Delhi High Court
Chotey Khan vs State on 2 July, 2009
Author: Pradeep Nandrajog
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 1 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 2 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 3 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 4 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 5 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
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