* Author
[2024] 1 S.C.R. 40 : 2024 INSC 6
Case Details
Neeraj Sharma
v.
State of Chhattisgarh
(Criminal Appeal No. 1420 Of 2019)
03 January 2024
[Sudhanshu Dhulia* and
Satish Chandra Sharma, JJ.]
Issue for Consideration
Conviction and sentence of the appellants, inter alia, for offence
u/s.364-A, Penal Code, 1860, if justified.
Headnotes
Penal Code, 1860 – s.364-A – Conditions to be met to make
out offence u/s.364-A – Conviction of the appellants u/
ss.307/120B, 364-A and 392/397, IPC – Prosecution if proved
its case u/s.364-A beyond reasonable doubt:
Held: In the present case, the most important witness is the
complainant himself-an injured witness, who was an 18 year old
boy who trusted his friends (appellants), not aware that he was
being taken by deceit by his friends who had planned his murder
– Unless there are compelling circumstances/evidence placed by
the defence to doubt such a witness, this has to be accepted as an
extremely valuable evidence in a criminal trial – Injuries sustained
by the complainant match the case of the prosecution – An attempt
was made by the appellants to dispose of the body of the victim
by burning the body – There were burn injuries on both his legs
– The strong ligature mark on his neck was again significant as
it is the case of the prosecution that the two accused had tried to
strangulate him with the clutch wire – Prosecution proved its case
beyond reasonable doubt as regards robbery, abduction and attempt
to murder – However, in order to make out an offence u/s.364-A, the
necessary ingredients which the prosecution must prove, beyond
reasonable doubt, are not only an act of kidnapping or abduction
but thereafter the demand of ransom, coupled with the threat to
life of a person who has been kidnapped or abducted, must be
there – Prosecution miserably failed to establish the demand of
ransom – No worthwhile evidence placed by the prosecution in
[2024] 1 S.C.R. 41
NEERAJ SHARMA v. STATE OF CHHATTISGARH
this regard – There was no evidence at all to have convicted the
appellants u/s.364A – Trial Court and the High Court completely
misdirected in holding the present case to be a case u/s.364-A –
Findings of conviction u/s.364A converted to that of s.364, as the
appellants had committed an offence u/s.364 as the offence of
abduction in order to murder the victim stood proved – Appellants
sentenced to rigorous imprisonment of 10 years each on this count
and a fine of Rs.10,000/-, in default further imprisonment of three
months – Rest of the conviction and sentence u/s.307 r/w s.120B
as well as u/s.392 r/w s.397, affirmed – Fine imposed retained.
[Paras 7, 9, 11, 14, 16 and 18]
Penal Code, 1860 – ss.362, 364, 364-A, 365, 366 – Abduction
simpliciter not an offence, becomes a punishable offence
when combined with another act:
Held: While abduction simpliciter may not technically be an offence
under the IPC, it becomes a punishable offence when it is combined
with another act – Abduction in order to commit murder is an offence
u/s.364 – Abduction is an offence if done with an intent to secretly
or wrongfully confine a person u/s.365, or when done to compel
a woman for marriage etc. u/s.366 – s.364-A is an offence where
kidnapping or abduction is made and a person is put to death or
hurt; or a person is threatened with death or actually murdered,
on demand of ransom – Clarified, s.364-A does not merely cover
acts of terrorism against the Government or Foreign State but it
also covers cases where the demand of ransom is made not as a
part of a terrorist act but for monetary gains for a private individual
– Incorporation of s.364-A discussed. [Para 12]
Code of Criminal Procedure, 1973 – ss.357(1), 357-A:
Held: A victim of a crime cannot be treated merely as a prosecution
witness – s.357(1) empowers the court to order that the fine
amount recovered be given to any person as compensation who
has suffered any loss or injury caused due to that offence – There
may be times when the situation may demand that a substantive
amount of compensation be paid to the victim and the convict
may not be financially that strong to bear that burden – For such
situations, s.357A was therefore introduced, where compensation
to the victims may be paid out of State funds, as the State had the
responsibility to protect the victim against the offence committed
against the victim of the crime – In the present case, the victim
suffered burn injuries of 45-48% and lost one leg, when he was
only eighteen years of age – Rs.5,00,000/- be paid by the State to
42 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
the victim as compensation u/s.357A instead of Rs.1,00,000/- as
directed by the High Court. [Paras 19, 20]
Criminal Law – Criminal trial – Injured witness – Importance
– Discussed.
List of Citations and Other References
Balu Sudam Khalde v. State of Maharashtra 2023 SCC
OnLine SC 355; Vikram Singh v. Union of India [2015]
10 SCR 816:(2015) 9 SCC 502; Shaik Ahmed v. State of
Telangana (2021) 9 SCC 59; Rajesh v. State of Madhya
Pradesh, 2023 SCC OnLine SC 1202 – relied on.
