Kidnapping for ransom: For proving the ingredient of threat, the intimidation of the child victim, for the purpose of making him silent, cannot be enough.

 

The offence of Section 364-A is complete when the death of the kidnapped/abducted is caused when the demand for ransom is not met or the victim is likely to be put to death. 

 

The present case pertains to conviction of appellants by the High Court of Punjab and Haryana  in confirmation with Additional Sessions Judge, Fast Track Court, Kurukshetra,  under Section 148,149 and 364A of the Indian Penal Code.

            Six accused persons were named in an FIR by Dr. H.K Sobti, on the allegation that they  kidnapped his 14 years old son when he was going to school on 15.02.2000. The son gave a statement that he was intimidated by co-accused Ravi Dhingra to ride as a pillion rider on his scooter and upon his refusal he was forcibly put inside a car. Upon screaming for safety, he was threatened to be killed with a knife and pistol if he cried. They told him that his affluent father could even pay the ransom of 50 lakhs.

            During investigation, it was revealed that son was kept in a house in Kurukshetra. Two other prosecution witness told Investigation Officer that two boys with muffled faces had put Harsh (son)  in a Maruti car without a number plate and having tinted window glass. On the same day, father received a call for ransom. While he was waiting for the accused/appellants to receive ransom, his son was dropped at another prosecution witness’s house, who took him to his house. After release of his son, demands and enquiries for ransom were made till he could arrange 12 lakhs rupees. Upon delivery of bag of ransom, five accused persons were apprehended.

Additional Sessions Judge, Fast Track Court (Trial Court) tried the appellants/accused for the commission of offences under Sections 364, 364A, 342, 506 read with Section 148 of the IPC. The appellants maintained that they were falsely implicated and had been illegally confined and tortured.

            The appellants were held guilty for the commission of offences under Sections 148 and 364A read with Section 149 of IPC. They prayed for leniency in the sentence on the ground that they had old parents. The trial court  concluded the trial on 25.09.2003 and sentenced the accused/appellants to undergo rigorous imprisonment for three years under Section 148 of the IPC, rigorous imprisonment for life and fine.

            Then appellants appealed before the Punjab and Haryana High Court. The High Court considered a question as to whether reliable evidence existed to identify and connect the appellants with the offence of kidnapping for ransom under Section 364A of the IPC.

            The High Court, placing reliance on the statement of the prosecution witness i.e father, held that all the ingredients of Section 364A of the IPC had been satisfied.

            The High Court also rejected the pleas of the appellants that there was material discrepancy in the prosecution’s case. But it held that there was no reason to case any doubt on the veracity of the versions of prosecution witnesses. And also regarded the son as child witness and there is no contradiction in his version. It also rejected the contention as to the contradictions in the father’s stance by declaring that ‘Discrepancy in instigation cannot by itself a ground to reject the testimony if a reliable witness’. Lastly the High Court concluded on the basis of testimony of father and son itself and held “the connection of the accused with the crime stands established beyond reasonable doubt”.

            The High Court also rejected the plea of the appellants to modify the IPC or under Section 506 IPC which did not provide for a minimum sentence of life imprisonment on the ground of prolonged detention of over seven years.

            That is why, being aggrieved by the judgment and sentence, the accused approached the Supreme Court by way of Special Leave Petitions which was not granted and considered as criminal Appeals.

            The appellants accused submitted that there is grave doubt about the fact that the appellants are the very persons who had kidnapped Harsh Sobti. Thus without conceding the arguments made for acquittal by raising questions about the investigation, appellants have urged that judicial notice may be taken of the ling period of incarceration and their conviction under Section 364A of the IPC be modified to a conviction under Section 363 of IPC.

            The learned counsel for appellants, appointed by the Supreme Court Legal Services Committee, placed reliance on Sk. Ahmed vs. State of Telangana (2021) 9 SCC 59 to contend that the essential ingredients of Section 364A of the IPC have not been proved in this case. He argued that there was substantial improvement in the statement of Harsh made to police and then to Court. Therefore, he submitted that no threat to cause death or hurt has been proven.

            He also submitted that there was no proof of demand of ransom on the basis of cause of death or hurt.

            Therefore the learned counsel prayed for relief by modifying the sentences imposed on them even if acquittal  of the appellants may not be possible.

            On the other hand, Learned Additional Advocate General supported the judgment of the High Court as being justified and contended that the appeal may be dismissed as the same was without merit.

            After hearing the submissions and contentions of both the parties, the Supreme Court deemed it appropriate to decide that whether the case attracts Section 364A or not and if not, would it be just and proper to modify the conviction to a sentence under Section 363 of the IPC.

