Naresh Pal vs State
2009 Latest Caselaw 2209 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


%                            Judgment Reserved on: May 19, 2009
                            Judgment Delivered on: May 22, 2009


+                            CRL.A.537/2001

         NARESH PAL                              ..... Appellant
                  Through:          Ms. Charu Verma, Advocate

                                    versus

         STATE                                   ..... Respondent
                     Through:       Mr. Pawan Sharma, Advocate


                             CRL.A.238/1999

         RAMAN PAL                               ..... Appellant
                  Through:          Ms. Charu Verma, Advocate

                                    versus

         STATE                                   ..... Respondent
                     Through:       Mr. Pawan Sharma, Advocate


                             CRL.A.682/2000

         MAHIPAL                                 ..... Appellant
                     Through:       Ms. Charu 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 the Reporters of local papers may be
           allowed to see the judgment?
     Crl.A.Nos.537/2001, 238/1999 & 682/2000                       Page 1 of 16
      2.     To be referred to the Reporter or not?         Yes

     3.     Whether the judgment should be reported in the
            Digest?                              Yes


INDERMEET KAUR, J.

1. Vide impugned judgment and order dated 02.02.1999; and

order on sentence dated 04.2.1999, the trial court had convicted

the appellants for the offence punishable under Section 364-A

read with Section 34 IPC and had sentenced each appellant to

undergo imprisonment for life as also to pay a fine of Rs. 2,000/-

each; in default of payment of fine to undergo RI for six months.

2. Facts of the case, as culled out by the prosecution are, that

on 07.11.1996, Vivek @ Fakira was reported missing from his

house No.218/11, Block-C, Brahmpuri, Delhi. His father,

Sh.Gajraj lodged a missing report at 9.45 p.m. on the same day

at Police Station Seelampur. FIR under Section 363 IPC was

registered.

3. On 18.11.1996, a letter was received at the house of

Sh.Gajraj, wherein a demand in sum of Rs.5,00,000/- was made

as ransom for release of Vivek @ Fakira. The letter mentioned

that the above stated amount was to be paid on 19.11.1996 at

Khera Baghera Turning, Distt. Shahjahanpur, U.P.

4. On 23.11.1996 Sh.Gajraj informed the police that he had

received a telephone call at the shop of his neighbour Sh.Sanjay,

wherein the demand for release of the child on payment of

ransom was reiterated. Sh.Gajraj was instructed that he should

not inform the police or else his child would be killed. He was

further instructed to deliver the ransom in a bag on 24.11.1996

at Jagat Ghat on the bank of Baigul river, Distt. Shahjahanpur.

5. Supplementary statement of Sh.Gajraj was recorded and

the FIR initially registered under Section 363 IPC was converted

to one under Section 364-A IPC.

6. Sh.Surat Singh, elder brother of Sh.Gajraj, was informed of

these developments by Gajraj. He accompanied the police party

at Jagat Ghat on the bank of Baigul river, District Shahjahanpur,

U.P. on 24.11.1996 i.e. the appointed date. The police officials

were in civil dress. Sh.Surat was holding the bag purporting to

contain the ransom money. Accused Naresh Pal and accused

Mahipal approached Surat. Accused Naresh Pal asked him, if he

had brought the ransom money and as per his instruction Surat

proceeded to hand over the bag containing the ransom money to

co-accused Mahipal. At that time, on the signal given by Surat,

the police party pounced and apprehended Naresh Pal and

Mahipal. Both were interrogated at the spot and disclosed that

the kidnapped child was with co-accused Raman Pal and they

offered to lead police party to the place where Raman Pal was

with the child.

7. Pursuant to the disclosure statement of the said accused

persons, they led the police party to village Buria Wali Katri

Jangle where accused Raman Pal was apprehended and the child

Vivek @ Fakira was found in his company. The child was

recovered and handed over, on superdari to his father Sh.Gajraj.

8. The prosecution had examined seven witnesses to prove its

case.

9. Father of the victim, Sh.Gajraj PW-2, deposed that on not

being able to trace out his child he had lodged a missing report

at Police Station Seelampur and that on his statement, the FIR

Ex.PW-2/A was registered and recorded in the hand of HC Daya

Nand PW-5. He further deposed that on 18.11.1996 he found a

letter Ex.P-3 in the envelope Ex.P-4 in front of his house wherein

a demand in sum of Rs. 5,00,000/- was raised for release of his

son Fakira. That as per letter Ex.P-3 he was warned not to

report the matter to the police or else his son would be killed and

that he should pay ransom demanded on 19.11.1996 and that he

handed over the letter to the police as recorded in the memo

Ex.PW-2/B. That on 22.11.1996, he received a message from

Sh.Sanjay, his neighbour, that there was a telephone call for him

at his shop. When he talked to the caller, the demand for ransom

was reiterated with the threat that if he took police help his son

would be killed.

