RAVI DHINGRA versus THE STATE OF HARYANA on 1 March 2023

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[2023] 2 S.C.R. 164

SUPREME COURT REPORTS

[2023] 2 S.C.R.

RAVI DHINGRA

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v.

THE STATE OF HARYANA

(Criminal Appeal No. 987 of 2009)

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MARCH 01, 2023

[SANJAY KISHAN KAUL AND B. V. NAGARATHNA, JJ.]

Penal Code, 1860 – ss.364A, 363 and 364 – Modification ofconviction u/s.364A to s.363 – Appellants convicted u/ss.148, 364Ar/w s.149, IPC – Sentenced to undergo rigorous imprisonment for 3Cyears u/s.148, rigorous imprisonment for life and fine u/s.364A r/ws.149 – On appeal, held: s.364A has three components- kidnappingor abduction of a person and keeping them in detention; threat tocause death or hurt, and the use of kidnapping, abduction, ordetention with a demand to pay the ransom; and when the demandDis not met, then causing death – In the present case, there are twostatements of PW-21-child victim, one made to the police 2 daysafter he had returned home from the captivity of appellants andanother made before the Trial Court, two years after the initialstatement – Three changes are noticed therein, first, a change inthe exact timing of the threat; second, the specificity of the deliveryEof the threat to kill; and third, omission of the intent behind thethreat i.e. to prevent PW-21 from crying out – These details arecrucial to proving the second ingredient of the charge u/s.364A i.e,‘threat resulting in giving rise to a reasonable apprehension thatsuch person may be put to death or hurt’ – Thus, this ingredient wasFnot proved beyond reasonable doubt – For proving the ingredientof threat, the intimidation of the child victim, for the purpose ofmaking him silent cannot be enough – If the sentence carrying amaximum sentence of death and a minimum sentence of life sentencehas such a low evidentiary threshold, the difference betweenpunishments for kidnapping u/ss.363, 364 and 364A shall becomeGmeaningless – Conviction of the appellants u/s.364A is unsustainable– Appellants convicted u/s.363 and sentenced to imprisonment forseven years with fine – Code of Criminal Procedure, 1973 – s.216.

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Partly allowing the appeals, the Court

HELD: 1.1 Section 363 of the IPC punishes the act ofkidnapping and Section 364 thereof punishes the offence ofkidnapping or abduction of a person in order to murder him.Section 364A further adds to the gravity of the offence by involvingan instance of coercive violence or substantial threat thereof, tomake a demand for ransom. Accordingly, the maximumpunishment for the three crimes is seven years imprisonment;ten years’ imprisonment and imprisonment for life or death,respectively. Under section 364A, it is necessary to prove notonly that such kidnapping or abduction has taken place but thatthereafter, the accused threatened to cause death or hurt to suchperson or by his conduct gave rise to a reasonable apprehensionthat such person may be put to death or hurt or cause hurt ordeath to such person in order to compel the Government or anyforeign State or international, inter-governmental organization orany other person to do or abstain from doing any act or to pay aransom. [Paras 12 and 13][173-F-G; 176-E-F]

Lohit Kaushal v. State of Haryana (2009) 17 SCC 106;Anil v. Administration of Daman & Diu (2006) 13 SCC36 : [2006] 9 Suppl. SCR 466; Vishwanath Gupta v.State of Uttaranchal (2007) 11 SCC 633 : [2007] 4SCR 332; Vikram Singh v. Union of India (2015) 9 SCC502 : [2015] 10 SCR 816 – relied on.

1.2 The Courts below, as is usual in kidnapping cases, haveplaced singular reliance on the testimony of PW-21 to prove theelement of ‘threat to cause death or hurt’, or to determine whetherthe appellants’ conduct gives rise to a reasonable apprehensionthat such person may be put to death or hurt. The statement ofPW-21 made to the police on 18.02.2000, i.e., two days after hehad returned home from the captivity of appellants herein recordsthat he was threatened at night by the appellants with a ‘revolver,’which was claimed to be possessed by them. The exact statementwas, “One handkerchief and one black cloth were tied on the eyesand said to me they have revolver and they will kill him if [he]raises any voice.” However, the statement before the Trial Courtdated 15.04.2002, nearly two years after the initial statement,includes a substantial detail that was omitted in the previous B

