59763 for
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period from 1.10.2010 to 19.11.2010 (Ext.PW21/A), copy of customer
High Court of H.P.
application form (Ext.PW21/B) and ID (Ext.PW21/C), customer
application of Cell No. 96390-28531 (Ext.PW21/D), photo ID
(Ext.PW21/E) and call details of Cell No. 95688-59763 from 6.10.2011 to
26.11.2011 (Ext.PW21/F). PW18 Devinder Verma produced on record
the call details of Cell No.7895996094 from 1.10.2010 to 26.11.2010
Ext.PW18/A billing address of Jai Bhagwan Ext.PW18/B, IMEI number
(International Mobile Equipment Identity) (Ext.PW18/C), photo identity
(Ext.PW18/D) as well as call details of Mobile No.9997567714
(Ext.PW18/E) from 16.10.2010 to 22.10.2010 and photo identity of
subscriber (Ext.PW18/F). He also produced call details of Mobile
No.9816690285 from 1.10.2010 to 26.11.2010 (Ext.PW18/G) and photo
identity (Ext.PW18/H).
22 On completion of investigation, he prepared the challan and
final report under Section 173 Cr.P.C. and presented before the
Magistrate, who committed the same to the Sessions Court. On the basis
of evidence on record, charge against Gulfam was framed under
Sections 364-A, 302 and 201 IPC. Thereafter, for not pleading guilty,
respondent, after facing trial, has been acquitted.
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23 Prosecution has examined 28 witnesses, whereas after
High Court of H.P.
recording statement under Section 313 Cr.P.C., no evidence has been
lead in defence.
24 The prosecution case hinges upon the following facts:-
(A) Ransom calls received by PW1 Noor Hasan on Mobile No.
96390-28531 issued in the name of PW7 Gulzar but used by PW1 Noor
Hasan from cell No.7895996094 issued in favour of Jai Bhagwan and
95688-59761 issued in the name of Sukh Pal, but alleged to be used by
Gulfam;
(B) Identification of Gulfam by seller of Kurkure to Gulfam as a
purchaser of Kurkure on 11.10.2010;
(C) Disclosure statement of Gulfam Ext.PW2/B regarding
identification of Rehri wherefrom, Kurkure were purchased and spot of
kidnapping the child;
(D) Disclosure statement Ext.PW13/H regarding Guest House
th th
where he spent two nights on 11 and 12 October, 2010 with child;
(E) Disclosure statement Ext.PW13/A regarding identification of
spot of killing and throwing the child as well as school bag in Nehar;
throwing of mobile phone and two SIM in a canal at Rajwah, Bench on
Railway Station used for spending night on 13.10.2010 at Muzaffarnagar
and spot in ruins where he spent night on 14.10.2010 with child, and
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(F) Recovery of exercise book (rough copy) of Mohammad Sahil
High Court of H.P.
(victim) from the spot of killing and throwing victim and his school bag in
Nehar.
25 With regard to ransom calls by respondent Gulfam,
statements of PW1 Noor Hasan, PW2 Mahboob Ali, PW15 Afsana and
PW26 Mohammad Irphan along with their depositions in Court, call
detailed record produced in Court and complaint submitted for
registration of FIR are relevant.
26 In complaint Ext.PW24/A, it has been categorically stated
that PW1 Noor Hasan @ Noor Mohammad received ransom calls from
Phone No.95688-95763 on his mobile No. 9639028331 and PW1 Noor
Mohammad was receiving repeated calls on his mobile and in a call
received from same number i.e. 7895996094, mother of Sahil had heard
cries of her child and PW2 Mehboob Ali had also informed complainant
PW26 Mohammad Irphan that calls were being received from
78959996094 repeatedly and further that mobile Nos.9568895763 and
7895996094 belonged to culprits. Complaint was filed on 24.11.2010.
Therefore, as apparent from the complaint, the calls were being received
by PW1 Noor Mohammad, PW2 Mahboob Ali and PW15 Afsana till
November, 2010 and during this period, Afsana had heard cries of her
child on her mobile.