Ravi Dhingra v. State of Haryana (2023) 6 SCC 76;
Gentela Vijayavardhan Rao and Another v. State of
A.P. [1996] 5 Suppl. SCR 273:(1996) 6 SCC 241;
Sunil Kumar and Others v. State of M.P. [1997] 1 SCR
589:(1997) 10 SCC 570; Shrawan Bhadaji Bhirad and
Others v. State of Maharashtra [2002] 4 Suppl. SCR
158:(2002) 10 SCC 56; State of U.P. v. Veer Singh
and Others [2004] 1 Suppl. SCR 790:(2004) 10 SCC
117; S. Arul Raja v. State of Tamil Nadu [2010] 9 SCR
356:(2010) 8 SCC 233 – referred to.
List of Acts
Penal Code, 1860; Code of Criminal Procedure, 1973.
List of Keywords
Abduction; Attempt to murder; Robbery; Kidnapping or abducting
to murder; Kidnapping for ransom; Conviction converted; Beyond
reasonable doubt; Injured witness; Victim compensation.
Other Case Details Including Impugned Order and
Appearances
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.1420
of 2019.
From the Judgment and Order dated 26.06.2018 of the High Court
of Chhattisgarh at Bilaspur in CRA No.200 of 2015.
With
Criminal Appeal No.36 of 2024
[2024] 1 S.C.R. 43
NEERAJ SHARMA v. STATE OF CHHATTISGARH
Appearances:
Sameer Shrivastava, Ms. Yashika Varshney, Mrs. Priyanka
Shrivastava, Mrs. Sangeeta, Shivendra Dixit, Advs. for the Appellant.
Sumeer Sodhi, Ms. Bhawana Mapwal, Advs. for the Respondent.
Judgment / Order of The Supreme Court
Judgment
Sudhanshu Dhulia, J.
Leave granted.
2. Both these appeals arise out of a common judgment and order dated
26.06.2018 passed by the High Court of Chhattisgarh at Bilaspur in
Criminal Appeal No.200 of 2015, which has dismissed the Criminal
Appeal of the present appellants, upholding the conviction and
sentence of the trial court. The two appellants were convicted for
offences under Sections 307/120B, 364-A and 392/397 and were
sentenced, inter alia, for life imprisonment under Section 364A Indian
Penal Code, 1860 (for short ‘IPC’).
The third accused in this case, called Ravi Kumar Dwivedi, was
acquitted by the trial court.
3. The case of the prosecution is that appellants had abducted one
Arjit Sharma (PW-6), a Class 12th student of KPS School, Durg. The
abduction, as per the prosecution, was for ransom, and a dastardly
attempt was also made by the accused to kill the victim, although
the victim miraculously escaped, but not before sustaining grievous
injuries, which eventually led to the amputation of his right leg.
The complainant/victim (PW-6) was at the relevant time residing
as a paying guest in the house of Smt. Seema Singh (PW-7)
at Priyadarshni Nagar, Durg. The accused, Neeraj Sharma and
complainant were known to each other and on 02.01.2013, the two
decided to go on a motorcycle ride to Nehru Nagar and Yugandar
College, Rajnandgaon. The complainant was picked from his guest
house by the two accused i.e., Neeraj Sharma and Ashwani Kumar
Yadav and the three took off on their motorcycle to a place called
“Doundilohara”. At about 1:00 am in the night when the complainant
was trying to ease himself, the two accused made an attempt to kill
44 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
him by throttling his neck by the clutch wire of the motorcycle. As
a result, the complainant fell on the ground unconscious and the
appellants thinking that the complainant had died, poured petrol on
his body and set him on fire.
As per the prosecution case the body was set on fire, but before
setting the body on fire, the complainant/victim’s mobile phone and
cash of Rs.5000/- (Rupees Five Thousand only) were looted from
him, by the two accused Neeraj Sharma and Ashwani Kumar Yadav.
4. The complainant, however, was not dead, but as it turned out
managed to escape from the scene and was later rescued by
strangers whom he met on his way while escaping who helped him
call an ambulance and he was taken to Doundilohara Hospital from
where he was referred to Rajnandgaon and ultimately to Sector -9
Hospital, Bhilai. While he was at Doundilohara hospital, the doctor
(PW-4) who had examined the complainant had also informed the
Police and therefore a “Dehati Nalishi”1
(Ex.P/12) was recorded
on 03.01.2013. The doctor PW-4 (Jai Kumar Chunarkar) who had
examined the complainant/victim at Doundilohara hospital, notes the
following burn injuries in his report (Ex.P/09).
