Whether any threat was extended by the accused to cause death or hurt to the victim or his conduct gave rise to reasonable apprehension that such person may be put to death or hurt , is the essential condition for conviction under Sec.364A IPC ?
held that We, thus, set aside the conviction of the appellant under Section 364A. However, from the evidence on record regarding kidnapping, it is proved that accused had kidnapped the victim for ransom, demand of ransom was also proved. Even though offence under Section 364A has not been proved beyond reasonable doubt but the offence of kidnapping has been fully established to which effect the learned Sessions Judge has recorded a categorical finding in paragraphs 19 and 20. The offence of kidnapping having been proved, the appellant deserves to be convicted under Section 363. Section 363 provides for punishment which is imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.533 OF 2021
(@ Special Leave Petition (Crl.) No.308 of 2021)
SHAIK AHMED ...APPELLANT(S)
VERSUS
STATE OF TELANGANA ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
Leave granted.
2. This appeal has been filed by the accused
challenging the judgment of the High Court dated
06.08.2019 by which Criminal Appeal No. 1121 of 2012
filed by the appellant questioning his conviction and
sentence under Section 364A IPC has been dismissed.
3. The prosecution case in brief is :-
3.1 The victim, PW-2 Prateek Gupta, was a
student in VIth standard in St. Mary’s High
School, Rezimental Banzar, Secunderabad,
Hyderabad. On 03.02.2011, PW-2 went to a
1
picnic organised by the school and returned
to school at around 3:00 pm. Usually, PW-2
would wait for a regular (fixed) auto to
drop him home from school but unfortunately
on the said date, the same did not turn up.
3.2 PW-2 waited till about 4.00 pm and
thereafter PW-2 phoned his father (PW-1)
from the cell phone of his school teacher
(PW-3). PW-1 instructed PW-2 to take
another auto to go home. PW-1 engaged the
services of an auto driven by the accused
(appellant herein) to take him home and
boarded the auto.
3.3 Thereafter, the accused took him from an
unknown route by informing PW-2 it is a
short cut and took him to some unknown
place by promising that he would call PW-1
and ascertain the correct address, after
which he would drop PW-2 at home. It is
alleged that the accused took PW-2 to the
2
house of his sister, PW-6, and told PW-2
that he would drop him at his home in the
morning of the next day. Thereafter, the
accused allegedly called PW-1 stating that
he had PW-2 in his custody and demanded a
ransom of Rs.2 lakhs to release PW-2.
3.4 On the same day at about 8.30 pm the
accused again called PW-1 and reiterated
his demand for release of PW-2. PW-1
conveyed his inability to pay the ransom
amount, subsequent to which the accused
demanded a sum of Rs. 1.50 lakhs for the
release of PW-2. PW-1 after receiving the
phone call went to the police station and
lodged report, which was marked as Ex.P-1.
The same was received and a case being CV
No. 37/2011 u/s 364S of IPC was registered
and handed over for further investigation.
3.5 As per the prosecution, at about 6:00 am
the Accused along with PW-2 left to
3
Borabanda from his sister's house in an
Auto and while travelling called PW-1 from
the phone of the auto driver (PW-5) to
enquire about the status of the ransom
money. PW-1 was instructed to come to
Pillar No 99, P.V. Narsimha Rao Expressway
on foot and raise his hand for
identification. When PW-1 reached the
location, he found the accused present at
the spot and raised his hand. When PW-1
was trying to handover the ransom to the
accused, the police who were in mufti
surrounded the accused and took him into
custody. The police seized 2 cell phones,
ID cards and Rs.200/- (Rupees Two Hundred
Only) from the accused.
3.6 The police found the victim seated in an
auto a short distance away, who was taken
to the police station and statement under
Section 161, Cr.P.C. of the victim (PW-2)
was recorded at P.S. Gopalapuram. After
4
investigation, charge sheet was filed
against the appellant under Section 364A
IPC. Charge was framed by the Additional
Chief Metropolitan Magistrate, Secunderabad
against the accused under Section 364A IPC.
After appearance of the accused, learned
Additional Chief Metropolitan Magistrate
committed the case to the learned Sessions
Judge. Prosecution examined eight
witnesses, the father of the victim and
defacto complainant, Sanjay Gupta was
examined as PW-1. Prateek Gupta, the
victim was examined as PW-2. Kumari Sujata
Rani, the school teacher was examined as
PW-3, who proved that from her cell phone,
the victim had spoken to his father, who
informed the victim to come by taking
another auto. PW-4, Krishna Yadav and PW7 were examined as Panch witnesses. PW-5
was examined as auto driver, who, on asking
of accused took the accused and victim to
Pillar No.78 of P.V.N.H. PW-8, the Sub5
inspector of police, K. Ramesh, who was
I.O. PW6 was another witness. Prosecution
marked Exh.P1 to P4 and M.O.1 to 3.
