Brief Facts
- The present appeals have been filed by five accused whose convictions were confirmed under Sections 148, 149 and 364A of the Indian Penal Code, 1860 by the High Court.
- The Appellants were alleged to have kidnapped PW-21 while he was going to his school and thereafter ransom was demanded for his release.
Issues
- Whether the court can alter the punishment in exercise of power under Section 216 of Cr.P.C into lesser offense if the accused is convicted under Section 364A?
- Essential ingredients of offence under section 364A of the IPC and the distinguishing component between the offences under section 363 and section 364A of the IPC.
Held
- Supreme Court partly allowed the appeal and the conviction of the Appellants under section 364A was altered to section 363 of the IPC as there was concrete evidence of threat to cause death or hurt. The intimidation of the child victim, for the purpose of making him silent is not sufficient for proving the offence under section 364 A of the IPC.
Essential ingredients of section 364A of IPC - The Supreme Court relied on its earlier judgment in the case of SK. Ahmed vs. State of Telangana, (2021) 9 SCC 59 to record 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.
Difference between offence under 363 and 364A of the IPC - The Court concluded that for the purpose of offence under section 364A of the IPC element of ‘threat to cause death or hurt’ must be present.
- 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.
Power to Alter the Charges - This Court has wide power to alter the charge under Section 216 of the Cr.P.C. 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 Court reproduced the observations made in the case of Dr. Nallapareddy Sridhar Reddy vs. State of Andhra Pradesh, (2020) 12 SCC 467 to discuss the powers of the court of alter the charges under section 216 of the CrPc.
Relevant Para No.
- 14, 15, 18