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Astatement. After mentioning that the PW-21 was forcibly putinside the car and gagged, the statement reads, “The occupantsthreatened me with a knife and pistol and threatened me to kill.”Thus, three crucial changes may be noticed: first, a change in theexact timing of the threat; second, the specificity of the deliveryof the threat to kill; and third, omission of the intent behind theBthreat i.e. to prevent PW-21 from crying out. These details arecrucial to proving the second ingredient of the charge underSection 364A and essential to bring home the guilt under thissection namely, threat resulting in giving rise to a reasonableapprehension that such person may be put to death or hurt. It isCclear that this ingredient has not been proved beyond reasonabledoubt. The Courts below did not thoroughly address this doubtbefore convicting the appellants. For proving the ingredient ofthreat, the intimidation of the child victim, for the purpose ofmaking him silent, cannot be enough. If the sentence carrying amaximum sentence of death and a minimum sentence of lifeDsentence has such a low evidentiary threshold, the differencebetween punishments for kidnapping under 363, 364 and 364Ashall become meaningless. [Para 15][179-F-H; 180-A-D]

2. This Court has wide power to alter the charge underSection 216 of the Cr.PC whilst not causing prejudice to theEaccused. In the facts of the present case, the conviction of theappellants is unsustainable under Section 364A of the IPC. Theconviction under Section 364A of the IPC is set aside. Thejudgments of the Trial Court and the High Court are modified tothe above extent. The appellants are now convicted for the offenceFunder Section 363 of the IPC; i.e., kidnapping and sentenced toimprisonment for seven years and a fine of Rs.2000/-. [Paras 17and 18][180-H; 181-A, G-H; 182-A]

Sk. Ahmed v. State of Telangana (2021) 9 SCC 59;Jasvinder Saini v. State (Govt. of NCT of Delhi) (2013)G7 SCC 256 : [2013] 7 SCR 340; Central Bureau ofInvestigation v. Karimullah Osan Khan (2014) 11 SCC538 : [2014] 3 SCR 588; Dr. Nallapareddy SridharReddy v. State of Andhra Pradesh (2020) 12 SCC 467: [2020] 1 SCR 1116 – relied on.

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Malleshi v. State of Karnataka (2004) 8 SCC 95 : [2004]4 Suppl. SCR 441 – referred to.

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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.987 of 2009.

From the Judgment and Order dated 13.02.2008 of the High Courtof Punjab & Haryana at Chandigarh in CRLA No. 525 of 2003.

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With

Criminal Appeal Nos. 989-990, 986, 988 of 2009 and 645 of 2023.

Gaurav Agrawal, (SCLSC), Saurav Sunil, Santosh Krishnan, SimonBenjamin, Ms. Deepshikha Sansanwal, Krishnam Mishra, Rajeev KumarDubey, Kamlendra Mishra, Advs. for the Appellant.

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Rakesh Mudgal, A.A.G., Dr. Monika Gusain, Dinesh Mudgal,Rakesh Kumar Yadav, Ms. Savita Kaushik, Advs. for the Repondent.

The Judgment of the Court was delivered by F

NAGARATHNA, J.

Leave granted in Criminal Appeal @ SLP (Crl.) No.5296 of 2012.In all other cases, leave has already been granted.

2. The present appeals have been filed by five accused whoseconvictions were confirmed by the impugned judgement of the Punjaband Haryana High Court dated 13.02.2008, under Sections 148, 149 and364A of the Indian Penal Code, 1860 (‘IPC’, for short).The details ofthe cases are as under:

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Criminal Appeal No.987 of 2009, filed by Raman Goswamistandsabated on account of his death vide order dated 08.04.2019. Accordingly,ECriminal Appeal No.987 of 2009, is considered in respect of RaviDhingraalone. All these matters were heard together and they are beingdisposed of by this common judgment.

