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kidnapping or abduction was for ransom.= To attract the provisions of Section 364-A what is required to be proved is: (1) that the accused kidnapped or abducted the person; (2) kept him under detention after such kidnapping and abduction; and (3) that the kidnapping or abduction was for ransom…..”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2248 OF 2011

(Arising out of SLP (Crl.) No. 1321 of 2011)
Akram Khan …. Appellant(s)

Versus

State of West Bengal …. Respondent(s)

J U D G M E N T
P. Sathasivam, J.
1) Leave granted.

2) This appeal is directed against the final judgment and

order dated 29.06.2010 passed by the High Court at Calcutta

in C.R.A. No. 198 of 2006 whereby the High Court acquitted

three out of seven accused persons giving them the benefit of

doubt and affirmed the conviction and sentence of the

appellant herein and other three accused persons awarded by

the Additional Sessions Judge, 6th Fast Track Court, Calcutta

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by order dated 17.02.2006 in S.C. No. 80 of 2000 and S.T. No.

4(3) of 2001.
3) Brief facts:
(a) The prosecution case, in short, is that in the afternoon of

17.03.2000, which was a Bakrid day, a minor boy named

Vicky Prasad Rajak (PW-2) was found missing. Mahendra

Prasad Rajak (PW-3)-father of the boy (the Complainant)

reported the matter in the Park Street Police Station which

was recorded vide GD Entry No. 1504 dated 17.03.2000.

Later on, the boy’s father received telephone calls from

unknown persons demanding ransom of Rs.10 lakhs and Park

Street P.S. Case No. 117 dated 20.03.2000 under Section

363A of the Indian Penal Code, 1860 (in short “IPC”) was

amended to Section 364A IPC and a case was registered

against unknown persons.

(b) On 21.03.2000, again the complainant received a call

where the caller told him that he had the money because of

the sale of the shop, however, the ransom demanded was

reduced to Rs. 7 lakhs. The caller also threatened him that if

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the ransom is not paid, his son would not remain alive. There

were further telephone calls on other dates and, ultimately, on

01.04.2000, the ransom was reduced by the caller to Rs. 3

lakhs.

(c) Again on 04.04.2000, the Complainant received a

telephonic message asking him to go to Jamalpur Railway

Station with Rs.3 lakhs wearing a black coloured shirt. He

informed the same to the Lalbazar Police Station. He along

with his relative and the police in civil dress, went to Jamalpur

Railway Station but none approached. On enquiry from his

wife, he learnt that another call had been received whereby the

caller asked him to go to Sahebgunj Station by Danapur

Express. Then they proceeded to Sahebgunj Station by that

train and during the journey one Afsal @ Fazo asked the

Complainant to get down at the next station i.e. Ghoga, where

he would have to hand over the ransom but he refused to get

down and went to Sahebgunj but none approached, they came

back. Again on 13.04.2000, the complainant received a

message from the caller to come at Ghoga Railway Station.

When they went there, none came. At night, a raid was

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conducted by the Calcutta Police along with the help of Bihar

Police and they arrested five accused persons, namely, Md.

Kalim @ Kalu, Akram Khan, Afsal Khan @ Fazo, Md. Javed

and Md. Mehtab from different places in Bhagalpur and the

kidnapped boy was rescued from the house of Mehatab. Later,

one of the associates of the accused persons, namely, Md.

Zakir Khan was arrested in Calcutta. It was revealed that

Zakir Khan was an ex-employee of the father of the kidnapped

boy in his tailoring shop which he had sold. Two more

associates, Nazamul Khan and Md. Dilshad, who took part in

the commission of offence, were also arrested.