“Injured had worn underwear of dark chocolate colour,
which was not burnt and smell of skin burning was emitting
from his entire body and he was in semi-conscious
condition. He was very restless and he had complaint of
plain and burn on the burning spots.”
“Burn injuries were found on frontal and backside of both
legs of the injured and skin of that spots had peeled out
from surface. Burn injuries and many burning blisters on
the lower portion of his belly and burn injury was on the
waist and burn injury was on the upper portion of right side
on the chest and a ligature mark like a lining was present
on the frontal portion of neck of the injured, which was in
light red colour, it had length of 122 to 14 cms and abrasion
injuries were found on the frontal portion of his neck which
had size of 3x2, 2x2 and 2x2 cms respectively. In this
connection he had submitted his Report (exhibit P-9).”
1 Dehati Nalishi is something akin to a zero FIR.
[2024] 1 S.C.R. 45
NEERAJ SHARMA v. STATE OF CHHATTISGARH
There were first degree burn injuries on the body of the victim as the
burnt area was 45% to 48% of his body. Statement of the victim (PW6) was recorded before a Nayab Tehsildar on 04.01.2013 at 12 noon.
The overall circumstances under which this statement was recorded
makes it an important piece of evidence. We must also remember
that this is a statement given by an eighteen year old boy who has
just come out of a harrowing incident where a dastardly attempt was
made on his life. He is also grievously injured and apparently had
consulted no one before giving this statement before an Executive
Magistrate. The veracity of this statement should not be in doubt.
He states how he was taken on a motorcycle by Neeraj Sharma and
Ashwani Kumar Yadav and how he was asked to consume alcohol
on the way and then at 1:00 AM in the night, how the two accused
first tried to strangulate him with clutch wire and later set his body
on fire, thinking he is dead. It is important here to note that there is
no mention here of any demand or talk of ransom.
5. The police after completing its investigation filed its Chargesheet
against the three accused under Sections 120B, 364A, 307, 392/397
and in the alternative section 394 of IPC. As it was a Sessions triable
offence, it was committed to Sessions from where it went to First
Additional Sessions Judge Balod, who ultimately framed charges on
15.04.2013 under Sections 364A, 307, 120B, 392, 397 and in the
alternative 394 of IPC against all the accused persons i.e., Neeraj
Sharma, Ashwani Kumar Yadav and Ravi Kumar Dwivedi.
The prosecution examined in all 11 witnesses and placed several
exhibits before the Court. The accused pleaded not guilty and faced
trial. The Trial Court passed its Judgement dated 03.01.2015 by which
the accused appellants were convicted for offences under sections
307/120B, 364A and 392/397 IPC for which they were sentenced to
life imprisonment inter alia for the major offence under section 364-A
IPC which has also been upheld by the High Court.
6. While issuing notice in the Special Leave Petition on 30.11.2018 this
Court in the case of Neeraj Sharma in fact issued a limited notice to
his conviction under section 364-A while confirming his conviction
under sections 307 read with 120B along with sections 392 read
with 397 of IPC. The said order is produced below:
“We do not find any good ground warranting interference
with the conviction of the petitioner under Section 307
IPC read with 120 (B) and Section 392 IPC read with 397.
46 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
Issue notice limited to the conviction under Section 364A
returnable within eight weeks.”
All the same nothing of this nature has been observed by this Court
while issuing notice in the case of Ashwani Kumar Yadav which was
issued on 02.08.2021.
As far as an attempt to murder and robbery are concerned, we have
no doubt in our mind that the prosecution has been able to establish
its case beyond a reasonable doubt. At the same time, we have our
doubts about the conviction of the accused under 364-A of the IPC.
In fact, this doubt was also in the mind of this Court, at least in the
case of Neeraj Sharma, as this Court has issued a limited notice as
only to the applicability of 364-A in the case.
7. The most important witness in this case is the complainant himself.
He is also an injured witness. The injuries sustained by him in the
incident match the case of the prosecution. An attempt was made
by the two accused to dispose of the body of the victim by burning
the body. There were burn injuries on both his legs. The strong
ligature mark on his neck was again significant as it is the case of
the prosecution that the two accused had tried to strangulate him
with the clutch wire. The condition of the victim was precarious to say
the least, and he gave a statement before the Executive Magistrate,
B.K. Verma who was the Nayab Tehsildar and Executive Magistrate,
Durg, he said:
“At 6.30-7.00 hrs in the evening Neeraj Sharma and Ashwini
Yadav came to me and said that lets go to Youganthar
College Rajnandgaon. I had not seen Youganthar College
so I went along with them in motor cycle to see the college.”
He also said,
“In the night of 3rd at 1.30 hrs there is a plant towards
Balod I do not know its name, near to that, Neeraj Sharma
and Ashwini Yadav first strangulated me with clutch wire I
had stopped my breath they thought that me dead, then
set me fire by pouring petrol.”
