Delhi High Court

Rukhsar vs State Of Nct Of Delhi on 9 April, 2009

Author: B.N.Chaturvedi

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         Crl. Appeal No. 460/2004
%                         Date of Decision : 9th of April, 2009
#     RUKHSAR                                      ..... Appellant
!                         Through: Mr. D.M.Bhalla, Adv.
                          versus
$     STATE OF NCT OF DELHI                 ..... Respondent
^                  Through: Mr. M.N. Dudeja, APP
                             &
+                  Crl. Appeal No. 501/2004
#     RAJJAN                                ..... Appellant
!                  Through: Ms. Charu Verma, Amicus Curiae
                   versus
$     THE STATE OF NCT OF DELHI            ..... Respondent
^                  Through: Mr. M.N. Dudeja, APP
*     CORAM:
      HON'BLE MR. JUSTICE B.N.CHATURVEDI
      HON'BLE MR. JUSTICE P.K. BHASIN
      1.     Whether the Reporters of local papers
             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

: B.N.CHATURVEDI, J.

1. The appellants were charged and tried for an offence

punishable under Section 364A/34 IPC. They were convicted

therefor by the learned Additional Sessions Judge by a

judgment dated 29th May, 2004 and sentenced to life

imprisonment with a fine of Rs.2,000/- each, in default of

payment of fine RI for six months vide order dated 31 st May,

2004. Aggrieved by their conviction and sentence, the

appellants have filed these two separate appeals which are

being disposed of by a common order.

2. Material facts of the prosecution case read thus:

Salman, a four and a half year old son of Jameel, went

missing on 11th February, 2001 at about 6.00 p.m. from a park

near his house where he had gone to play. On Salman not

returning to his house, his father, Jameel as also his other

family members frantically searched for him, but without

success. A report regarding disappearance of Salman was

lodged with the police on the next day, i.e., 12th February, 2001

at about 11.45 a.m. at Police Station Gokal Puri and

accordingly a DD report No.10A dated 12th February, 2001 was

recorded at the said Police Station. At about 10.00 p.m. on the

same day, i.e., 12th February, 2001, a telephone call was

received at the house of Jameel, which was attended by his

brother, Salim. The phone call was made by some unknown

person, who told that Salman was in their custody and that if

he wished the child to be safe, he was to pay Rs.50,000/- at a

place near petrol pump at Baraut-Delhi bus stand between 12

midnight and 2.00 a.m. on that very day. The person making

the phone call further told Salim that a person clad in a black

T-shirt and blue jeans would come to him at the said place to

collect the money and on said amount of Rs.50,000/- being

paid, the custody of the child would be handed back to him.

While making the said ransom demand, the caller warned

Salim that in case he tries to act smart, the child would not be

left alive. On aforesaid phone call being received, Salim

accompanied by his younger brother, Jameel, approached the

police at the Police Station Gokal Puri and informed SI Ajit

Malik about the ransom call. SI Ajit Malik recorded the

statement of Salim at the Police Station and got a case under

Section 364A IPC registered at about 11.25 p.m. on 12 th

February, 2001.

3. A raiding party consisting of two constables, namely,

Ct.Rishi Raj and Ct.Shiv Kumar, in addition to Jameel and

Salim was organized by SI Ajit Malik. Five wads of paper

containing one currency note each of the denomination of

Rs.100/- on the top and bottom of the wads were placed in a

raxin bag to be handed over to the person concerned at the

appointed place on his approaching to collect the same. The

raiding party started from Delhi to Baraut at about 11.30 p.m.

on 12th February, 2001 in a private vehicle and reached Police

Station Baraut at about 01.00 a.m. SI Ajit Malik got a DD

Entry recorded in Daily Diary of the Police Station concerned at

Baraut about his arrival there. The raiding party thereafter

accompanied by two local police officials proceeded to the

appointed place. A trap was laid to apprehend the person

concerned who was to come to collect the ransom money.