10. At this stage, learned APP had sought permission of the

court to cross-examine the witness, but it appears that this was

clearly due to inadvertence, as till then, PW-2 was fully

supporting the case of the prosecution.

11. In his cross-examination by the learned Additional Public

Prosecutor PW-2 stated that he was told on the telephone that if

he tried to make a fool of them, his son Fakira would be killed.

He stated that he was perplexed at that time. He informed his

brother Sh.Surat Singh, who went with police party to meet the

demands of the accused.

12. The witness was cross examined. He denied the suggestion

that he did not receive any phone call on 22.11.1996. The

witness was cross-examined at length by learned defence

counsel for the accused, but nothing has come out in his cross-

examination which could assail his credibility.

13. Sh. Surat Singh, brother of Sh.Gajraj, was examined as

PW-1. He deposed that his brother Sh.Gajraj had informed him

on 18.11.1996 that his son Fakira @ Vivek had been kidnapped

and a letter raising demand of ransom in sum of Rs.5,00,000/-

has been received by him and that his brother told him that the

caller had told him that only two persons should carry the

ransom money and they should be attired in yellow clothes. As

per the instructions in the said letter, he went with the police

party on 19.11.1996 to the spot i.e. Sunehra Banehra turn

Badayun, U.P. and was accompanied by ASI Mahmood Ali PW-7.

They remained at the spot for 1½ to 1¾ hours but nobody turned

up. That on 23.11.1996, his brother Sh.Gajraj had received

telephone call at the phone of their neighbour Sanjay. Sh.Gajraj

told him that the caller had told him that in case the ransom

amount is not paid his child would be killed. As per the

instructions given on the telephone, he along with the police

party reached Badayun, U.P. on 24.11.96 at 10.00 AM with a bag

containing ransom money. Inspector Mahmood Ali and SI Krishan

Kumar had accompanied him. Two boys, whose names were

later on revealed as Naresh Pal and Mahipal approached him and

asked him whether he had brought the ransom money. He

affirmed this fact and showed them the bag containing the

money. At that point of time, the police personnel, who were

hiding behind bushes, over powered both the accused. The

disclosure statement of the accused Ex.PW-1/D and Ex.PW-1/E

were recorded. Pursuant to their disclosure statements, they

led the police party to Katiyawala Jungle which was at a distance

of half kilometre from the spot. Raman Pal accused was found

hiding there along with the kidnapped child Fakira. The child

was rescued and his recovery memo Ex.PW-1/H was prepared.

Accused Raman Pal was also apprehended.

14. On being cross examined PW-1 stated that the disclosure

statement of all the accused persons was recorded in his

presence and accused Naresh Pal has pointed out the spot at

Katiyawala Jungle. He admitted that he knew accused Mahipal

and Naresh Pal prior to the incident as they were tenants under

his brother Sh.Raghubir Singh. He further admitted that Mahipal

and Naresh Pal were earlier tenants under his brother Sh.Gajraj

and thereafter under his other brother, Sh.Raghubir.

15. The child victim has been examined as PW-4. After

preliminary questions put to him to test his rationality to depose

as a competent witness, he was put into the witness box. PW-4

deposed that he was playing on the street near his house when

Naresh Pal told him that he would give him toffees and on this

pretext he took him in a rickshaw, then in a bus and then in a

train to a jungle. He was made to sleep on the floor and he

remained there for many days. That apart from accused Naresh

Pal the other accused Mahipal and Raman Pal were present at

the place where he was confined. He identified the accused

Mahipal and Raman Pal in Court. On being cross examined he

denied the suggestion that he was deposing falsely at the behest

of the police officials or he was tutored to make the statement.

He admitted that accused Naresh Pal was known to him because

he was residing in the house of his Tau in the same

neighbourhood.

16. Sanjay has been examined as PW-3. He deposed that he

had a photo studio in the neighbourhood of Sh.Gajraj and that a

phone call had been received on 23.11.1996 at his shop for

Sh.Gajraj.

17. SI Krishan Kumar was examined as PW-6. He joined the

investigation on 23.11.1996. He had accompanied the police

party on 24.11.1996 at Jagatpur Ghat, Baigul River where as per

the information received by Sh.Gajraj, the accused persons would

be reaching to collect their ransom money. He deposed that

both the accused Naresh Pal and Mahipal came towards

Sh.Surat, the uncle of the kidnapped child, who was holding the

bag of money in his hand and enquired if the money had been

brought. But, before the bag of money could change hands, the

accused were apprehended and arrested. The personal search

memo of accused Naresh Pal Ex.PW-1/A and that of accused

Mahipal Ex.PW-1/B was prepared. They had led the police party

to Katiyawala Jungle where the child victim was found in the

company of the accused Raman Pal. Accused Raman Pal was

arrested and his personal search memo Ex.PW-1/C was prepared.

