No Acts & Articles mentioned in this case
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.987 OF 2009
RAVI DHINGRA ….. APPELLANT(S)
VERSUS
THE STATE OF HARYANA ….. RESPONDENT(S)
WITH
CRIMINAL APPEAL NOS.989990 OF 2009
CRIMINAL APPEAL NO.986 OF 2009
CRIMINAL APPEAL NO.988 OF 2009
AND
CRIMINAL APPEAL NO. 645 OF 2023
(@ SPECIAL LEAVE PETITION (Crl.) No.5296 of 2012)
J U D G M E N T
NAGARATHNA, J.
Leave granted in Criminal Appeal @ SLP (Crl.) No.5296 of
2012. In all other cases, leave has already been granted.
1 2023 INSC 182
2.The present appeals have been filed by five accused whose
convictions were confirmed by the impugned judgement of the
Punjab and Haryana High Court dated 13.02.2008, under
Sections 148, 149 and 364A of the Indian Penal Code, 1860
(‘IPC’, for short). The details of the cases are as under:
Criminal
Appeals/
SLP No.
Name of the
accused persons
Period of custody
undergone with
remission
Criminal
Appeal No.
987 of 2009
Raman Goswami
(Deceased,
Accused No.3)
6 years, 8 months & 10
days as per jail custody
certificate dated
31.01.2023 (Since
deceased) appeal abates.
Criminal
Appeal No.
987 of 2009
Ravi Dhingra
(Accused No.4)
7 years, 10 months &
13 days (on bail since
13.05.2009 as per jail
custody certificate dated
31.01.2023)
Criminal
Appeal Nos.
986 of 2009
and 988 of
2009
Laxmi Narain
(Accused No.5)
Custody certificate not
produced
Criminal
Appeal No.
989
990/2009
Baljit Pahwa
(Accused No.2)
7 years, 8 months & 2
days (on bail since
13.05.2009 as per jail
custody certificate dated
31.01.2023)
SLP (Crl.) No.
5296 of 2012
Parvez Khan
(Accused No.1)
3 years, 7 months & 2
days (on bail since
28.07.2012 as per jail
custody certificate dated
31.01.2023)
2
Criminal Appeal No.987 of 2009, filed by Raman Goswami
stands abated on account of his death vide order dated
08.04.2019. Accordingly, Criminal Appeal No.987 of 2009, is
considered in respect of Ravi Dhingra alone. All these matters
were heard together and they are being disposed of by this
common judgment.
3.Facts in brief, as per FIR No.64 dated 15.02.2000 at Police
Station, City Thanesar lodged at the instance of complainant,
Dr. H.K. Sobti (PW20) are that the appellants accused
kidnapped Harsh (PW21), aged 14 years, son of Dr H.K. Sobti
and Smt Indra Sobti (PW5) when he was going to school, at
about 8:15 a.m. on the aforesaid date. The Station House Officer
had filed the FIR with a remark that a case under Section
364/34 of the IPC seems to be made out from the facts. As per
the statement of PW21, he was intimidated by coaccused 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 also told him that his affluent father could even
pay the ransom of Rs.50 lakhs.
It emerged in the investigation that PW21 was kept in
House No.772, Sector13, Kurukshetra. Smt. Kanta Goyal (PW
3
2) who was a resident of house No. 1653/13 which was near the
said school and another student of 9
th
Standard, namely,
Manish (PW4) told them that at 8:15 a.m., two boys with
muffled faces had put Harsh in a Maruti car without a number
plate and having tinted window glass. Later, on the same day,
calls demanding ransom were received, acting on which, PW20
reached the concerned location with the ransom demanded.
While he was waiting for the appellants accused to receive the
ransom and release his child, PW21 Harsh Sobti was released
between 04:00 a.m. and 04:30 a.m. on 16.2.2000 and dropped
near the house of PW11 Suraj Bhan Rathee. He made a phone
call to his mother, who took him to his house at around 5:30
a.m.
4.That demands and enquiries for ransom were made
through letters and telephonic messages to PW20 on
09.03.2000, 12.03.2000, 13.03.2000 and 14.03.2000. Another
message regarding ransom was received via telephone on
15.03.2000 at 2:30 p.m. He informed the appellants that while
he could not arrange Rs.15 lakhs, he had arranged Rs.12 lakhs.
