28 Jun 2121

Proving the threat to cause death or hurt is mandatory for Conviction under Section 364A of the Indian Penal Code, 1860 - Supreme Court of India

Case : Shaik Ahmed v. State of Telangana Criminal Appeal No. 533 of 2021 @ Special Leave Petition (Crl.) No. 308 of 2021

Court : Supreme Court of India

Bench : Justice Ashok Bhushan and Justice R. Subhash Reddy

Decided on : 28 Jun 2121

Relevant Statues

Section 363, 364A of the Indian Penal Code, 1860

Section 161, 313 of the Code of Criminal Procedure, 1973

Brief Facts & Procedure History

1. The victim i.e. Prosecution Witness 2, Prateek Gupta was a student in St. Mary’s High School, Hyderabad. On 03.02.2011, he went to a picnic organised by the school and returned to school at around 3:00 pm. As his regular auto did not come, he phoned his father i.e. Prosecution Witness 1 where he was instructed to take another auto to go home and the victim engaged the services of an auto driven by the Accused/Appellant. The accused took him to some unknown place.

2. Later, the accused allegedly called Prosecution Witness 1 stating that he had the victim in his custody and demanded a ransom of Rs.2 lakhs to release him. Prosecution Witness 1 conveyed his inability to pay the ransom amount, subsequent to which the accused demanded a sum of Rs. 1.50 lakhs. After receiving the phone call, Prosecution Witness 1 went to the police station and lodged a report Ex.P-1. A case bearing CV No. 37/2011 under Section 364A of Indian Penal Code, 1860 were registered.

3. As per the prosecution, the accused along with the victim left to Borabanda from his sister's house in an auto and while travelling he called Prosecution Witness 1 to enquire about the status of the ransom money and instructed him to come to Pillar No 99, P.V. Narsimha Rao Expressway on foot and raise his hand for identification. When Prosecution Witness 1 reached the location, he found the accused and raised his hand. When he was trying to hand over the ransom to the accused, the police who were in mufti surrounded the accused and took him into custody. The police seized 2 cell phones, ID cards and Rs.200/- from the accused.

4. The police found the victim seated in an auto a short distance away where he was taken to the police station and a statement under Section 161 of the Code of Criminal Procedure, 1973 of the victim was recorded. After investigation, charge-sheet was filed against the appellant under Section 364A of the Indian Penal Code, 1860. The charge was framed and after the appearance of the accused, learned Additional Chief Metropolitan Magistrate committed the case to the learned Sessions Judge.

5. The learned Sessions Judge held that the accused is guilty of the offence under Section 364A Indian Penal Code, 1860. He was sentenced to undergo life imprisonment and also pay a fine of Rs. 5,000/- by judgment dated 01.11.2012. The Appellant filed an appeal before the Honourable High Court where it was dismissed by the impugned judgment dated 6.8.2019 upholding the judgment of the Trial Court. Hence, this appeal has been filed by the accused challenging the judgment of the Honourable High Court dated 06.08.2019.

The Issue of the Case

Whether the conviction of the Appellant under Section 364A of the Indian Penal Code, 1860 is justified?

The Observations of the Court

The Honourable Supreme Court observed the following:

1. Critically analyzed Section 364A of the Indian Penal Code, 1860 and opined that the first essential condition of the said section is added with the conjunction “and” to the second essential condition. Therefore, the second condition must also be fulfilled to establish the ingredients of Section 364A of the Indian Penal Code, 1860.

2. Observed that both the Honourable Trial Court and Honourable High Court had no finding with respect to the fulfilment of the second condition under Section 364A of the Indian Penal Code, 1860.

3. Examined the evidence on record and opined that with respect to the first part of the second condition, neither the Prosecution Witness 1, the father of the victim i.e. the complainant nor the victim said anything that the accused threatened to cause death or hurt. Therefore, the victim was not assaulted and was treated in a good manner.    

4. With respect to the second part of the second condition, there was no such conduct of the accused that gives rise to a reasonable apprehension that the victim may be put to death or hurt. Therefore, the evidence on record did not prove the fulfilment of the second condition of Section 364A.

5. Reliance was given upon several precedents such as Punjab Produce and Trading Co. Ltd. v. The CIT, West Bengal, Calcutta, (1971) 2 SCC 540; Hyderabad Asbestos Cement Products and Anr. v. Union of India, (2000) 1 SCC 426; Anil alias Raju Namdev Patil v. Administration of Daman & Diu, Daman and Another, (2006) 13 SCC 36; Suman Sood alias Kamaljeet Kaur v. State of Rajasthan, (2007) 5 SCC 634 Etc.

The Decision Held by the Court

The Honourable Supreme Court set aside the conviction of the Appellant under Section 364A of the Indian Penal Code, 1860. But convicted the Appellant for the offence under Section 363 of the Indian Penal Code, 1860 for kidnapping and was sentenced to imprisonment for seven years with a fine of Rs. 5,000/-.  

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