(d) The police filed charge sheet against all the eight accused

persons for the offence punishable under Sections 364A/120B

read with 34 IPC. On 13.11.2000, the case was committed by

the Metropolitan Magistrate, 9th Court, Calcutta to the Court of

Sessions. Vide judgment dated 17.02.2006, the Additional

Sessions Judge sentenced seven accused persons to undergo

imprisonment for life and to pay a fine of Rs.5,000/- each, in

default, to suffer rigorous imprisonment for one year each for

commission of offence under Section 364A IPC and further

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imprisonment for life and to pay a fine of Rs.3,000/- each, in

default, to suffer rigorous imprisonment for one year each for

commission of offence under Section 120B IPC and both

sentences were to run concurrently. However, Md. Nazamul

Khan, one of the accused was acquitted as not found guilty.

(e) Against the said judgment, all the seven accused persons

including the appellant herein filed an appeal being C.R.A. No.

198 of 2006 before the High Court at Calcutta. By the

impugned judgment dated 29.06.2010, the High Court

acquitted Md. Javed, Md. Dilshad and Md. Mehtab giving

them the benefit of doubt and affirmed the conviction and

sentence imposed on Akram Khan-appellant herein, Afzal

Khan @ Fazo, Md. Zakir Khan and Md. Kalim @ Kalu.

(f) Being aggrieved by the said judgment, Akram Khan-

appellant herein alone has filed this appeal by way of special

leave before this Court.

4) Heard Mr. Pranab Kumar Mullick, learned counsel for

the appellant-accused and Mr. Chanchal Kr. Ganguli, learned

counsel for the respondent-State.

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5) Learned counsel for the appellant, after taking us

through the evidence led in by the prosecution and the

defence, decision of the trial Court and the impugned order of

the High Court, submitted that the prosecution has not

established its case for offence punishable under Section 364A

IPC and, in any event, at the most, it is punishable under

Section 363 IPC for kidnapping alone. He further contended

that the maximum punishment provided for kidnapping under

Section 363 IPC is seven years and inasmuch as the appellant

has served 11 years 7 months, the period already undergone

would satisfy the prosecution case and he may be ordered to

be released forthwith.

6) On the other hand, learned counsel for the respondent-

State contended that in the light of the categorical evidence of

Naresh Kr. Rajak-PW-6 (close relative of PW-3) and Prantosh

Kumar Gupta-(PW-7) (an employee of a Public Telephone

Booth), which corroborated with the evidence of PWs 2 and 3,

and in view of the fact that the prosecution has established its

charge, namely, kidnapping for ransom (Section 364A IPC),

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the punishment of life sentence imposed by the trial Court as

affirmed by the High Court is appropriate and no interference

is called for by this Court.

7) We have carefully perused all the relevant materials and

considered the rival contentions.

8) It is true that if it is a simple case of kidnapping in terms

of Section 363 IPC, the offender shall be punished with

imprisonment of either description for a term which may

extend to seven years and shall also be liable to fine. Here,

the specific charge against the appellant-accused is under

Sections 364A and 120B IPC. If it is established that the

offender after kidnapping a person keeps the said person in

detention or threatens to cause death or hurt in order to pay

ransom, undoubtedly, Section 364A attracts. The said

provision reads as under:

“364A. Kidnapping for ransom, etc. – Whoever kidnaps or

abducts any person or keeps a person in detention after

such kidnapping or abduction and threatens 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 inter-governmental organization or any other

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person to do or abstain from doing any act or to pay a

ransom, shall be punishable with death, or imprisonment for

life, and shall also be liable to fine.”

9) Now let us consider whether the prosecution has

established its case for the offence punishable under Section

364A IPC beyond reasonable doubt?

10) The appellant herein was one of the seven accused who

were found guilty under Sections 364A and 120B IPC and they

were convicted and sentenced to imprisonment for life and to

pay a fine of Rs.5,000/- each for commission of offence under

Section 364A IPC. They were also sentenced to suffer

imprisonment for life and to pay a fine of Rs.3000/- for

commission of the offence under Section 120B IPC and

sentences were to run concurrently. No doubt, three accused

persons, namely, Md. Javed, Md. Dilshad and Md. Mehtab

were acquitted of all the charges by the High Court. The

appellant herein is one among the other accused convicted by

the High Court. The other accused persons have not

challenged the conviction before this Court except the

appellant herein.

