CRL.A./1024/2008 of PREETI VERMA D/O DEVENDER VERMA Vs STATE

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of Decision :30[th] April, 2010

+ Crl. A. No. 1024/2008

PREETI VERMA ..... Appellant Through: Ms. Charu Verma, Advocate

versus

THE STATE OF DELHI ..... Respondent Through: Ms.Richa Kapoor, A.P.P.

CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE SURESH KAIT

1.Whether the Reporters of local papers may be allowed to see the judgment? to see the judgment?

2.To be referred to Reporter or not?

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

PRADEEP NANDRAJOG, J.(Oral)

1.With reference to the testimony of Shama Parveen PW-3, the mother of Bilal as also the testimony of Bilal PW-4, learned counsel for the appellant concedes that there is hardly any scope to argue that the prosecution has not proved that the appellant was employed as maid servant by Shama Parveen and that the appellant went missing with the minor son Bilal of Shama Parveen. Mohd.Farukh PW-5 is the witness who saw the appellant walk away with Bilal in the afternoon of 27.3.2002, the day when Bilal was found missing from his house and the appellant was also missing.

2.Not only that, the testimony of SI R.K.Borse PW-6

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proves that Bilal was recovered from the possession of the appellant from Mumbai.

3.The only issue which we need to discuss and decide is whether an essential ingredient of Section 364-A IPC, as held by Co-ordinate Division Bench of this Court in the decision reported as 2008 (4) JCC 2961 Rafiq & Anr. vs. State has been established.

4.In Rafiq’scase (supra) it has been held that of the many ingredients constituting the whole of Section 364-A IPC is proof of the fact of threat or conduct giving rise to reasonable apprehension that the kidnapped child could be put to death or hurt.

5.Though in the context of jurisdiction, similar view finds expounded in the decision of the Supreme Court reported as JT 2007 (5) SC 48 Vishwanath Gupta vs. State of Uttaranchal.

6.Having perused the testimony of the mother and the child kidnapped, we do not find any evidence of proof of the fact that either by conduct or by express words threat was extended to cause harm to the child or to put the child to death.

7.Under the circumstances, we hold that the prosecution has been able to only prove the commission of offences punishable under Section 363 IPC and 368 IPC. We

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note that the co-accused of the appellant, the main architect, Abdul Salam is proclaimed offender.

8.Under the circumstances, the appeal stands disposed of setting aside the conviction of the appellant for the offence punishable under Section 364-A IPC.

9.We convict the appellant for the offences punishable under Section 363 IPC as also Section 368 IPC. For both offences, we sentence the appellant to undergo rigorous imprisonment for period of 6 years each. We direct that both sentences shall run concurrently and that the appellant shall be entitled to the benefit of Section 428 Cr.P.C. Needless to state, in computing the sentence to be actually undergone, benefit of remissions, if any, earned by the appellant shall be accorded.

10.Since the appellant is in jail we direct that copy of this decision be sent to the Superintendent, Central Jail Tihar with direction that if the appellant has completed the sentence for period of 6 years, she be set free forthwith.

PRADEEP NANDRAJOG, J

APRIL 30, 2010

SURESH KAIT, J