3. Facts in brief, as per FIR No.64 dated 15.02.2000 at PoliceStation, City Thanesarlodged at the instance of complainant, Dr. H.K.FSobti (PW-20) are that the appellants accused kidnapped Harsh (PW-21), aged 14 years, son of Dr H.K. Sobti and Smt Indra Sobti (PW-5)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 caseunder Section 364/34 of the IPC seems to be made out from the facts.As per the statement of PW-21, he was intimidated by co-accused RaviGDhingra to ride as a pillion rider on his scooter and upon his refusal, hewas forcibly put inside a car. Upon screaming for safety, he wasthreatened to be killed with a knife and pistol if he cried. They also toldhim that his affluent father could even pay the ransom of Rs.50 lakhs.

It emerged in the investigation that PW-21 was kept in HouseHNo.772, Sector-13, Kurukshetra. Smt.Kanta Goyal (PW-2) who was a resident of house No. 1653/13 which was near the said school and anotherstudent of 9[th] Standard, namely, Manish (PW-4) told them that at 8:15a.m., two boys with muffled faces had put Harsh in a Maruti car withouta number plate and having tinted window glass.Later,on the same day,calls demanding ransom were received, acting on which, PW-20 reachedthe concerned location with the ransom demanded. While he was waitingfor the appellants accused to receive the ransom and release his child,PW-21 Harsh Sobti was released between 04:00 a.m. and 04:30 a.m.on16.2.2000 and dropped near the house of PW-11 Suraj BhanRathee. Hemade a phone call to his mother, who took him to his house at around5:30 a.m.

4. That demands and enquiries for ransom were made throughletters and telephonic messages to PW-20 on 09.03.2000, 12.03.2000,13.03.2000 and 14.03.2000. Another message regarding ransom wasreceived via telephoneon 15.03.2000 at 2:30 p.m.He informed theappellants that while he could not arrange Rs.15 lakhs, he had arrangedRs.12 lakhs.Acting on the instructions received in these messages,PW-20, after intimating the police, boarded the train at 8:15 p.m. with abag of money. When the train stopped at Ambala, he got down.He wentback to Kurukshetra wherefrom he was asked to leave his house withthe bag of money and come to Karnal. PW-20 went in his car with twosub-inspectors in civil dress. Upon the delivery of the cash in a bag neara bridge, it was discovered that calls were made from a mobile phoneregistered in the name of an engineering student, Ravi Duhan (PW-19).He revealed that his friends, appellants herein, had borrowed his phone.On 17.03.2000, upon receiving secret information about the whereaboutsof four accused persons, namely, Ravi Dhingra, Baljit Pahwa, ParvejKhan and Raman Goswami, were apprehended by the police exceptaccused Laxmi Narain who was apprehended on 03.04.2000. The ChiefJudicial Magistrate, Kurukshetra, committed the case to the Court ofSessions for trial on 06.06.2000.

5. Additional Sessions Judge, Fast Track Court, Kurukshetra,(‘TrialCourt’, for the sake of convenience) tried the appellants accused for thecommission of offences under Sections 364, 364A, 342, 506 read withSection 148 of the IPC. The prosecution presented 27 witnessesand 72documentary Exhibits, including statements of the appellants underSection 164 of the Code of Criminal Procedure, 1973 (hereinafter ‘Cr.PC’,for short) and 5 case properties.From the appellants’ side,13 documentary A

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Aexhibitswere 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 andhad been kept in illegal confinement after being apprehended. They alsoargued that they were produced before the Court after their picturesBhad been widely publicised through local media and confronted withprosecution witnesses. Further, it was submitted that they were torturedbefore being presented before the court on 18.03.2000. They also statedthat they were forced to sign statements prepared by Investigating Officeron 20.03.2000.

C7. The Trial Court considered the aforementioned statements andthe other evidence on record and held that appellants formed an unlawfulassembly and in pursuance of a common object, kidnapped PW-21 tocompel his father to pay a ransom amount of Rs.15 Lakhs. The TrialCourt also concluded that theappellants sought to take advantage ofPW-21’s confinement and the threat to cause death to him for compellingDPW-20 to pay the ransom.

The Trial Court found no reason to disbelieve the statement of thePW-21.

