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SUPREME COURT OF INDIA
ASHOK BHUSHAN, R.SUBHASH REDDY, JJ.
SHAIK AHMED - APPELLANT
VERSUS
STATE OF TELANGANA - RESPONDENT
CRIMINAL APPEAL NO.533 OF 2021 (@ SPECIAL LEAVE PETITION (CRL.) NO.308 OF 2021)
Decided on : 28-06-2021
(A) Indian Penal Code, 1860 – Section 364A – Kidnapping for ransom – Essential ingredients to convict an accused under Section 364A which are required to be proved by prosecution are, kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction; 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; causes hurt or death to such person in order to compel 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 – Unless all conditions as enumerated in Section 364A are fulfilled, no conviction can be recorded. (Paras 27 and 33)
(B) Indian Penal Code, 1860 – Section 364A – Kidnapping for ransom – Conviction and sentence – Neither father of victim, complainant, nor victim says that any accused threatened to cause death or hurt – Evidence which was led before court suggest otherwise that victim was not assaulted and he was treated well in a good manner as was stated by victim – Neither there is any such conduct of accused discussed by Courts below which may give a reasonable apprehension that victim may be put to death or hurt nor there is anything in evidence on the basis of which it can be held that second part of condition is fulfilled – Evidence on record did not prove fulfillment of second condition of Section 364A – Second condition is also a condition precedent, which is requisite to be satisfied to attract Section 364A of IPC – Conviction of appellant under Section 364A set aside – However, from evidence on record regarding kidnapping, it is proved that accused had kidnapped victim for ransom, demand of ransom was also proved – Even though offence under Section 364A has not been proved beyond reasonable doubt but offence of kidnapping has been fully established – Offence of kidnapping having been proved, conviction and sentence of appellant under Section 364A set aside – Appellant convicted for offence under section 363, IPC of kidnapping and sentenced to imprisonment of seven years and fine of Rs.5,000/-. (Paras 41, 42, 43 and 44)
Facts of the case:
Present appeal has been filed by 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.
Findings of Court:
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.
Result : Appeal Partly allowed.
JUDGMENT :
ASHOK BHUSHAN, J.
Leave granted.
2. 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.
3. The prosecution case in brief is :-
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 PW 7 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
Kidnapping for ransom – Unless all conditions as enumerated in Section 364A of IPC are fulfilled, no conviction can be recorded.
Supreme Court has wide power to alter charge under Section 216 of Cr.P.C. whilst not causing prejudice to accused.
Kidnapping for ransom – Conviction and sentence cannot be sustained where prosecution has failed to prove conditions together as envisaged under Section 364-A, IPC.
The prosecution must prove both kidnapping and a ransom demand for conviction under Section 364-A; failure to do so warrants only convictions under lesser charges.
The prosecution must prove all elements of Section 364(A) IPC, including a clear connection between the act of hurt and the ransom demand; failure to do so warrants a lesser charge.
The ingredients of Section 364A IPC and the principles governing the proof of criminal conspiracy under Section 120B IPC.
Kidnapping for ransom under Section 364A requires proof of abduction and threats of death or harm, which was established in this case.
Call records require certification under Section 65B of Evidence Act, 1872.
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