RAVI DHINGRA VERSUS THE STATE OF HARYANA Supreme Court of India 01.03.2023
IN THE
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
(J. Sanjay Kishan Kaul and J. B.V. Nagarathna)
RAVI
DHINGRA VERSUS THE STATE OF
HARYANA
Criminal Appeal no.987 of 2009 with Criminal Appeal nos.989-990
of 2009 Criminal Appeal no.986 of 2009 Criminal Appeal no. 988 of 2009 and Criminal
Appeal no. 645 of 2023 (@ Special Leave Petition (Crl.) No.5296 of 2012) D/d 1st March, 2023
J
U D G
M E N T
NAGARATHNA, J.
Leave
granted in Special Leave Petition (Crl.) No.5296 of 2012. In all other cases, leave has already
been granted.
2. The
present appeals have been filed by five accused whose convictions were
confirmed by the impugned judgement of the Punjab and Haryana High Court dated
13.02.2008, under Sections 148, 149 and 364A of the Indian Penal Code, 1860
(‘IPC’, for short). The details of the cases are as under:
|
Criminal Appeals/
SLP No. |
Name
of the accused persons |
Period
of custody undergone with remission |
|
Criminal Appeal No. 987 of 2009 |
Raman Goswami (Deceased,
Accused No.3) |
6
years, 8 months & 10 days as per jail custody certificate dated
31.01.2023 (Since deceased) appeal abates. |
|
Criminal Appeal No. 987 of 2009 |
Ravi Dhingra (Accused
No.4) |
7 years, 10 months & 13 days (on bail since 13.05.2009
as per jail custody certificate dated 31.01.2023) |
|
Criminal Appeal Nos. 986
of 2009 and 988 of 2009 |
Laxmi Narain (Accused
No.5) |
Custody certificate not produced |
|
Criminal Appeal No. 989990/2009 |
Baljit Pahwa (Accused
No.2) |
7 years, 8 months & 2 days (on bail since 13.05.2009 as per jail custody certificate dated 31.01.2023)
|
|
SLP (Crl.) No. 5296 of
2012 |
Parvez Khan (Accused
No.1) |
3 years, 7 months & 2 days (on bail since 28.07.2012 as per jail custody certificate dated 31.01.2023) |
Criminal
Appeal No.987 of 2009, filed by Raman Goswami stands abated on account of his
death vide order dated 08.04.2019.
Accordingly, Criminal Appeal No.987 of 2009, is considered in respect of Ravi
Dhingra alone. All these matters were heard together and they are being
disposed of by this common judgment.
3.
Facts in brief, as per FIR No.64 dated
15.02.2000 at Police Station, City Thanesar lodged at the instance of complainant,
Dr. H.K. Sobti (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 case under 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 Ravi Dhingra to ride as a pillion rider on his
scooter and upon his refusal, he was forcibly put inside a car. Upon screaming
for safety, he was threatened to be killed with a knife and pistol if he cried.
They also told him that his affluent father could even pay the ransom of Rs.50
lakhs.
It
emerged in the investigation that PW-21 was kept in House No.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 another student of 9th Standard,
namely, Manish (PW4) told them that at 8:15 a.m., two boys with muffled faces
had put Harsh in a Maruti car without a number plate and having tinted window
glass. Later, on the same day, calls demanding ransom were received, acting on
which, PW-20 reached the concerned location with the ransom demanded. While he
was waiting for 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. on
16.2.2000 and dropped near the house of PW-11 Suraj Bhan Rathee. He made a
phone call to his mother, who took him to his house at around 5:30 a.m.
4.