3.7 After recording evidence of prosecution,
the accused was examined under Section 313
Cr.P.C. On behalf of defence Exh. D1 and D2
were marked.
3.8 Learned Sessions Judge after considering the
evidence led by witnesses held that accused
kidnapped PW-2 and telephoned to PW-1
demanding Rs.2 lakhs for release of PW-2.
The learned Sessions Judge held that
prosecution clearly established the guilt
of the accused for the offence under
Section 364A IPC. After recording
conviction, he was sentenced to undergo
life imprisonment for offence under Section
364A IPC and also liable to pay fine of
Rs.5,000/- by judgment dated 01.11.2012.
6
3.9 The appellant filed an appeal before the
High Court. The appeal has been dismissed
by the High Court by the impugned judgment
dated 06.08.2019. The High Court held that
PW-2 was kidnapped by the accused and
ransom of Rs.2 lakhs was demanded from
PW-1. When the appellant-accused came to
collect the ransom amount demanded, he was
apprehended by the police. High Court held
that prosecution clinchingly proved the
guilt of the accused beyond all reasonable
doubt for the offence punishable under
Section 364A of IPC. The appeal was
accordingly dismissed.
4. Learned counsel for the appellant submitted that
the prosecution failed to prove all ingredients for
conviction under Section 364A, hence the conviction
under Section 364A is not sustainable. Learned
counsel submits that there was neither any evidence
nor any findings returned by the Courts below that
any threat was extended by the accused to cause death
7
or hurt to the victim nor his conduct gave rise to
reasonable apprehension that such person may be put
to death or hurt. He submits that neither the
learned Sessions Judge nor the High Court adverted to
the above essential conditions for conviction under
Section 364A, hence the judgment of the Courts below
deserves to be set aside.
5. Learned counsel for the appellant referring to
the statement of PW-2, the victim submits that victim
himself in his statement has stated that he was
treated in a good manner. PW-1 in his statement has
also not alleged that any threat was extended to
cause death or hurt to the victim.
6. Learned counsel appearing for the State, Ms. Bina
Madhavan supported the judgments of learned Sessions
Judge as well as the High Court and took us to the
statements of PW-1, PW-2 and PW-8. She submits that
conviction under Section 364A of the accused does not
deserve any interference by this Court.
8
7. From the submissions made by the learned counsel
for the parties and materials on record, following
questions arise for consideration in this appeal:-
I. What are the essential ingredients of Section
346A to be proved beyond reasonable doubt by
the prosecution for securing the conviction
of an accused under Section 364A IPC?
II. Whether each and every ingredient as
mentioned under Section 364A needs to be
proved for securing conviction under Section
364A and non-establishment of any of the
conditions may vitiate the conviction under
Section 364A IPC?
III. Whether the learned Sessions Judge as well as
the High Court recorded any finding that all
ingredients of Section 364A were proved by
the prosecution?
IV. Whether there was any evidence or findings by
the Courts below that the accused had
threatened to cause death or hurt to the
9
victim or by his conduct gave rise to a
reasonable apprehension that victim may be
put to death or hurt?
8. The appeal having arisen out of order of
conviction under Section 364A, we need to notice the
provisions of Section 364A IPC before proceeding
further to consider the points for consideration.
9. Sections 359 to 374 of the Indian Penal Code are
contained in the heading “of Kidnapping, Abduction,
Slavery and Forced Labour”. Offence of Kidnapping
for lawful guardianship is defined under Section 361
and Section 363 provides for punishment for
kidnapping. Section 364 deals with kidnapping or
abduction in order to murder.
10. The Law Commission of India took up the revision
of Indian Penal Code and submitted its report, i.e.,
42nd Report (June, 1971). In Chapter 16, offences
affecting the human body was dealt with. The chapter
on kidnapping and abduction was dealt by the
10
Commission in paragraphs 16.91 to 16.112. Section
364 and 364A was dealt by the Commission in
paragraphs 16.99 to 16.100 which are as follows:-
“16.99. Section 364 punishes the
offence of kidnapping or abduction of a
person in order to murder him, the maximum
punishment being imprisonment for life or
for ten years. In view of our general
recommendation as to imprisonment for
life, we propose that life imprisonment
should be omitted and term imprisonment
increased to 14 years.
The illustrations to the section do
not elucidate any particular ingredient of
the offence and should be omitted.
16.100. We consider it desirable to
have a specific section to punish severely
kidnapping or abduction for ransom, as
such cases are increasing. At present,
such kidnapping or abduction is punishable
under section 365 since the kidnapped or
abducted person will be secretly and
wrongfully confined.
We also considered the question
whether a provision for reduced punishment
in case of release of the person kidnapped
without harm should be inserted, but we
have come to the conclusion that there is
no need for it. We propose the following
section:-
“364A. Kidnapping or abduction
for ransom .—Whoever kidnaps or
abducts any person with intent to
hold that person for ransom shall
be punished with rigorous
11
imprisonment for a term which may
extend to 14 years, and shall
also be liable to fine.”
