Penal Code, 1860: s.364A – Essential ingredients – For covering an offence under s.364A, apart from fulfillment of first condition i.e. “whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction”, the second condition, i.e., “and threatens to cause death or hurt to such person” also needs to be proved in situation the case is not covered by subsequent clauses joined by “or”.
Penal Code, 1860: s.364A – Prosecution case was that accused kidnapped 13 years old school boy (PW-2) and telephoned to his father (PW-1) demanding Rs.2 lakhs for release of PW-2 – Sessions Judge held that prosecution clearly established the guilt of the accused for the offence under s.364A IPC and sentenced him to undergo life imprisonment – High Court dismissed the appeal holding that prosecution clinchingly proved the guilt of the accused beyond all reasonable doubt for the offence punishable under s.364A – On appeal, held: High Court did not deal with the grounds taken before it by the accused that no threat to cause death or hurt was extended by him – There was no finding regarding fulfillment of second condition of s.364A – In the cross-examination, the complainant, father of the kidnapped boy has categorically stated that his son was not physically assaulted nor the boy complained of bad behavior or assault – Even, PW-2, the victim himself in his cross examination stated that he was not assaulted rather was treated in a good manner – Thus, neither PW-1, the father of the victim nor the victim said that any accused threatened to cause death or hurt – Neither there was any such conduct of the accused discussed by the courts below to give a reasonable apprehension that victim may be put to death or hurt nor there was anything in the evidence on the basis of which it can be held that second part of the condition was fulfilled – The second condition having not been proved to be established, conviction of the appellant is unsustainable under s.364A and is set aside – However, from the evidence on record regarding kidnapping, it is proved that accused had kidnapped the victim for ransom and demand of ransom was also proved – Thus, the offence of kidnapping has been fully established to which effect the trial court has recorded a categorical finding – Appellant is liable to conviction under s.363.
Partly allowing the appeal, the Court
HELD: 1.1 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 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”. [Para 13][471-H; 472-A-C]
1.2 After the first condition the second condition is joined by conjunction “and”, thus, 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. 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”. 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. [Paras 14, 15 and 16][472-C-F]
Punjab Produce and Trading Co. Ltd. v. The CIT, West Bengal, Calcutta (1971) 2 SCC 540 (17); Hyderabad Asbestos Cement Products and Anr. v. Union of India (2000) 1 SCC 426 : [1999] 5 Suppl. SCR 155 (19) – relied on
1.3 Applying the principle of interpretation on condition Nos. 1 and 2 of Section 364A which is added with conjunction “and”, 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 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. [Para 21]476-A-C]
Malleshi v. State of Karnataka (2004) 8 SCC 95 : [2004]
4 Suppl. SCR 441; Anil alias Raju Namdev Patil v. Administration of Daman & Diu, Daman and Another (2006) 13 SCC 36 : [ 2006] 9 Suppl. SCR 466; Suman Sood alias Kamaljeet Kaur v. State of Rajasthan (2007)
5 SCC 634 : [2007] 6 SCR 499; Vishwanath Gupta v. State of Uttaranchal (2007) 11 SCC 633: [2007] 4 SCR 332; Vikram Singh alias Vicky and Anr. v. Union of India and Ors. (2015) 9 SCC 502:[2015] 10
SCR 816; Arvind Singh v. State of Maharashtra (2020) SCC Online SC 400 – referred to.
2.1 The 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 Sessions Judge jumped to the conclusion that prosecution has clearly proved the case for conviction under Section 364A. There are no findings recorded by Sessions Judge that condition no. 2 was also fulfilled. 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 was found established on the evidence led before the Court the conviction under Section 364A become unsustainable. [Paras 37, 39][483-F-G; 484-B-D]
2.2 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.” In his cross examination, victim states:- “I was not assaulted nor having stab, beating on my body. They treated me in a good manner.” Thus, neither PW-1, the father of the victim, the complainant, nor the victim says that any accused threatened to cause death or hurt. Now, the second part of the condition No.2 is “or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt”. Thus, evidence on record did not prove fulfillment of the second condition of Section 364A. The Second condition having not been proved to be established, conviction of the appellant is unsustainable under Section 364A IPC. However, from the evidence on record regarding kidnapping, it is proved that accused had kidnapped victim for ransom, demand of ransom was also proved. The appellant deserves to be convicted under Section 363. [Paras 40, 41, 42, 43][484-E-H; 485-A, B-D]
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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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