IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. A. No. 314 of 2006 Decided on : 29th October, 2009 Ilias Mohammad .. Appellant Versus State of H.P. .. Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. B.K. Malhotra, Advocate. For the respondent: Mr. P.M. Negi, Deputy Advocate General with Mr. Ramesh Thakur, Assistant Advocate General in both the appeals. Surjit Singh, Judge (Oral) Appellant has appealed against the judgment dated 10.8.2006 of learned Sessions Court, whereby he has been convicted of offence, under Section 364-A IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.10,000/-; in default of payment of fine to undergo rigorous imprisonment for a further period of one year. 2. Case of the prosecution, which led to the trial of the appellant, is like this. Appellant, who a is resident of a village in Muzaffarpur District of Uttar Pradesh, had been earning his livelihood as a hawker in the area of Karsog, a Sub Divisional headquarters in Mandi District of Himachal Whether reporters of the local papers may be allowed to see the judgment? …2… Pradesh. He rented a portion of the house of PW-2 Hans Raj and his wife PW-1 Smt. Poonam, sometime in the year 2004. Appellant became familiar with PW-2 Hans Raj, his wife PW-1 Poonam and their three minor daughters. Youngest daughter of PW-2 Hans Raj and PW-1 Poonam was Charu, aged 4½ years. The child, on account of affection shown by the appellant, became attached with him. On 13.3.2005, when PW-1 Poonam and PW-2 Hans Raj were not at home, as they had gone to their work places, the appellant took away Charu on the pretext that he was going to bazaar. Earlier also, he used to take the child with him, frequently. Appellant then disappeared from Karsog. When PW-1 Poonam returned home around 5 p.m. and did not find her daughter Charu at home, she searched for her. She was informed by her mother-in-law that the appellant had taken away the child. When the appellant did not return till very late in the evening, report was lodged with the police, vide FIR Ext. PW1/A. On 14.3.2005, a telephonic call was received by PW-1 Poonam at telephone No. 222060, which is installed in her neighbourhood. The caller demanded ransom. Police was informed of this call. PW-11 Dy. S.P. Kuldeep Chand Rana contacted telecommunication officials and got the calls, meant for telephone No.222060, diverted to his own mobile No.94180-35216. On 15th March, 2005, there was another …3… call, which was traced to a PCO in village Kairana of District Bagpat. The caller was the appellant. He demanded ransom of rupees one lac from PW-1 Poonam. PW-11 Dy. S.P. Kuldeep Rana then made a call at the phone number, from which the call had been received at telephone No.222060. The call was attended by a PCO owner in village Kairana of District Bagpat. PW-1 Dy. S.P. Kuldeep Rana told the PCO owner to apprehend the man, who had made the call, as he had kidnapped a minor child from Karsog in Mandi District of Himachal Pradesh. PW-4 Imran, PCO owner, with the help of his co-villagers apprehended the appellant. He was handed over to the police of Kairana. Police of that place recovered the child from the house of one of the relatives of the appellants and informed the Karsog police. A police party alongwith the parents of the child went to Kairana and procured the custody of the child. Karsog police also got the custody of the appellant transferred to themselves. 3. On completion of investigation Challan was filed. Learned Magistrate, in whose Court case was filed, committed the same to the Sessions Court, after complying with the requirement of Section 207 Cr. P.C. Learned Sessions Court charged the appellant with offence, under Section 364-A IPC and tried him for the said offence, when he pleaded not guilty. …4… 4. Prosecution examined, among others, the parents of the child, PW-11 Dy. S.P. Kuldeep Rana, PW-4 Imran, PCO owner of Kairana and PW-14 SI Naresh Chander of Police Station, Kairana, to prove the case. 5. Appellant did not deny having taken away the child. But he denied having demanded any ransom. He stated that he had taken away the child to his native place with the consent of the parents of the child. 6. Trial Court did not believe the defence plea and convicted and sentenced the appellant, as aforesaid. 7. We have heard the learned counsel for the appellant as also the learned Deputy Advocate General and gone through the record. 8. The only submission that has been made on behalf of the appellant is that the act of the appellant is not covered by the provision of Section 364-A IPC, inasmuch as there was no threat by the appellant that the child would be killed or hurt nor was there any apprehension in the mind of the parents of the child that it would be killed or hurt by the appellant. According to the learned counsel, such a threat or apprehension is one of the ingredients of offence, under Section 364-A IPC. We have gone through the relevant provision of law and find ourselves in complete agreement with the submission. …5… 9. Learned counsel for the appellant concedes that this is a case of simple kidnapping as there is no evidence that the child had been removed from the custody of her parents with their consent. 10. In view of the above stated position, conviction and sentence of the appellant for offence, under Section 364-A IPC are set aside. He is, however, convicted of the offence of kidnapping, under Section 363 IPC. Maximum sentence for offence, under Section 363 IPC is seven years imprisonment and fine. Appellant has been in custody for the last more than 4½ years. We think the detention already undergone by him, during trial and post conviction, is sufficient punishment for the offence committed by him. Accordingly, we sentence him to four years substantive imprisonment and to pay a fine of Rs.1000/-; in default of payment of fine, to simple imprisonment for a further period of six months. Since the appellant has been in detention for more than 4½ years, we direct that he be set at liberty, forthwith, (in case his detention is not required in any other case) even if the amount of fine has not been paid. Appeal stands disposed of. (Surjit Singh), J October 29, 2009(ss) (Surinder Singh), J.