11. Although the Law Commission has in paragraph
16.100 proposed Section 364A, which only stated that
whoever kidnaps or abducts any person with intent to
hold that person for ransom be punished for a term
which may extend to 14 years. Parliament while
inserting Section 364A by Act No.42 of 1993 enacted
the provision in a broader manner also to include
kidnapping and abduction to compel the Government to
do or abstain from doing any act or to pay a ransom
which was further amended and amplified by Act No.24
of 1995. Section 364A as it exists after amendment
is as follows:-
“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 organisation or any
other person to do or abstain from doing
any act or to pay a ransom, shall be
12
punishable with death, or imprisonment for
life, and shall also be liable to fine.”
12. We may now look into section 364A to find out as
to what ingredients the Section itself contemplate
for the offence. When we paraphrase Section 364A
following is deciphered:-
(i) “Whoever kidnaps or abducts any person or
keeps a person in detention after such
kidnapping or abduction”
(ii) “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,
(iii) or causes hurt or death to such person in
order to compel the Government or any
foreign State or international intergovernmental organisation or any other
person to do or abstain from doing any act
or to pay a ransom”
(iv) “shall be punishable with death, or
imprisonment for life, and shall also be
liable to fine.”
13. The first essential condition as incorporated in
Section 364A is “whoever kidnaps or abducts any
person or keeps a person in detention after such
kidnapping or abduction”. The second condition
begins with conjunction “and”. The second condition
13
has also two parts, i.e., (a) threatens to cause
death or hurt to such person or (b) by his conduct
gives rise to a reasonable apprehension that such
person may be put to death or hurt. Either part of
above condition, if fulfilled, shall fulfill the
second condition for offence. The third condition
begins with the word “or”, i.e., or causes hurt or
death to such person in order to compel the
Government or any foreign State or international
inter-governmental organisation or any other person
to do or abstain from doing any act or to pay a
ransom. Third condition begins with the word “or
causes hurt or death to such person in order to
compel the Government or any foreign state to do or
abstain from doing any act or to pay a ransom”.
Section 364A contains a heading “kidnapping for
ransom, etc.” The kidnapping by a person to demand
ransom is fully covered by Section 364A.
14. We have noticed that after the first condition
the second condition is joined by conjunction “and”,
thus, whoever kidnaps or abducts any person or keeps
14
a person in detention after such kidnapping or
abduction and threatens to cause death or hurt to
such person.
15. The use of conjunction “and” has its purpose and
object. Section 364A uses the word “or” nine times
and the whole section contains only one conjunction
“and”, which joins the first and second condition.
Thus, for covering an offence under Section 364A,
apart from fulfillment of first condition, the second
condition, i.e., “and threatens to cause death or
hurt to such person” also needs to be proved in case
the case is not covered by subsequent clauses joined
by “or”.
16. The word “and” is used as conjunction. The use
of word “or” is clearly distinctive. Both the words
have been used for different purpose and object.
Crawford on Interpretation of Law while dealing with
the subject “disjunctive” and “conjunctive” words
with regard to criminal statute made following
statement:-
15
“……………………..The Court should be extremely
reluctant in a criminal statute to
substitute disjunctive words for
cojunctive words, and vice versa, if such
action adversely affects the accused.”
17. We may also notice certain judgments of this
court where conjunction “and” has been used. In
Punjab Produce and Trading Co. Ltd. Vs. The CIT, West
Bengal, Calcutta (1971) 2 SCC 540, this Court had
occasion to consider Section 23-A Explanation b(iii)
of Income Tax Act, 1922 which provision has been
extracted in paragraph 5 of the judgment which is to
the following effect:-
“Explanation. — For the purposes of this
section a company shall be deemed to be a
company in which the public are
substantially interested—
(a) If it is a company owned by the
Government or in which not less than forty
per cent of the shares are held by the
Government.
(b) If it is not a private company as
defined in the Indian Companies Act, 1913
(7 of 1913) and—
(i) its shares (not being shares
entitled to a fixed rate of
dividend, whether with or without
a further right to participate in
profits) carrying not less than
fifty per cent of the voting
16
power have been allotted
unconditionally to, or acquired
unconditionally by, and were
throughout the previous year
beneficially held by the public
(not including a company to which
the provisions of this section
apply):
Provided that in the case of any
such company as is referred to in
sub-section (4), this sub-clause
shall apply as if for the words
‘not less than fifty per cent’
the words ‘not less than forty
per cent’, had been substituted;
(ii) the said shares were at any
time during the previous year the
subject of dealing in any
recognised stock exchange in
India or were freely transferable
by the holder to other members of
the public; and
(iii) the affairs of the company
or the shares carrying more than
fifty per cent of the total
voting power were at no time
during the previous year
controlled or held by less than
six persons (persons who are
related to one another as
husband, wife, lineal ascendant
or descendant or brother or
sister, as the case may be, being
treated as a single person and
persons who are nominees of
another person together with that
other person being likewise
treated as a single person:
Provided that in the case of any
such company as is referred to in
17
sub-section (4), this clause
shall apply as if for the words
‘more than fifty per cent’, the
words ‘more than sixty per cent’,
had been substituted.”
