CRL.APPEAL 29/2001 Page 1 of 6 R-14 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Order: 2nd July, 2009 + CRL.A. 29/2001 CHOTEY KHAN ..... Appellant Through: Mr. Sumeet Verma, Advocate versus STATE ..... Respondent Through: Mr. Pawan Sharma, Advocate CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE INDERMEET KAUR (1) Whether reporters of local paper may be allowed to see the judgment? Yes. (2) To be referred to the reporter or not? Yes. (3) Whether the judgment should be reported in the Digest ? Yes. PRADEEP NANDRAJOG, J.(Oral) 1. Learned counsel for the appellant makes a limited submission pertaining to the finding returned in para 17 of the impugned decision dated 6.11.2000. 2. The findings returned by the learned Trial Judge in para 17 are as under:- “17. It is true that from the deposition of PW-2 Bhure Khan, it cannot be confirmed whether the CRL.APPEAL 29/2001 Page 2 of 6 ransom call was made by the accused Chottey Khan or by some other person who gave his name as Chottey Khan, though it has come in the deposition of PW-2 Bhure Khan that the accused had his telephone number with him and the caller was also aware of the relationship of the child with Bhure Khan, because during the conversation he referred the child as the nephew of Bhure Khan. However, it is immaterial as to whether the call to Bhure Khan was made by the accused Chottey Khan or by some other person. The fact that a ransom of Rs.50,000/- was demanded for releasing the kidnapped child Mohd. Salim proves that the child was kidnapped in order to compel the family of the child to pay a ransom of Rs.50,000/-. It is not necessary that ransom should be demanded by the same person who kidnapped the child. What is material is that to constitute kidnapping for ransom, punishable U/S 364-A of IPC, there should be kidnapping in order to compel any person to pay a ransom. In this case, the child was kidnapped and ransom was also demanded. Therefore, it stands prove that the child was kidnapped for ransom. Moreover, if a child is kidnapped and taken out of the city from which he is kidnapped and a ransom call is made to his relative asking them to bring money and take the child back and the relative is also asked not to inform the police, such a conduct would give rise to a reasonable apprehension in the mind of the family of the kidnapped child that the child may be put to death or hurt in case the demand for ransom is not met. Therefore, kidnapping for ransom as envisaged in Section 364-A of IPC stand duly proved.” 3. We have gone through the testimony of Bhure Khan, who is none else other than the real brother of PW- 1, the father of Mohd. Salim. CRL.APPEAL 29/2001 Page 3 of 6 4. Mohd. Salim aged 4 years was kidnapped. 5. A ransom call was received and the appellant became the suspect. 6. It is urged by learned counsel for the appellant that there is no evidence that the appellant threatened to put to death or cause hurt to the kidnapped child so as to compel his father to pay the ransom. Learned counsel further urges that there is no evidence of any conduct of the appellant which could give rise to a reasonable apprehension that the kidnapped child may be put to death or hurt. 7. It is urged by learned counsel that the presumption/assumption returned by the learned Trial Judge that the very act of kidnapping and a direction while demanding ransom not to inform the police would give rise to a reasonable apprehension of causing injury or death is contrary to law. 8. We have perused the testimony of PW-2. He is the sole witness of the prosecution who has deposed two facts pertaining to ransom call being received. Indeed, he has not deposed that when ransom call was received it CRL.APPEAL 29/2001 Page 4 of 6 was coupled with any threat of causing injury to or causing the death of the child kidnapped. We further find that in his deposition, PW-2 has not deposed of anything stated to him which gave rise to a reasonable apprehension in his mind that the kidnapped child would be hurt or put to death. 9. In the decision reported as Rafiq & Anr. Vs. State 2008 (2) AD (Delhi) 441, a Division Bench of this Court, in similar circumstances, where ransom calls were made on telephone with no threat of any kind, calls were simplicitor calls for ransom which led to the recovery of the child, observed that in the total absence of evidence in regard to any threat to cause death or hurt to the kidnapped child and also for lack of evidence in regard to the appellants conducting themselves in a way that could give raise to a reasonable apprehension that the child would be put to death or hurt, the ransom demand simplicitor could not have brought the offence within the ambit of Section 364-A IPC and the court accordingly set aside the conviction and sentence of the appellants in the said case for offence punishable under Section 364-A and CRL.APPEAL 29/2001 Page 5 of 6 365 IPC and maintained the conviction only under Section 363 IPC. 10. The said decision in Rafiq’s case was followed by a Coordinate Division Bench of which, one of us, namely Pradeep Nandrajog, J. was a Member of in Crl.A.No.427/2001 Narender Vs. State decided on 15.5.2009. 11. For the law laid down by this Court in Rafiq’s case and as followed in Narender’s case, we hold that in the instant case the offence of kidnapping for ransom as contemplated by Section 364 A IPC is not made out. 12. The offence made out is the offence of kidnapping i.e. the offence punishable under Section 363 IPC. 13. We note that as per the nominal roll received by this Court in the year 2003, as on 11.6.2003, the appellant had undergone an actual sentence of 5 years, 6 months and 22 days. He earned a remission of 9 months. 14. We note that the appellant was admitted to bail vide order dated 5.9.2003, meaning thereby, the appellant would have undergone an actual sentence of a CRL.APPEAL 29/2001 Page 6 of 6 little over 5 years and 10 months when he was admitted to bail. 15. For the offence of kidnapping the maximum sentence prescribed by law is 7 years. 16. We thus dispose of the appeal partially allowing the same. The conviction of the appellant for the offence punishable under Section 364 A IPC is set aside. The appellant is convicted for the offence punishable under Section 363 IPC for having kidnapped Master Salim. For the offence committed by the appellant we impose the sentence of the period already undergone. 17. In view of our decision aforenoted, the bail bond and surety bond by the appellant need to be discharged. 18. Ordered accordingly. PRADEEP NANDRAJOG, J. INDERMEET KAUR, J. JULY 02, 2009 mm