Thus, appellants were held guilty for the commission of offencesEpunishable under Sections 148 and 364A read with Section 149 of theIPC.Appellants prayed for leniency in the sentence on the ground thatthey had old parents and there was no one else to look after them.TheTrial Court concluded the trial and rendered its verdict on 29.05.2003.TheTrial Court sentenced the accused-appellants to undergo rigorousimprisonment for three years under Section 148 of the IPC, rigorousFimprisonment for life and to pay a fine of Rs.2000/- each under Section364A read with Section 149 of the IPC.The Trial Court further clarifiedthat the period of under-trial detention would be set off and both sentencesshall run concurrently.

8. Appellants appealed against the order of conviction and sentenceGbefore the Punjab and Haryana High Court. The High Court consideredthe question as to whether there existed reliable evidence to identify andconnect the appellants with the offence of kidnapping for ransom underSection 364A of the IPC.The High Court termed PW-21’s statement tobe crucial, and placing reliance on the same, held that all ingredients ofSection 364A of the IPC had been satisfied.H

The High Court rejected the plea that there was materialdiscrepancy in the prosecution’s case and held that there was no reasonto cast any doubt on the veracity of the versions of prosecution witnesses.Regarding PW-21, the High Court remarked that he was “a childwitness, but he faced long and searching cross-examination” andthere is no contradiction in his version. It rejected the contention as tothe contradictions in PW-20’s stance by declaring that “Discrepancy ininvestigation cannot by itself a ground to reject the testimony of areliable witness.”Further, the High Court concluded that by virtue ofthe testimony of PW-20 and PW-21 itself, the “connection of theaccused with the crime stands established beyond reasonabledoubt.”

9. The High Court rejected the plea of the appellants to modifythe conviction to that for an offence under Section 363 or 365 of the IPCor under Section 506 IPC, which did not provide for a minimum sentenceof life imprisonment on the ground of prolonged detention of over sevenyears.

Being aggrieved by the judgement and sentence of the High Court,the accused have approached this Court by filing their respective SpecialLeave Petitions, in which leave has been granted and are now consideredCriminal Appeals.

On 11.05.2009, this Court noted that the appellants had servedseven years in prison and could be granted bail on the satisfaction of theTrial Court of necessary conditions. It also granted leave to appeal in theSpecial Leave Petitions and admitted the matters.

10. Appellants-accused before this Court have submitted that thereis grave doubt about the fact that the appellants herein are the verypersons who had kidnapped Harsh Sobti, PW-21, but the Courts belowhave found reasons to believe the evidence of PW-21. Thus, withoutconceding the arguments made for acquittal by raising questions aboutthe investigation, appellants have urged that judicial notice may be takenof the long period of their incarceration and their conviction under Section364A of the IPC be modified to a conviction under Section 363 of theIPC.

Sri Gaurav Agrawal, learned counsel appearing on behalf of theappellantsappointed by Supreme Court Legal Services Committee, placedreliance on Sk. Ahmed vs. State of Telangana, (2021) 9 SCC 59

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A(“SK Ahmed”), to contend that the essential ingredients of Section 364Aof the IPC have not been proved in this case. The crux of his argumentwas that the Sessions’ Court as well as the High Court have disregardedthe fact that PW-21’s statement before the Court on 15.04.2002 was asubstantial improvement upon the statement made to the police on15.02.2000. Therefore, he submitted that no threat to cause death orBhurt has been proven. He also submitted that no demand for ransom onthe basis of the cause of death or hurt could be proven as these emanatedfrom the police. He submitted that PW-12 turned hostile and PW-13was only a chance witness. Hence, the judgments impugned may beinterfered with and the appellants may be granted relief by modifyingCthe sentences imposed on them even if acquittal of the appellants maynot be possible.

On the other hand, Sri Rakesh Mudgal, learned AAG for therespondent-State supported the judgment of the High Court andcontended that there is no merit in these appeals and the same may beDdismissed. He submitted that the High Court was justified in its reasoningand in dismissing the appeals filed by the appellants herein.

11. In view of the facts on record and the rival submissions of theparties, we deem it appropriate to limit the point for consideration in thisappeal to whether the facts, in this case, attract the offence under SectionE364A of the IPC and if the answer is in the negative, would it be just andproper to modify the conviction to a sentence under Section 363of theIPC.

