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  

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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  

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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.   

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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.   

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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.   

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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  

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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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