SHAIK AHMED versus STATE OF TELANGANA on 28 June 2021

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SUPREME COURT REPORTS

[2021] 6 S.C.R.

SHAIK AHMED

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v.

STATE OF TELANGANA

(Criminal Appeal No. 533 of 2021)

BJUNE 28, 2021

[ASHOK BHUSHAN AND R. SUBHASH REDDY, JJ.]

Penal Code, 1860: s.364A – Essential ingredients – Forcovering an offence under s.364A, apart from fulfillment of firstcondition i.e. “whoever kidnaps or abducts any person or keeps aCperson in detention after such kidnapping or abduction”, the secondcondition, i.e., “and threatens to cause death or hurt to such person”also needs to be proved in situation the case is not covered bysubsequent clauses joined by “or”.

Penal Code, 1860: s.364A – Prosecution case was thatDaccused kidnapped 13 years old school boy (PW-2) and telephonedto his father (PW-1) demanding Rs.2 lakhs for release of PW-2 –Sessions Judge held that prosecution clearly established the guiltof the accused for the offence under s.364A IPC and sentencedhim to undergo life imprisonment – High Court dismissed the appealEholding that prosecution clinchingly proved the guilt of the accusedbeyond all reasonable doubt for the offence punishable unders.364A – On appeal, held: High Court did not deal with the groundstaken before it by the accused that no threat to cause death or hurtwas extended by him – There was no finding regarding fulfillmentof second condition of s.364A – In the cross-examination, theFcomplainant, father of the kidnapped boy has categorically statedthat his son was not physically assaulted nor the boy complained ofbad behavior or assault – Even, PW-2, the victim himself in hiscross examination stated that he was not assaulted rather was treatedin a good manner – Thus, neither PW-1, the father of the victim norGthe victim said that any accused threatened to cause death or hurt –Neither there was any such conduct of the accused discussed bythe courts below to give a reasonable apprehension that victim maybe put to death or hurt nor there was anything in the evidence onthe basis of which it can be held that second part of the conditionwas fulfilled – The second condition having not been proved to beH

established, conviction of the appellant is unsustainable unders.364A and is set aside – However, from the evidence on recordregarding kidnapping, it is proved that accused had kidnapped thevictim for ransom and demand of ransom was also proved – Thus,the offence of kidnapping has been fully established to which effectthe trial court has recorded a categorical finding – Appellant isliable to conviction under s.363.

Partly allowing the appeal, the Court

HELD: 1.1 The first essential condition as incorporated inSection 364A is “whoever kidnaps or abducts any person orkeeps a person in detention after such kidnapping or abduction”.The second condition begins with conjunction “and”. The secondcondition has also two parts, i.e., (a) threatens to cause death orhurt to such person or (b) by his conduct gives rise to areasonable apprehension that such person may be put to deathor hurt. Either part of above condition, if fulfilled, shall fulfill thesecond condition for offence. The third condition begins with theword “or”, i.e., or causes hurt or death to such person in orderto compel the Government or any foreign State or internationalinter-governmental organisation or any other person to do orabstain from doing any act or to pay a ransom. Third conditionbegins with the word “or causes hurt or death to such person inorder to compel the Government or any foreign state to do orabstain 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 joinedby conjunction “and”, thus, whoever kidnaps or abducts anyperson or keeps a person in detention after such kidnapping orabduction and threatens to cause death or hurt to such person.The use of conjunction “and” has its purpose and object. Section364A uses the word “or” nine times and the whole section containsonly one conjunction “and”, which joins the first and secondcondition. Thus, for covering an offence under Section 364A, apartfrom fulfillment of first condition, the second condition, i.e., “andthreatens to cause death or hurt to such person” also needs tobe proved in case the case is not covered by subsequent clausesjoined by “or”. The word “and” is used as conjunction. The use AB

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Aof word “or” is clearly distinctive. Both the words havebeen used for different purpose and object. [Paras 14, 15 and16][472-C-F]

Punjab Produce and Trading Co. Ltd. v. The CIT, WestBengal, Calcutta (1971) 2 SCC 540 (17); HyderabadBAsbestos 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 conditionNos. 1 and 2 of Section 364A which is added with conjunctionC“and”, condition No.2 has also to be fulfilled before ingredientsof Section 364A are found to be established. Section 364A alsoindicates that in case the condition “and threatens to cause deathor hurt to such person” is not proved, there are other classeswhich begins with word “or”, those conditions, if proved, theoffence will be established. The second condition, thus, as notedDabove is divided in two parts- (a) and threatens to cause death orhurt to such person or (b) by his conduct gives rise to areasonable apprehension that such person may be put to deathor hurt. [Para 21]476-A-C]

Malleshi v. State of Karnataka (2004) 8 SCC 95 : [2004]E4 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; SumanSood alias Kamaljeet Kaur v. State of Rajasthan (2007)5 SCC 634 : [2007] 6 SCR 499; Vishwanath Gupta v.FState of Uttaranchal (2007) 11 SCC 633: [2007] 4SCR 332; Vikram Singh alias Vicky and Anr. v. Unionof India and Ors. (2015) 9 SCC 502:[2015] 10SCR 816; Arvind Singh v. State of Maharashtra (2020)SCC Online SC 400 – referred to.