            The Hon’ble Supreme Court reiterated with observation  made in Lohit Kaushal vs. State of Haryana (2009) 17 SCC before proceeding with the case. It was held –

“15. ......... It is true that kidnapping as understood under Section 364A IPC is a truly reprehensible crime and when a helpless child is kidnapped for ransom and that too by close relatives, the incident becomes all the more unacceptable. The very gravity of the crime and the abhorrence which it creates in the mind of the Court are, however, factors which also tend to militate against the fair trial of an accused in such cases. A Court must, therefore, guard against the possibility of being influenced in its judgments by sentiment rather than objectivity and judicial considerations while evaluating the evidence.”

            The Court also referred to array of judgments which clarified the essential ingredients to order a conviction for the commission of an offence under Section 364A of the IPC.

            In Anil  Kumar vs. Administration of Daman and Diu (2006) 13 SCC 36, it was observed in the relevant passage.

                        “55. The ingredients for commission of offence under Section 364 and 364-A are different. Whereas the intention to kidnap in order that he may be murdered or may be so disposed of as to be put in danger as murder satisfies the requirements of Section 364 of the Penal Code, for obtaining a conviction for commission of an offence under Section 364-A thereof it is necessary to prove that not only such kidnapping or abetment has taken place but thereafter the accused threatened 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 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".

            Again in Vishwanath Gupta vs. State of Uttaranchal (2007) 11 SCC 633, it was observed as under –

“8. According to Section 364-A, whoever kidnaps or abducts any person and keeps him in detention and threatens to cause death or hurt to such person and by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt, and claims a ransom and if death is caused then in that case the accused can be punished with death or imprisonment for life and also liable to pay fine.

 9. The important ingredient of Section 364-A is the abduction or kidnapping, as the case may be. Thereafter, a threat to the kidnapped/abducted that if the demand for ransom is not met then the victim is likely to be put to death and in the event death is caused, the offence of Section 364-A is complete. There are three stages in this section, one is the kidnapping or abduction, second is threat of death coupled with the demand of money and lastly when the demand is not met, then causing death. If the three ingredients are available, that will constitute the offence under Section 364-A of the Penal Code. Any of the three ingredients can take place at one place or at different places.”

            In Vikram Singh vs. Union of India, (2015) 9 SCC 502, it was observed –

“25. … Section 364-A IPC has three distinct components viz. (i) the person concerned kidnaps or abducts or keeps the victim in detention after kidnapping or abduction; (ii) threatens to cause death or hurt or causes apprehension of death or hurt or actually hurts or causes death; and (iii) the kidnapping, abduction or detention and the threats of death or hurt, apprehension for such death or hurt or actual death or hurt is caused to coerce the person concerned or someone else to do something or to forbear from doing something or to pay ransom. These ingredients are, in our opinion, distinctly different from the offence of extortion under Section 383 IPC. The deficiency in the existing legal framework was noticed by the Law Commission and a separate provision in the form of Section 364-A IPC proposed for incorporation to cover the ransom situations embodying the ingredients mentioned above.”

 

            The Court took  note of  Sk. Ahmed’ case relied by learned counsel for appellants wherein it was emphasised that Section 364A of the IPC has three stages of components namely –

i. kidnapping or abduction of a person and keeping them in detention;

ii. threat to cause death or hurt, and the use of kidnapping, abduction, or detention with a demand to pay the ransom; and

iii. when the demand is not met, then causing death

 The top Court modified the judgment of the learned trial Court and the High Court and only convicted the appellants under section 363 IPC instead of 364A IPC under Section 216 of the Cr.PC, i.e  power the to alter charge. The principle with respect to wide power of the Supreme Court to alter charge was observed in the case of Dr. Nallapareddy Sridhar Reddy vs. State of Andhra Pradesh (2020) 12 SCC 467,

Thus the Apex Court, following the judgment held in  in Sk Ahmed’s case set aside the conviction under Section 364A of the IPC, modified the same to conviction under Section 363, for the reason that the threat resulting in giving rise to a reasonable apprehension that such person may be put to death or hurt has not been 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 – Supreme Court.

The Court directed the appellants to surrender to undergo remaining period of imprisonment out of seven years imprisonment and a fine Rs. 2000/-. In case the appellants have completed sentence, he shall be released forthwith – judgment reads.

Case: 

Ravi Dhingra vs. The State Of Haryana (Criminal Appeal No.987 Of 2009)

 

Date Of Judgment : 1.03.2023

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