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27 Whereas, in the Court, PW1 Noor Hasan has stated that he
High Court of H.P.
received two mobile calls on his mobile phone No. 96390-28531 i.e. one
on 27.10.2010 at about 10 AM and second on 28.10.2010 at about 8 AM
and he has not uttered even a single word about ransom calls received
by him thereafter. The deposition of PW2 Mahboob Ali, on this count, is
also on same line. There is contradiction in averments made in complaint
and statements of these witnesses. PW26, in his deposition in Court, is
also silent about the details of dates on which calls were received. He,
like PW1 Noor Hasan, PW2 Mahboob Ali and PW15 Afsana, is also silent
about hearing of cries by mother of child on mobile.
28 Prosecution case is that Gulfam had killed the child on
15.10.2010. First ransom call has been received on 27.10.2010 and
therefore, in case prosecution case is accepted to be true, cries of child
must not have been heard by his mother after 15.10.2010, much less
after 27.10.2010 as the child was killed on 15.10.2010, and thus, there
was no chance of hearing the cries of child on 27.10.2010 or thereafter.
This contradiction is irreconcilable.
29 It is the prosecution case that call details, photo IDs
Ext.PW18/C, Ext.PW18/E, Ext.PW18/D and Ext.PW18/F were provided
by Nodal Officer PW18 Devender Verma, But this evidence has been
contradicted and demolished by prosecution witness PW28 C. Ankit
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Kumar who, at the relevant point of time,was posted as Constable
High Court of H.P.
SOG/Surveillance in the office of SSP Muzaffarnagar. In his deposition,
he has stated that in November, 2010, on direction of SSP,
Muzaffarnagar, he had provided these call details, photo IDs to the
Himachal Police and had also supplied information of location of mobile
Nos. 7895996094 and 9568859763 as well as 9997567714 at that time
by extracting the same from computer used by him. These contradictions
create doubt about veracity of investigation.
30 It is also apt to notice that aforesaid documents placed on
record have not been signed and attested by anybody/Authority/Incharge,
custodian of these documents nor requisite certificate, required to be
issued under Section 65-B of Indian Evidence Act, has been appended
therewith or proved separately. Though these documents cannot be
taken into consideration for not having been proved in accordance with
law, however, it is also matter of fact that as stated in complaint
Ext.PW24/A, the calls from two numbers were being received till
November, 2010, the aforesaid call details also indicate so. On ignoring
the call details, for want of proving the same in accordance with law,
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there is not even an evidence of call received by PW1 on 27 and 28
October, 2010. Either there is no evidence on record or evidence on
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record is contradicting the deposition of witnesses related thereto
High Court of H.P.
creating again doubt against the prosecution story.
31 It has also come on record that cell phone No. 7895996094
was found to have been issued in favour of one Jai Bhagwan son of Atar
Singh resident of House No. 218/1, Kotla 2, Meerapur, Jaansadh
Muzaffarnagar (UP). Mobile No.9568859763 was found in the name of
PW6 Sukh Pal son of Kismat Lal.
32 According to prosecution, no person named Jai Bhagwan
son of Atar Singh was found in existence in the area of address given,
whereas PW6 Sukh Pal was found on given address but he had stated
that he was illiterate agriculturist and was not having any mobile phone or
SIM being used in his name and he never purchased any mobile
including SIM with further statement that his documents including
revenue papers, Photo Identity Card had been lost in the bank at Bhopa.
There is no documentary evidence to link these mobile numbers with
Gulfam.
33 Prosecution has tried to connect Gulfam with these numbers
with the help of mobile phone/equipment used for aforesaid two SIMs i.e.
7895996094 and 9568859763 by producing on record that same phone
was used for using SIM No.9997567714 issued in the name of Pappu
father of PW4 Kallu @ Pradeep and PW12 Praveen. The story putforth
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by prosecution is that mobile phone/equipment was kept by Gulfam with
High Court of H.P.
PW4 Kallu @ Pradeep for about one week and during that week, as
mobile set of PW12 Praveen became out of order, the phone of Gulfam
was used by PW12 Praveen by using his SIM. With this story, it is the
claim of prosecution that Gulfam kept his phone with PW4, who allowed
the same to be used by PW12 Praveen for using his SIM and thereafter
phone was taken back by Gulfam and thus SIMs 7895996094 and
9568859763 used in said phone belonged to Gulfam and a conclusion
has been drawn that ransom calls were made by Gulfam, and for his
disclosure statement coupled with connection with mobile phone used for
ransom calls, he is the person who had kidnapped and murdered Sahil.