G2.1 The Sessions judge held that it is clearly establishedthat the accused kidnapped PW-2 and telephoned PW-1 anddemanded Rs.2 lakhs for release of PW-2. On this finding, theSessions Judge jumped to the conclusion that prosecution hasclearly proved the case for conviction under Section 364A. Thereare no findings recorded by Sessions Judge that condition no. 2H

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was also fulfilled. The High Court has not dealt with the groundstaken before it by the accused that no threat to cause death orhurt was extended by the accused. From the judgment of theHigh Court, thus, it can be said that there is no finding regardingfulfillment of condition No.2. Both the Courts having not heldthat condition No.2 was found established on the evidence ledbefore the Court the conviction under Section 364A becomeunsustainable. [Paras 37, 39][483-F-G; 484-B-D]

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2.2 The complainant, PW-1, in his cross examination, stated“my son was not physically assaulted…………… My son did notcomplain me about bad behavior or assault of anything. My sonwas kept in a good health and without any kind of problem to myson.” In his cross examination, victim states:- “I was not assaultednor having stab, beating on my body. They treated me in a goodmanner.” Thus, neither PW-1, the father of the victim, thecomplainant, nor the victim says that any accused threatened tocause death or hurt. Now, the second part of the condition No.2is “or by his conduct gives rise to a reasonable apprehensionthat such person may be put to death or hurt”. Thus, evidenceon record did not prove fulfillment of the second condition ofSection 364A. The Second condition having not been proved tobe established, conviction of the appellant is unsustainable underSection 364A IPC. However, from the evidence on recordregarding kidnapping, it is proved that accused had kidnappedvictim 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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466SUPREME COURT REPORTS

ACRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.533 of 2021

From the Judgment and Order dated 06.08.2019 of the High Courtfor the State of Telangana in Criminal Appeal No. 1121 of 2012.

Pai Amit, Saurabh Agrawal, Vamshi Rao, Ms. Komal Mundhra,BShantanu Singh, Advs. for the Appellant.

Ms. Bina Madhavan, S. Udaya Kumar Sagar, Ms. Sweena Nair,Advs. for the Respondent.

The Judgment of the Court was delivered by CASHOK BHUSHAN, J.

Leave granted.

2. This appeal has been filed by the accused challenging thejudgment of the High Court dated 06.08.2019 by which Criminal AppealNo. 1121 of 2012 filed by the appellant questioning his conviction andDsentence under Section 364A IPC has been dismissed.

3. The prosecution case in brief is :-

3.1The victim, PW-2 Prateek Gupta, was a student in VIthstandard in St. Mary’s High School, Rezimental Banzar,ESecunderabad, Hyderabad. On 03.02.2011, PW-2 went toa picnic organised by the school and returned to school ataround 3:00 pm. Usually, PW-2 would wait for a regular(fixed) auto to drop him home from school but unfortunatelyon the said date, the same did not turn up.

F3.2PW-2 waited till about 4.00 pm and thereafter PW-2 phonedhis father (PW-1) from the cell phone of his school teacher(PW-3). PW-1 instructed PW-2 to take another auto to gohome. PW-1 engaged the services of an auto driven by theaccused (appellant herein) to take him home and boardedthe auto.

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3.3Thereafter, the accused took him from an unknown routeby informing PW-2 it is a short cut and took him to someunknown place by promising that he would call PW-1 andascertain the correct address, after which he would dropPW-2 at home. It is alleged that the accused took PW-2 to H

the house of his sister, PW-6, and told PW-2 that he woulddrop him at his home in the morning of the next day.Thereafter, the accused allegedly called PW-1 stating thathe had PW-2 in his custody and demanded a ransom ofRs.2 lakhs to release PW-2.

3.4On the same day at about 8.30 pm the accused again calledPW-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 receivingthe phone call went to the police station and lodged report,which was marked as Ex.P-1. The same was received anda case being CV No. 37/2011 u/s 364S of IPC wasregistered and handed over for further investigation.

3.5As per the prosecution, at about 6:00 am the Accused alongwith PW-2 left to Borabanda from his sister’s house in anAuto and while travelling called PW-1 from the phone ofthe auto driver (PW-5) to enquire about the status of theransom money. PW-1 was instructed to come to Pillar No99, P.V. Narsimha Rao Expressway on foot and raise hishand for identification. When PW-1 reached the location,he found the accused present at the spot and raised hishand. When PW-1 was trying to handover the ransom tothe accused, the police who were in mufti surrounded theaccused and took him into custody. The police seized 2 cellphones, ID cards and Rs.200/- (Rupees Two Hundred Only)from the accused.

3.6The police found the victim seated in an auto a short distanceaway, who was taken to the police station and statementunder Section 161, Cr.P.C. of the victim (PW-2) wasrecorded at P.S. Gopalapuram. After investigation, chargesheet was filed against the appellant under Section 364AIPC. Charge was framed by the Additional ChiefMetropolitan Magistrate, Secunderabad against the accusedunder Section 364A IPC. After appearance of the accused,learned Additional Chief Metropolitan Magistrate committedthe case to the learned Sessions Judge. Prosecutionexamined eight witnesses, the father of the victim and A

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Adefacto 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 asPW-3, who proved that from her cell phone, the victim hadspoken to his father, who informed the victim to come bytaking another auto. PW-4, Krishna Yadav and PW-7 wereBexamined as Panch witnesses. PW-5 was examined as autodriver, who, on asking of accused took the accused andvictim to Pillar No.78 of P.V.N.H. PW-8, the Sub-inspectorof police, K. Ramesh, who was I.O. PW6 was anotherwitness. Prosecution marked Exh.P1 to P4 and M.O.1 toC3.

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3.7After recording evidence of prosecution, the accused wasexamined under Section 313 Cr.P.C. On behalf of defenceExh. D1 and D2 were marked.

