Sajan @ Sonu vs State
2009 Latest Caselaw 3968 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI


%                        Date of Judgment: 25th September, 2009.


+                         CRL.A.898/2004


       SAJAN @ SONU                                 ...Appellant
                         Through:    Ms. Neelam Grover, Advocate.

                         Versus

       STATE                                     ...Respondent
                         Through:    Mr.M.N.Dudeja, APP.


       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?

     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)

Crl.M.(Bail) No.1143/2009

1. Learned counsel for the appellant states that if the appeal is

heard for disposal, preferably today itself, she would not press the

application which seeks suspension of sentence pending hearing of

the appeal.

2. Learned counsel for the State submits that he is prepared to

argue the appeal if the learned counsel for the appellant argues the

appeal today itself.

3. Since we are hearing the appeal today itself, we dispose of

Crl.M.(Bail) No.1143/2009 as infructuous.

Crl.A.No.898/2004

1. Vide impugned judgment and order dated 9.8.2004, the

appellant has been convicted for the offence punishable under

Section 364-A IPC.

2. Co-accused Sanjay, a juvenile, faced trial before the Juvenile

Justice Board and was also convicted, but was let off on probation.

3. Learned counsel for the appellant urges that apart from

others, one of the ingredient constituting the offence of kidnapping

for ransom is threat or conduct giving rise to a reasonable

apprehension that the person kidnapped would be hurt or put to

death. Counsel urges that in the instant case the testimony of the

witnesses of the prosecution does not bring out that the accused

extended any threat to the person or the life of the child who was

kidnapped. Counsel urges that there is no evidence of any conduct

of the kidnapper wherefrom an apprehension of injury or threat to

the life of the child kidnapped could be inferred.

4. On merits, counsel urges that the testimony of Lokesh PW-2

does not inspire confidence.

5. As per the prosecution Master Sachin, a student of Class-V

and aged around 10 years as on 23.1.2003 went missing in that did

not return from school. The appellant who was previously

employed by Lokesh PW-2, the father of Sachin, lured him and on

24.1.2003 made a telephone call at the telephone installed in the

residence of Mahesh Kumar PW-5 and demanded ransom in sum of

Rs.5 lakhs. The matter was reported to the police. At the

designated time and place intimated by the appellant where the

ransom money was to be paid, appellant approached Lokesh PW-2

to receive the ransom and was apprehended at the spot. His

disclosure statement Ex.PW-2/E was recorded, as per which he

disclosed the place where the kidnapped child was confined. The

appellant took the Investigating Officer and the father of the

kidnapped child to village Loni and pointed out the house, from

where Master Sachin was recovered.

6. Sachin has appeared as PW-1. He has fully supported the

case of the prosecution and identified the appellant and the co-

accused, namely, Sanjay, as the persons who had kept him in

illegal confinement. He deposed that the appellant met him after

school time was over and took him away. He deposed that the

kidnappers used to keep him with love and affection.

7. Lokesh PW-2 has also supported the case of the prosecution

and proved D.D.No.18-A i.e. the missing person's complaint lodged

on 23.1.2003 pertaining to Sachin being missing. He deposed that

after he received a call on 24.1.2003 at telephone No.2621206

installed at the house of Mahesh, kidnappers demanded Rs.5 lakhs

for release of his son. He conveyed said information to the police

and his statement Ex.PW2/A was recorded. He deposed that as

advised by the police, he took fake currency and on 25.1.2003

reached the place where he was directed to hand over the ransom

amount i.e. Durgapuri Chowk, Gole Chakkar. The accused

snatched the bag from his hand and started running but was

overpowered. He deposed that on being interrogated the accused

informed that his child was in a house in village Loni and

thereafter he took the police to Gali No.2, Johripur Enclave, Loni

from where his child was recovered.

8. One Sadanand PW-3, deposed that he had accompanied

Lokesh to Durgapuri Chowk on 25.1.2003. That appellant came

and after snatching the bag from the hand of Lokesh started

running but was overpowered. He took the police party to Johripur

from where the kidnapped child was recovered.

9. Mahipal PW-4 deposed that he used to reside in village

Johripur and that in that month of January the accused had taken a

room on rent adjoining the room taken on rent by him. On

25.1.2003, the kidnapped child was recovered from the said room

and that the appellant had brought the police there.

10. Mahesh Kumar PW-5 deposed that telephone No.2621206

was installed at his residence and that on 24.1.2003, he received a

call and the caller asked him to call Lokesh. The caller told him

that Lokesh's child was in his custody and he wanted to talk with

Lokesh. He called Lokesh. This call was received at 7.30 PM. It

was followed by another call at 9 PM. At the second call, the caller

demanded ransom in sum of Rs.5 lakhs.

11. We have perused the testimonies of PW-1 to PW-5. We find

no blemish in their testimonies. The witnesses have been subjected

to cross-examination and have withstood the test of cross-

examination. Of the five witnesses, we may note that Mahipal PW-

4 is not a relative or a friend of Lokesh PW-2. He is a completely

independent witness and we see no reason as to why he should be

deposing falsely. The testimonies of the witnesses clearly establish

that the appellant kidnapped Master Sachin, in that, removed him

from the lawful custody of his parents. The evidence also

establishes that ransom was demanded.

12. But, as urged by learned counsel for the appellant, to

establish the offence of kidnapping for ransom there has to be a

threat to cause death or hurt to the person concerned i.e. the

person who has been kidnapped or there has to be evidenced that

the kidnapper, by his conduct, gave rise to a reasonable

apprehension that the person kidnapped may be put to death or

hurt.

13. None of the witnesses of the prosecution have deposed that

the appellant ever extended any threat to the person or the life of

Sachin. There is no evidence that by his conduct, the appellant

gave rise to an apprehension in the mind of anyone that if the

ransom was not paid, Sachin would be hurt or put to death.

14. In his testimony Sachin has deposed:

"They used to keep me with love and affection."

15. Unfortunately, the learned Trial Judge has treated as if the

offence of kidnapping for ransom is complete when a person is

kidnapped and ransom is demanded for the release of the said

person. It appears that the attention of the learned Trial Judge was

not drawn to one of the essential ingredients of Section 364 IPC;

namely, threat to the person or the life of the kidnapped child or a

conduct which gives rise to an apprehension that the person

kidnapped would be put to death or bodily injury caused.

16. Thus, we hold that the evidence on record does not establish

the commission of offence by the appellant punishable under

Section 364-A IPC.

17. The offence committed by the appellant is of kidnapping with

intent to cause the person to be secretly and wrongfully confined

i.e. the offence punishable under Section 365 IPC.

18. The offence is punishable with a maximum sentence of seven

years.

19. We convict the appellant for the offence punishable under

Section 365 IPC.

20. The nominal roll of the appellant shows that he has remained

in judicial custody for six years and eight months and has also

earned substantial remissions.

21. Thus, if we impose the maximum sentence of imprisonment

i.e. to undergo imprisonment for seven years the appellant would

be required to be set free forthwith as with remissions he has

undergone a sentence of more than seven years. We note that

actual sentence undergone by the appellant is six years and eight

months.

22. Accordingly, we sentence the appellant to undergo

imprisonment for the period already undergone.

23. Unless required in any other case, the appellant is directed

to be set free forthwith.

24. Copy of this order be sent to the Superintendent, Central Jail,

Tihar. A copy thereof be supplied to learned counsel for the

appellant.

(PRADEEP NANDRAJOG) JUDGE

(INDERMEET KAUR) JUDGE

September 25, 2009 rb