8. Apart from this, the veracity of the incident is further established by
the deposition of Santosh Shukla (PW-1), who was the first person
in the Bhilai Plant who saw the complainant in a burnt condition and
who inquired from him as to what led to his injuries and was informed
[2024] 1 S.C.R. 47
NEERAJ SHARMA v. STATE OF CHHATTISGARH
that these injuries were caused by his friends, and his money was
also looted by them. PW-4, Dr. Jai Kumar Chunarkar, was the first to
medically examine the complainant at Doundilohara Hospital. He had
recorded burn injuries on his body which we have already referred
above. Praneet Sharma (PW-5), is the father of the complainant who
stated that on the midnight of 03.01.2013, he was informed by Aman
Singh, that his son Arijit Sharma is not well and his son has been
hospitalized at Sector -9 Hospital, Bhilai and when he reached the
hospital, he saw his son in burnt condition and in severe pain. His
son informed him that the two appellants were the ones who tried
to kill him. He also said that at 12 noon on 03.01.2023 he received
a phone call from the mobile number 7869590607, where the caller
demanded a sum of Rs.8,00,000/- as ramson for the release of his
son, Arijit Sharma. When he said that his son is in hospital with
him and he would file a complaint against the caller, the phone got
disconnected. This part of the statement of this witness (PW-5) who
is the father of the complainant/injured, as regards the demand of
ransom, however, has not been established in any manner.
The complainant himself was examined as PW-6 who said in his
examination in chief that he was staying in Bhilai as paying guest
and on 02.01.2013 the accused Neeraj Sharma who was known to
him called on his mobile phone and asked him to come to Nehru
Nagar, Bhilai, from where they were supposed to go somewhere on
a motorbike. After informing his land lady, he went to meet Neeraj
Sharma at Nehru Nagar. Neeraj Sharma arrived after a few minutes
on a motorcycle with Ashwani Kumar Yadav riding their pillion. The
three went on this motorcycle towards Yugandar College and on
their way, they also consumed liquor. They had also met Rahul, the
brother of Neeraj Sharma, on their way. Past midnight, he requested
Neeraj Sharma to stop the vehicle, as he wanted to ease himself
and when the complainant was talking to Neeraj Sharma, the other
accused Ashwani Kumar Yadav, came from behind and tied clutch
wire around his neck and then both Ashwani Kumar Yadav and
Neeraj Sharma made an attempt to strangulate him with the clutch
wire. As a result, he fell down semi-conscious and he was thought
to be dead by the two assailants who then poured petrol on him. He
also heard Neeraj Sharma and Ashwani Kumar fetching petrol from
their motorcycle. Neeraj Sharma also took away Rs.5000/- from his
purse, and his cell phone. Later petrol was poured on him and then
48 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
he was set on fire. He somehow escaped and reached the nearby
Bhilai plant and he informed the guard about the incident and gave
the number of his landlord to him and subsequently ambulance was
called and he was sent to the hospital.
This witness was cross-examined at length by the defence counsel
but nothing has come out which may cast a doubt on any of his
statements.
9. PW-7 is the land lady Seema Singh, where the complainant was
staying as a paying guest who also testified against the accused.
She has said that the complainant had informed her that he is going
with his friend towards another place on 02.01.2013 for which he
sought her permission.
The mobile phone was traced by the police belonged to one of the
accused Ashwani Kumar Yadav. The police during their investigation
arrested Neeraj Sharma and Ashwani Kumar Yadav on 03.01.2013
and their Hero Honda Motorcycle and Mobile Phones were recovered.
The prosecution story therefore as far as abduction and attempt to
murder is concerned can hardly be in doubt. The prosecution has
been able to prove its case beyond a reasonable doubt. The most
important witness here is the complainant himself, who is an 18-yearold boy, studying at the relevant time in a college near Bhilai, who
trusted his friends, not aware that he is being taken by deceit by his
friends who had planned his murder. PW-6 is also an injured witness.
10. The first doctor who had examined PW-6 was Dr. Jai Kumar
Chunarkar (PW-4), who works at the District Hospital at Balod. He
had examined the injured complainant in the early hours of morning
on 03.01.2013. His observation as to the injuries of PW-6 and his
general condition are as follows :
“Opinion : - Burn injuries were found over the body of the
patient, which were of durmel peed burn nature, which
expressed the first degree burn. The area of burnt was
approximately 45 to 48 percentage. Exhibit P-9 is the
examination report given by me, part A to A of which bears
my signature.
On the same date, on receiving the memo from the Station
House Officer Daundilohara for recording, statement of
injured Arjit Sharma, I had opined that, “injured Arjit Sharma
[2024] 1 S.C.R. 49
NEERAJ SHARMA v. STATE OF CHHATTISGARH
was not in the condition to give statement on 03.01.13 at
4:30 hours in the morning.”