That demands and enquiries for ransom were
made through letters and telephonic messages to PW-20 on 09.03.2000,
12.03.2000, 13.03.2000 and 14.03.2000. Another message regarding ransom was
received via telephone on 15.03.2000
at 2:30 p.m. He informed the appellants that while he could not arrange Rs.15
lakhs, he had arranged Rs.12 lakhs. Acting on the instructions received in
these messages, PW-20, after intimating the police, boarded the train at 8:15
p.m. with a bag of money. When the train stopped at Ambala, he got down. He
went back to Kurukshetra wherefrom he was asked to leave his house with the bag
of money and come to Karnal. PW-20 went in his car with two sub-inspectors in
civil dress. Upon the delivery of the cash in a bag near a bridge, it was
discovered that calls were made from a mobile phone registered in the name of
an engineering student, Ravi Duhan (PW-19). He revealed that his friends,
appellants herein, had borrowed his phone. On 17.03.2000, upon receiving secret
information about the whereabouts of four accused persons, namely, Ravi
Dhingra, Baljit Pahwa, Parvej Khan and Raman Goswami, were apprehended by the
police except accused Laxmi Narain who was apprehended on 03.04.2000. The Chief
Judicial Magistrate, Kurukshetra, committed the case to the Court of Sessions
for trial on 06.06.2000.
5.
Additional Sessions Judge, Fast Track Court,
Kurukshetra, (‘Trial Court’, for the sake of convenience) tried the appellants
accused for the commission of offences under Sections 364, 364A, 342, 506 read
with Section 148 of the IPC. The prosecution presented 27 witnesses and 72
documentary Exhibits, including statements of the appellants under Section 164
of the Code of Criminal Procedure, 1973 (hereinafter ‘Cr.PC’, for short) and 5
case properties. From the appellants’ side, 13 documentary exhibits were
presented. The Trial Court recorded the appellants’accused’s statements under
Section 313 of the Cr. PC.
6.
Appellants maintained that they were falsely
implicated and had been kept in illegal confinement after being apprehended.
They also argued that they were produced before the Court after their pictures
had been widely publicised through local media and confronted with prosecution
witnesses. Further, it was submitted that they were tortured before being
presented before the court on 18.03.2000. They also stated that they were
forced to sign statements prepared by Investigating Officer on 20.03.2000.
7.
The Trial Court considered the aforementioned
statements and the other evidence on record and held that appellants formed an
unlawful assembly and in pursuance of a common object, kidnapped PW-21 to
compel his father to pay a ransom amount of Rs.15 Lakhs. The Trial Court also
concluded that the appellants sought to take advantage of PW-21’s confinement
and the threat to cause death to him for compelling PW-20 to pay the ransom.
The Trial
Court found no reason to disbelieve the statement of the PW-21.
Thus,
appellants were held guilty for the commission of offences punishable under
Sections 148 and 364A read with Section 149 of the IPC. Appellants prayed for leniency in the sentence on the ground that
they had old parents and there was no one else to look after them. The Trial
Court concluded the trial and rendered its verdict on 29.05.2003. The Trial
Court sentenced the accused-appellants to undergo rigorous imprisonment for
three years under Section 148 of the IPC, rigorous imprisonment for life and to
pay a fine of Rs.2000/- each under Section 364A read with Section 149 of the
IPC. The Trial Court further clarified that the period of under-trial detention
would be set off and both sentences shall run concurrently.
8.
Appellants appealed against the order of
conviction and sentence before the Punjab and Haryana High Court. The High
Court considered the question as to whether there existed reliable evidence to
identify and connect the appellants with the offence of kidnapping for ransom
under Section 364A of the IPC. The High Court termed PW-21’s statement to be
crucial, and placing reliance on the same, held that all ingredients of Section
364A of the IPC had been satisfied.
The High
Court rejected the plea that there was material discrepancy in the
prosecution’s case and held that there was no reason to cast any doubt on the veracity
of the versions of prosecution witnesses. Regarding PW-21, the High Court
remarked that he was “a child witness,
but he faced long and searching cross-examination” and there is no
contradiction in his version. It rejected the contention as to the contradictions
in PW20’s stance by declaring that “Discrepancy
in investigation cannot by itself a ground to reject the testimony of a
reliable witness.” Further, the High Court concluded that by virtue of the
testimony of PW-20 and PW-21 itself, the “connection
of the accused with the crime stands established beyond reasonable doubt.”
9.