Salim was instructed to stand at the appointed place with the

bag containing the said wads and hand over the same to the

person in black T-shirt and blue jeans on being approached by

him. He was further instructed to signal the other members of

the raiding party on handing over the bag so as to prevent

escape of that person with the bag and to facilitate his

apprehension. Salim acted accordingly. After a short while, at

about 1.15 a.m., appellant-Rajjan, dressed in a black T-shirt

and blue jeans, approached Salim and asked for payment of

ransom amount. Salim handed over the bag to him and gave

the signal, as instructed earlier, whereupon the police officials

as also Jameel rushed to the place and apprehended the

appellant-Rajjan. The raxin bag was seized from appellant-

Rajjan and taken into his possession by SI Ajit Malik. On being

interrogated regarding whereabouts of Salman, appellant-

Rajjan told that he was there in the custody of his accomplice

Rukhsar-appellant, hiding behind the boundary wall of the

petrol pump. The police officials accordingly rushed to the

place pointed out by appellant-Rajjan and over-powered

Rukhsar-appellant and recovered Salman from his custody.

The team returned to Delhi alongwith Salman and the two

appellants, on the same very night. The appellants were

formally arrested in the case at 5.15 a.m. on 13th February,

2001 on reaching Delhi.

4. The learned Trial Court based the impugned conviction

primarily on the testimony of Head Constable Shiv Kumar, PW-

2, Jameel, PW-4, Salim, PW-5, Ct.Rishi Raj, PW-8, Ct.Kanwar

Pal, PW-9 and SI Ajit Malik, PW-10, and Salman, the

kidnapped child.

5. Ms. Charu Verma, Amicus Curiae appearing for the

appellant-Rajjan questioned the correctness of impugned

conviction on the grounds that the particular place in the park

from where Salman was allegedly picked up by the appellant-

Rajjan and his accomplice Rukhsar has not been pinpointed in

the site plan. She contended that the black T-shirt and blue

jeans which, according to the prosecution, the appellant was

wearing at the time of his alleged apprehension near petrol

pump at Baraut, has not been taken into possession nor any

member of public was joined at the petrol pump to witness the

raxin bag being handed over to him. Her further contention

was that even the place of recovery of child from the custody of

appellant-Rukhsar has not been shown in the site plan. It was

further argued that the police did not collect any evidence to

establish that the alleged ransom call received at the residence

of the complainant was made from Baraut by either of the two

appellants. According to Ms. Verma, the appellant-Rajjan was

actually not present at the given place in Baraut rather he was

picked up from his residence in the neighbourhood of the

complainant where he was living with his brother Khaleel . Ms.

Verma lastly contended that even if the statements of the

kidnapped child, Salman, his father, Jameel and uncle, Salim

are accepted at their face value, the charge under Section 364A

IPC cannot be held proved as there is no evidence that there

was any threat to cause death or hurt to Salman or the two

appellants conducted in a way that could give rise to

reasonable apprehension that Salman may be put to death or

hurt. She added that neither of the appellants caused any hurt

to the kidnapped child. She accordingly pleaded that the

conviction and sentencing of appellant-Rajjan for an offence

punishable under Section 364A IPC is thus not sustainable.

6. Shri D.M. Bhalla, Advocate, another Amicus Curiae

representing appellant-Rukhsar also raised a similar plea while

assailing the impugned conviction under Section 364A IPC. He

further contended that even an offence under Section 363 IPC

could not be held proved against appellant-Rukhsar as he was

not the one who had actually kidnapped Salman.