We note that PW-6 was cross-examined at length, but nothing

has emerged which could discredit his testimony.

18. Investigation of the case was assigned to ASI Mahmood Ali

PW-7 on 07.11.1996. He had got the case registered under

Section 363 IPC. He deposed that on 23.11.1996 Gajraj had

come to the police station and informed him that he had received

a telephone call demanding ransom from him for release of his

child. That he had been instructed on telephone to bring the

demanded amount at Jagatpur Ghat, Baigul River at Katiyawala

Jungle. On the following day i.e. 24.11.1996 PW-7 had

accompanied PW-2 and PW-6 to the appointed place where the

accused Naresh Pal and Mahipal came towards Surat Singh and

asked him if he was carrying the ransom money. Before the bag

containing the money could be handed over to the accused, the

police party apprehended and over powered the accused.

19. In his cross-examination PW-7 admitted that SI Krishan

Kumar, Constable Mohd. Sajid, Constable Kundan Singh and

Constable Chaina Ram along with Sh.Surat joined him for

investigation on 23.11.1996 and 24.11.1996 but he did not

obtain the signatures of all these police officials. He stated that

accused Raman Pal was arrested from a place which was 10/15

yards away from the place pointed out by the co-accused, which

was a dense forest. He denied the suggestion that he had

concocted the story and the accused persons were falsely

implicated.

20. From the evidence which has been proved on record, it has

emerged that Vivek @ Fakira had been taken out of the lawful

custody of his father Sh.Gajraj on 07.11.1996 by Naresh Pal,

Mahipal and Raman Pal. Gajraj had received a letter Ex.P-3 in the

envelope Ex.P-4 raising demand for ransom in sum of

Rs.5,00,000/- and the money was instructed to be paid on the

following day i.e. 19.11.1996 at Sunehara Banehara turn

Badayun, .U.P. On 19.11.1996 Sh.Surat Singh accompanied by

ASI Mamood Ali reached the spot but no one turned up. On

23.11.1996 a telephone call was received by Sh.Gajraj on the

instrument of Sanjay wherein demand for ransom in sum of

Rs.5,00,000/- was reiterated and Gajraj was instructed to come

with the ransom money on 24.11.1996 at the bank of Baigul

River, Jaitpur, Shahjanpur. He was clearly threatened that if he

informed the police, his son would be killed. On the same day

i.e. 24.11.1996, Gajraj, accompanied by SI Krishan Kumar and ASI

Mahmood Ali reached the spot. The bag of money was in the

hand of Surat Singh. Accused Naresh Pal and Mahipal

approached him and asked him whether he was carrying the

ransom money. The bag of money was shown to the said

accused persons and it was affirmed that the bag contained the

money. Before the bag could be exchanged between Surat Singh

and accused Naresh Pal and Mahipal, the police party

apprehended them. The said accused were interrogated at the

spot and disclosed that the kidnapped child was with co-accused

Raman Pal. Both of them thereafter led the police to a place

within the jungle and got recovered the kidnapped child. That

the child was recovered as aforesaid stands corroborated by the

fact that as deposed to by PW-7, information was given at PS

Jettipur in U.P. and SI Jiyalal from said police station had joined

them in organizing the raid. After the child was recovered he

was produced in the Court of the Illaka Magistrate at

Shahjahanpur and vide superdginama Ex.PW-1/J, the learned

Magistrate handed over the child to his uncle Suraj.

21. On behalf of the accused, it has been argued by learned

defence counsel that the ransom letter allegedly received by

PW-1 Sh.Surat Singh on 18.11.1996 is not connected with the

accused persons. That the prosecution has failed to prove that

the writing on this letter and its envelope was in the hand of any

of the accused persons and in the absence of which, the accused

persons cannot be connected with this demand for ransom. It

was further argued that the phone call purported to have been

received by Sh.Gajraj, father of the victim, on 23.11.1996 has

also not been proved and there is no evidence to connect this

call with the accused. It was further argued that the ingredients

of Section 364-A IPC necessarily entail that coupled with the

kidnapping, there must be a reasonable apprehension that death

or hurt could be caused to the kidnapped person and that this

ingredient was missing in the instant case as per evidence led.

Learned defence counsel had placed reliance on a judgment

dated 9.4.2009 delivered by a Division Bench of this Court in

Crl.A.No.460/2004 Rukshar & Ors. Vs. State of NCT of Delhi to

support the submission, that in the absence of this necessary

ingredient, i.e., threat to cause death or hurt to the victim, the

offence under Section 364-A IPC is not made out.