To put the matter in perspective, the provisions of Section 361read with Sections 363, 364 and 364A ought to be compared. The saidFprovisions read as under:

Section 361:Kidnapping from lawful guardianship.Whoevertakes or entices any minor under sixteenyears of age if a male, orunder eighteen years of age if a female, or any person of unsoundmind, out of the keeping of the lawful guardian of such minor orGperson of unsound mind, without the consent of such guardian, issaid to kidnap such minor or person from lawful guardianship.

Explanation.—The words “lawful guardian” in this section includeany person lawfully entrusted with the care or custody of suchminor or other person.

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Exception.—This section does not extend to the act of any personwho in good faith believes himself to be the father of an illegitimatechild, or who in good faith believes himself to be entitled to thelawful custody of such child, unless such act is committed for animmoral or unlawful purpose.

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Section 363: Punishment for kidnapping. Whoever kidnapsany person from India or from lawful guardianship, shall bepunished with imprisonment of either description for a term whichmay extend to seven years, and shall also be liable to fine.

Section 364. Kidnapping or abducting in order to murder.Whoever kidnaps or abducts any person in order that such personmay be murdered or may be so disposed of as to be put in dangerof being murdered, shall be punished with imprisonment for life orrigorous imprisonment for a term which may extend to ten years,and shall also be liable to fine.

Section 364A. Kidnapping for ransom, etc. - Whoever kidnapsor abducts 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 inorder to compel theGovernment or any foreign State or international inter-governmental organization or any other person to do or abstainfrom doing any act or to pay a ransom, shall be punishable withdeath, or imprisonment for life, andshall also be liable to fine.”

12. We note that Section 363 of the IPC punishes the act ofkidnapping and Section 364 thereof punishes the offence of kidnappingor abduction of a person in order to murder him. Section 364A furtheradds to the gravity of the offence by involving an instance of coerciveviolence or substantial threat thereof, to make a demand for ransom.Accordingly, the maximum punishment for the three crimes is sevenyears imprisonment;ten years’ imprisonment and imprisonment for lifeor death, respectively.

The nuanced, graded approach of the Parliament whilecriminalising the condemnable act of kidnapping must be carefully A

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Ainterpreted.Before interpreting the varying ingredients of crime and rigoursof punishment, and appraising the judgments impugned, we deem itappropriate to reiterate the observations of this Court in Lohit Kaushalvs. State of Haryana, (2009) 17 SCC 106, wherein this Court observedas under:

B“15. ... It is true that kidnapping as understood under Section364-A IPC is a truly reprehensible crime and when a helplesschild is kidnapped for ransom and that too by close relatives, theincident becomes all the more unacceptable. The very gravity ofthe crime and the abhorrence which it creates in the mind of thecourt are, however, factors which also tend to militate against theCfair trial of an accused in such cases. A court must, therefore,guard against the possibility of being influenced in its judgmentsby sentiment rather than by objectivity and judicial considerationswhile evaluating the evidence.”

13. This Court, notably in Anil vs. Administration of Daman &DDiu, (2006) 13 SCC 36 (“Anil”), Vishwanath Gupta vs. State ofUttaranchal (2007) 11 SCC 633 (“Vishwanath Gupta”) and VikramSingh vs. Union of India, (2015) 9 SCC 502 (“Vikram Singh”) hasclarified the essential ingredients to order a conviction for the commissionof an offence under Section 364A of the IPC in the following manner:

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a) In Anil, the pertinent observations were made as regardsthose cases where the accused is convicted for the offence in respectof which no charge is framed. In the said case, the question was whetherappellant therein could have been convicted under Section 364A of theIPC when the charge framed was under Section 364 read with SectionF34 of the IPC. The relevant passages which can be culled out from thesaid judgment of the Supreme Court are as under:

“54. The propositions of law which can be culled out fromthe aforementioned judgments are:

(i) The appellant should not suffer any prejudice by reasonGof 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 H

may not be fatal and such misjoinder must be arising out of meremisjoinder to frame charges.