3.8Learned Sessions Judge after considering the evidence ledDby witnesses held that accused kidnapped PW-2 andtelephoned to PW-1 demanding Rs.2 lakhs for release ofPW-2. The learned Sessions Judge held that prosecutionclearly established the guilt of the accused for the offenceunder Section 364A IPC. After recording conviction, heEwas sentenced to undergo life imprisonment for offenceunder Section 364A IPC and also liable to pay fine ofRs.5,000/- by judgment dated 01.11.2012.

3.9The appellant filed an appeal before the High Court. Theappeal has been dismissed by the High Court by theFimpugned judgment dated 06.08.2019. The High Court heldthat PW-2 was kidnapped by the accused and ransom ofRs.2 lakhs was demanded from PW-1. When the appellant-accused came to collect the ransom amount demanded, hewas apprehended by the police. High Court held thatprosecution clinchingly proved the guilt of the accusedGbeyond all reasonable doubt for the offence punishable underSection 364A of IPC. The appeal was accordinglydismissed.

4. Learned counsel for the appellant submitted that the prosecutionfailed to prove all ingredients for conviction under Section 364A, henceHthe conviction under Section 364A is not sustainable. Learned counsel submits that there was neither any evidence nor any findings returnedby the Courts below that any threat was extended by the accused tocause death or hurt to the victim nor his conduct gave rise to reasonableapprehension that such person may be put to death or hurt. He submitsthat neither the learned Sessions Judge nor the High Court adverted tothe above essential conditions for conviction under Section 364A, hencethe judgment of the Courts below deserves to be set aside.

5. Learned counsel for the appellant referring to the statement ofPW-2, the victim submits that victim himself in his statement has statedthat he was treated in a good manner. PW-1 in his statement has alsonot alleged that any threat was extended to cause death or hurt to thevictim.

6. Learned counsel appearing for the State, Ms. Bina Madhavansupported the judgments of learned Sessions Judge as well as the HighCourt and took us to the statements of PW-1, PW-2 and PW-8. Shesubmits that conviction under Section 364A of the accused does notdeserve any interference by this Court.

7. From the submissions made by the learned counsel for theparties and materials on record, following questions arise forconsideration in this appeal:-

I.What are the essential ingredients of Section 346A to beproved beyond reasonable doubt by the prosecution forsecuring the conviction of an accused under Section 364AIPC?

II.Whether each and every ingredient as mentioned underSection 364A needs to be proved for securing convictionunder Section 364A and non-establishment of any of theconditions may vitiate the conviction under Section 364AIPC?

III.Whether the learned Sessions Judge as well as the HighCourt recorded any finding that all ingredients of Section364A were proved by the prosecution?

IV.Whether there was any evidence or findings by the Courtsbelow that the accused had threatened to cause death orhurt to the victim or by his conduct gave rise to a reasonableapprehension that victim may be put to death or hurt?

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470SUPREME COURT REPORTS

A8. The appeal having arisen out of order of conviction under Section364A, we need to notice the provisions of Section 364A IPC beforeproceeding further to consider the points for consideration.

9. Sections 359 to 374 of the Indian Penal Code are contained inthe heading “of Kidnapping, Abduction, Slavery and Forced Labour”.BOffence of Kidnapping for lawful guardianship is defined under Section361 and Section 363 provides for punishment for kidnapping. Section364 deals with kidnapping or abduction in order to murder.

10. The Law Commission of India took up the revision of IndianPenal Code and submitted its report, i.e., 42[nd] Report (June, 1971). InCChapter 16, offences affecting the human body was dealt with. Thechapter on kidnapping and abduction was dealt by the Commission inparagraphs 16.91 to 16.112. Section 364 and 364A was dealt by theCommission in paragraphs 16.99 to 16.100 which are as follows:- “16.99. Section 364 punishes the offence of kidnapping orDabduction of a person in order to murder him, the maximumpunishment being imprisonment for life or for ten years. In viewof our general recommendation as to imprisonment for life, wepropose that life imprisonment should be omitted and termimprisonment increased to 14 years.

E The illustrations to the section do not elucidate any particularingredient of the offence and should be omitted.

16.100. We consider it desirable to have a specific section topunish severely kidnapping or abduction for ransom, as such casesare increasing. At present, such kidnapping or abduction isFpunishable under section 365 since the kidnapped or abductedperson will be secretly and wrongfully confined.

We also considered the question whether a provision for reducedpunishment in case of release of the person kidnapped withoutharm should be inserted, but we have come to the conclusion thatthere is no need for it. We propose the following section:- G

“364A. Kidnapping or abduction for ransom .—Whoeverkidnaps or abducts any person with intent to hold that personfor ransom shall be punished with rigorous imprisonment for aterm which may extend to 14 years, and shall also be liable tofine.”

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11. Although the Law Commission has in paragraph 16.100proposed Section 364A, which only stated that whoever kidnaps or abductsany person with intent to hold that person for ransom be punished for aterm which may extend to 14 years. Parliament while inserting Section364A by Act No.42 of 1993 enacted the provision in a broader manneralso to include kidnapping and abduction to compel the Government todo or abstain from doing any act or to pay a ransom which was furtheramended and amplified by Act No.24 of 1995. Section 364A as it existsafter amendment is as follows:- “364A. Kidnapping for ransom, etc.—Whoever kidnaps orabducts any person or keeps a person in detention after suchkidnapping or abduction and threatens to cause death or hurt tosuch person, or by his conduct gives rise to a reasonableapprehension that such person may be put to death or hurt, orcauses hurt or death to such person in order to compel theGovernment or any foreign State or international inter-governmental organisation or any other person to do or abstainfrom doing any act or to pay a ransom, shall be punishable withdeath, or imprisonment for life, and shall also be liable to fine.”