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11) The prosecution case, as stated earlier, relates to

kidnapping of a minor boy, Vicky Prasad Rajak from his lawful

guardian – Mahendra Prasad Rajak (PW-3) and then keeping

him in detention. Thereafter, the appellant and other accused

persons, started giving threat calls in order to extort huge

amount of money from the father of the kidnapped boy and

also threatened him that in the event of his failure to respond

to such ransom calls, the boy in custody would be murdered.

The victim himself was examined as PW-2. The victim boy was

a student of Class IV at the relevant time. He being a child

witness, the Court has to satisfy that he is capable of

understanding the events. In his evidence, the victim boy –

PW-2 has stated that on 17.03.2000 which was Bakrid Day

and the school was closed. According to him, when he along

with his friend, Kaso, was offering leaves to the goats, a man

came there and asked him to accompany him so that he could

purchase some chocolates for him. He along with Kaso went

with him. At first, they went to the shop of one Mintu in front

of their house. The man was having 10 rupees note but the

shopkeeper Mintu did not have change. Kaso went back and

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thereafter they went to the other shop which was closed.

They went a bit further and got into a taxi and he was taken to

a house in Kalabagan. They stayed there for sometime.

Thereafter, he was taken in a bus, route No. 71 to Tikiapara,

Howrah and from there he was taken to a room of another

person. That person was not in his house at that time but

when he came back, he was offered some food. Thereafter, he

was taken to Sealdah Station where Zakir was present. Zakir

used to work at the tailoring shop of his father. Thereafter,

they boarded a train and next morning they got down at a

station named Ghoga. From there, they took a cycle rickshaw

and went to a house. He further deposed that in that house

two men were present inside the room and they were Akram,

the appellant herein and Afzal Khan @ Fazo. PW-2 identified

them in the Court along with the first person – Md. Kalim @

Kalu. He also deposed that two women were also present

there. He was kept there for 5 to 6 days and the accused Md.

Kalim @ Kalo was with him in the said house. He also

explained that several times he was taken to the STD

telephone booth. He also deposed that at the time of making

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telephone calls, the appellant-accused threatened him. The

trial Judge, after satisfying his capacity to depose, accepted

his evidence to the extent that he was kidnapped and detained

in a house and another person-the present appellant, made

telephone calls demanding ransom and also threatened PW-2

on various occasions.

12) The other witness heavily relied on by the prosecution is

Mahendra Prasad Rajak (PW-3), the father of the victim boy

(PW-2). In his evidence, he stated that he along with his

family members including PW-2 were residing at Premises No.

108A, Elliot Road, Calcutta. Apart from the victim (PW-2), he

has two minor sons younger to him. He was engaged as a

salesman at A.C. Market at the relevant time and was also

owning a shop bearing No. B-3 in A.C. market. Besides this,

he had a tailoring shop at 45 Gardner Lane, Calcutta, near

Ripon Lane. The said tailoring shop had been sold away in

February, 2000. He had two employees in the said tailoring

shop by name Ashok Mondal and Zakir Khan. He informed

further that three years prior to sale, Ashok Mondal had been

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relieved from his employment and Zakir Khan had been

continuing as an employee. After the sale of the tailoring

shop, he paid Zakir Khan cash of Rs. 20,000/-, a sewing

machine and a bicycle. On 17.03.2000, which was a Bakrid

day, when he went to his shop at 10:00 a.m., at around 01:00

p.m., he received a telephone from his wife stating that their

son was missing for the last one hour. After making search,

he made a complaint to the police. Even after announcement

in the locality, he could not get his son back. While so, on the

evening of 19.03.2000, he received a telephone call demanding

a ransom of Rs. 10 lakhs for his missing child Vicky Prasad

Razak (PW-2). He was informed that his missing son was with

him but he had not stated his name or place where his son

was stationed. After half an hour, the very same person asked

over telephone not to give information to local police about the

same. PW-3 further explained that on 20.03.2000, he

informed the local police about the two telephonic messages

received on the previous day. The same was recorded by the

police officer. On 21.03.2000, he received another telephonic

message wherein the person on the other side had stated that

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he had money because of the sale of tailoring shop, however,