The High Court rejected the plea of the
appellants to modify the conviction to
that for an offence under Section 363 or 365 of the IPC or under Section 506
IPC, which did not provide for a minimum sentence of life imprisonment on the
ground of prolonged detention of over seven years.
Being
aggrieved by the judgement and sentence of the High Court, the accused have
approached this Court by filing their respective Special Leave Petitions, in
which leave has been granted and are now considered Criminal Appeals.
On
11.05.2009, this Court noted that the appellants had served seven years in
prison and could be granted bail on the satisfaction of the Trial Court of
necessary conditions. It also granted leave to appeal in the Special Leave
Petitions and admitted the matters.
10. Appellants-accused
before this Court have submitted that there is grave doubt about the fact that
the appellants herein are the very persons who had kidnapped Harsh Sobti,
PW-21, but the Courts below have found
reasons to believe the evidence of PW-21. Thus, without conceding the arguments
made for acquittal by raising questions about the investigation, appellants have urged that judicial notice may be taken
of the long period of their incarceration and their conviction under Section
364A of the IPC be modified to a conviction under Section 363 of the IPC.
Sri
Gaurav Agrawal, learned counsel appearing on behalf of the appellants appointed
by Supreme Court Legal Services Committee, placed reliance on Sk.
Ahmed vs. State of Telangana, (2021) 9 SCC 59 (“SK Ahmed”), to contend
that the essential ingredients of Section 364A of the IPC have not been proved
in this case. The crux of his argument was that the Sessions’ Court as well as
the High Court have disregarded the fact that PW-21’s statement before the
Court on 15.04.2002 was a substantial improvement upon the statement made to
the police on 15.02.2000. Therefore, he submitted that no threat to cause death
or hurt has been proven. He also submitted that no demand for ransom on the
basis of the cause of death or hurt could be proven as these emanated from the
police. He submitted that PW-12 turned hostile and PW-13 was only a chance
witness. Hence, the judgments impugned may be interfered with and the
appellants may be granted relief by modifying the sentences imposed on them
even if acquittal of the appellants may not be possible.
On the
other hand, Sri Rakesh Mudgal, learned AAG for the respondent-State supported
the judgment of the High Court and contended that there is no merit in these
appeals and the same may be dismissed. He submitted that the High Court was
justified in its reasoning and in dismissing the appeals filed by the
appellants herein.
11.
In view of the facts on record and the rival
submissions of the parties, we deem it appropriate to limit the point for
consideration in this appeal to whether the facts, in this case, attract the
offence under Section 364A of the IPC and if the answer is in the negative,
would it be just and proper to modify the conviction to a sentence under
Section 363 of the IPC.
To put
the matter in perspective, the provisions of Section 361 read with Sections
363, 364 and 364A ought to be compared.
The said
provisions read as under:
Section 361: Kidnapping from lawful guardianship. Whoever
takes or entices any minor under sixteen years of age if a male, or under
eighteen years of age if a female, or any person of unsound mind, out of the
keeping of the lawful guardian of such minor or person of unsound mind, without
the consent of such guardian, is said to kidnap such minor or person from
lawful guardianship.
Explanation.--The
words "lawful guardian" in this section include any person lawfully
entrusted with the care or custody of such minor or other person.
Exception.--This
section does not extend to the act of any person who in good faith believes
himself to be the father of an illegitimate child, or who in good faith
believes himself to be entitled to the lawful custody of such child, unless
such act is committed for an immoral or unlawful purpose.
x x x
Section 363: Punishment for kidnapping. Whoever
kidnaps any person from India or from lawful guardianship, shall be punished
with imprisonment of either description for a term which may extend to seven
years, and shall also be liable to fine.
Section 364. Kidnapping or abducting in order
to murder. Whoever kidnaps or abducts any person in order
that such person may be murdered or may be so disposed of as to be put in
danger of being murdered, shall be punished with imprisonment for life or
rigorous imprisonment for a term which may extend to ten years, and shall also
be liable to fine.
