RAVI DHINGRA VERSUS THE STATE OF HARYANA

RAVI DHINGRA VERSUS THE STATE OF HARYANA 

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.987 OF 2009
RAVI DHINGRA ….. APPELLANT(S)
VERSUS
THE STATE OF HARYANA ….. RESPONDENT(S)
WITH
CRIMINAL APPEAL NOS.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)
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
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Sections 148, 149 and 364A of the Indian Penal Code, 1860 (‘IPC’,
for short). The details of the cases are as under:
Criminal
Appeals/
SLP No.
Name of the
accused persons
Period of custody
undergone with
remission
Criminal
Appeal No.
987 of 2009
Raman Goswami
(Deceased, Accused
No.3)
6 years, 8 months & 10
days as per jail custody
certificate dated
31.01.2023 (Since
deceased) appeal abates.
Criminal
Appeal No.
987 of 2009
Ravi Dhingra
(Accused No.4)
7 years, 10 months & 13
days (on bail since
13.05.2009 as per jail
custody certificate dated
31.01.2023)
Criminal
Appeal Nos.
986 of 2009
and 988 of
2009
Laxmi Narain
(Accused No.5)
Custody certificate not
produced
Criminal
Appeal No.
989-
990/2009
Baljit Pahwa
(Accused No.2)
7 years, 8 months & 2
days (on bail since
13.05.2009 as per jail
custody certificate dated
31.01.2023)
SLP (Crl.) No.
5296 of 2012
Parvez Khan
(Accused No.1)
3 years, 7 months & 2
days (on bail since
28.07.2012 as per jail
custody certificate dated
31.01.2023)
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
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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
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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
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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
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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
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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.”
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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
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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.
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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
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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
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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
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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.
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(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
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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.”
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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:
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(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 intergovernmental 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
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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
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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 364-
A 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.”
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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 appellantsherein. The statements record that he was threatened at night by
the appellants with a ‘revolver,’ which was claimed to be
possessed by them. The exact statement was, “One handkerchief
and one black cloth were tied on the eyes and said to me they have
revolver and they will kill him if [he] raises any voice.” However,
the statement before the Trial Court dated 15.04.2002, nearly two
years after the initial statement, includes a substantial detail that
was omitted in the previous statement. After mentioning that the
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
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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
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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:
23
“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
24
imprisonment of more than seven years with remission and have
paid the fine of Rs.2000/-, we direct the appellants to be released
forthwith; if not on bail. If not, the appellants shall surrender
within a period of four weeks and serve the remainder of the
sentence.
..………….………..…………J.
(SANJAY KISHAN KAUL)
..……..………….……………J.
 (B.V. NAGARATHNA)
NEW DELHI;
1st March, 2023.

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