18. This Court held following in paragraph 8:-
“8. …………………...The clear import of the
opening part of clause (b) with the word
“and” appearing there read with the
negative or disqualifying conditions in
sub-clause (b)(iii) is that the assessee
was bound to satisfy apart from the
conditions contained in the other subclauses that its affairs were at no time
during the previous year controlled by
less than six persons and shares carrying
more than 50 per cent of the total voting
power were during the same period not held
by less than six persons……………………….”
19. In another judgment, Hyderabad Asbestos Cement
Products and Anr. Vs. Union of India, (2000) 1 SCC
426, this Court had occasion to consider Rule 56-A of
Central Excise Act, 1944. The Court dealt with
interpretation of conjunctive and disjunctive “and”,
“or”. Proviso to Rule 56-A also uses the conjunctive
word “and”. The Provision of the Rule as quoted in
paragraph 4 is as below:-
“56-A. Special procedure for movement of
duty-paid materials or component parts for
18
use in the manufacture of finished
excisable goods.—(1) Notwithstanding
anything contained in these rules, the
Central Government may, by notification in
the Official Gazette, specify the
excisable goods in respect of which the
procedure laid down in sub-rule (2) shall
apply.
(2) The Collector may, on application made
in this behalf and subject to the
conditions mentioned in sub-rule (3) and
such other conditions as may, from time to
time, be prescribed by the Central
Government, permit a manufacturer of any
excisable goods specified under sub-rule
(1) to receive material or component parts
or finished products (like asbestos
cement), on which the duty of excise or
the additional duty under Section 2-A of
the Indian Tariff Act, 1934 (32 of 1934),
(hereinafter referred to as the
countervailing duty), has been paid, in
his factory for the manufacture of these
goods or for the more convenient
distribution of finished product and allow
a credit of the duty already paid on such
material or component parts or finished
product, as the case may be:
Provided that no credit of duty shall
be allowed in respect of any material or
component parts used in the manufacture of
finished excisable goods—
(i) if such finished excisable
goods produced by the manufacturer
are exempt from the whole of the
duty of excise leviable thereon or
are chargeable to nil rate of duty,
and
(ii) unless—
19
(a) duty has been paid for such
material or component parts under
the same item or sub-item as the
finished excisable goods; or
(b) remission or adjustment of duty
paid for such material or component
parts has been specifically
sanctioned by the Central
Government:
Provided further that if the duty
paid on such material or component
parts (of which credit has been
allowed under this sub-rule) be
varied subsequently due to any
reason, resulting in payment of
refund to, or recovery of more duty
from, the manufacturer or importer,
as the case may be, of such
material or component parts, the
credit allowed shall be varied
accordingly by adjustment in the
credit account maintained under
sub-rule (3) or in the accountcurrent maintained under sub-rule
(3) or Rule 9 or Rule 178(1) or, if
such adjustment be not possible for
any reason, by cash recovery from
or, as the case may be, refund to
the manufacturer availing of the
procedure contained in this rule.”
20. This court held that when the provisos 1 & 2 are
separated by conjunctive word “and”, they have to be
read conjointly. The requirement of both the proviso
has to be satisfied to avail the benefit. Paragraph 8
is as follows:-
20
“8. The language of the rule is plain and
simple. It does not admit of any doubt in
interpretation. Provisos (i) and (ii) are
separated by the use of the conjunction
“and”. They have to be read conjointly.
The requirement of both the provisos has
to be satisfied to avail the benefit.
Clauses (a) and (b) of proviso (ii) are
separated by the use of an “or” and there
the availability of one of the two
alternatives would suffice. Inasmuch as
cement and asbestos fibre used by the
appellants in the manufacture of their
finished excisable goods are liable to
duty under different tariff items, the
benefit of pro forma credit extended by
Rule 56-A cannot be availed of by the
appellants and has been rightly denied by
the authorities of the Department.”
21. Thus, applying the above principle of
interpretation on condition Nos. 1 & 2 of Section
364A which is added with conjunction “and”, we are of
the view that condition No.2 has also to be fulfilled
before ingredients of Section 364A are found to be
established. Section 364A also indicates that in case
the condition “and threatens to cause death or hurt
to such person” is not proved, there are other
classes which begins with word “or”, those
conditions, if proved, the offence will be
established. The second condition, thus, as noted
21
above is divided in two parts- (a) and threatens to
cause death or hurt to such person or (b) by his
conduct gives rise to a reasonable apprehension that
such person may be put to death or hurt.