Section 364A. Kidnapping for ransom, etc. -
Whoever kidnaps or abducts any person or keeps a person in detention after such
kidnapping or abduction, and threatens to cause death or hurt to such person,
or by his conduct gives rise to a reasonable apprehension that such person may
be put to death or hurt, or causes hurt or death to such person in order to compel the Government or any
foreign State or international intergovernmental organization or any other
person to do or abstain from doing any act or to pay a ransom, shall be
punishable with death, or imprisonment for life, and shall also be liable to
fine.”
12. We note
that Section 363 of the IPC punishes the act of kidnapping and Section 364
thereof punishes the offence of kidnapping or abduction of a person in order to
murder him. Section 364A further adds to the gravity of the offence by
involving an instance of coercive violence or substantial threat thereof, to
make a demand for ransom. Accordingly, the maximum punishment for the three
crimes is seven years imprisonment; ten years’ imprisonment and imprisonment
for life or death, respectively.
The
nuanced, graded approach of the Parliament while criminalising the condemnable
act of kidnapping must be carefully interpreted. Before interpreting the
varying ingredients of crime and rigours of punishment, and appraising the
judgments impugned, we deem it appropriate to reiterate the observations of
this Court in Lohit Kaushal vs. State of Haryana, (2009) 17 SCC 106, wherein
this Court observed as under:
“15.
... It is true that kidnapping as understood under Section 364-A IPC is a truly
reprehensible crime and when a helpless child is kidnapped for ransom and that
too by close relatives, the incident becomes all the more unacceptable. The
very gravity of the crime and the abhorrence which it creates in the mind of
the court are, however, factors which also tend to militate against the fair
trial of an accused in such cases. A court must, therefore, guard against the
possibility of being influenced in its judgments by sentiment rather than by
objectivity and judicial considerations while evaluating the evidence.”
13. This
Court, notably in Anil vs. Administration of Daman & Diu, (2006) 13 SCC 36 (“Anil”),
Vishwanath
Gupta vs. State of Uttaranchal (2007)
11 SCC 633 (“Vishwanath Gupta”) and Vikram Singh vs. Union
of India, (2015) 9 SCC 502 (“Vikram
Singh”) has clarified the essential ingredients to order a conviction
for the commission of an offence under Section 364A of the IPC in the following
manner:
a) In Anil,
the pertinent observations were made as regards those cases where the accused
is convicted for the offence in respect of which no charge is framed. In the
said case, the question was whether appellant therein could have been convicted
under Section 364A of the IPC when the charge framed was under Section 364 read
with Section 34 of the IPC. The relevant passages which can be culled out from
the said judgment of the Supreme Court are as under:
“54. The propositions of law which can
be culled out from the aforementioned judgments are:
(i)
The appellant should not suffer any prejudice by
reason of misjoinder of charges.
(ii) A
conviction for lesser offence is permissible.
(iii) It should
not result in failure of justice.
(iv) If there
is a substantial compliance, misjoinder of charges may not be fatal and such
misjoinder must be arising out of mere misjoinder to frame charges.
55.
The ingredients for commission of offence
under Section 364 and 364-A are different. Whereas the intention to kidnap in
order that he may be murdered or may be so disposed of as to be put in danger
as murder satisfies the requirements of Section 364 of the Penal Code, for
obtaining a conviction for commission of an offence under Section 364-A thereof
it is necessary to prove that not only such kidnapping or abetment has taken place
but thereafter the accused threatened to cause death or hurt to such person or
by his conduct gives rise to a reasonable apprehension that such person may be
put to death or hurt or causes hurt or death to such person in order to compel
the Government or any foreign State or international inter-governmental
organisation or any other person to do or abstain from doing any act or to pay
a ransom.
56.
