By : Advocate Sanjeev Sirohi
The Apex Court has, in a judgment titled Shaik Ahmed v. the State of Telangana, held that merely proving the kidnap of a person is not sufficient for a conviction for the offence of kidnapping for ransom under Section 364A of the Indian Penal Code. It must also be proved that there was a 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.
A Division 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. The appellant who is an auto-rickshaw driver, was convicted for kidnapping a schoolboy who had taken a ride in the auto for demanding a ransom of Rs 2 lakhs from his father.
Reasoning and Decision of the Court
The Supreme Court first made observations on the ingredients of Section 364A which are necessary to prove in order to invoke section 364A,
"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.”
The Court noted that after the fulfillment of the first condition, one more condition has to be fulfilled since, after the first condition, the word used is “and”. Thus, in addition to the first condition either condition (ii) or (iii) has to be proved, failing which conviction under Section 364A cannot be sustained.
“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."
The top Court while looking into the decision of the trial court, observed 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."
The Court then went on to record its findings on the High Court decision,
"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.”
"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.”
SecondCourt, a pre-requisite for Section 364A IPC, is not established in the present case
"We, thus, are of the view that evidence on record did not prove the fulfillment of the second condition of Section 364A. The second condition is also a condition precedent, which is requisite to be satisfied to attract Section 364A of the IPC.”
“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.”
Held
“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.”
Case Name: Shaik Ahmed v. State of Telangana
Case No.: Criminal Appeal No. 533 of 2021 (@ Special Leave Petition (Crl.) No.308 of 2021)
Date of Decision: June 28, 2021
Read Order ;
SOURCE ; latestlaws.com
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