Acting on the instructions received in these messages, PW20,
after intimating the police, boarded the train at 8:15 p.m. with a
bag of money. When the train stopped at Ambala, he got down.
4
He went back to Kurukshetra wherefrom he was asked to leave
his house with the bag of money and come to Karnal. PW20
went in his car with two subinspectors in civil dress. Upon the
delivery of the cash in a bag near a bridge, it was discovered
that calls were made from a mobile phone registered in the
name of an engineering student, Ravi Duhan (PW19). He
revealed that his friends, appellants herein, had borrowed his
phone. On 17.03.2000, upon receiving secret information about
the whereabouts of four accused persons, namely, Ravi
Dhingra, Baljit Pahwa, Parvej Khan and Raman Goswami, were
apprehended by the police except accused Laxmi Narain who
was apprehended on 03.04.2000. The Chief Judicial Magistrate,
Kurukshetra, committed the case to the Court of Sessions for
trial on 06.06.2000.
5.Additional Sessions Judge, Fast Track Court,
Kurukshetra, (‘Trial Court’, for the sake of convenience) tried the
appellants accused for the commission of offences under
Sections 364, 364A, 342, 506 read with Section 148 of the IPC.
The prosecution presented 27 witnesses and 72 documentary
Exhibits, including statements of the appellants under Section
164 of the Code of Criminal Procedure, 1973 (hereinafter
‘Cr.PC’, for short) and 5 case properties. From the appellants’
5
side, 13 documentary exhibits were presented. The Trial Court
recorded the appellants’accused’s statements under Section
313 of the Cr. PC.
6.Appellants maintained that they were falsely implicated
and had been kept in illegal confinement after being
apprehended. They also argued that they were produced before
the Court after their pictures had been widely publicised
through local media and confronted with prosecution witnesses.
Further, it was submitted that they were tortured before being
presented before the court on 18.03.2000. They also stated that
they were forced to sign statements prepared by Investigating
Officer on 20.03.2000.
7.The Trial Court considered the aforementioned statements
and the other evidence on record and held that appellants
formed an unlawful assembly and in pursuance of a common
object, kidnapped PW21 to compel his father to pay a ransom
amount of Rs.15 Lakhs. The Trial Court also concluded that the
appellants sought to take advantage of PW21’s confinement
and the threat to cause death to him for compelling PW20 to
pay the ransom.
6
The Trial Court found no reason to disbelieve the statement
of the PW21.
Thus, appellants were held guilty for the commission of
offences punishable under Sections 148 and 364A read with
Section 149 of the IPC. Appellants prayed for leniency in the
sentence on the ground that they had old parents and there was
no one else to look after them. The Trial Court concluded the
trial and rendered its verdict on 29.05.2003. The Trial Court
sentenced the accusedappellants to undergo rigorous
imprisonment for three years under Section 148 of the IPC,
rigorous imprisonment for life and to pay a fine of Rs.2000/
each under Section 364A read with Section 149 of the IPC. The
Trial Court further clarified that the period of undertrial
detention would be set off and both sentences shall run
concurrently.
8.Appellants appealed against the order of conviction and
sentence before the Punjab and Haryana High Court. The High
Court considered the question as to whether there existed
reliable evidence to identify and connect the appellants with the
offence of kidnapping for ransom under Section 364A of the IPC.
The High Court termed PW21’s statement to be crucial, and
7
placing reliance on the same, held that all ingredients of Section
364A of the IPC had been satisfied.
The High Court rejected the plea that there was material
discrepancy in the prosecution’s case and held that there was
no reason to cast any doubt on the veracity of the versions of
prosecution witnesses. Regarding PW21, the High Court
remarked that he was “a child witness, but he faced long and
searching crossexamination” and there is no contradiction in
his version. It rejected the contention as to the contradictions in
PW20’s stance by declaring that “Discrepancy in investigation
cannot by itself a ground to reject the testimony of a reliable
witness.” Further, the High Court concluded that by virtue of
the testimony of PW20 and PW21 itself, the “connection of the
accused with the crime stands established beyond reasonable
doubt.”
9.The High Court rejected the plea of the appellants to
modify the conviction to that for an offence under Section 363
or 365 of 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.
Being aggrieved by the judgement and sentence of the High
Court, the accused have approached this Court by filing their
8
respective Special Leave Petitions, in which leave has been
granted and are now considered Criminal Appeals.