12. We may now look into section 364A to find out as to whatingredients the Section itself contemplate for the offence. When weparaphrase Section 364A following is deciphered:-

(i) “Whoever kidnaps or abducts any person or keeps a personin detention after such kidnapping or abduction”

(ii) “and threatens to cause death or hurt to such person, or byhis conduct gives rise to a reasonable apprehension thatsuch person may be put to death or hurt,

(iii) or causes hurt or death to such person in order to compelthe Government or any foreign State or international inter-governmental organisation or any other person to do orabstain 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.”

13. The first essential condition as incorporated in Section 364Ais “whoever kidnaps or abducts any person or keeps a person in detentionafter such kidnapping or abduction”. The second condition begins with A

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Aconjunction “and”. The second condition has also two parts, i.e., (a)threatens to cause death or hurt to such person or (b) by his conductgives rise to a reasonable apprehension that such person may be put todeath or hurt. Either part of above condition, if fulfilled, shall fulfill thesecond 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 theBGovernment or any foreign State or international inter-governmentalorganisation or any other person to do or abstain from doing any act orto pay a ransom. Third condition begins with the word “or causes hurt ordeath to such person in order to compel the Government or any foreignstate to do or abstain from doing any act or to pay a ransom”. SectionC364A contains a heading “kidnapping for ransom, etc.” The kidnappingby a person to demand ransom is fully covered by Section 364A.

14. We have noticed that after the first condition the secondcondition is joined by conjunction “and”, thus, whoever kidnaps or abductsany person or keeps a person in detention after such kidnapping orDabduction and threatens to cause death or hurt to such person.

15. The use of conjunction “and” has its purpose and object.Section 364A uses the word “or” nine times and the whole sectioncontains only one conjunction “and”, which joins the first and secondcondition. Thus, for covering an offence under Section 364A, apart fromEfulfillment of first condition, the second condition, i.e., “and threatens tocause death or hurt to such person” also needs to be proved in case thecase is not covered by subsequent clauses joined by “or”.

16. The word “and” is used as conjunction. The use of word “or”is clearly distinctive. Both the words have been used for different purposeFand object. Crawfordon Interpretation of Law while dealing with thesubject “disjunctive” and “conjunctive” words with regard to criminalstatute made following statement:- “……………………..The Court should be extremely reluctantin a criminal statute to substitute disjunctive words for cojunctiveGwords, and vice versa, if such action adversely affects theaccused.”

17. We may also notice certain judgments of this court whereconjunction “and” has been used. In Punjab Produce and Trading Co.Ltd. Vs. The CIT, West Bengal, Calcutta (1971) 2 SCC 540, thisCourt had occasion to consider Section 23-A Explanation b(iii) of IncomeH

Tax Act, 1922 which provision has been extracted in paragraph 5 of thejudgment which is to the following effect:- “Explanation. — For the purposes of this section a company shallbe deemed to be a company in which the public are substantiallyinterested—

(a) If it is a company owned by the Government or in which notless than forty per cent of the shares are held by the Government.

(b) If it is not a private company as defined in the IndianCompanies Act, 1913 (7 of 1913) and—

(i) its shares (not being shares entitled to a fixed rate of dividend,whether with or without a further right to participate in profits)carrying not less than fifty per cent of the voting power havebeen allotted unconditionally to, or acquired unconditionally by,and were throughout the previous year beneficially held by thepublic (not including a company to which the provisions of thissection apply):

Provided that in the case of any such company as is referredto in sub-section (4), this sub-clause shall apply as if for thewords ‘not less than fifty per cent’ the words ‘not less thanforty per cent’, had been substituted;

(ii) the said shares were at any time during the previous yearthe subject of dealing in any recognised stock exchange inIndia or were freely transferable by the holder to other membersof the public; and

(iii) the affairs of the company or the shares carrying morethan fifty per cent of the total voting power were at no timeduring the previous year controlled or held by less than sixpersons (persons who are related to one another as husband,wife, lineal ascendant or descendant or brother or sister, as thecase may be, being treated as a single person and personswho are nominees of another person together with that otherperson being likewise treated as a single person:

Provided that in the case of any such company as is referredto in sub-section (4), this clause shall apply as if for the words‘more than fifty per cent’, the words ‘more than sixty per cent’,had been substituted.”

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A18. This Court held following in paragraph 8:-

“8. …………………...The clear import of the opening part ofclause (b) with the word “and” appearing there read with thenegative or disqualifying conditions in sub-clause (b)(iii) is thatthe assessee was bound to satisfy apart from the conditionsBcontained in the other sub-clauses that its affairs were at no timeduring the previous year controlled by less than six persons andshares carrying more than 50 per cent of the total voting powerwere during the same period not held by less than sixpersons……………………….”

C19. In another judgment, Hyderabad Asbestos CementProducts and Anr. Vs. Union of India, (2000) 1 SCC 426, this Courthad occasion to consider Rule 56-A of Central Excise Act, 1944. TheCourt dealt with interpretation of conjunctive and disjunctive “and”, “or”.Proviso to Rule 56-A also uses the conjunctive word “and”. The Provisionof the Rule as quoted in paragraph 4 is as below:-D

“56-A. Special procedure for movement of duty-paid materialsor component parts for use in the manufacture of finishedexcisable goods.—(1) Notwithstanding anything contained inthese rules, the Central Government may, by notification in theOfficial Gazette, specify the excisable goods in respect of whichEthe procedure laid down in sub-rule (2) shall apply.