55. The ingredients for commission of offence under Section364 and 364-A are different. Whereas the intention to kidnap inorder that he may be murdered or may be so disposed of as to beput in danger as murder satisfies the requirements of Section 364of the Penal Code, for obtaining a conviction for commission ofan offence under Section 364-A thereof it is necessary to provethat not only such kidnapping or abetment has taken place butthereafter the accused threatened to cause death or hurt to suchperson or by his conduct gives rise to a reasonable apprehensionthat such person may be put to death or hurt or causes hurt ordeath to such person in order to compel the Government or anyforeign State or international inter-governmental organisation orany other person to do or abstain from doing any act or to pay aransom.

56. It was, thus, obligatory on the part of the learnedSessions Judge, Daman to frame a charge which would answerthe description of the offence envisaged under Section 364-A ofthe Penal Code. It may be true that the kidnapping was done witha view to get ransom but the same should have been put to theappellant while framing a charge. The prejudice to the appellantis apparent as the ingredients of a higher offence had not beenput to him while framing any charge.”

b) In Vishwanath Gupta, it was observed as under:

b) In Vishwanath Gupta, it was observed as under:

“8. According to Section 364-A, whoever kidnaps or abductsany person and keeps him in detention and threatens to causedeath or hurt to such person and by his conduct gives rise to areasonable apprehension that such person may be put to death orhurt, and claims a ransom and if death is caused then in that casethe accused can be punished with death or imprisonment for lifeand also liable to pay fine.

9. The important ingredient of Section 364-A is the abductionor kidnapping, as the case may be. Thereafter, a threat to thekidnapped/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 three AB

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Astages 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.”

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c) In Vikram Singh, it was observed as under:

“25. … Section 364-A IPC has three distinct componentsviz. (i) the person concerned kidnaps or abducts or keeps thevictim in detention after kidnapping or abduction; (ii) threatens toCcause death or hurt or causes apprehension of death or hurt oractually hurts or causes death; and (iii) the kidnapping, abductionor detention and the threats of death or hurt, apprehension forsuch death or hurt or actual death or hurt is caused to coerce theperson concerned or someone else to do something or to forbearfrom doing something or to pay ransom.These ingredients are, inDour opinion, distinctly different from the offence of extortion underSection 383 IPC. The deficiency in the existing legal frameworkwas noticed by the Law Commission and a separate provision inthe form of Section 364-A IPC proposed for incorporation to coverthe ransom situations embodying the ingredients mentioned above.”EIt is necessary to prove not only that such kidnapping or abductionhas taken place but that thereafter, the accused threatened to causedeath or hurt to such person or by his conduct gave rise to a reasonableapprehension that such person may be put to death or hurt or cause hurtor death to such person in order to compel the Government or any foreignFState or international, inter-governmental organization or any other personto do or abstain from doing any act or to pay a ransom.

14. Most recently, this Court in SK Ahmed has emphasised thatSection 364A of the IPC has three stages or components, namely,

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

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.H

The relevant portions of the said judgement are extracted as under:

“12. We may now look into Section 364-A to find out as towhat ingredients the section itself contemplate for the offence.When we paraphrase Section 364-A following is deciphered:

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

(ii) “and threatens to cause death or hurt to such person, orby his conduct gives rise to a reasonable apprehension that suchperson 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 or abstainfrom doing any act or to pay a ransom”

(iv) “shall be punishable with death, or imprisonment forlife, and shall also be liable to fine.”

The first essential condition as incorporated in Section 364-A is“whoever kidnaps or abducts any person or keeps a person indetention after such kidnapping or abduction”. The secondcondition begins with conjunction “and”. The second conditionhas also two parts i.e. (a) threatens to cause death or hurt to suchperson or (b) by his conduct gives rise to a reasonable apprehensionthat such person may be put to death or hurt. Either part of abovecondition, if fulfilled, shall fulfil the second condition for offence.The third condition begins with the word “or” i.e. or causes hurtor death to such person in order to compel the Government or anyforeign State or international inter-governmental organisation orany other person to do or abstain from doing any act or to pay aransom. Third condition begins with the words “or causes hurt ordeath to such person in order to compel the Government or anyforeign State to do or abstain from doing any act or to pay aransom”. Section 364-A contains a heading “Kidnapping forransom, etc.” The kidnapping by a person to demand ransom isfully covered by Section 364-A.