The injured was then referred to Bhilai Hospital where he was
examined by Dr. Uday (PW-9). His observation is as follows :
“On examination, I found that both legs of the patient were
deeply burnt from top to bottom and some blisters were
therein stomach and both hands, which were burnt up to
40 to 45 percentage. There were mark in his neck, which
probably was comes due to pressure of clutch wire. The
treatment of which was undergone in my Hospital at about
60 days, in which he was operated twice, First operation
was done on 15.01.13, during which we compelled to cut
his right legs below the knee, which was rotten due to
heavily burnt.
Second operation was done on 12.02.13, wherein at the
place on deep injury, the skin from other places were
grafted. Therafter, it started improving gradually the
condition of the patient and on 04.03.13, he has been
discharged from the hospital. Registration Sheed (Bedhead
Ticket) of indoor patient regarding admission in our hospital
is Exhibit P-14, which is in 166 pages, wherein on each
pages at part A to A bears my signature.”
The other person who had met the injured while he had escaped
was PW-1 i.e. Santosh Shukla. The statement of PW-1 is as follows:
“I am posted to the post of Senior Executive H.R. in
Godawari Steel Plant Gidhali since January, 2009. It is the
matter of first week of the January of this year, at that time
I was on duty at night shift. On the night in between about
2 to 3, the Guard of the plant informed me that one boy
in burning condition has come inside the plant and then
reaching out from the office I saw that the boy was burnt
at leg, back and hand etc., he had worn underwear only.
On enquiring by me, the boy told that, “My friends carried
me to the forest and burnt me and looted money from me”.
Then I phoned to the Police-station of Daundilohara and
had also phone to Sanjivani 108. Thereafter, Sanjivani
Ambulance reached and had taken the boy to Daundilohara
Hospital for treatment.
50 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
Police personnel Station House Officer Sahu had come
to investigate the incident and had prepared Nazari map
(Exhibit P-01) of the incident, part A to A of which bears
my signature. Similarly, Halka Patwari had prepared the
Nazari map (Exhibit P-02) of the incident, part A to A of
which bears my signature. The police personnel had seized
pants, which was burnt, burnt shirt and pants jeep in burnt
condition, disposal glass, cigarette box etc. before me
and two hand cuff persons. The said seizure proceeding
of above articles was done according to Seizure memo
(Exhibit P-3), from the place of the incident in the presence
of accused Neeraj Sharma, present in the Court, wherein
at part A to A, there was my signature. The Police personal
had recorded my statement after enquiry.”
11. The importance of injured witness in a criminal trial cannot be over
stated. Unless there are compelling circumstances or evidence placed
by the defence to doubt such a witness, this has to be accepted as
an extremely valuable evidence in a criminal Trial.
In the case of Balu Sudam Khalde v. State of Maharashtra 2023
SCC OnLine SC 355 this Court summed up the principles which
are to be kept in mind when appreciating the evidence of an injured
eye-witness. This court held as follows:
“26. When the evidence of an injured eye-witness is to be
appreciated, the under-noted legal principles enunciated
by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time
and place of the occurrence cannot be doubted unless
there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence,
it must be believed that an injured witness would not
allow the real culprits to escape and falsely implicate
the accused.
(c) The evidence of injured witness has greater
evidentiary value and unless compelling reasons
exist, their statements are not to be discarded
lightly.
[2024] 1 S.C.R. 51
NEERAJ SHARMA v. STATE OF CHHATTISGARH
(d) The evidence of injured witness cannot be doubted
on account of some embellishment in natural conduct
or minor contradictions.
(e) If there be any exaggeration or immaterial
embellishments in the evidence of an injured
witness, then such contradiction, exaggeration or
embellishment should be discarded from the evidence
of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must
be taken into consideration and discrepancies which
normally creep due to loss of memory with passage
of time should be discarded.”
12. In the case at hand the case of abduction and attempt to murder
are well established by the prosecution. All that is now left for us
to determine is whether an offence under Section 364A of IPC is
made out?
While abduction simpliciter may not technically be an offence under
the IPC, it becomes a punishable offence when it is combined with
another act. For example, abduction in order to commit murder is
an offence under Section 364 IPC. So is abduction an offence if it is
done with an intent to secretly or wrongfully confine a person (Section
365, IPC), or when it is done to compel a woman for marriage etc.
(Section 366, IPC). Similarly, Section 364A is an offence where
kidnapping or abduction is made and a person is put to death or
hurt; or a person is threatened with death or actually murdered, on
demand of ransom.
Section 364A IPC was inserted in the Indian Penal Code by an Act
of Parliament (Act No.42 of 1993 with effect from 22nd May, 1993).