On 11.05.2009, this Court noted that the appellants had
served seven years in prison and could be granted bail on the
satisfaction of the Trial Court of necessary conditions. It also
granted leave to appeal in the Special Leave Petitions and
admitted the matters.
10.Appellantsaccused before this Court have submitted that
there is grave doubt about the fact that the appellants herein
are the very persons who had kidnapped Harsh Sobti, PW21,
but the Courts below have found reasons to believe the evidence
of PW21. 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
long period of their incarceration and their conviction under
Section 364A of the IPC be modified to a conviction under
Section 363 of the IPC.
Sri Gaurav Agrawal, learned counsel appearing on behalf of
the appellants appointed by Supreme Court Legal Services
Committee, placed reliance on Sk. Ahmed vs. State of
Telangana, (2021) 9 SCC 59 (“SK Ahmed”) , to contend that
the essential ingredients of Section 364A of the IPC have not
9
been proved in this case. The crux of his argument was that the
Sessions’ Court as well as the High Court have disregarded the
fact that PW21’s statement before the Court on 15.04.2002 was
a substantial improvement upon the statement made to the
police on 15.02.2000. Therefore, he submitted that no threat to
cause death or hurt has been proven. He also submitted that no
demand for ransom on the basis of the cause of death or hurt
could be proven as these emanated from the police. He
submitted that PW12 turned hostile and PW13 was only a
chance witness. Hence, the judgments impugned may be
interfered with and the appellants may be granted relief by
modifying the sentences imposed on them even if acquittal of
the appellants may not be possible.
On the other hand, Sri Rakesh Mudgal, learned AAG for the
respondentState supported the judgment of the High Court and
contended that there is no merit in these appeals and the same
may be dismissed. He submitted that the High Court was
justified in its reasoning and in dismissing the appeals filed by
the appellants herein.
11.In view of the facts on record and the rival submissions of
the parties, we deem it appropriate to limit the point for
consideration in this appeal to whether the facts, in this case,
10
attract the offence under Section 364A of the IPC and if the
answer is in the negative, would it be just and proper to modify
the conviction to a sentence under Section 363 of the IPC.
To put the matter in perspective, the provisions of Section
361 read with Sections 363, 364 and 364A ought to be
compared. The said provisions read as under:
Section 361: Kidnapping from lawful
guardianship. Whoever takes or entices any
minor under sixteen years of age if a male, or
under eighteen years of age if a female, or any
person of unsound mind, out of the keeping of
the lawful guardian of such minor or person of
unsound mind, without the consent of such
guardian, is said to kidnap such minor or
person from lawful guardianship.
Explanation.The words "lawful guardian" in
this section include any person lawfully
entrusted with the care or custody of such
minor or other person.
Exception.This section does not extend to
the act of any person who in good faith
believes himself to be the father of an
illegitimate child, or who in good faith believes
himself to be entitled to the lawful custody of
such child, unless such act is committed for
an immoral or unlawful purpose.
x x x
Section 363: Punishment for kidnapping.
Whoever kidnaps any person from India or
from lawful guardianship, shall be punished
with imprisonment of either description for a
term which may extend to seven years, and
shall also be liable to fine.
11
Section 364. Kidnapping or abducting in
order to murder. Whoever kidnaps or
abducts any person in order that such person
may be murdered or may be so disposed of as
to be put in danger of being murdered, shall
be punished with imprisonment for life or
rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to
fine.
Section 364A. Kidnapping for ransom, etc.
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, 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 organization or any other
person to do or abstain from doing any act or
to pay a ransom, shall be punishable with
death, or imprisonment for life, and shall also
be liable to fine.”
12.We note that 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
12
imprisonment; ten years’ imprisonment and imprisonment for
life or death, respectively.
The nuanced, graded approach of the Parliament while
criminalising the condemnable act of kidnapping must be
carefully interpreted. Before interpreting the varying ingredients
of crime and rigours of punishment, and appraising the
judgments impugned, we deem it appropriate to reiterate the
observations of this Court in Lohit Kaushal vs. State of
Haryana, (2009) 17 SCC 106 , wherein this Court observed as
under:
“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 by objectivity and judicial
considerations while evaluating the evidence.”