It was, thus, obligatory on the part of the
learned Sessions Judge, Daman to frame a charge which would answer the
description of the offence envisaged under Section 364-A of the Penal Code. It
may be true that the kidnapping was done with a view to get ransom but the same
should have been put to the appellant while framing a charge. The prejudice to
the appellant is apparent as the ingredients of a higher offence had not been
put to him while framing any charge.”
b) In
Vishwanath Gupta, it was observed as under:
“8. According to Section 364-A, whoever
kidnaps or abducts any person and keeps him in detention and threatens to cause
death or hurt to such person and by his conduct gives rise to a reasonable
apprehension that such person may be put to death or hurt, and claims a ransom
and if death is caused then in that case the accused can be punished with death
or imprisonment for life and also liable to pay fine.
9. The
important ingredient of Section 364-A is the abduction or kidnapping, as the
case may be. Thereafter, a threat to the kidnapped/abducted that if the demand
for ransom is not met then the victim is likely to be put to death and in the
event death is caused, the offence of Section 364-A is complete. There are
three stages in this section, one is the kidnapping or abduction, second is
threat of death coupled with the demand of money and lastly when the demand is
not met, then causing death. If the three ingredients are available, that will
constitute the offence under Section 364-A of the Penal Code. Any of the three
ingredients can take place at one place or at different places.”
c) In
Vikram Singh, it was observed as under:
“25. … Section 364-A IPC has three
distinct components viz. (i) the
person concerned kidnaps or abducts or keeps the victim in detention after
kidnapping or abduction; (ii)
threatens to cause death or hurt or causes apprehension of death or hurt or
actually hurts or causes death; and (iii)
the kidnapping, abduction or detention and the threats of death or hurt,
apprehension for such death or hurt or actual death or hurt is caused to coerce
the person concerned or someone else to do something or to forbear from doing
something or to pay ransom. These ingredients are, in our opinion, distinctly different
from the offence of extortion under Section 383 IPC. The deficiency in the
existing legal framework was noticed by the Law Commission and a separate
provision in the form of Section 364-A IPC proposed for incorporation to cover
the ransom situations embodying the ingredients mentioned above.”
It is
necessary to prove not only that such kidnapping or abetment has taken place
but that thereafter, the accused threatened to cause death or hurt to such
person or by his conduct gave rise to a reasonable apprehension that such
person may be put to death or hurt or cause hurt or death to such person in
order to compel the Government or any foreign State or international,
inter-governmental organization or any other person to do or abstain from doing
any act or to pay a ransom.
14.
Most recently, this Court in SK
Ahmed has emphasised that
Section 364A of the IPC has three stages or components, namely,
i.
kidnapping or abduction of a person and keeping
them in detention;
ii.
threat to cause death or hurt, and the use of
kidnapping, abduction, or detention with a demand to pay the ransom; and
iii.
when the demand is not met, then causing death.
The
relevant portions of the said judgement are extracted as under:
“12. We may
now look into Section 364-A to find out as to what 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 a
person in detention after such kidnapping or abduction”
(ii)
“and threatens to cause death or hurt to such
person, or by his conduct gives rise to a reasonable apprehension that such
person may be put to death or hurt,
(iii)
or causes hurt or death to such person in order to
compel the Government or any foreign State or international inter-
governmental
organisation or any other person to do or abstain from doing any act or to pay
a ransom”
(iv)
“shall be punishable with death, or imprisonment
for life, and shall also be liable to fine.”
The first
essential condition as incorporated in Section 364-A is “whoever kidnaps or
abducts any person or keeps a person in detention after such kidnapping or
abduction”. The second condition begins with conjunction “and”. The second
condition has also two parts i.e. (a) threatens to cause death or hurt to such
person or (b) by his conduct gives rise to a reasonable apprehension that such
person may be put to death or hurt. Either part of above condition, if
fulfilled, shall fulfil the second condition for offence. The third condition
begins with the word “or” i.e. or causes hurt or death to such person in order
to compel the Government or any foreign State or international inter-governmental
organisation or any other person to do or abstain from doing any act or to pay
a ransom. Third condition begins with the words “or causes hurt or death to
such person in order to compel the Government or any foreign State to do or
abstain from doing any act or to pay a ransom”. Section 364-A contains a
heading “Kidnapping for ransom, etc.” The kidnapping by a person to demand
ransom is fully covered by Section 364-A.
