Penal Code, 1860 – ss.364A, 363 and 364 – Modification of conviction u/s.364A to s.363 – Appellants convicted u/ss.148, 364A r/w s.149, IPC – Sentenced to undergo rigorous imprisonment for 3 years u/s.148, rigorous imprisonment for life and fine u/s.364A r/w s.149 – On appeal, held: s.364A has three components- kidnapping or abduction of a person and keeping them in detention; threat to cause death or hurt, and the use of kidnapping, abduction, or detention with a demand to pay the ransom; and when the demand is not met, then causing death – In the present case, there are two statements of PW-21-child victim, one made to the police 2 days after he had returned home from the captivity of appellants and another made before the Trial Court, two years after the initial statement – Three changes are noticed therein, first, a change in the exact timing of the threat; second, the specificity of the delivery of the threat to kill; and third, omission of the intent behind the threat i.e. to prevent PW-21 from crying out – These details are crucial to proving the second ingredient of the charge u/s.364A i.e, ‘threat resulting in giving rise to a reasonable apprehension that such person may be put to death or hurt’ – Thus, this ingredient was not proved beyond reasonable doubt – For proving the ingredient of threat, the intimidation of the child victim, for the purpose of making him silent cannot be enough – If the sentence carrying a maximum sentence of death and a minimum sentence of life sentence has such a low evidentiary threshold, the difference between punishments for kidnapping u/ss.363, 364 and 364A shall become meaningless – Conviction of the appellants u/s.364A is unsustainable – Appellants convicted u/s.363 and sentenced to imprisonment for seven years with fine – Code of Criminal Procedure, 1973 – s.216. Partly allowing the appeals, the Court
HELD: 1.1 Section 363 of the IPC punishes the act of kidnapping and Section 364 thereof punishes the offence of kidnapping or abduction of a person in order to murder him. Section 364A further adds to the gravity of the offence by involving an instance of coercive violence or substantial threat thereof, to make a demand for ransom. Accordingly, the maximum punishment for the three crimes is seven years imprisonment; ten years’ imprisonment and imprisonment for life or death, respectively. Under section 364A, it is necessary to prove not only that such kidnapping or abduction has taken place but that thereafter, the accused threatened to cause death or hurt to such person or by his conduct gave rise to a reasonable apprehension that such person may be put to death or hurt or cause hurt or death to such person in order to compel the Government or any foreign State or international, inter-governmental organization or any other person to do or abstain from doing any act or to pay a ransom. [Paras 12 and 13][173-F-G; 176-E-F]
Lohit Kaushal v. State of Haryana (2009) 17 SCC 106; Anil v. Administration of Daman & Diu (2006) 13 SCC
36 : [2006] 9 Suppl. SCR 466; Vishwanath Gupta v. State of Uttaranchal (2007) 11 SCC 633 : [2007] 4 SCR 332; Vikram Singh v. Union of India (2015) 9 SCC
502 : [2015] 10 SCR 816 – relied on.
1.2 The Courts below, as is usual in kidnapping cases, have placed singular reliance on the testimony of PW-21 to prove the element of ‘threat to cause death or hurt’, or to determine whether the appellants’ conduct gives rise to a reasonable apprehension that such person may be put to death or hurt. The statement of PW-21 made to the police on 18.02.2000, i.e., two days after he had returned home from the captivity of appellants herein records that he was threatened at night by the appellants with a ‘revolver,’ which was claimed to be possessed by them. The exact statement was, “One handkerchief and one black cloth were tied on the eyes and said to me they have revolver and they will kill him if [he] raises any voice.” However, the statement before the Trial Court dated 15.04.2002, nearly two years after the initial statement, includes a substantial detail that was omitted in the previous statement. After mentioning that the PW-21 was forcibly put inside the car and gagged, the statement reads, “The occupants threatened me with a knife and pistol and threatened me to kill.” Thus, three crucial changes may be noticed: first, a change in the exact timing of the threat; second, the specificity of the delivery of the threat to kill; and third, omission of the intent behind the threat i.e. to prevent PW-21 from crying out. These details are crucial to proving the second ingredient of the charge under Section 364A and essential to bring home the guilt under this section namely, threat resulting in giving rise to a reasonable apprehension that such person may be put to death or hurt. It is clear that this ingredient has not been proved beyond reasonable doubt. The Courts below did not thoroughly address this doubt before convicting the appellants. For proving the ingredient of threat, the intimidation of the child victim, for the purpose of making him silent, cannot be enough. If the sentence carrying a maximum sentence of death and a minimum sentence of life sentence has such a low evidentiary threshold, the difference between punishments for kidnapping under 363, 364 and 364A shall become meaningless. [Para 15][179-F-H; 180-A-D]
2. This Court has wide power to alter the charge under Section 216 of the Cr.PC whilst not causing prejudice to the accused. In the facts of the present case, the conviction of the appellants is unsustainable under Section 364A of the IPC. The conviction under Section 364A of the IPC is set aside. The judgments of the Trial Court and the High Court are modified to the above extent. The appellants are now convicted for the offence under Section 363 of the IPC; i.e., kidnapping and sentenced to imprisonment for seven years and a fine of Rs.2000/-. [Paras 17 and 18][180-H; 181-A, G-H; 182-A]
Sk. Ahmed v. State of Telangana (2021) 9 SCC 59; Jasvinder Saini v. State (Govt. of NCT of Delhi) (2013)
7 SCC 256 : [2013] 7 SCR 340; Central Bureau of Investigation v. Karimullah Osan Khan (2014) 11 SCC
538 : [2014] 3 SCR 588; Dr. Nallapareddy Sridhar Reddy v. State of Andhra Pradesh (2020) 12 SCC 467 : [2020] 1 SCR 1116 – relied on.
Malleshi v. State of Karnataka (2004) 8 SCC 95 : [2004]
4 Suppl. SCR 441 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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