Akram Khan Vs. State of
(Criminal Appeal No.
2248 of 2011 Arising out of SLP (CRL.) No. 1321 Of 2011)
J U D G M E N T
P. Sathasivam, J.
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 1by order dated 17.02.2006 in S.C. No. 80 of 2000 and S.T. No. 4(3) of
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 2the 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 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 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.
Mr. Pranab Kumar Mullick, learned counsel for the appellant-accused and Mr.
Chanchal Kr. Ganguli, learned counsel for the respondent-State.
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
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), 6the 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
have carefully perused all the relevant materials and considered the rival
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
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 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."
let us consider whether the prosecution has established its case for the offence
punishable under Section 364A IPC beyond reasonable doubt?
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.
other accused persons have not challenged the conviction before this Court except
the appellant herein.
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 9thereafter 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
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 10telephone 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.
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 11relieved 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
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 12he
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
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 13that 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 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.
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
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 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
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.
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:
a. that the accused
kidnapped or abducted the person;
b. kept him under detention
after such kidnapping and abduction; and
c. 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.
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
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
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
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.
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.
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 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
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.
the appeal fails and is accordingly dismissed.
..............................J. (P. SATHASIVAM)