(2) The Collector may, on application made in this behalf andsubject to the conditions mentioned in sub-rule (3) and such otherconditions as may, from time to time, be prescribed by the CentralGovernment, permit a manufacturer of any excisable goodsFspecified under sub-rule (1) to receive material or component partsor finished products (like asbestos cement), on which the duty ofexcise or the additional duty under Section 2-A of the Indian TariffAct, 1934 (32 of 1934), (hereinafter referred to as the countervailingduty), has been paid, in his factory for the manufacture of theseGgoods or for the more convenient distribution of finished productand allow a credit of the duty already paid on such material orcomponent parts or finished product, as the case may be:

Provided that no credit of duty shall be allowed in respect of anymaterial or component parts used in the manufacture of finishedexcisable goods—

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(i) if such finished excisable goods produced by themanufacturer are exempt from the whole of the duty of exciseleviable thereon or are chargeable to nil rate of duty, and

(ii) unless—

(a) duty has been paid for such material or component partsunder the same item or sub-item as the finished excisable goods;or (b) remission or adjustment of duty paid for such material orcomponent parts has been specifically sanctioned by the CentralGovernment:

Provided further that if the duty paid on such material orcomponent parts (of which credit has been allowed under thissub-rule) be varied subsequently due to any reason, resultingin payment of refund to, or recovery of more duty from, themanufacturer or importer, as the case may be, of such materialor component parts, the credit allowed shall be variedaccordingly by adjustment in the credit account maintainedunder sub-rule (3) or in the account-current maintained undersub-rule (3) or Rule 9 or Rule 178(1) or, if such adjustment benot possible for any reason, by cash recovery from or, as thecase may be, refund to the manufacturer availing of theprocedure contained in this rule.”

20. This court held that when the provisos 1 & 2 are separated byconjunctive word “and”, they have to be read conjointly. The requirementof both the proviso has to be satisfied to avail the benefit. Paragraph 8 isas follows:-

“8. The language of the rule is plain and simple. It does not admitof any doubt in interpretation. Provisos (i) and (ii) are separatedby the use of the conjunction “and”. They have to be readconjointly. The requirement of both the provisos has to be satisfiedto avail the benefit. Clauses (a) and (b) of proviso (ii) areseparated by the use of an “or” and there the availability of one ofthe two alternatives would suffice. Inasmuch as cement andasbestos fibre used by the appellants in the manufacture of theirfinished excisable goods are liable to duty under different tariffitems, the benefit of pro forma credit extended by Rule 56-A cannotbe availed of by the appellants and has been rightly denied by theauthorities of the Department.”

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A21. Thus, applying the above principle of interpretation on conditionNos. 1 & 2 of Section 364A which is added with conjunction “and”, weare of the view that condition No.2 has also to be fulfilled beforeingredients of Section 364A are found to be established. Section 364Aalso indicates that in case the condition “and threatens to cause death orhurt to such person” is not proved, there are other classes which beginsBwith 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 conductgives rise to a reasonable apprehension that such person may be put todeath or hurt.C

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22. Now, we may look into few cases of this Court where differentingredients of Section 364A came for consideration. We may first noticethe judgment of this Court in Malleshi Vs. State of Karnataka, (2004)8 SCC 95. The above was a case where kidnapping of a major boy wasmade by the accused for ransom and before this Court argument wasDraised that demand of ransom has not been established. In the abovecase, the Court referred to Section 364A and in paragraph 12 followingwas observed:- “12. To attract the provisions of Section 364-A what is requiredto be proved is: (1) that the accused kidnapped or abducted theEperson; (2) kept him under detention after such kidnapping andabduction; and (3) that the kidnapping or abduction was for ransom.Strong reliance was placed on a decision of the Delhi High Courtin Netra Pal v. State (NCT of Delhi) [2001 Cri LJ 1669 (Del)] tocontend that since the ransom demand was not conveyed to thefather of PW 2, the intention to demand was not fulfilled.”F

23. This court in paragraphs 13 to 15 dealt with demand for ransomand held that demand originally was made to person abducted and themere fact that after making the demand the same could not be conveyedto some other person as the accused was arrested in meantime does nottake away the effect of conditions of Section 364A. In the above case,Gthis Court was merely concerned with ransom, hence, other conditionsof Section 364A were not noticed.

24. The next judgment is Anil alias Raju Namdev Patil Vs.Administration of Daman & Diu, Daman and Another, (2006) 13SCC 36. In the above case, this Court noticed the ingredients forH

commission of offence under Section 364 and 364A. Following was laiddown in paragraph 55:- “55. ………………………for obtaining a conviction forcommission of an offence under Section 364-A thereof it isnecessary to prove that not only such kidnapping or abetment hastaken place but thereafter the accused threatened to cause deathor hurt to such person or by his conduct gives rise to a reasonableapprehension that such person may be put to death or hurt orcauses hurt or death to such person in order to compel theGovernment or any foreign State or international intergovernmentalorganisation or any other person to do or abstain from doing anyact or to pay a ransom.”