22. Dealing with the last contention urged, whether the offence

punishable under Section 364-A IPC is made out or not, has to be

determined on the facts and circumstances of each case. There

can be no quarrel with the proposition that an essential limb of

the offence of kidnapping for ransom is the threat to the person

or the life of the child kidnapped. In the instant case, it has come

in the clear version of PW-1 Sh.Surat Singh, that PW-2 Sh.Gajraj

Singh, who had received the telephone call making a demand for

ransom had told him that in case the ransom money is not paid,

the dead body of his son would be sent to him. This information

received by Sh.Gajraj was passed on to him i.e. Surat Singh.

Sh.Surat Singh PW-1 has also, on oath, affirmed that a telephone

call had been received by his brother Sh.Gajraj. Gajraj who

appeared as PW-2 has himself deposed that he was told over the

telephone not to inform the police and pay the ransom if he

wanted the life of his son to be spared. Thus, it has been

established that Fakira @ Vivek has been kidnapped for ransom

and his father had been threatened on phone that in case police

help is taken, his child would not been seen alive.

23. The judgment relied upon by learned defence counsel i.e.

the decision in Crl.A.No.460/2004, Rukshar Vs. State of NCT of

Delhi is distinguishable on its own facts. In said case, the

offence under Section 364-A IPC was held not established as

there was no evidence of the extortionist threatening the life or

the limb of the kidnapped child. Thus, the conviction was

sustained for the offence punishable under Section 363 IPC.

24. It is correct that the prosecution has not been able to

establish that the letter Ex.P-3 was penned in the hand of any of

the accused persons. Nevertheless, the contents of the letter

cannot be ignored. This letter dated 18.11.1996 was received at

the door steps of Sh.Gajraj, meaning thereby, that the person

who had delivered this letter knew that this was the house of the

child victim. The letter further gave details of the wearing

apparel of the child; it further suggested the different routes to

be taken by the person who would bring the ransom amount at

the appointed place. It is apparent that the details of the

wearing apparel of the child were disclosed to the parents to

make good the threat that their child was with the kidnappers.

By giving said details, the obvious intention was, to give proof

that the kidnapped child was with the kidnapper. In these

circumstances, it can safely be presumed that the only person

interested in penning this letter would be the person who would

be having the custody of the child and was waiting to receive the

ransom money in exchange for the child.

25. Even presuming for sake of arguments, that this letter is to

be ignored, the telephone call received by Sh.Gajraj on

23.11.1996 reiterating the same demand in sum of Rs.5,00,000/-

for the exchange of the child has also to be answered to by the

defence counsel. It has come in the evidence of PW-3 Sh.Sanjay,

that a telephone call was received on his instrument for Sh.Gajraj

and that he called Gajraj to speak to the caller. Gajraj has clearly

deposed that he spoke to the caller through the phone of Sanjay

and that a ransom was demanded from him.

26. The identity of the accused persons is not disputed. It has

come in the testimony of PW-1 and PW-2 that accused Naresh Pal

and Mahipal were known to them and they were tenants, earlier

under Gajraj and thereafter under their brother Sh.Raghubir

Singh. The victim child i.e. Fakira has also identified all the

accused persons while deposing in Court. He had remained in

their custody for more than two weeks i.e. in the intervening

period between 7.11.96 to 24.11.1996. He was recovered from

the custody of co-accused Raman Pal and his recovery was

effected in the presence of Sh.Surat Singh apart from SI Krishan

Kumar, ASI Mahmood Ali.

27. To sustain a conviction for the offence punishable under

Section 364-A IPC it is necessary to prove that not only

kidnapping or abduction took place, but thereafter, the accused

threatened to cause death or hurt to such person or by conduct

gave rise to a reasonable apprehension that such person may be

put to death or hurt. See the decision reported as JT 2007 (5) 48

Vishwanath Gupta Vs. State of Uttranchal.

28. The term 'ransom' has not been defined in the statute. To

hold someone to ransom, means to hold someone capture and

demand payment for his release.

29. It is thus clear, that in the instant case, the ingredients of

section 364-A IPC have been met. Not only has the child been

kidnapped and taken away from the lawful guardianship of his

father, but ransom demand has also been made and

communicated over telephone. The bag containing the ransom

money had been taken to the spot, where again, the demand for

payment was set in motion by the accused persons. The

accused persons had clearly communicated this demand to

Sh.Surat Singh at the spot. It has been proved by the

prosecution that the accused had kidnapped the child and kept

him in their custody after such kidnapping w.e.f. 7.11.1996 to

24.11.1196 and this kidnapping was for a ransom amount.

30. Necessary corollary is that the conviction of the accused

persons is upheld.

31. Appeals having no merit; they are dismissed.

(INDERMEET KAUR) JUDGE

(PRADEEP NANDRAJOG) JUDGE

May 22, 2009 nandan