22. Now, we may look into few cases of this Court
where different ingredients of Section 364A came for
consideration. We may first notice the judgment of
this Court in Malleshi Vs. State of Karnataka, (2004)
8 SCC 95. The above was a case where kidnapping of a
major boy was made by the accused for ransom and
before this Court argument was raised that demand of
ransom has not been established. In the above case,
the Court referred to Section 364A and in paragraph
12 following was observed:-
“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. Strong reliance was placed on
a decision of the Delhi High Court
in Netra Pal v. State (NCT of Delhi) [2001
Cri LJ 1669 (Del)] to contend that since
the ransom demand was not conveyed to the
father of PW 2, the intention to demand
was not fulfilled.”
22
23. This court in paragraphs 13 to 15 dealt with
demand for ransom and held that demand originally was
made to person abducted and the mere fact that after
making the demand the same could not be conveyed to
some other person as the accused was arrested in
meantime does not take away the effect of conditions
of Section 364A. In the above case, this Court was
merely concerned with ransom, hence, other conditions
of Section 364A were not noticed.
24. The next judgment is Anil alias Raju Namdev Patil
Vs. Administration of Daman & Diu, Daman and Another,
(2006) 13 SCC 36. In the above case, this Court
noticed the ingredients for commission of offence
under Section 364 and 364A. Following was laid down
in paragraph 55:-
“55. ………………………for obtaining a conviction
for commission of an offence under Section
364-A thereof it is necessary to prove
that not only such kidnapping or abetment
has taken place but thereafter the accused
threatened 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
23
the Government or any foreign State or
international intergovernmental
organisation or any other person to do or
abstain from doing any act or to pay a
ransom.”
25. At this stage, we may also notice the judgment of
this Court in Suman Sood alias Kamaljeet Kaur Vs.
State of Rajasthan (2007) 5 SCC 634. In the above
case, Suman Sood and her husband Daya Singh Lahoria
were accused in the case of abduction. They were
tried for offence under Section 364A, 365, 343 read
with Section 120-B and 346 read with Section 120-B.
The trial court convicted the appellant for offence
under Sections 365 read with 120-B, 343 read with
120-B and 346 read with 120-B. She was, however,
acquitted for offence punishable under Section 364-A.
Her challenge against conviction and sentence for
offences punishable under Sections 365 read with 120-
B, 343 read with 120-B and 346 read with 120-B IPC
was negatived by the High Court. But her acquittal
for offences punishable under Sections 364-A read
with 120-B was set aside by the High Court in an
appeal and she was also convicted for the offence
24
under Section 364A and was sentenced to life
imprisonment. In the appeal filed by her challenging
her conviction under Section 364A, this Court dealt
with acquittal of Suman Sood under Section 364A by
trial Court. In Paragraph 64 this court noticed as
follows:-
“64. According to the trial court, the
prosecution had failed to prove charges
against Suman Sood for an offence
punishable under Sections 364-A or 364-A
read with 120-B IPC “beyond reasonable
doubt” inasmuch as no reliable evidence
had been placed on record from which it
could be said to have been established
that Suman Sood was also a part of
“pressurise tactics” or had terrorised the
victim or his family members to get
Devendra Pal Singh Bhullar released in
lieu of Rajendra Mirdha. The trial court,
therefore, held that she was entitled to
benefit of doubt.”
26. The findings of trial court that no reliable
evidence had been placed on record from which it
could be said to have been established that Suman
Sood was also a part of pressurise tactics or has
terrorized the victim or his family. This court
approved the acquittal of Suman Sood by trial court
and set aside the order of the High Court convicting
25
Suman Sood. In paragraph 71 following was held by
this Court:-
“71. On the facts and in the circumstances
in its entirety and considering the
evidence as a whole, it cannot be said
that by acquitting Suman Sood for offences
punishable under Sections 364-A read with
120-B IPC, the trial court had acted
illegally or unlawfully. The High Court,
therefore, ought not to have set aside the
finding of acquittal of accused Suman Sood
for an offence under Sections 364-A read
with 120-B IPC. To that extent, therefore,
the order of conviction and sentence
recorded by the High Court deserves to be
set aside.”
27. Thus, the trial court’s findings that there was
no evidence that Suman Sood was part of pressurize
tactics or terrorized the victim or his family
members, hence, due to non-fulfillment of the
condition as enumerated in Section 364A, the trial
court recorded the acquittal, which has been
confirmed by this Court. The above case clearly
establishes that unless all conditions as enumerated
in Section 364A are fulfilled, no conviction can be
recorded.