25. At this stage, we may also notice the judgment of this Court inSuman Sood alias Kamaljeet Kaur Vs. State of Rajasthan (2007)5 SCC 634. In the above case, Suman Sood and her husband DayaSingh Lahoria were accused in the case of abduction. They were triedfor offence under Section 364A, 365, 343 read with Section 120-B and346 read with Section 120-B. The trial court convicted the appellant foroffence under Sections 365 read with 120-B, 343 read with 120-B and346 read with 120-B. She was, however, acquitted for offence punishableunder Section 364-A. Her challenge against conviction and sentence foroffences punishable under Sections 365 read with 120-B, 343 read with120-B and 346 read with 120-B IPC was negatived by the High Court.But her acquittal for offences punishable under Sections 364-A readwith 120-B was set aside by the High Court in an appeal and she wasalso convicted for the offence under Section 364A and was sentencedto life imprisonment. In the appeal filed by her challenging her convictionunder Section 364A, this Court dealt with acquittal of Suman Sood underSection 364A by trial Court. In Paragraph 64 this court noticed as follows:- “64. According to the trial court, the prosecution had failed toprove charges against Suman Sood for an offence punishable underSections 364-A or 364-A read with 120-B IPC “beyond reasonabledoubt” inasmuch as no reliable evidence had been placed on recordfrom which it could be said to have been established that SumanSood was also a part of “pressurise tactics” or had terrorised thevictim or his family members to get Devendra Pal Singh Bhullarreleased in lieu of Rajendra Mirdha. The trial court, therefore,held that she was entitled to benefit of doubt.”

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A26. The findings of trial court that no reliable evidence had beenplaced on record from which it could be said to have been establishedthat Suman Sood was also a part of pressurise tactics or has terrorizedthe victim or his family. This court approved the acquittal of SumanSood by trial court and set aside the order of the High Court convictingSuman Sood. In paragraph 71 following was held by this Court:-B

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“71. On the facts and in the circumstances in its entirety andconsidering the evidence as a whole, it cannot be said that byacquitting Suman Sood for offences punishable under Sections364-A read with 120-B IPC, the trial court had acted illegally orunlawfully. The High Court, therefore, ought not to have set asideCthe finding of acquittal of accused Suman Sood for an offenceunder Sections 364-A read with 120-B IPC. To that extent,therefore, the order of conviction and sentence recorded by theHigh Court deserves to be set aside.”

27. Thus, the trial court’s findings that there was no evidence thatDSuman Sood was part of pressurize tactics or terrorized the victim or hisfamily members, hence, due to non-fulfillment of the condition asenumerated in Section 364A, the trial court recorded the acquittal, whichhas been confirmed by this Court. The above case clearly establishesthat unless all conditions as enumerated in Section 364A are fulfilled, noconviction can be recorded.E

28. Now, we come to next judgment, i.e., Vishwanath GuptaVs. State of Uttaranchal (2007) 11 SCC 633. In the above case, thevictims were abducted from district of Lucknow, State of U.P. demandsfor ransom and threat was extended from another district, i.e., Nainitaland the victim was done to death in another district, i.e., Unnao in theFState of U.P. This Court had occasion to consider the ingredients ofSection 364A and in paragraphs 8 and 9, the following was laid down:- “8. According to Section 364-A, whoever kidnaps or abducts anyperson and keeps him in detention and threatens to cause deathor hurt to such person and by his conduct gives rise to a reasonableGapprehension that such person may be put to death or hurt, andclaims a ransom and if death is caused then in that case the accusedcan be punished with death or imprisonment for life and also liableto pay fine.

9. The important ingredient of Section 364-A is the abduction orkidnapping, as the case may be. Thereafter, a threat to theH

kidnapped/abducted that if the demand for ransom is not met thenthe victim is likely to be put to death and in the event death iscaused, the offence of Section 364-A is complete. There are threestages in this section, one is the kidnapping or abduction, secondis threat of death coupled with the demand of money and lastlywhen the demand is not met, then causing death. If the threeingredients are available, that will constitute the offence underSection 364-A of the Penal Code. Any of the three ingredientscan take place at one place or at different places. In the presentcase the demand of the money with the threat perception hadbeen made at (Haldwani) Nainital. The deceased were kidnappedat Lucknow and they were put to death at Unnao. Therefore, thefirst offence was committed by the accused when they abductedRavi Varshney and Anoop Samant at Lucknow. Therefore,Lucknow court could have territorial jurisdiction to try the case.”

29. This Court in the above case, laid down that there are threestages in the Section, one is kidnapping or abduction, second is threat ofdeath coupled with demand of money and third when the demand is notmet, then causing death. The Court held that if the three ingredients areavailable that will constitute the offence under Section 364 of the IPC.Dealing with Section 364A in context of above case, following was laiddown in paragraph 17:- “17. ……………But here, in the case of Section 364-A somethingmore is there, that is, that a person was abducted from Lucknowand demand has been raised at Haldwani, Nainital with threat. Ifthe amount is not paid to the abductor then the victim is likely tobe put to death. In order to constitute an offence under Section364-A, all the ingredients have not taken place at Lucknow orUnnao. The two incidents took place in the State of Uttar Pradesh,that is, abduction and death of the victims but one of the ingredienttook place, that is, threat was given at the house of the victims atHaldwani, Nainital demanding the ransom money otherwise thevictim will be put to death. Therefore, one of the ingredients hastaken place within the territorial jurisdiction of Haldwani, Nainital.Therefore, it is a case wherein the offence has taken place atthree places i.e. at Haldwani, Nainital, where the threat to the lifeof the victim was given and demand of money was raised, thevictim was abducted from Lucknow and he was ultimately put todeath at Unnao. ………………….”

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A30. Next case which needs to be noticed is a Three Judge BenchJudgment of this Court in Vikram Singh alias Vicky and Anr. Vs.Union of India and Ors., (2015) 9 SCC 502. In the above case, thisCourt elaborately considered the scope and purport of Section 364Aincluding the historical background. After noticing the earlier cases, thisCourt laid down that section 364A has three distinct components. InBParagraph 25, following was laid down with regard to distinct componentsof Section 364A:- A

“25. …………….Section 364-A IPC has three distinctcomponents viz. (i) the person concerned kidnaps or abducts orkeeps the victim in detention after kidnapping or abduction; (ii)Cthreatens to cause death or hurt or causes apprehension of deathor 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 iscaused to coerce the person concerned or someone else to doDsomething or to forbear from doing something or to payransom…………………...”