34 Jai Bhagwan is unknown identity. PW6 Sukh Pal examined
as witness, nowhere connects Gulfam with SIM number issued in favour
of Sukh Pal. PW4 Kallu @ Pradeep whose statement was also recorded
under Section 164 Cr.P.C., has deposed in Court that he was forced to
make statement before the Court. He has categorically stated that he was
brought by police to Solan for about 7-8 days before and he was
threatened that if he did not give statement Ext.PW4/A (under Section
164 Cr.PC) before the Court, then he would be impleaded as an accused
in the case. He has further stated that he was advised by police to claim
before the Court that he was making statement without fear and pressure
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but voluntarily. He was kept in Police Station for 5 days before recording
High Court of H.P.
of his statement before the Magistrate. He has stated that he did not
know anything about this case.
35 His brother PW12 Praveen has completely denied the
prosecution story and has stated that he never used the mobile of Gulfam
for using his SIM. Therefore, link between mobile phone used with SIM
Cell No. 9997567714 owned by Pappu (father of PW4 Pradeep and
PW12 Praveen) is missing. In case PW12 Praveen did not use the mobile
of Gulfam then mobile phone with IME used for making ransom calls by
Cell Nos. .7895996094 and 9568859763 were not belonging to Gulfam. It
is for PW4 and PW12 or their father Pappu to explain that how the phone
equipment, used by Praveen, was used for making ransom calls rather it
creats suspicion that either PWs 4 and 12 were culprits only or were also
involved in kidnapping and murder of Sahil.
36 Story of prosecution is also demolished by PW4 Kallu @
Pradeep by stating that he had deposed on the advise of police under
threat that for not making such statement, he would be arrayed as an
accused. This story is also demolished by mason PW11 Surender @
Kala who was employer of PW4 Kallu @ Pradeep, by not supporting the
claim of prosecution. He has been subjected to cross examination after
declaring hostile on request of learned Public Prosecutor for resiling from
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his earlier statement. But nothing material could be elucidated from his
High Court of H.P.
exhaustive cross examination. He has denied the prosecution story in
toto.
37 It is also noticeable that as per prosecution case, after
kidnapping on 11.10.2010 child was killed on 15.10.2010 and in between
he was kept in Guest House, on a Bench of Railway Station and in ruins.
It is not a case of prosecution that someone-else was also involved in
commission of offence and therefore, during the time, when he met PW4
Kallu @ Pradeep, 7 years old child could not have been left alone.
Therefore, offer by Gulfam alleged to be made to PW4 Kallu @ Pradeep
appears to be concocted as it was not possible for Gulfam during that
period to come to PW4 and to make such offer and in case, as can be
drawn from the complaint and other material on record regarding making
of calls on or after 27.10.2010, the child was alive on or before
27.10.2010, then also it is anti-thesis to the prosecution story and for that
reason also, prosecution story is to be disbelieved.
38 Mobile No. 96390-28531 was found in the name of PW7
Gulzar but in his deposition in Court this witness has stated that he was
using mobile SIM No. 9027145696 and he was declared hostile for
resiling from his earlier statement and subjected to cross examination on
request of learned Public Prosecutor. But in cross examination, he has
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categorically stated that he had not given SIM No.9639028531 to PW1
High Court of H.P.
Noor Hasan against his photo identity. In his cross-examination, nothing
in favour of prosecution could be elucidated.