reduced the quantum of ransom to Rs. 7 lakhs to be paid to

him otherwise his missing son would not remain alive. After

his threat, the unknown person also arranged to make a call

by his son to speak to him (PW-3) over telephone in order to

act quickly. On 25.03.2000, he received another telephonic

message enquiring whether he had arranged ransom. On

26.03.2000, he received another telephonic message stating

that the ransom was reduced to Rs. 5 lakhs and asked him to

have a talk with his son Vicky who stated to take him back

quickly. On 01.04.2000, he received another telephonic

message by which the quantum of ransom was further

reduced to Rs. 3 lakhs. PW-3 agreed to pay the said amount

but the person on the other side informed that the place of

exchange of ransom would be made known to him later. On

02.04.2000, when he was coming back from the temple after

offering puja, he found that his inmates were crying on

hearing that his missing son had been killed and they had

received such information over phone. Again on 04.04.2000,

he received a telephonic message from the same person stating

13
that his son was alive and had not been killed. The caller

asked him to come to Jamalpur Railway Station with Rs. 3

lakhs wearing a black coloured shirt and accompanying one of

his relatives. On 13.04.2000, he received another telephonic

message from the miscreants asking him to go to Ghoga

Railway Station on 15.04.2000 with Rs. 3 lakhs and a relative

wearing a black coloured shirt. He informed all the details to

the police and started for Ghoga but when they reached there,

none approached. At night, a raid was conducted by the

Calcutta Police along with Bihar Police and the accused were

arrested and the boy was rescued from the house of one

Mehtab. During search, the police also recovered one pistol

and two cartridges under the bed of one Afzal Khan @ Fazo. In

the evidence, he further informed the Court that he received

telephonic messages 8 or 9 times from the miscreants and

every time they threatened him that unless the money is

brought in, his son would be killed. In his cross-examination,

PW-3 explained the statement made before the police officer on

various dates i.e. on 17.03.2000, 20.03.2000, 04.04.2000,

11.04.2000 and 18.04.2000, when he got back his son. In his

14
evidence, PW-3 not only disclosed how his minor son was

taken by the accused persons including the appellant herein

and kept in a far away place in order to get ransom. PW-3

also explained the threat received from the accused and failing

compliance of their demand they threatened that his son

would be killed. Inasmuch as PW-3 was subjected to

extensive cross-examination and he withstood his stand, the

trial Judge as well as the High Court accepted his testimony in

toto.
13) Apart from the evidence of PW-3, the prosecution heavily

relied on the evidence of PWs 6 and 7. PW-6 is a newspaper

vendor. In his evidence, he accepted that PW-3 is his close

relative. It was he who accompanied PW-3 in search of PW-2

pursuant to the threat call from the accused. He corroborated

the statement of PW-3 in all aspects.

14) The next witness relied on by the prosecution is PW-7, a

resident of Ekchari Bazar, Kahelgaon, Bhagalpur, Bihar. He

was working as an employee of public telephone booth owned

by one Vikas Singh. He deposed that he came to know of
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Akram-appellant herein from one Javed, who is a resident of

the house situated contiguous to their telephone booth. He

further deposed that Javed told him that Akram was his

maternal uncle and he was a resident of Ghoga. PW-7 further

informed the Court that the said Akram visited their booth on

8/10 occasions. On 2 or 3 occasions, he came to his booth

along with one child. The other person Javed also visited the

booth on 2/4 occasions with a view to make telephone calls.

PW-7 also informed the Court that the child accompanied

Akram also used to talk over phone as directed by him.

15) From the evidence of PWs-3, 6 and 7, it is clear that the

accused persons, particularly, the appellant herein demanded

ransom from PW-3 for the release of his child and he also

threatened that unless his demand is met, he would kill his

son. There is no reason to disbelieve the version of PWs-3, 6

and 7.