That was a period when kidnapping and abduction for the purposes
of ransom were on the rise and therefore, the Law Commission
of India in its 42nd Report in 1971 had recommended insertion of
Section 364A in IPC, though it was ultimately incorporated in the
year 1993, it reads as under:
“364-A. 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
52 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
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 punishable with death, or imprisonment
for life, and shall also be liable to fine.”
This Court in the case of Vikram Singh v. Union of India (2015) 9
SCC 502 has observed as follows:
“53. Applying the above to the case at hand, we find that the
need to bring in Section 364-A IPC arose initially because
of the increasing incidence of kidnapping and abduction
for ransom. This is evident from the recommendations
made by the Law Commission to which we have made
reference in the earlier part of this judgment. While those
recommendations were pending with the Government, the
spectre of terrorism started raising its head threatening not
only the security and safety of the citizens but the very
sovereignty and integrity of the country, calling for adequate
measures to curb what has the potential of destabilising any
country. With terrorism assuming international dimensions,
the need to further amend the law arose, resulting in the
amendment to Section 364-A IPC, in the year 1994. The
gradual growth of the challenges posed by kidnapping and
abductions for ransom, not only by ordinary criminals for
monetary gain or as an organised activity for economic
gains but by terrorist organisations is what necessitated
the incorporation of Section 364-A IPC and a stringent
punishment for those indulging in such activities.”
It needs to be clarified, as it was done in Vikram Singh (supra), that
Section 364A IPC does not merely cover acts of terrorism against
the Government or Foreign State but it also covers cases where the
demand of ransom is made not as a part of a terrorist act but for
monetary gains for a private individual.
13. In the present case, the evidence placed by the prosecution to
establish a case under Section 364-A is in the form of a phone call to
the father of the victim at 12 noon by Ravi Kumar Dwivedi (the third
accused who was acquitted by the Trial Court). Although, according
[2024] 1 S.C.R. 53
NEERAJ SHARMA v. STATE OF CHHATTISGARH
to the prosecution the number has been traced to Ashwani Kumar
Yadav, one of the two accused here, but no evidence to this effect,
as required under Section 165 of the Evidence Act, has been placed
before the Court.
The supplementary statement given by the complainant before the
police on 21.03.2013, (his first statement is on 03.01.2013), has little
relevance as PW-6 never speaks of this in his examination in chief.
14. This court in the case of Shaik Ahmed v. State of Telangana (2021)
9 SCC 59 has held that in order to make out an offence under Section
364 A, three conditions must be met:
A) There should be a kidnapping or abduction of a person or
a person is to be kept in detention after such kidnapping or
abduction;
B) There is a threat to cause death or hurt to such a person or the
accused by their conduct give rise to a reasonable apprehension
that such person may be put to death or hurt
C) Or cause death or hurt to such a person in order to compel
the Government or any foreign state or intergovernmental
organisation or any other person to do or abstain from doing
any act or to pay a ransom.
The necessary ingredients which the prosecution must prove, beyond
a reasonable doubt, before the Court are not only an act of kidnapping
or abduction but thereafter the demand of ransom, coupled with the
threat to life of a person who has been kidnapped or abducted, must
be there. It was reiterated by this Court in the case of Ravi Dhingra
v. State of Haryana (2023) 6 SCC 76.
In the present case, what the prosecution has miserably failed to
establish is the demand of ransom. As per the prosecution, the
complainant’s father i.e., Praneet Sharma (PW-5) received a phone
call from which a demand of ransom was made. The phone call
was allegedly traced as being of one Ravi Kumar Dwivedi but no
evidence was placed on record to establish the demand of ransom
before the Court which was absolutely necessary in view of the law
laid done by this Court in Rajesh v. State of Madhya Pradesh,
2023 SCC OnLine SC 1202.
54 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
15. For making out a case under Section 364-A, the first condition i.e.,
kidnapping or abduction must be coupled with either the second or
the third condition as held by this Court in Shaik Ahmed (supra)2
.
Under the said provision, the accused is liable to be punished
either by death or imprisonment for life and is also liable to be fined
considering the gravity of the offence. In the present case, even if it
is presumed for the sake of argument that an offence under Section
364 is made out, we do not find that the offence would come under
the ambit of Section 364A.
‘Abduction’ is defined under Section 362 which reads as under:
“362. Abduction.—Whoever by force compels, or by any
deceitful means induces, any person to go from any place,
is said to abduct that person.”
The offence which is made out is definitely under Section 364 which
read as under:
“364. Kidnapping or abducting in order to murder.—
Whoever kidnaps or abducts any person in order that such
person may be murdered or may be so disposed of as
to be put in danger of being murdered, shall be punished
with [imprisonment for life] or rigorous imprisonment for
a term which may extend to ten years, and shall also be
liable to fine.”