13. We have noticed that after the first condition the secondcondition is joined by conjunction “and”, thus, whoever kidnaps orabducts any person or keeps a person in detention after such A

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kidnapping or abduction and threatens to cause death or hurt tosuch person.

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14. The use of conjunction “and” has its purpose and object.Section 364-A uses the word “or” nine times and the whole sectioncontains only one conjunction “and”, which joins the first andBsecond condition. Thus, for covering an offence under Section364-A, apart from fulfilment of first condition, the second conditioni.e. “and threatens to cause death or hurt to such person” alsoneeds to be proved in case the case is not covered by subsequentclauses joined by “or”.

15. The word “and” is used as conjunction. The use ofword “or” is clearly distinctive. Both the words have been usedfor different purpose and object. Crawford on Interpretation ofLaw while dealing with the subject “disjunctive” and “conjunctive”words with regard to criminal statute made following statement:

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“… The court should be extremely reluctant in a criminalstatute to substitute disjunctive words for conjunctive words, andvice versa, if such action adversely affects the accused.”

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33. After noticing the statutory provision of Section 364-Aand the law laid down by this Court in the above noted cases, weconclude that the essential ingredients to convict an accused underSection 364-A which are required to be proved by the prosecutionare as follows:

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(i) Kidnapping or abduction of any person or keeping aFperson in detention after such kidnapping or abduction; and

(ii) threatens to cause death or hurt to such person, or byhis conduct gives rise to a reasonable apprehension that suchperson may be put to death or hurt or;

(iii) causes hurt or death to such person in order to compelthe Government or any foreign State or any Governmentalorganisation or any other person to do or abstain from doing anyact or to pay a ransom.

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Thus, after establishing first condition, one more condition has tobe fulfilled since after first condition, word used is “and”. Thus, in H

addition to first condition either Condition (ii) or (iii) has to beproved, failing which conviction under Section 364-A cannot besustained.”

Thus, this Court in SK Ahmed set aside the conviction under Section364A of the IPC and modified the same to conviction under Section 363,for the reason that the additional conditions were not met by observingas follows:

“42. The second condition having not been proved to beestablished, we find substance in the submission of the learnedcounsel for the appellant that conviction of the appellant isunsustainable under Section 364-A IPC. We, thus, set aside theconviction of the appellant under Section 364-A. However, fromthe evidence on record regarding kidnapping, it is proved that theaccused had kidnapped the victim for ransom, demand of ransomwas also proved. Even though offence under Section 364-A hasnot been proved beyond reasonable doubt but the offence ofkidnapping has been fully established to which effect the learnedSessions Judge has recorded a categorical finding in paras 19 and20. The offence of kidnapping having been proved, the appellantdeserves to be convicted under Section 363. Section 363 providesfor punishment which is imprisonment of either description for aterm which may extend to seven years and shall also be liable tofine.”

15. Now, we shall consider the applicability of the above ratio tothe present case and deal with appellants’ argument about contradictionsin the statements of the PW-21. We agree with the High Court that thestatements are crucial. We also note that the Courts below, as is usual inkidnapping cases, have placed singular reliance on the testimony ofPW-21 to prove the element of ‘threat to cause death or hurt’, or todetermine whether the appellants’ conduct gives rise to a reasonableapprehension that such person may be put to death or hurt. We haveperusedthe statement of PW-21 made to the police on 18.02.2000, i.e.,two days after he had returned home from the captivity of appellants-herein. The statementsrecord that he was threatened at night bytheappellants with a ‘revolver,’ which was claimed to be possessed by them.The exact statement was, “One handkerchief and one black clothwere tied on the eyes and said to me they have revolver and theywill kill him if [he] raises any voice.” However, the statement before AB