13.This Court, notably in Anil vs. Administration of
Daman & Diu, (2006) 13 SCC 36 (“Anil”), Vishwanath
Gupta vs. State of Uttaranchal (2007) 11 SCC 633
(“Vishwanath Gupta”) and Vikram Singh vs. Union of India,
(2015) 9 SCC 502 (“Vikram Singh” ) has clarified the essential
13
ingredients to order a conviction for the commission of an
offence under Section 364A of the IPC in the following manner:
a) In Anil, the pertinent observations were made as regards
those cases where the accused is convicted for the offence in
respect of which no charge is framed. In the said case, the
question was whether appellant therein could have been
convicted under Section 364A of the IPC when the charge
framed was under Section 364 read with Section 34 of the IPC.
The relevant passages which can be culled out from the said
judgment of the Supreme Court are as under:
“54. The propositions of law which can be culled
out from the aforementioned judgments are:
(i) The appellant should not suffer any prejudice
by reason of misjoinder of charges.
(ii) A conviction for lesser offence is permissible.
(iii) It should not result in failure of justice.
(iv) If there is a substantial compliance,
misjoinder of charges may not be fatal and such
misjoinder must be arising out of mere misjoinder
to frame charges.
55. The ingredients for commission of offence
under Section 364 and 364A 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 364A thereof it is necessary to prove that
14
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 intergovernmental organisation or
any other person to do or abstain from doing any
act or to pay a ransom.
56. It was, thus, obligatory on the part of the
learned Sessions Judge, Daman to frame a charge
which would answer the description of the offence
envisaged under Section 364A of the Penal Code. It
may be true that the kidnapping was done with a
view to get ransom but the same should have been
put to the appellant while framing a charge. The
prejudice to the appellant is apparent as the
ingredients of a higher offence had not been put to
him while framing any charge.”
b) In Vishwanath Gupta, it was observed as under:
“8. According to Section 364A, 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 364A 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 364A is complete.
There are three stages in this section, one is the
15
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 364A of the Penal Code.
Any of the three ingredients can take place at one
place or at different places.”
c) In Vikram Singh, it was observed as under:
“25. … Section 364A 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 364A IPC proposed for incorporation to
cover the ransom situations embodying the
ingredients mentioned above.”
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
16
State or international, intergovernmental organization or any
other person to do or abstain from doing any act or to pay a
ransom.
14.Most recently, this Court in SK Ahmed has emphasised
that Section 364A of the IPC has three stages or 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 relevant portions of the said judgement are extracted as
under:
“12. We may now look into Section 364A to
find out as to what ingredients the section itself
contemplate for the offence. When we paraphrase
Section 364A following is deciphered:
(i) “Whoever kidnaps or abducts any person
or keeps a person in detention after such
kidnapping or abduction”
(ii) “and 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,
(iii) or causes hurt or death to such person
in order to compel the Government or any
17
foreign State or international inter
governmental organisation or any other
person to do or abstain from doing any act or
to pay a ransom”
(iv) “shall be punishable with death, or
imprisonment for life, and shall also be liable
to fine.”
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
fulfil 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 intergovernmental organisation or
any other person to do or abstain from doing any
act or to pay a ransom. Third condition begins
with the words “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”. Section 364A contains a
heading “Kidnapping for ransom, etc.” The
kidnapping by a person to demand ransom is fully
covered by Section 364A.
13. We have noticed that 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.
14. The use of conjunction “and” has its
purpose and object. Section 364A uses the word
“or” nine times and the whole section contains
18
only one conjunction “and”, which joins the first
and second condition. Thus, for covering an
offence under Section 364A, apart from fulfilment
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”.
15. 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. Crawford on Interpretation of Law while
dealing with the subject “disjunctive” and
“conjunctive” words with regard to criminal statute
made following statement:
“… The court should be extremely reluctant
in a criminal statute to substitute disjunctive
words for conjunctive words, and vice versa, if
such action adversely affects the accused.”
xxx
33. After noticing the statutory provision of
Section 364A and the law laid down by this Court
in the above noted cases, we conclude that the
essential ingredients to convict an accused under
Section 364A which are required to be proved by
the 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
organisation or any other person to do or
19
abstain from doing any act or to pay a
ransom.