31. We may also notice one more Three Judge Bench Judgmentof this Court in Arvind Singh Vs. State of Maharashtra, (2020) SCCOnline SC 400. In the above case, an eight year old son of DoctorEMukesh Ramanlal Chandak (PW1) was kidnapped by the accused A1and A2. Accused A1 was an employee of Dr. Chandak. It was held thatA1 had grievance against Dr. Chandak. A2 who accompanied A1 whenthe boy was kidnapped and after the kidnapping of the boy it was foundthat boy was murdered and at the instance of A1, the dead body wasrecovered from a bridge constructed over a Rivulet. Trial court hadFsentenced both A1 and A2 to death for the offences punishable underSections 364A read with 34 and 302 read with 34. The High Court haddismissed the appeal affirming the death sentence. On behalf of A2, oneof the arguments raised before this Court was that although child waskidnapped for ransom but there was no intention to take the life of theGchild, therefore, offence under Section 364A is not made out. This Courtnoticed the ingredients of Section 364A, one of which was “threateningto cause death or hurt” in paragraphs 90, 91 and 92, the following wasobserved:- “90. An argument was raised that the child was kidnapped forHransom but there was no intention to take life of the child, therefore, an offence under Section 364A is not made out. To appreciate thearguments, Section 364A of the IPC is reproduced as under:

“364A. Kidnapping for ransom, etc.—Whoever kidnaps or abductsany person or keeps a person in detention after such kidnappingor abduction and threatens to cause death or hurt to such person,or by his conduct gives rise to a reasonable apprehension thatsuch person may be put to death or hurt, or causes hurt or deathto such person in order to compel the Government or any foreignState or international intergovernmental organisation or any otherperson to do or abstain from doing any act or to pay a ransom,shall be punishable with death, or imprisonment for life, and shallalso be liable to fine.”

91. Section 364A IPC has three ingredients relevant to the presentappeals, one, the fact of kidnapping or abduction, second,threatening to cause death or hurt, and last, the conduct givingrise to reasonable apprehension that such person may be put todeath or hurt.

92. The kidnapping of an 8-year-old child was unequivocally forransom. The kidnapping of a victim of such a tender age forransom has inherent threat to cause death as that alone will forcethe relatives of such victim to pay ransom. Since the act ofkidnapping of a child for ransom has inherent threat to cause death,therefore, the accused have been rightly been convicted for anoffence under Section 364A read with Section 34 IPC. The threatwill remain a mere threat, if the victim returns unhurt. In the presentcase, the victim has been done to death. The threat had become areality. There is no reason to take different view that the viewtaken by learned Sessions Judge as well by the High Court.”

32. We need to refer to observations made by Three Judge Benchin paragraph 92 where this Court observed that kidnapping of an eightyear old victim for ransom has inherent threat to cause death as it alonewill force the relatives of victim to pay ransom. The Court further heldthat since the act of kidnapping of a child has inherent threat to causedeath, therefore, the accused have been rightly convicted for an offenceunder Section 364A read with Section 34 IPC. In the next sentence, theCourt held that the threat will remain a mere threat, if the victim returnsunhurt, “the victim has been done to death the threat has become areality”. The above observation made by Three Judge Bench has to be AB

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Aread in context of the facts of the case which was for considerationbefore this Court. No ratio has been laid down in paragraph 92 thatwhen an eight year old child (or a child of a tender age) is kidnapped/abducted for ransom there is inherent threat to cause death and thesecond condition as noted above, i.e., threatens to cause death or hurt tosuch person, is not to be proved. The observations cannot be read toBmean that in a case of kidnapping or abduction of an eight year old child(or child of a tender age), presumption in law shall arise that kidnappingor abduction has been done to cause hurt or death. Each case has to bedecided on its own facts. In the foregoing paragraphs, we have noticedthat all the three distinct conditions enumerated in Section 364A have toCbe fulfilled before an accused is convicted of offence under Section364A. Thus, the observations in paragraph 92 may not be read to obviatethe establishment of second condition as noticed above for bringing homethe offence under Section 364A.

33. After noticing the statutory provision of Section 364A and theDlaw laid down by this Court in the above noted cases, we conclude thatthe essential ingredients to convict an accused under Section 364A whichare required to be proved by prosecution are as follows:-

(i) Kidnapping or abduction of any person or keeping a person indetention after such kidnapping or abduction; and E(ii) threatens to cause death or hurt to such person, or by hisconduct gives rise to a reasonable apprehension that such personmay be put to death or hurt or;

(iii) causes hurt or death to such person in order to compel theGovernment or any foreign State or any Governmental organizationFor any other person to do or abstain from doing any act or to paya ransom.

34. Thus, after establishing first condition, one more condition hasto be fulfilled since after first condition, word used is “and”. Thus, inaddition to first condition either condition (ii) or (iii) has to be proved,Gfailing which conviction under Section 364A cannot be sustained.

35. The second condition which is “and threatens to cause a deathor hurt to such person, or by his conduct gives rise to a reasonableapprehension that such person may be put to death or hurt” is relevantfor consideration in this case since appellant has confined his submissionHonly regarding non-fulfillment of this condition. We may also notice that the appellant has filed grounds of appeal before the High Court in whichfollowing was stated in grounds No. 6 and 7:- “6. The learned Judge failed to see that PW-2 stated that he wastreated well and as such there was no threat to cause death orhurt.