26
28. Now, we come to next judgment, i.e., Vishwanath
Gupta Vs. State of Uttaranchal (2007) 11 SCC 633. In
the above case, the victims were abducted from
district of Lucknow, State of U.P. demands for ransom
and threat was extended from another district, i.e.,
Nainital and the victim was done to death in another
district, i.e., Unnao in the State of U.P. This Court
had occasion to consider the ingredients of Section
364A and in paragraphs 8 and 9, the following was
laid down:-
“8. According to Section 364-A, whoever
kidnaps or abducts any person and keeps
him in detention and threatens to cause
death or hurt to such person and by his
conduct gives rise to a reasonable
apprehension that such person may be put
to death or hurt, and claims a ransom and
if death is caused then in that case the
accused can be punished with death or
imprisonment for life and also liable to
pay fine.
9. The important ingredient of Section
364-A is the abduction or kidnapping, as
the case may be. Thereafter, a threat to
the kidnapped/abducted that if the demand
for ransom is not met then the victim is
likely to be put to death and in the event
death is caused, the offence of Section
364-A is complete. There are three stages
27
in this section, one is the kidnapping or
abduction, second is threat of death
coupled with the demand of money and
lastly when the demand is not met, then
causing death. If the three ingredients
are available, that will constitute the
offence under Section 364-A of the Penal
Code. Any of the three ingredients can
take place at one place or at different
places. In the present case the demand of
the money with the threat perception had
been made at (Haldwani) Nainital. The
deceased were kidnapped at Lucknow and
they were put to death at Unnao.
Therefore, the first offence was committed
by the accused when they abducted Ravi
Varshney and Anoop Samant at Lucknow.
Therefore, Lucknow court could have
territorial jurisdiction to try the case.”
29. This Court in the above case, laid down that
there are three stages in the Section, one is
kidnapping or abduction, second is threat of death
coupled with demand of money and third when the
demand is not met, then causing death. The Court
held that if the three ingredients are available that
will constitute the offence under Section 364 of the
IPC. Dealing with Section 364A in context of above
case, following was laid down in paragraph 17:-
28
“17. ……………But here, in the case of Section
364-A something more is there, that is,
that a person was abducted from Lucknow
and demand has been raised at Haldwani,
Nainital with threat. If the amount is not
paid to the abductor then the victim is
likely to be put to death. In order to
constitute an offence under Section 364-A,
all the ingredients have not taken place
at Lucknow or Unnao. The two incidents
took place in the State of Uttar Pradesh,
that is, abduction and death of the
victims but one of the ingredient took
place, that is, threat was given at the
house of the victims at Haldwani, Nainital
demanding the ransom money otherwise the
victim will be put to death. Therefore,
one of the ingredients has taken place
within the territorial jurisdiction of
Haldwani, Nainital. Therefore, it is a
case wherein the offence has taken place
at three places i.e. at Haldwani,
Nainital, where the threat to the life of
the victim was given and demand of money
was raised, the victim was abducted from
Lucknow and he was ultimately put to death
at Unnao. ………………….”
30. Next case which needs to be noticed is a Three
Judge Bench Judgment of this Court in Vikram Singh
alias Vicky and Anr. Vs. Union of India and Ors.,
(2015) 9 SCC 502. In the above case, this Court
elaborately considered the scope and purport of
Section 364A including the historical background.
After noticing the earlier cases, this Court laid
29
down that section 364A has three distinct components.
In Paragraph 25, following was laid down with regard
to distinct components of Section 364A:-
“25. …………….Section 364-A IPC has three
distinct components viz. (i) the person
concerned kidnaps or abducts or keeps the
victim in detention after kidnapping or
abduction; (ii) threatens to cause death
or hurt or causes apprehension of death or
hurt or actually hurts or causes death;
and (iii) the kidnapping, abduction or
detention and the threats of death or
hurt, apprehension for such death or hurt
or actual death or hurt is caused to
coerce the person concerned or someone
else to do something or to forbear from
doing something or to pay
ransom…………………...”
31. We may also notice one more Three Judge Bench
Judgment of this Court in Arvind Singh Vs. State of
Maharashtra, (2020) SCC Online SC 400. In the above
case, an eight year old son of Doctor Mukesh Ramanlal
Chandak (PW1) was kidnapped by the accused A1 and A2.
Accused A1 was an employee of Dr. Chandak. It was
held that A1 had grievance against Dr. Chandak. A2
who accompanied A1 when the boy was kidnapped and
after the kidnapping of the boy it was found that boy
was murdered and at the instance of A1, the dead body
30
was recovered from a bridge constructed over a
Rivulet. Trial court had sentenced both A1 and A2 to
death for the offences punishable under Sections 364A
read with 34 and 302 read with 34. The High Court
had dismissed the appeal affirming the death
sentence. On behalf of A2, one of the arguments
raised before this Court was that although child was
kidnapped for ransom but there was no intention to
take the life of the child, therefore, offence under
Section 364A is not made out. This Court noticed the
ingredients of Section 364A, one of which was
“threatening to cause death or hurt” in paragraphs
90, 91 and 92, the following was observed:-
“90. An argument was raised that the child
was kidnapped for ransom but there was no
intention to take life of the child,
therefore, an offence under Section 364A
is not made out. To appreciate the
arguments, Section 364A of the IPC is
reproduced 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
31
person in order to compel the
Government or any foreign State or
international intergovernmental
organisation 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.”