39 According to prosecution case, in presence of witnesses
PW9HC Chander Mohan and PW2 Mahboob Ali.Gulfam disclosed about
shop from where he purchased the Kurkure and kidnapped Sahil. In his
statement, PW2 Mahboob Ali has stated that he had put his signatures
on disclosure statement as well as memorandum of identification on the
same day at Chambaghat Solan. Whereas, prosecution case is that
disclosure statement was made in Police Station and Identification Memo
was prepared after identification of spot where Gulfam was also identified
by PW3 Kesari owner of Rehri wherefrom allegedly Kurkure were
purchased. It has come on record that distance between Police Station
and spot is about 1 Km. Further claim of prosecution, that Gulfam was
identified by seller of Kurkure, has also been demolished by PW3 Kesari
stating in cross examination stating that when police brought the accused
he told the police that he could not recognize the person who had
purchased the packet of Kurkure as number of persons used to visit his
Rehari daily and he could not recognize each and every customer,
moreover in his absence, sometimes his mother and sister also used to
sit on Rehari. According to him, signatures on memorandum Ext.PW2/C
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were obtained in Police Post. This fact is again contradicting the
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statement of PW2, because according to him, signatures were put at
Chambaghat. It is also apt to notice that PW2 Mahboob Ali is also having
Rehari of ‘ golgappa’ adjacent to Rehari of PW3 Kesari and they are
known to each other, but despite that, even in his examination-in-chief
PW3 Kesari has stated that police had brought a person by disclosing
that packet of Kurkure had been purchased by that person whereupon he
(PW3 Kesari) had disclosed that the said person might have purchased
some packet of Kurkure. He has identified the accused as a person
brought by police but in cross-examination he has clearly stated that he
had not identified the person as a purchaser of Kurkure. His complete
deposition reflects that for disclosure by police that he had purchased the
Kurkure, he had signed the memo. He has also not identified Gulfam as
kidnapper of Sahil. Therefore, disclosure statement Ext.PW2/B and
Identification Memo Ext.PW2/C are not of any help to prosecution.
40 PW13/H is disclosure statement regarding identification of
th th
Guest House, where Gulfam and Sahil allegedly stayed on 11 and 12
October, 2010. This disclosure statement has been witnessed by PW26
Mohammad Irphan and PW4 Kallu @ Pradeep. PW4 Kallu @ Pradeep in
his deposition in Court is completely silent about this disclosure
statement and no request has been made to declare him hostile or cross-
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examination or re-examination him in order to prove his deposition with
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regard to disclosure statement Ext.PW13/H. Identification memo
Ext.PW10/A has been witnessed by owner of Guest House PW10 Sita
Ram as well as PW26 Mohammad Irphan. In his deposition, PW10 Sita
Ram has categorically stated that he had not maintained any register for
entry of guests in the Guest House and it is one Sahjad who used to
provide cots to persons for staying in Guest House during night and he
did not know to whom Sehjad had given cots during that night. According
to him, on 4.12.2010 a person brought by Himachal Police was identified
by Sehjad as a person who had stayed in Guest House in his absence
along with child and he has identified Gulfam in Court as same person
who was identified by Sehjad. This witness is completely silent about
identification of child alleged to be accompanied with Gulfam, whereas
according to Investigating Officer PW27, he had shown photograph of
Sahil to Sehjad and Sehjad, on the basis of said photograph, had
identified Sahil with statement that child was also having school bag with
him. But PW10 Sita Ram is completely silent about this fact. Further
according to PW10 Sita Ram, Sehjad was a son of beggar, who used to
come to work in Guest House occasionally and his mother, as and when
used to go for begging, was leaving her son with him or other
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shopkeepers or businessmen as a helping hand and Sehjad was working
High Court of H.P.
for different period in different shops after short intervals.
41 Another disclosure statement Ext.PW13/A has been relied
upon by prosecution against Gulfam which has been witnessed by PW13
Mahboob and PW26 Mohammad Irphan and identification of spots in
furtherance thereto vide memos Ext.PW13/B, Ext.PW13/C, Ext.PW13/F
and Ext.PW13/G have also been witnessed and signed by these
witnesses. PW13 Mehbood (not PW2 Mehboob) is resident of village
situated at 10 Km away from Muzaffarnagar. How and in what
circumstances, he came to be associated in investigation is also mystery.
According to him, he is in business of purchase and sale of trees and on
5.12.2010 he came to Muzaffarnagar on account of his personal work,
where Himachal Police met him and associated during investigation. He
has categorically stated that PW26 Mohammad Irphan was known to him.
In cross-examination, he has stated that PW26 Mohammad Irphan is
husband of sister of PW2 Mahboob Ali (father of child) and Irphan is
known to him since long as they had relations as well as business
relations. PW26 Irphan in cross examination has stated that he did not
know that PW13 Mahboob is forest contractor. He has stated that house
of PW13 is about 10 Km from Muzaffarnagar and he had no relations with
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him nor he had business relationship. He has also denied that PW13 was
High Court of H.P.
from his relations and he was having business relations with him.