16. However, in order to come under the ambit of Section 364A,
something more than abduction is required, which is demand of
ransom. We do not find that there was a demand of ransom as
alleged by the prosecution. There is no worthwhile evidence placed
by the prosecution in this regard.
The demand of ransom does not come in the examination in chief of
the complainant (PW-6). He sticks to his theory of abduction, attempt
to murder, etc., but there is no whisper about any demand of ransom,
though in his supplementary statement before the Police (under
Section 161 of Criminal Procedure Code), on 21.03.2013, he says
that while he was lying on the ground after an attempt to strangulate
him was made by the two accused, he had heard Neeraj Sharma
telling Ashwani Kumar Yadav that they should now demand a ransom
2 Para 33
[2024] 1 S.C.R. 55
NEERAJ SHARMA v. STATE OF CHHATTISGARH
from his father. The only deposition in Court regarding demand of
ransom has come as a bald statement by Praneet Sharma (PW-5)
who is the father of the complainant that on 03.01.2013 when he was
in the hospital one Ravi Kumar Dwivedi demanded Rs.8,00,000/- as
ransom. Ravi Kumar Dwivedi the third accused, has already been
acquitted by the Trial Court. There was no evidence at all before the
Trial Court to have convicted the appellants under Section 364A,
IPC. The conviction of the appellants under Section 364A is not
made out and is therefore liable to be set aside.
17. Appellants’ conviction and sentence of life imprisonment under
Section 364A of IPC is therefore set aside. All the same, we do find
that PW-6 was abducted so that he could be murdered. We therefore
convert the findings under Section 364A to that of Section 364.
Appellants are hereby convicted under Section 364 of IPC, instead
of Section 364A IPC.
Both the trial court and the High Court have failed to detect the flaw
in the evidence led by the prosecution under Section 364A IPC.
The trial court as well as the appellate court have completely relied
upon the evidence of PW-5 (Praneet Sharma, father of the victim)
and PW-6 his son, the victim. As far as the evidence of PW-6 is
concerned, he makes no mention of any demand or ransom in the
court as a prosecution witness. In his first statement given to the
Executive Magistrate on 03.01.2013, again he makes no mention of
any ransom. He only mentions about ransom in his supplementary
statement recorded by the Police after two months on 21.03.2013.
The High Court believes it and calls it a “dying declaration”. The
statement given to the Police on 21.03.2023 cannot be called a
dying declaration. Dying declaration is defined under Section 32 of
Indian Evidence Act, 1872 which is reproduced below:
32. Cases in which statement of relevant fact by person
who is dead or cannot be found, etc., is relevant.—
Statements, written or verbal, of relevant facts made by a
person who is dead, or who cannot be found, or who has
become incapable of giving evidence, or whose attendance
cannot be procured without an amount of delay or expense
which under the circumstances of the case appears to the
Court unreasonable, are themselves relevant facts in the
following cases:—
56 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
(1) When it relates to cause of death.—When the
statement is made by a person as to the cause of
his death, or as to any of the circumstances of the
transaction which resulted in his death, in cases in
which the cause of that person’s death comes into
question.
Such statements are relevant whether the person who
made them was or was not, at the time when they were
made, under expectation of death, and whatever may be
the nature of the proceeding in which the cause of his
death comes into question.
(2) Or is made in course of business.—When the
statement was made by such person in the ordinary
course of business, and in particular when it
consists of any entry or memorandum made by him
in books kept in the ordinary course of business,
or in the discharge of professional duty; or of an
acknowledgment written or signed by him of the
receipt of money, goods, securities or property of
any kind; or of a document used in commerce written
or signed by him; or of the date of a letter or other
document usually dated, written or signed by him.
(3) Or against interest of maker.—When the statement
is against the pecuniary or proprietary interest of the
person making it, or when, if true, it would expose him
or would have exposed him to a criminal prosecution
or to a suit for damages.
(4) Or gives opinion as to public right or custom, or
matters of general interest.—When the statement
gives the opinion of any such person, as to the
existence of any public right or custom or matter of
public or general interest, of the existence of which,
if it existed, he would have been likely to be aware,
and when such statement was made before any
controversy as to such right, custom or matter had
arisen.
[2024] 1 S.C.R. 57
NEERAJ SHARMA v. STATE OF CHHATTISGARH
(5) Or relates to existence of relationship.—When the
statement relates to the existence of any relationship
[by blood, marriage or adoption] between persons as
to whose relationship [by blood, marriage or adoption]
the person making the statement had special means
of knowledge, and when the statement was made
before the question in dispute was raised.
