Mere Intimidation To Silence Kidnapped Child Victim Not Sufficient to Prove Threat To Life & Limb: Supreme Court

A division bench of Justices Sanjay Kishan Kaul and B.V. Nagarathna, while substituting the convictions under Section 364A of four men accused of kidnapping a school-going-boy for ransom, for a lesser offence of kidnapping simpliciter given under Section 363 (punishment for kidnapping) of the criminal code, held:

“The second ingredient of the charge under Section 364A, namely, threat resulting in giving rise to a reasonable apprehension that such person may be put to death or hurt have 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.”

This set of appeals had arisen out of a kidnapping case, in which five accused (of whom one died during the pendency of appeal) were convicted under Sections 148 and 364A read with Section 149 of the Indian Penal Code, 1860 and sentenced to life imprisonment. Before travelling in appeal to the top court, the appellate jurisdiction of the Punjab and Haryana High Court had been invoked. Upholding the impugned order, the High Court had held that all ingredients of Section 364A had been satisfied. The high court also rejected the appellant’s contention that there were material discrepancies in the prosecution’s case, affirming the veracity of the statement of the kidnapping victim, who was a fourteen-year-old boy at the time of the incident.

However, by comparing the victim’s statement to the police immediately after the incident, with that recorded by the trial court two years later, the apex court noted that the statement had been modified to reflect three differences, namely, a change in the exact timing of the threat, the specificity of the delivery of the threat to kill, and an omission of the intent behind the threat. These amended details were crucial for proving the second ingredient of a charge under Section 364A and bringing home the guilt under this provision. Therefore, the second ingredient, the court held, had not been proved beyond a reasonable doubt. On this ground, the Supreme Court took a different stand than the courts below it and set aside the conviction of the accused under Section 364A. In doing so, it placed heavy reliance on its decision in Sk. Ahmed v. State of Telangana, (2021) 9 SCC 59, in which the three stages or components of the said section were outlined as follows:

1. Kidnapping or abduction of a person and keeping them in detention,
2. Threat to cause death or hurt, and the use of kidnapping, abduction, or detention with a demand to pay the ransom,
3. When the demand is not met, then causing death.

According to the bench, the second ingredient was missing from the present case, which is why they held a conviction under Section 364A to be unsustainable. Thus, noting that it possessed a wide power to alter charges under Section 216 of the Code of Criminal Procedure, 1973 whilst not causing prejudice to the accused, the court allowed the appeals in part and substituted the convictions under Section 364A with that for an offence under Section 363. Justice Nagarathna wrote:

“The appellants are now convicted for the offence under Section 363, 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.”

Case Title

Ravi Dhingra v. State Haryana | Criminal Appeal No. 987 of 2009 and connected matters

Citation : 2023 LiveLaw (SC) 167

For Appellant(s) Mr. Gaurav Agrawal, AOR Mr. Simon Benjamin, Adv. Ms. Deepshikha Sansanwal, Adv. Mr. Santosh Krishnan, AOR Ms. Sonam Anand, Adv. Mr. Yakesh Anand, Adv. Mr. Rajeev Kumar Dubey, Adv. Mr. Kamlendra Mishra, AOR;

For Respondent(s) Mr. Rakesh K. Mudgal, A.A.G. Mr. Dinesh Mudgal, Adv. Dr. Monika Gusain, AOR

Headnotes

Kidnapping for ransom vis-à-vis kidnapping simpliciter – Indian Penal Code, 1860 – Sections 363, 364A – Proof of kidnapping for ransom – Punishable with death or imprisonment for life and as such has a higher evidentiary threshold – Three stages or components, namely, first, kidnapping or abduction of a person and keeping them in detention; second, threat to cause death or hurt, and the use of kidnapping, abduction, or detention with a demand to pay the ransom; and third, when the demand is not met, then causing death – Fulfilment of second ingredient, namely, threat to cause death or hurt – Intimidation of child victim, for the purpose of making them silent not adequate – Held, prosecution’s case did not prove second ingredient beyond reasonable doubt as a result of the victim’s statement being subsequently modified to reflect crucial differences that would enable the prosecution to drive home the kidnapping for ransom charge – Further held, conviction under Section 364A ought to be altered in exercise of power under Section 216 of Code of Criminal Procedure into the lesser offence under Section 363 – Appeal partly allowed.

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