91. Section 364A IPC has three ingredients
relevant to the present appeals, one, the
fact of kidnapping or abduction, second,
threatening to cause death or hurt, and
last, the conduct giving rise to
reasonable apprehension that such person
may be put to death or hurt.
92. The kidnapping of an 8-year-old child
was unequivocally for ransom. The
kidnapping of a victim of such a tender
age for ransom has inherent threat to
cause death as that alone will force the
relatives of such victim to pay ransom.
Since the act of kidnapping of a child for
ransom has inherent threat to cause death,
therefore, the accused have been rightly
been convicted for an offence under
Section 364A read with Section 34 IPC. The
threat will remain a mere threat, if the
victim returns unhurt. In the present
case, the victim has been done to death.
The threat had become a reality. There is
no reason to take different view that the
view taken by learned Sessions Judge as
well by the High Court.”
32. We need to refer to observations made by Three
Judge Bench in paragraph 92 where this Court observed
that kidnapping of an eight year old victim for
32
ransom has inherent threat to cause death as it alone
will force the relatives of victim to pay ransom.
The Court further held that since the act of
kidnapping of a child has inherent threat to cause
death, therefore, the accused have been rightly
convicted for an offence under Section 364A read with
Section 34 IPC. In the next sentence, the Court held
that the threat will remain a mere threat, if the
victim returns unhurt, “the victim has been done to
death the threat has become a reality”. The above
observation made by Three Judge Bench has to be read
in context of the facts of the case which was for
consideration before this Court. No ratio has been
laid down in paragraph 92 that when an eight year old
child (or a child of a tender age) is
kidnapped/abducted for ransom there is inherent
threat to cause death and the second condition as
noted above, i.e., threatens to cause death or hurt
to such person, is not to be proved. The
observations cannot be read to mean that in a case of
kidnapping or abduction of an eight year old child
(or child of a tender age), presumption in law shall
33
arise that kidnapping or abduction has been done to
cause hurt or death. Each case has to be decided on
its own facts. In the foregoing paragraphs, we have
noticed that all the three distinct conditions
enumerated in Section 364A have to be fulfilled
before an accused is convicted of offence under
Section 364A. Thus, the observations in paragraph 92
may not be read to obviate the establishment of
second condition as noticed above for bringing home
the offence under Section 364A.
33. After noticing the statutory provision of Section
364A and the law laid down by this Court in the above
noted cases, we conclude that the essential
ingredients to convict an accused under Section 364A
which are required to be proved by prosecution are as
follows:-
(i) Kidnapping or abduction of any person or
keeping a person in detention after such
kidnapping or abduction; and
34
(ii) 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;
(iii) causes hurt or death to such person in order
to compel the Government or any foreign State
or any Governmental organization or any other
person to do or abstain from doing any act or
to pay a ransom.
34. Thus, after establishing first condition, one
more condition has to be fulfilled since after first
condition, word used is “and”. Thus, in addition to
first condition either condition (ii) or (iii) has to
be proved, failing which conviction under Section
364A cannot be sustained.
35. The second condition which is “and threatens to
cause a 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” is relevant
35
for consideration in this case since appellant has
confined his submission only regarding nonfulfillment of this condition. We may also notice
that the appellant has filed grounds of appeal before
the High Court in which following was stated in
grounds No. 6 and 7:-
“6. The learned Judge failed to see that
PW-2 stated that he was treated well and
as such there was no threat to cause death
or hurt.
7. The learned Judge should have seen that
PW-1 did not state that the accused
threatened to cause death or hurt to his
son.”
36. Now, we may first look into the judgment of the
learned Sessions Judge regarding consideration of
fulfillment of second condition and the findings
recorded in that regard by learned Sessions Judge.
The Judgment of the learned Sessions Judge indicates
that from paragraphs 12 to 19, the learned Sessions
Judge has noticed the evidences of different
witnesses and in paragraph 20 following findings have
been recorded:-
“20. The learned counsel for the
defence contended that the prosecution
evidence are not at all sufficient to
36
establish the guilt of the accused for the
charge leveled against him. He further
contended that the accused is not real
culprit a false case was foisted against
him and he was no way connected to the
alleged kidnap. The said testimony of PWs
1 to 5 and PW-8 coupled with Ex.P.1 to P.4
and M.O.1 to 3 it clearly established that
the accused kidnapped PW-2 and telephoned
to PW-1 and demanded Rs. Two Lakhs for the
release of the PW-2. So the prosecution
clearly establishes the guilt of the
accused for the offence under Section
364(A) of IPC and he is liable to be
convicted. Accordingly, this point is
answered in favour of the prosecution and
against the accused.”