(6) Or is made in will or deed relating to family affairs.—
When the statement relates to the existence of any
relationship [by blood, marriage or adoption] between
persons deceased, and is made in any will or deed
relating to the affairs of the family to which any such
deceased person belonged, or in any family pedigree,
or upon any tombstone, family portrait or other thing
on which such statements are usually made, and
when such statement was made before the question
in dispute was raised.
(7) Or in document relating to transaction mentioned
in Section 13, clause (a).—When the statement is
contained in any deed, will or other document which
relates to any such transaction as is mentioned in
Section 13, clause (a).
(8) Or is made by several persons and expresses feelings
relevant to matter in question.—When the statement
was made by a number of persons, and expressed
feelings or impressions on their part relevant to the
matter in question.
The statement given by the complainant/victim (PW-6) on 03.01.2013
was firstly to the investigating officer (PW-10). But more importantly
it cannot be called “a dying declaration” simply because PW-6
had mercifully survived. This statement cannot be read as a dying
declaration because the person making this statement or declaration
had ultimately survived. This supplementary statement given to the
investigating officer on 21.03.2013 is nothing more than a statement
under Section 162 of Criminal Procedure Code (see: Gentela
Vijayavardhan Rao and Another v. State of A.P. (1996) 6 SCC
58 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
2413
; Sunil Kumar and Others v. State of M.P. (1997) 10 SCC
5704
; Shrawan Bhadaji Bhirad and Others v. State of Maharashtra
(2002) 10 SCC 565
; State of U.P. v. Veer Singh and Others (2004)
10 SCC 1176
and S. Arul Raja v. State of Tamil Nadu (2010) 8
SCC 2337
.
18. In our considered opinion both the Trial Court as well as the High
Court were completely misdirected in holding this to be, inter alia,
a case under Section 364A of the IPC. There was no worthwhile
evidence placed by the prosecution on this aspect. The findings
of the Courts on this aspect therefore needs to be set aside. We,
therefore, partly allow the present appeals to the extent that findings
recorded by the Trial Court and the High Court of conviction under
Section 364A of the IPC are hereby set aside. We, however, find
that the accused had committed an offence under Section 364 IPC,
as the offence of abduction in order to murder the victim i.e., PW-6
stands proved. In other words, we convert the findings of conviction
under Section 364A to that of Section 364 IPC and sentence the two
accused (present appellants) for rigorous imprisonment of Ten years
each on this count and a fine of Rs.10,000/- each, and in default
further imprisonment of three months. The rest of the conviction and
sentence that is under Section 307 of the IPC read with Section
120B as well as under Section 392 of IPC read with Section 397 are
hereby affirmed. We are also aware that in addition to the sentence,
a fine of Rs.50,000/- each against the two accused was imposed
by the High Court. We retain the same and direct that the fine be
recovered from the present appellants, in default of payment of the
fine, the appellants shall undergo further imprisonment of one year
each. The above fine shall be thereafter remitted to the victim in
accordance with law.
19. A victim of a crime cannot be treated merely as a prosecution
witness. Section 357(1) of Criminal Procedure Code empowers the
court to order that the fine amount recovered be given to any person
3 Para 13
4 Para 20
5 Para 8
6 Para 5
7 Para 31
[2024] 1 S.C.R. 59
NEERAJ SHARMA v. STATE OF CHHATTISGARH
as compensation who has suffered any loss or injury caused due
to that offence. In this case, the victim had suffered burn injuries
of 45-48% and lost one leg, when he was only eighteen years of
age. There may be times when the situation may demand that a
substantive amount of compensation be paid to the victim and the
convict may not be financially that strong to bear that burden. For
such situations, Section 357A was therefore introduced in Criminal
Procedure Code for this reason, where compensation to the victims
may be paid out of State funds, as the State had the responsibility
to protect the victim against the offence that had been committed
against the victim of the crime.
20. In the present case, the victim i.e., PW-6 has suffered grievous
injuries, not only this, his left leg below his knee had to be amputated.
Consequently, we direct that an amount of Rs.5,00,000/- (Five
Lakhs only) be paid by the State of Chhattisgarh to the victim as
compensation under Section 357A of Cr.PC., instead of Rs.1,00,000/-
as directed by the High Court. Let the same be done within a period
of three months from today.
21. Ashwani Kumar Yadav shall be released, subject to the payment
of fine/compensation, provided he has completed his 10 years of
imprisonment and if not required in any other case. Order dated
17.09.2019 of this Court up to the extent of suspending the sentence
of appellant Neeraj Sharma and granting him bail is hereby vacated.
The bail bonds of appellant Neeraj Sharma stand cancelled and he
is directed to surrender within two weeks from today to complete
his remaining sentence.
A copy of this judgment shall also be sent to the victim.
Headnotes prepared by: Divya Pandey Result of the case: Appeals
partly allowed.