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Athe Trial Court dated 15.04.2002, nearly two years after the initialstatement, includes a substantial detail that was omitted in the previousstatement. After mentioning that the PW-21 was forcibly put inside thecar and gagged, the statement reads, “The occupants threatened mewith a knife and pistol and threatened me to kill.” Thus, three crucialchanges may be noticed: first, a change in the exact timing of the threat;Bsecond, the specificity of the delivery of the threat to kill; and third,omission of the intent behind the threat i.e. to prevent PW-21 from cryingout. These details are crucial to proving the second ingredient of thecharge under Section 364A and essential to bring home the guilt underthis section namely, threat resulting in giving rise to a reasonableCapprehension that such person may be put to death or hurt. It is clearthat this ingredient has not been proved beyond reasonable doubt.TheCourts below did not thoroughly address this doubt before convicting theappellants. For proving the ingredient of threat, the intimidation of thechild victim, for the purpose of making him silent,cannot be enough. Ifthe sentence carrying a maximum sentence of death and a minimumDsentence of life sentence has such a low evidentiary threshold, thedifference between punishments for kidnapping under 363, 364 and 364Ashall become meaningless.

16. In particular, we note that the High Court did not apply theprecedent in Malleshi vs. State of Karnataka, (2004) 8 SCC 95E(“Malleshi”) properly. The facts in the said case, concerning thekidnapping of a major boy, revolved around the party to whom the demandfor ransom ought to be made to bring home the guilt under Section 364A.Itwas observed in SK Ahmed that the Malleshi case dealt with demandfor ransom and held that demand originally was made to the person Fabducted and the mere fact that after making the demand the samecould not be conveyed to some other person as the accused was arrestedin the meantime does not take away the effect of conditions of Section364A. As clarified by this Court in SK Ahmed, Malleshi was merelyconcerned with ransom and its ratio would be of no assistance to caseswhere the fulfilment of other ingredients of crime under Section 364A isGbrought into question.

17. In the facts of the present case, we therefore agree with thesubmission of the learned counsel for the appellants, Sri Gaurav Agrawal,that the conviction of the appellants is unsustainable under Section 364Aof the IPC.H

18. This Court has wide power to alter the charge under Section216 of the Cr.PC whilst not causing prejudice to the accused, as reiteratedin Jasvinder Saini vs. State (Govt. of NCT of Delhi) (2013) 7 SCC256, para 11;Central Bureau of Investigationvs. Karimullah OsanKhan (2014) 11 SCC 538, paragraph Nos. 17 and 18. The followingobservations of thisCourt inDr.Nallapareddy Sridhar Reddy vs. Stateof Andhra Pradesh (2020) 12 SCC 467, paragraph No. 21are alsoinstructive:

“21. From the above line of precedents, it is clear thatSection 216 provides the court an exclusive and wide-rangingpower to change or alter any charge. The use of the words “atany time before judgment is pronounced” in sub-section (1)empowers the court to exercise its powers of altering or addingcharges even after the completion of evidence, arguments andreserving of the judgment. The alteration or addition of a chargemay be done if in the opinion of the court there was an omission inthe framing of charge or if upon prima facie examination of thematerial brought on record, it leads the court to form a presumptiveopinion as to the existence of the factual ingredients constitutingthe alleged offence. The test to be adopted by the court whiledeciding upon an addition or alteration of a charge is that thematerial brought on record needs to have a direct link or nexuswith the ingredients of the alleged offence. Addition of a chargemerely commences the trial for the additional charges, whereupon,based on the evidence, it is to be determined whether the accusedmay be convicted for the additional charges. The court mustexercise its powers under Section 216 judiciously and ensure thatno prejudice is caused to the accused and that he is allowed tohave a fair trial. The only constraint on the court’s power is theprejudice likely to be caused to the accused by the addition oralteration of charges. Sub-section (4) accordingly prescribes theapproach to be adopted by the courts where prejudice may becaused.”

Therefore, we allow the appeals in part and set aside the convictionunder Section 364A of the IPC.

The judgments of the learned Trial Court and the High Court aremodified to the above extent. The appellants arenow convicted for theoffence under Section 363 of the IPC; i.e., kidnapping and sentenced to A

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Aimprisonment for seven years and a fine of Rs.2000/-. If the appellantshave completed imprisonment of more than seven years with remissionand have paid the fine of Rs.2000/-, we direct the appellants to be releasedforthwith; if not on bail. If not, the appellants shall surrender within aperiod of four weeks and serve the remainder of the sentence.

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Divya Pandey

Appeals partly allowed.

(Assisted by : Pranav Dhawan and Shevali Monga, LCRAs)

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