16
16) In Malleshi vs. State of Karnataka, (2004) 8 SCC 95,

while considering the ingredients of Section 364A IPC, this

Court held as under:

“12. To attract the provisions of Section 364-A what is

required to be proved is: (1) that the accused kidnapped or

abducted the person; (2) kept him under detention after

such kidnapping and abduction; and (3) that the kidnapping

or abduction was for ransom…..”
To pay a ransom, as stated in the above referred Section, in

the ordinary sense means to pay the price or demand for

ransom. This would show that the demand has to be

communicated.

17) We have already pointed out the evidence of PW-3 that he

had received 8 or 9 calls from the accused persons demanding

ransom for release of his son and the evidence of PW-7, an

employee of a public telephone booth, also corroborates with

the evidence of PW-3 who deposed that the calls were made on

several occasions by the appellant from the telephone booth

and on 2 or 3 occasions along with the child.

17
18) In Vinod vs. State of Haryana, AIR 2008 SC 1142,

while reiterating the principles enunciated in Malleshi
(supra), this Court accepted the case of the prosecution and
confirmed the conviction and sentence of life imprisonment

imposed under Section 364A IPC.

19) Though learned counsel for the appellant submitted that

the case falls only under Section 363, namely, mere

kidnapping and not under Section 364A i.e., Kidnapping for

ransom, in the light of the acceptable evidence led in by the

prosecution, relied on and accepted by the trial Court and the

High Court, we reject the said contention.
20) Now, we have to see whether the sentence imposed by

the trial Court and confirmed by the High Court is appropriate

or not? We have already extracted Section 364A in the earlier

paras which stipulates that if the prosecution establishes

beyond doubt that the kidnapping was for ransom, the

sentence provided in this Section is death or imprisonment for

life and also be liable to fine.

18
21) In Mulla and Another vs. State of Uttar Pradesh

(2010) 3 SCC 508, after considering various earlier decisions,

this Court held as under:-
“67. It is settled legal position that the punishment must fit

the crime. It is the duty of the court to impose proper

punishment depending upon the degree of criminality and

desirability to impose such punishment. As a measure of

social necessity and also as a means of deterring other

potential offenders, the sentence should be appropriate

befitting the crime.”

We fully endorse the above view once again.

22) It is relevant to point out that Section 364A had been

introduced in the IPC by virtue of Amendment Act 42 of 1993.

The statement of objects and reasons are as follows:-

“Statement of Objects and Reasons.–Kidnappings by

terrorists for ransom, for creating panic amongst the people

and for securing release of arrested associates and cadres

have assumed serious dimensions. The existing provisions of

law have proved to be inadequate as deterrence. The Law

Commission in its 42nd Report has also recommended a

specific provision to deal with this menace. It [was]

necessary to amend the Indian Penal Code to provide for

deterrent punishment to persons committing such acts and

to make consequential amendments to the Code of Criminal

Procedure, 1973.”

It is clear from the above the concern of Parliament in dealing

with cases relating to kidnapping for ransom, a crime which

called for a deterrent punishment, irrespective of the fact that

19
kidnapping had not resulted in death of the victim.

Considering the alarming rise in kidnapping young children

for ransom, the legislature in its wisdom provided for stringent

sentence. Therefore, we are of the view that in those cases

whoever kidnaps or abducts young children for ransom, no

leniency be shown in awarding sentence, on the other hand, it

must be dealt with in the harshest possible manner and an

obligation rests on the courts as well. In the case on hand, we

are satisfied that the High Court was right in maintaining the

order of conviction and sentence of the appellant herein and

we are satisfied that the impugned judgment of the High Court

does not suffer from any infirmity to warrant interference.

23) Consequently, the appeal fails and is accordingly

dismissed.

……………….

…………………………J.

(P. SATHASIVAM)

…………………………………………..J.

(J. CHELAMESWAR)

NEW DELHI;

DECEMBER 05, 2011.

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