13. We have
noticed that after the first condition the second condition is joined by
conjunction “and”, thus, whoever kidnaps or abducts any person or keeps a
person in detention after such kidnapping or abduction and threatens to cause
death or hurt to such person.
14. The use
of conjunction “and” has its purpose and object. Section 364-A uses the word
“or” nine times and the whole section contains only one conjunction “and”,
which joins the first and second condition. Thus, for covering an offence under
Section 364-A, apart from fulfilment of first condition, the second condition
i.e. “and threatens to cause death or hurt to such person” also needs to be
proved in case the case is not covered by subsequent clauses joined by “or”.
15. The word
“and” is used as conjunction. The use of word “or” is clearly distinctive. Both
the words have been used for different purpose and object. Crawford on
Interpretation of Law while dealing with the subject “disjunctive” and
“conjunctive” words with regard to criminal statute made following statement:
“…
The court should be extremely reluctant in a criminal statute to substitute
disjunctive words for conjunctive words, and vice versa, if such action
adversely affects the accused.”
xxx
33. After
noticing the statutory provision of Section 364-A and the law laid down by this
Court in the above noted cases, we conclude that the essential ingredients to
convict an accused under Section 364-A which are required to be proved by the
prosecution are as follows:
(i)
Kidnapping or abduction of any person or keeping a
person in detention after such kidnapping or abduction; and
(ii) threatens
to cause death or hurt to such person, or by his conduct gives rise to a
reasonable apprehension that such person
may be
put to death or hurt or;
(iii) causes
hurt or death to such person in order to compel the Government or any foreign
State or any Governmental organisation or any other person to do or abstain
from doing any act or to pay a ransom.
Thus,
after establishing first condition, one more condition has to be fulfilled
since after first condition, word used is “and”. Thus, in addition to first
condition either Condition (ii) or (iii) has to be proved, failing which
conviction under Section 364A cannot be sustained.”
Thus,
this Court in SK Ahmed set aside the conviction under Section 364A of the IPC
and modified the same to conviction under Section 363, for the reason that the
additional conditions were not met by observing as follows:
“42. The second condition having not
been proved to be established, we find substance in the submission of the
learned counsel for the appellant that conviction of the appellant is
unsustainable under Section 364-A IPC. We, thus, set aside the conviction of
the appellant under Section 364-A. However, from the evidence on record
regarding kidnapping, it is proved that the accused had kidnapped the victim
for ransom, demand of ransom was also proved. Even though offence under Section
364-A has not been proved beyond reasonable doubt but the offence of kidnapping
has been fully established to which effect the learned Sessions Judge has
recorded a categorical finding in paras 19 and 20. The offence of kidnapping
having been proved, the appellant deserves to be convicted under Section 363.
Section 363 provides for punishment which is imprisonment of either description
for a term which may extend to seven years and shall also be liable to fine.”
15. Now, we
shall consider the applicability of the above ratio to the present case and
deal with appellants’ argument about contradictions in the statements of the
PW-21. We agree with the High Court that the statements are crucial. We also
note that the Courts below, as is usual in kidnapping cases, have placed
singular reliance on the testimony of PW-21 to prove the element of ‘threat to
cause death or hurt’, or to determine whether the appellants’ conduct gives
rise to a reasonable apprehension that such person may be put to death or hurt.
We have perused the statement of 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 statements record that he was threatened at night by the appellants with a
‘revolver,’ which was claimed to be possessed by them. The exact statement was,
“One handkerchief and one black cloth
were tied on the eyes and said to me they have revolver and they will kill him
if [he] raises any voice.” However, the statement before the Trial Court
dated 15.04.2002, nearly two years after the initial statement, includes a
substantial detail that was omitted in the previous statement. After mentioning
that the PW-21 was forcibly put inside the car and gagged, the statement reads,
“The occupants threatened me with a knife
and pistol and threatened me to kill.” Thus,
three crucial changes may be noticed: first, a change in the exact timing of
the threat; second, the specificity of the delivery of the threat to kill; and
third, omission of the intent behind the threat i.e. to prevent PW-21 from
crying out. These details are crucial to proving the second ingredient of the
charge under Section 364A and essential to bring home the guilt under this
section namely, threat resulting in giving rise to a reasonable apprehension
that such person may be put to death or hurt. It is clear that this ingredient
has not been proved beyond reasonable doubt. The Courts below did not
thoroughly address this doubt before convicting the appellants. For proving the
ingredient of threat, the intimidation of the child victim, for the purpose of
making him silent, cannot be enough. If the sentence carrying a maximum
sentence of death and a minimum sentence of life sentence has such a low
evidentiary threshold, the difference between punishments for kidnapping under
363, 364 and 364A shall become meaningless.