Thus, after establishing first condition, one more
condition has to be fulfilled since after first
condition, word used is “and”. Thus, in addition to
first condition either Condition (ii) or (iii) has to be
proved, failing which conviction under Section
364A cannot be sustained.”
Thus, this Court in SK Ahmed set aside the conviction
under Section 364A of the IPC and modified the same to
conviction under Section 363, for the reason that the additional
conditions were not met by observing as follows:
“42. 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 the
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 paras 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.”
20
15.Now, we shall consider the applicability of the above ratio
to the present case and deal with appellants’ argument about
contradictions in the statements of the PW21. We agree with
the High Court that the statements are crucial. We also note
that the Courts below, as is usual in kidnapping cases, have
placed singular reliance on the testimony of PW21 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. We
have perused the statement of PW21 made to the police on
18.02.2000, i.e., two days after he had returned home from the
captivity of appellantsherein. The statements record 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 PW21 was
forcibly put inside the car and gagged, the statement reads,
“The occupants threatened me with a knife and pistol and
21
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 PW21
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.
16.In particular, we note that the High Court did not apply
the precedent in Malleshi vs. State of Karnataka, (2004) 8
SCC 95 (“Malleshi”) properly. The facts in the said case,
concerning the kidnapping of a major boy, revolved around the
22
party to whom the demand for ransom ought to be made to
bring home the guilt under Section 364A. It was observed in SK
Ahmed that the Malleshi case dealt with demand for ransom
and held that demand originally was made to the person
abducted and the mere fact that after making the demand the
same could not be conveyed to some other person as the
accused was arrested in the meantime does not take away the
effect of conditions of Section 364A. As clarified by this Court in
SK Ahmed, Malleshi was merely concerned with ransom and
its ratio would be of no assistance to cases where the fulfilment
of other ingredients of crime under Section 364A is brought into
question.
17.In the facts of the present case, we therefore agree with
the submission of the learned counsel for the appellants, Sri
Gaurav Agrawal, that the conviction of the appellants is
unsustainable under Section 364A of the IPC.
18.This Court has wide power to alter the charge under
Section 216 of the Cr.PC whilst not causing prejudice to the
accused, as reiterated in Jasvinder Saini vs. State (Govt. of
NCT of Delhi) (2013) 7 SCC 256, para 11; Central Bureau of
Investigation vs. Karimullah Osan Khan (2014) 11 SCC
538, paragraph Nos. 17 and 18. The following observations of
23
this Court in Dr. Nallapareddy Sridhar Reddy vs. State of
Andhra Pradesh (2020) 12 SCC 467, paragraph No. 21 are
also instructive:
“21. From the above line of precedents, it is
clear that Section 216 provides the court an
exclusive and wideranging power to change or alter
any charge. The use of the words “at any time before
judgment is pronounced” in subsection (1)
empowers the court to exercise its powers of altering
or adding charges even after the completion of
evidence, arguments and reserving of the judgment.
The alteration or addition of a charge may be done if
in the opinion of the court there was an omission in
the framing of charge or if upon prima facie
examination of the material brought on record, it
leads the court to form a presumptive opinion as to
the existence of the factual ingredients constituting
the alleged offence. The test to be adopted by the
court while deciding upon an addition or alteration of
a charge is that the material brought on record
needs to have a direct link or nexus with the
ingredients of the alleged offence. Addition of a
charge merely commences the trial for the additional
charges, whereupon, based on the evidence, it is to
be determined whether the accused may be
convicted for the additional charges. The court must
exercise its powers under Section 216 judiciously
and ensure that no prejudice is caused to the
accused and that he is allowed to have a fair trial.
The only constraint on the court's power is the
prejudice likely to be caused to the accused by the
addition or alteration of charges. Subsection (4)
accordingly prescribes the approach to be adopted by
the courts where prejudice may be caused.”
Therefore, we allow the appeals in part and set aside the
conviction under Section 364A of the IPC.
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The judgments of the learned 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/. If the appellants have completed
imprisonment of more than seven years with remission and
have paid the fine of Rs.2000/, we direct the appellants to be
released forthwith; if not on bail. If not, the appellants shall
surrender within a period of four weeks and serve the remainder
of the sentence.
..………….………..…………J.
(SANJAY KISHAN KAUL)
..……..………….……………J.
(B.V. NAGARATHNA)
NEW DELHI;
1
st
March, 2023.
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