7. Mr. M.N. Dudeja, appearing for the State advanced

counter arguments to the effect that in view of overwhelming

evidence on record proving involvement of Salman by both the

appellants, the learned Trial Court committed no error in

recording the finding of conviction under Section 364A IPC

against both of them. He contended that the omission on the

part of Investigating Officer to indicate in the site plans the

particular place in the park from where Salman was kidnapped

or from where he was eventually recovered from the custody of

appellant-Rukhsar is inconsequential in view of oral testimony

of the prosecution witnesses including the kidnapped child

inculpating both the appellants for kidnapping for ransom. On

non-joining of any person from public at the time of alleged

apprehension of appellant-Rajjan and recovery of Salman from

the custody of appellant-Rukhsar from behind the boundary

wall of the petrol pump, Mr. Dudeja pleaded that being odd

hour of night, no person was easily available there and even

those who could be present nearby were reluctant to be

associated with the proceedings. Alternatively, Mr. Dudeja

argued that even if there was a lapse on the part of the

Investigating Officer in associating some of the members of

public that alone cannot be a ground to discard the testimony

of the prosecution witnesses being wholly reliable. It was

contended that no doubt there was lack of exercise of due

diligence on the part of the Investigating Officer in conducting

the investigation inasmuch as he did not collect evidence to

ascertain the origin of ransom call on the residential phone of

the complainant, he submitted that in view of a categorical

statement of Salim, PW-5, that the ransom call was received by

him coupled with the apprehension of both the appellants with

the child from Baraut, the ransom call could unerringly be

taken to have been made on behalf of the appellants only and it

hardly matters if such call was made personally by either of the

two appellants or by a third person on their behalf. Referring

to two decisions of the Supreme Court in Malleshi v. State of

Karnataka, AIR 2004 SC 4865 and Vinod v. State of

Haryana, (2008) 2 SCC 246, it was contended that to attract

application of Section 364A IPC, it is not essential also to prove

that the ransom call is accompanied by a threat of death or

hurt to the kidnapped person or any hurt being caused to such

a person or from the conduct of the persons involved in

kidnapping, there is reasonable apprehension that death or

hurt could be caused to the kidnapped person. Mr. Dudeja

accordingly submitted that the impugned conviction of the

appellants under Section 364A IPC with the aid of Section 34

IPC is absolutely justified and consequently both the appeals

are liable to be dismissed.

8. We have heard respective counsel representing either of

the appellants and also examined the evidence on record.

9. The fact that Salman disappeared on the evening of 11th

February, 2001 when he had gone out to play in a nearby park

is evident from the statements of his father, Jameel, PW-4 and

Salim, PW-5. No report in regard to his disappearance was

lodged with the police immediately for the reason that the

father, uncle and other family members of Salman appeared

hopeful of finding him in the course of their search for him. It

was only on their failure to locate Salman, inspite of search,

that the matter was reported to the police on the next day, i.e.,

12th February, 2001 at about 11.45 a.m. and a report was

accordingly recorded in the Daily Diary being DD No.10A dated

12th February, 2001 at PS Gokal Puri. Salman was eventually

recovered with the help of the police on the intervening night of

12th and 13th February, 2001. Apart from the statements of the

prosecution witnesses constituting basis of impugned

conviction, the fact that the raiding party comprising three

police officials including the Investigating Officer as also

Jameel, PW-4 and Salim, PW-5 proceeded to Baraut, District

Baghpat, U.P. at about 11.30 p.m. on 12th February, 2001 and

reached Police Station Baraut at about 01.00 a.m. is proved

from DD No.67B dated 12th February, 2001, PS Gokal Puri,

Delhi, Ex.PW-10/E and DD No.2 recorded at Police Station

Baraut, Ex.PW-10/F respectively. The said raiding party

visiting PS Baraut is further corroborated by Ct. Kunwar Pal,

PW-9, of that Police Station. Another DD No.30A dated 13th

February, 2001, PS Gokal Puri, Ex.PW-10/G, lends support to

prosecution case that both the appellants were brought to

Delhi at about 3.15 a.m. on 13th February, 2001. On behalf of

appellant-Rajjan, a plea was raised that he was actually picked

up from his residence in the neighbourhood of the complainant

and falsely implicated in the case. Similarly, it was argued in

respect of appellant-Rukhsar that he was lifted by the police

from his work place and implicated as an accused in the case.