37. The findings in paragraph 20 reveals that the
learned Sessions judge held that it is clearly
established that the accused kidnapped PW-2 and
telephoned PW-1 and demanded Rs.2 lakhs for release
of PW-2. On this finding, the learned Sessions Judge
jumped to the conclusion that prosecution has clearly
proved the case for conviction under Section 364A.
There are no findings recorded by learned Sessions
Judge that condition no. 2 was also fulfilled.
38. The High Court in its judgment has also in para
27 observed:-
37
“27. There is cogent, convincing and
overwhelming evidence on record to connect
the appellant/accused with the alleged
offence. The prosecution clinchingly
proved the guilt of the accused beyond all
reasonable doubt for the offence
punishable under Section 364A of IPC. The
Court below had meticulously analysed the
entire evidence on record and rightly
convicted and sentenced the
appellant/accused, basing on the oral and
documentary evidence. There is nothing to
take a different view. All the contentions
raised on behalf of the appellant/accused
do fail. The Criminal Appeal is devoid of
merit and is liable to be dismissed.”
39. The High Court has not dealt with the grounds
taken before it by the accused that no threat to
cause death or hurt was extended by the accused. From
the judgment of the high court, thus, it can be said
that there is no finding regarding fulfillment of
condition No.2. Both the Courts having not held that
condition No.2 as noted above was found established
on the evidence led before the Court the conviction
under Section 364A become unsustainable. The present
is not a case where applicability of condition No.
(iii), i.e., “or causes hurt or death” is even
claimed. Thus, fulfillment of condition No.(ii) was
necessary for conviction under Section 364A.
38
40. We, however, proceed to examine the evidence on
record to satisfy ourselves as to whether there was
any evidence from which it can be proved that
condition No.2, i.e., “threatens to cause death or
hurt or conduct of the accused gives rise to a
reasonable apprehension that victim may be put to
death or hurt” was established. The complainant,
PW-1, in his cross examination, stated “my son was
not physically assaulted…………… My son did not
complain me about bad behavior or assault of
anything. My son was kept in a good health and
without any kind of problem to my son.” PW-2, the
victim himself was examined, who was 13 years of age
at the time of examination. In his cross
examination, victim states:-“I was not assaulted nor
having stab, beating on my body. They treated me in a
good manner.”
41. Thus, neither PW-1, the father of the victim, the
complainant, nor the victim says that any accused
threatened to cause death or hurt. The evidence
39
which was led before the court suggest otherwise that
the victim was not assaulted and he was treated well
in a good manner as was stated by victim.
42. Now, coming to the second part of the condition
No.2, i.e., “or by his conduct gives rise to a
reasonable apprehension that such person may be put
to death or hurt”. Neither there is any such conduct
of the accused discussed by the Courts below, which
may give a reasonable apprehension that victim may be
put to death or hurt nor there is anything in the
evidence on the basis of which it can be held that
second part of the condition is fulfilled. We, thus,
are of the view that evidence on record did not prove
fulfillment of the second condition of Section 364A.
Second condition is also a condition precedent, which
is requisite to be satisfied to attract Section 364A
of the IPC.
43. The Second condition having not been proved to be
established, we find substance in the submission of
the learned Counsel for the appellant that conviction
40
of the appellant is unsustainable under Section 364A
IPC. We, thus, set aside the conviction of the
appellant under Section 364A. However, from the
evidence on record regarding kidnapping, it is proved
that accused had kidnapped the victim for ransom,
demand of ransom was also proved. Even though offence
under Section 364A has not been proved beyond
reasonable doubt but the offence of kidnapping has
been fully established to which effect the learned
Sessions Judge has recorded a categorical finding in
paragraphs 19 and 20. The offence of kidnapping
having been proved, the appellant deserves to be
convicted under Section 363. Section 363 provides
for punishment which is imprisonment of either
description for a term which may extend to seven
years and shall also be liable to fine.
44. In the facts of the present case, we are
satisfied that the appellant deserves to be sentenced
with imprisonment of seven years and also liable to
pay fine of Rs. 5,000/-. The Judgment of the learned
Sessions Judge and the High Court is modified to the
41
above extent. The conviction and sentence of the
appellant under Section 364A is set aside. The
appellant is convicted for offence under section 363
of kidnapping and sentenced to imprisonment of seven
years and fine of Rs.5,000/-. After completion of
imprisonment of seven years (if not completed
already) the appellant shall be released.
45. The appeal is partly allowed to the above extent.
....................J.
(Ashok Bhushan)
....................J.
(R.Subhash Reddy)
NEW DELHI,
JUNE 28, 2021.
42