42 The note-book of Sahil has also been claimed to have been
recovered from spot, where child was killed and thrown in Nehar along
with school bag and it was taken in possession vide memo Ext.PW13/D.
This memo has been signed as a witness and identified by PW13
Mahboob, PW22 Constable Sanjeev Kumar and PW26 Mohammad
Irphan. It is noticeable that all other memos, except Ext.PW13/C
identification of spot of killing and throwing Sahil and Ext.PW13/D
recovery of note-book of Sahil, have been witnessed by PW13 Mahboob
and PW26 Mohammad Irphan, but PW13/C has been witnessed by
PW22 Constable Sanjeev Kumar and PW26 Mohammad Irphan only and
PW13 Mahboob has not been made witness to this memo. Whereas,
Ext.PW13/D has been reflected to have been witnessed by PW13
Mahboob, PW22 Constable Sanjeev Kumar and PW26 Mohammad
Irphan. It again creates doubt about veracity of investigation. Because
when all memos were witnessed by PW13 Mahboob and PW26
Mohammad Irphan why PW13 was left out in Ext.PW13/C and PW22
Sanjeev Kumar was added as witness on Ext.PW13/D.
43 It is also apt to record that exercise book recovered after 51
days near the Nehar from a place open to the space and it kept lying on
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ground or in the bushes from 15.10.2010 till its recovery on 5.12.2010. As
High Court of H.P.
rightly noticed by the Trial Court, condition of this exercise book
Ext.PW13/A does not depict even an iota of evidence of deterioration or
damage caused to the note-book which remained lying in open for 51
days particularly when it has come in evidence that during that time, it
also rained. Even in absence of rain in the winter, it is not possible that an
exercise note-book lying in open will not be damaged even to minimum
extent. Further it is also matter of fact that this exercise book was not a
book to be used in the school but was an exercise book (rough copy)
alleged to be used by child during his tutions after school hours during
evening. There is great probability that this exercise note-book was not in
the bag of child, and it was in bag, how it fell near the Nehar away from
spot of throwing and remained unchanged. Therefore, this piece of
evidence is also doubtful.
44 Though PW14 Nirmal Sharma, Class Teacher, PW15 Afsana
mother of Sahil and PW17 Rajni have identified the hand writing of Sahil
on note-book but PW16 Safina has categorically denied the prosecution
case that this copy was purchased by her father from Tanya as scrape
and was handed over by her to Sahil. Tanya has also expressed her
ignorance about handing over the copy by scrap purchaser to her
daughter Safina and in turn, handing over the said copy by Safina to
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Sahil. Even if this aspect is ignored and for identification of handwriting of
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Sahil by PW14 Nirmal Sharma, PW15 Afsana and PW17 Rajni, this copy
is treated to have been proved as exercise book of Sahil, for discussion
herein-above, the recovery of book has not been proved from spot by
leading a credible evidence rather the circumstances and condition of
exercise book create cloud on prosecution story that this exercise book
was recovered from the spot where Sahil was killed and thrown in Nehar.
We have also perused the note-book on record, there has not even a
slightest damage to it. The condition of exercise note-book depicts that it
is like a note-book taken out from bag, shelf or almirah.
45 PW13 has stated that during identification of spots at
Muzaffarnagar, Gulfam was travelling with police in the police vehicle and
both of them i.e. PW13 Mahboob and PW26 Mohammad Irphan were
following the police vehicle on motorcycle. Whereas according to PW26
Mohammad Irphan, both of them along with police officials and Gulfam
had visited the spots in police vehicle only. This fact and contradiction
with respect to relation and appearance of PW13 as a witness to all
memos creates doubt about prosecution story as claimed.
46 The respondent has benefit of being acquitted by the Trial
Court fortifying the presumption of innocence in his favour. Learned
Deputy Advocate General has not been able to pin point any cogent,
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reliable and convincing evidence to rebut the presumption or making out
High Court of H.P.
any ground for interference in judgment of acquittal for reversing the
same.
Accordingly, the appeal is dismissed along with all pending
miscellaneous application(s), if any. The bail bonds stand discharged.
The record of Trial Court be also transmitted forthwith.
(Vivek Singh Thakur),

Judge.
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26 May, 2026 (Ranjan Sharma,

Judge.

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