For appellant- Rukhsar, one Rafiq Raja, DW-1, appeared as a

witness to support the aforesaid defence plea raised on his

behalf. Another witness, namely, Mahmood Mistri, DW-2, was

examined in defence of both the appellants who deposed that

he was present at his shop near petrol pump in Baraut from

12.00 midnight to 5.00 a.m., but he did not witness either the

police visiting that place on the intervening night of 12th and

13th February, 2001 or recovery of any child from behind the

boundary wall of petrol pump being effected. The learned Trial

Judge appears to have committed no mistake in disbelieving

the statements of both these defence witnesses, for the reasons

stated in the impugned judgment. No animosity on the part of

Jameel, PW-4, and Salim, PW-5, towards either of the appellant

is alleged which could have accounted for their false

implication in the case at their instance. The appellant-Rajjan

admitted in his statement under Section 313 Cr.P.C. that he

was residing with his brother Khaleel in a rented

accommodation in the neighbourhood of Jameel, PW-4, and

Salim, PW-5, for the last about 2-3 months where appellant-

Rukhsar used to visit him at times. This fact is otherwise

established in view of statements of Pop Singh, PW-2 and Kali

Ram, PW-3. Pop Singh, PW-2, was the landlord of the premises

where appellant-Rajjan was staying with his brother Khaleel

and Kali Ram, PW-3, is one living in the neighbourhood. Since

appellant-Rajjan was staying in the neighbourhood of the

complainant and appellant-Rukhsar used to visit him at times,

there was nothing unusual that Salman, the victim of

kidnapping, was well familiar with them. Salman made a short

statement to the effect that he was offered a bubble gum by

both the appellants on the date and time of his kidnapping and

taken to Baraut, Baghpat. No doubt, Salman, in the course of

his cross-examination on behalf of the appellants, admitted

that before entering the witness box, he was briefed by his

father as to what he was to depose, such admission on his

part, however, cannot be taken to imply that whatever he

stated in his examination-in-chief was wholly based on the

briefing by his father. As noticed earlier the fact that Salman

had disappeared on the evening of 11th February, 2001 from

the park where he had gone to play and could not be traced

inspite of search by his family members is not in doubt. His

disappearance was obviously caused on account of his

kidnapping. On the relevant date though Salman was only four

and a half year old, he could have very well identified his

kidnappers and for that he did not require any briefing by his

father. There being no witness who could have seen Salman

being taken away by the appellants, there can possibly be no

other evidence except the statement of the kidnapped child

himself insofar as identity of the kidnapper/s is concerned. Of

course, it was too much to expect from a four and a half year

old child to have known about the place where he was

ultimately taken and detained and, therefore, his statement to

the effect that he was taken by the appellants to Baraut,

Baghpat cannot be accepted to be based on his personal

knowledge. From the DD report Ex.PW-10/F, coupled with the

statement of Ct. Kunwar Pal, PW-9, of Police Station Baraut, in

addition to the statements of Head Constable Shiv Kumar, PW-

2, Jameel, PW-4, Salim, PW-5, Ct. Rishi Raj, PW-8 and SI Ajit

Malik, PW-10, it stands established beyond doubt that

Investigating Officer accompanied by the two police officials

from Police Station Gokal Puri, Delhi and Jameel, PW-4 as also

Salim, PW-5 did visit the Police Station Baraut, Baghpat, U.P.

on the night of 12th/13th February, 2001 and local police was

associated before proceeding to the appointed place near petrol

pump at Baraut-Delhi bus stand in order to apprehend the

persons responsible for kidnapping of Salman and rescuing the

child from them. It is difficult to accept that the raiding party

comprising aforesaid police officials, the father and uncle of

Salman actually did not visit Police Station Baraut on the given

date and time and the DD report Ex.PW-10/E was simply

fabricated in order to prove apprehension of the appellants

near the petrol pump at Baraut-Delhi bus stand or recovery of

Salman from there. The members of the raiding party

substantially corroborated the statements of each other barring

some minor contradictions on certain aspects which cannot be

taken to adversely affect their credibility so as to discard their

testimony. In the face of enormity of evidence on record, oral as

well as documentary, the fact that Salman was kidnapped on

the evening of 11th February, 2001 from the nearby park where

he had gone to play and that he was kept in confinement by

both the appellants in furtherance of their common intention to

extort ransom amount from the father/family members of

Salman stands proved beyond doubt. The finding of the learned

Trial Court in this respect thus cannot be held to suffer from

infirmity. Omission on the part of the Investigating Officer to

indicate the particular place in the park wherefrom Salman

was kidnapped by the appellants or the place behind the

boundary wall of the petrol pump in Baraut wherefrom he was

recovered from the custody of appellant-Rukhsar are not so

material as to dislodge the testimony of the witnesses in whose

presence both the appellants were apprehended one after the

other and the kidnapped child was rescued. The fact that a

ransom call was received by Salim, PW-5, on the phone at his

residence at about 10.00 p.m. on the night of 12th February,

2001 and that he had immediately informed his younger

brother Jameel, PW-4 and thereafter SI Ajit Malik, PW-10 at

Police Station Gokal Puri about the same and further that on

the basis of his statement, recorded by SI Ajit Malik, PW-10, an

FIR vide Ex.PW-1/A was registered is clearly established in

view of the affirmations in that respect by Jameel, PW-4, Salim,

PW-5 and SI Ajit Malik, PW-10. In the face of recovery of child

from the custody of the appellants, it appears immaterial as to

who had actually made the ransom call. The fact that the

appellant-Rajjan approached Salim, PW-5 at the given place

near petrol pump and collected the raxin bag purported to

contain the ransom amount of Rs.50,000/- as also appellant-

Rukhsar being found hiding behind the boundary wall of the

petrol pump holding the kidnapped child in his custody clearly

proved that the ransom call was made by either of them only as

otherwise they were not expected to act the way they did.