16. In
particular, we note that the High Court did not apply the precedent in Malleshi
vs. State of Karnataka, (2004) 8 SCC 95 (“Malleshi”) properly. The
facts in the said case, concerning the kidnapping of a major boy, revolved
around the party to whom the demand for ransom ought to be made to bring home
the guilt under Section 364A. It was observed in SK Ahmed that the
Malleshi case dealt with demand for ransom and held that demand
originally was made to the person abducted and the mere fact that after making
the demand the same could not be conveyed to some other person as the accused
was arrested in the meantime does not take away the effect of conditions of
Section 364A. As clarified by this Court in SK Ahmed, Malleshi
was merely concerned with ransom and its ratio would be of no
assistance to cases where the fulfilment of other ingredients of crime under
Section 364A is brought into question.
17. In the
facts of the present case, we therefore agree with the submission of the
learned counsel for the appellants, Sri Gaurav Agrawal, that the conviction of
the appellants is unsustainable under Section 364A of the IPC.
18. This
Court has wide power to alter the charge under Section 216 of the Cr.PC whilst
not causing prejudice to the accused, as reiterated in Jasvinder Saini vs. State (Govt.
of NCT of Delhi) (2013) 7 SCC 256, para 11; Central Bureau of Investigation vs.
Karimullah Osan Khan (2014) 11 SCC 538, paragraph Nos. 17 and 18. The
following observations of this Court in Dr. Nallapareddy Sridhar Reddy
vs. State of Andhra Pradesh (2020) 12 SCC 467, paragraph No. 21 are
also instructive: “21. From the
above line of precedents, it is clear that Section 216 provides the court an
exclusive and wide-ranging power to change or alter any charge. The use of the
words “at any time before judgment is pronounced” in sub-section (1) empowers
the court to exercise its powers of altering or adding charges even after the
completion of evidence, arguments and reserving of the judgment. The alteration
or addition of a charge may be done if in the opinion of the court there was an
omission in the framing of charge or if upon prima facie examination of the
material brought on record, it leads the court to form a presumptive opinion as
to the existence of the factual ingredients constituting the alleged offence.
The test to be adopted by the court while deciding upon an addition or
alteration of a charge is that the material brought on record needs to have a
direct link or nexus with the ingredients of the alleged offence. Addition of a
charge merely commences the trial for the additional charges, whereupon, based
on the evidence, it is to be determined whether the accused may be convicted
for the additional charges. The court must exercise its powers under Section
216 judiciously and ensure that no prejudice is caused to the accused and that
he is allowed to have a fair trial. The only constraint on the court's power is
the prejudice likely to be caused to the accused by the addition or alteration
of charges. Sub-section (4) accordingly prescribes the approach to be adopted
by the courts where prejudice may be caused.”
Therefore,
we allow the appeals in part and set aside the conviction under Section 364A of
the IPC.
The
judgments of the learned Trial Court and the High Court are modified to the
above extent. The appellants are now convicted for the offence under Section
363 of the IPC; i.e., kidnapping and sentenced to imprisonment for seven years
and a fine of Rs.2000/-. If the appellants have completed imprisonment of more
than seven years with remission and have paid the fine of Rs.2000/-, we direct
the appellants to be released forthwith; if not on bail. If not, the appellants
shall surrender within a period of four weeks and serve the remainder of the
sentence.
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