In a major development which should not escape our notice, the Apex Court has most recently on June 28, 2021 in a learned, latest, laudable and landmark judgment titled Shaik Ahmed vs State of Telangana in Criminal Appeal No. 533 of 2021 (@ Special Leave Petition (Crl.) No.308 of 2021) in exercise of its criminal appellate jurisdiction has held quite clearly that merely proving the kidnap of a person is not sufficient for conviction for the offence of kidnapping for ransom under Section 364A of the Indian Penal Code. It must also be proved that there was threat to cause death or harm to the kidnapped person or the kidnapper by his conduct gave rise to a reasonable apprehension that such person may be put to death. It must also be mentioned here that a Bench comprising of Justice Ashok Bhushan and Justice R Subhash Reddy was considering a criminal appeal filed against the conviction of a person under Section 364A IPC. It also deserves mentioning here that the appellant who is an auto-rickshaw driver, was convicted for kidnapping a school boy who had taken ride in the auto for demanding a ransom of Rs 2 lakhs from his father.
To start with, this brief, brilliant, balanced and bold judgment authored by Justice Ashok Bhushan for himself and Justice R Subhash Reddy of the Apex Court by first and foremost putting forth in para 2 after granting leave that, “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.”
To put things in perspective, the Bench then observes in para 3 that, “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 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 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 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 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 Sub-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.
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.”
Be it noted, the Bench then enunciates in para 22 that, “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.””
It is worth noting that the Bench then observes in para 33 that, “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
(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.”
Furthermore, the Bench then also observes in para 34 that, “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.”
Adding more to it, the Bench then further specifies in para 35 that, “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 for consideration in this case since appellant has confined his submission only regarding non-fulfillment 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.””
Interestingly enough, the Bench then discloses in para 36 that, “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 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.””
Revealingly, the Bench then states in para 37 that, “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.”
Going forward, the Bench then points out in para 38 that, “The High Court in its judgment has also in para 27 observed:-
“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.””
While pinpointing the shortcomings of the High Court ruling, the Bench then minces no words to state in para 39 that, “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.”
Moving on, the Bench then makes it clear in para 40 that, “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.””
Needless to say, what is quite ostensibly clear is then stated in para 41 that, “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 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.”
Simply put, the Bench then observes in para 42 that, “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.”
Of course, what cannot be just glossed over is then stated quite pertinently by the Bench in para 43 that, “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 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.”
All told, the Bench then observes in para 44 that, “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 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.” Finally, the Bench then holds in para 45 that, “The appeal is partly allowed to the above extent.”
All said, we thus see that the two Judge Bench of the Apex Court comprising of Justice Ashok Bhushan and Justice R Subhash Reddy leaves no room for doubt as to why the appellant deserves the lighter sentence and not the more harsher one. It minced no words to convey that just kidnapping a person is not sufficient for conviction for the offence of ‘kidnapping for ransom’ under Section 364A of the IPC. It must also simultaneously be proved that there was threat to cause death or harm to the kidnapped person or the kidnapper by his conduct gave rise to a reasonable apprehension that such person may be put to death. Only then can the stricter punishment be awarded to the accused. This could not be proved accordingly in this notable case and so ostensibly the benefit of doubt had to go wholly in favour of the accused!
Sanjeev Sirohi