Thus, inspite of lapse on the part of Investigating Officer to

collect evidence in regard to origin of ransom call, no mileage

can be claimed by the appellants on this score.

10. Adverting to the last plea on behalf of the appellants to

the effect that even if it is held to have been proved beyond

doubt that Salman was kidnapped for ransom by the

appellants only and that there was a demand from them in that

respect, in the absence of any threat to cause his death or hurt

being extended or that he was physically harmed in any

manner or that they had conducted in a way that gave rise to a

reasonable apprehension that Salman could be put to death or

hurt, no offence under Section 364A IPC could be held proved

for which they were convicted and sentenced by the learned

Trial Court. In this context, it may be noticed that though

Salim, PW-5, in his statement recorded by SI Ajit Malik, PW-10,

at Police Station Gokal Puri while speaking about the ransom

call on his residential phone told that the caller had extended a

threat that in the event of his not paying the ransom amount

and trying to play smart, the child (Salman) would not be left

alive, in the course of his statement before the Court, Salim,

PW-5, or Jameel, PW-4, did not depose even a single word

regarding the threat to the life of Salman as mentioned in the

said statement before SI Ajit Malik, PW-10 and the FIR, Ex.PW-

1/A, recorded on the basis thereof. Salman in his statement

before the Court did not say that he was at any point of time

after his kidnapping and before his rescual was badly treated

or physically harmed by either of the appellant. He has rather

stated that on reaching Baraut, the appellants had offered him

toffees and food as well. Thus, there is no evidence of any

rough treatment to the child during the period of his detention

by the appellants. A plain reading of Section 364A IPC would

show that a mere demand of ransom amount for release of a

kidnapped person is not sufficient to attract penal

consequences under Section 364A IPC unless it is proved that

the kidnapped person was threatened with death or hurt or

that the conduct of the kidnappers is such which gives rise to a

reasonable apprehension that he could be put to death or hurt

if the ransom demand was not paid or that any hurt is actually

caused by the kidnapper/s. Reliance by Mr. Dudeja on

decisions of the Supreme Court in Malleshi and Vinod (supra)

does not really help advance the argument raised by him that a

mere demand for ransom is sufficient to convict and sentence a

person under Section 364A IPC. In Vinod (supra), the

conviction under Section 364A IPC was upheld by the Supreme

Court in view of the fact that there was a clear evidence of

threat to life to the abducted person in the event of ransom

demand being not satisfied. In Malleshi (supra), the questions

raised, which were being examined by the Apex Court were

altogether different. The Supreme Court came to examine

necessary ingredients of Section 364A IPC, which were posed

for a finding in that respect in "Anil @ Raju Namdev Patil v.

Administration of Daman and Diu, Daman and Anr. JT

2006 (10) SC 586" and "Vishwanath Gupta v. State of

Uttaranchal, JT 2007 (5) SC 48." Relevant part of

observations by the Supreme Court in Anil @ Raju Namdev

Patil (supra) read thus:

".........for obtaining a conviction for commission of an offence under Section 364A thereof it is necessary to prove that not only such kidnapping or abetment (abduction) has taken place but thereafter the accused threatened to cause death or hurt to such person or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or causes hurt or death to such person in order to compel the government or any foreign State or international intergovernmental organization or any other person to do or abstain from doing any act or to pay a ransom......."

Similarly in Vishwanath Gupta (supra), it was held:

"...............The important ingredient of Section 364A is the abduction or kidnapping, as the case may be. Thereafter, a threat to the kidnapped/abducted that if the demand for ransom is not made (met) then the victim is likely to be put to death and in the event death is caused/the offence of Section 364A is complete. There are three stages in this Section, one is the kidnapping or abduction/ second is threat of death coupled with the demand of money and lastly when the demand is not made (met), then causing death. If the three ingredients are available/ that will constitute the offence under Section 364A of the Indian Penal Code......"

In the case on hand since evidence in regard to any threat to

cause death or hurt to Salman or any injury to his person

being caused by the appellants is missing, Section 364A IPC

would have no application and consequently the appellants

could not have been convicted and sentenced thereunder. The

conviction of the appellants under Section 364A IPC is thus

liable to be converted into one under Section 363 IPC and the

appellants are to be sentenced accordingly.

11. By an order dated 19th January, 2005 of this Court in the

course of hearing on appeal by Rukhsar, noticing that it was

required to be examined as to whether or not the said appellant

had completed 18 years of age on the date of commission of the