7. The learned Judge should have seen that PW-1 did not statethat the accused threatened to cause death or hurt to his son.”

36. Now, we may first look into the judgment of the learnedSessions Judge regarding consideration of fulfillment of second conditionand the findings recorded in that regard by learned Sessions Judge. TheJudgment of the learned Sessions Judge indicates that from paragraphs12 to 19, the learned Sessions Judge has noticed the evidences of differentwitnesses and in paragraph 20 following findings have been recorded:- “20. The learned counsel for the defence contended that theprosecution evidence are not at all sufficient to establish the guiltof the accused for the charge leveled against him. He furthercontended that the accused is not real culprit a false case wasfoisted against him and he was no way connected to the allegedkidnap. The said testimony of PWs 1 to 5 and PW-8 coupled withEx.P.1 to P.4 and M.O.1 to 3 it clearly established that the accusedkidnapped PW-2 and telephoned to PW-1 and demanded Rs. TwoLakhs for the release of the PW-2. So the prosecution clearlyestablishes the guilt of the accused for the offence under Section364(A) of IPC and he is liable to be convicted. Accordingly, thispoint is answered in favour of the prosecution and against theaccused.”

37. The findings in paragraph 20 reveals that the learned Sessionsjudge 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 learned Sessions Judge jumped to the conclusion thatprosecution has clearly proved the case for conviction under Section364A. There are no findings recorded by learned Sessions Judge thatcondition no. 2 was also fulfilled.

38. The High Court in its judgment has also in para 27 observed:- “27. There is cogent, convincing and overwhelming evidence onrecord to connect the appellant/accused with the alleged offence.The prosecution clinchingly proved the guilt of the accused beyond A

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Aall reasonable doubt for the offence punishable under Section 364Aof IPC. The Court below had meticulously analysed the entireevidence on record and rightly convicted and sentenced theappellant/accused, basing on the oral and documentary evidence.There is nothing to take a different view. All the contentions raisedon behalf of the appellant/accused do fail. The Criminal Appeal isBdevoid of merit and is liable to be dismissed.”

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39. The High Court has not dealt with the grounds taken before itby the accused that no threat to cause death or hurt was extended bythe accused. From the judgment of the high court, thus, it can be saidthat there is no finding regarding fulfillment of condition No.2. Both theCCourts having not held that condition No.2 as noted above was foundestablished on the evidence led before the Court the conviction underSection 364A become unsustainable. The present is not a case whereapplicability of condition No.(iii), i.e., “or causes hurt or death” is evenclaimed. Thus, fulfillment of condition No.(ii) was necessary forDconviction under Section 364A.

40. We, however, proceed to examine the evidence on record tosatisfy ourselves as to whether there was any evidence from which itcan be proved that condition No.2, i.e., “threatens to cause death or hurtor conduct of the accused gives rise to a reasonable apprehension thatEvictim may be put to death or hurt” was established. The complainant,PW-1, in his cross examination, stated “my son was not physicallyassaulted…………… My son did not complain me about bad behavioror assault of anything. My son was kept in a good health and withoutany kind of problem to my son.” PW-2, the victim himself was examined,who was 13 years of age at the time of examination. In his crossFexamination, victim states:- “I was not assaulted nor having stab, beatingon my body. They treated me in a good manner.”

41. Thus, neither PW-1, the father of the victim, the complainant,nor the victim says that any accused threatened to cause death or hurt.The evidence which was led before the court suggest otherwise that theGvictim was not assaulted and he was treated well in a good manner aswas stated by victim.

42. Now, coming to the second part of the condition No.2, i.e., “orby his conduct gives rise to a reasonable apprehension that such personmay be put to death or hurt”. Neither there is any such conduct of theHaccused discussed by the Courts below, which may give a reasonable apprehension that victim may be put to death or hurt nor there is anythingin the evidence on the basis of which it can be held that second part ofthe condition is fulfilled. We, thus, are of the view that evidence onrecord did not prove fulfillment of the second condition of Section 364A.Second condition is also a condition precedent, which is requisite to besatisfied to attract Section 364A of the IPC.

43. The Second condition having not been proved to be established,we find substance in the submission of the learned Counsel for theappellant that conviction of the appellant is unsustainable under Section364A IPC. We, thus, set aside the conviction of the appellant underSection 364A. However, from the evidence on record regardingkidnapping, it is proved that accused had kidnapped the victim for ransom,demand of ransom was also proved. Even though offence under Section364A has not been proved beyond reasonable doubt but the offence ofkidnapping has been fully established to which effect the learned SessionsJudge has recorded a categorical finding in paragraphs 19 and 20. Theoffence of kidnapping having been proved, the appellant deserves to beconvicted under Section 363. Section 363 provides for punishment whichis imprisonment of either description for a term which may extend toseven years and shall also be liable to fine.

44. In the facts of the present case, we are satisfied that theappellant deserves to be sentenced with imprisonment of seven yearsand also liable to pay fine of Rs. 5,000/-. The Judgment of the learnedSessions Judge and the High Court is modified to the above extent. Theconviction and sentence of the appellant under Section 364A is set aside.The appellant is convicted for offence under section 363 of kidnappingand sentenced to imprisonment of seven years and fine of Rs.5,000/-.After completion of imprisonment of seven years (if not completedalready) the appellant shall be released.

The appeal is partly allowed to the above extent.

Devika Gujral

Appeal partly allowed.

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