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The Second Condition Is A Prerequisite To Attract Kidnapping or abduction U/s 364A Of The IPC: SC

Shaik Ahmed v. State of Telangana


Decided on June 28, 2021.

The two-judge bench comprising Justice Ashok Bhushan and Justice R.Subhash Reddy decided the present case. The Supreme Court partly allowed the appeal, setting aside the conviction and sentence of the appellant under Section 364A but sentenced the appellant for offence under Section 364 of Kidnapping to imprisonment of seven year along with a fine of Rs. 5000.

Prateek Gupta, PW-2, a student in St. Mary’s High School, Rezimental Bazar, Secunderabad, Hyderabad was waiting for his regular auto to drop him home at 3 pm on 03.02.2011 but the auto did not turn up. He called his father, Sanjay Gupta also PW-1 from his teacher’s phone and was instructed to board another auto. PW-2 boarded another auto being driven by the appellant.

The appellant took an unknown route stating that it was a short-cut but instead of dropping PW-2 home, the appellant took PW-2 to his sister’s house. Later that evening he called the victim’s father demanding a ransom of Rs 2 Lakhs. At 8:30 pm he called again and reiterated his demand. In response to his inability to pay the ransom, PW-1 was compelled to pay a sum of Rs. 1.50 lakhs for the release of PW-2. PW-1 lodged a report and the same was received and a case being CV No. 37/2011 under section 364S of IPC was registered and handed over for further investigation.

At 6:00 am on the next day, the appellant along with PW-2 left from his sister’s home and instructed PW-1 to come to Pillar No 99, P.V. Narasimha Rao Expressway on foot and raised his hand for identification. When PW-1 was trying to handover the ransom to the appellant, the police who were in mufti surrounded the accused and took him into custody. PW-2 was found seated in the auto. Prosecution examined 8 witnesses and a charge was framed by the Additional Chief Metropolitan Magistrate, Secunderabad against the appellant under Section 364A IPC.

Learned Sessions Judge after considering the evidence led by witnesses held that the accused kidnapped PW-2 and telephoned to PW-1 demanding Rs.2 lakhs for release of PW-2 and sentenced the appellant to undergo life imprisonment for offence under Section 364A IPC and also liable to pay fine of Rs.5,000/- by judgment dated 01.11.2012. The appellant filed an appeal before the High Court but it was dismissed. Aggrieved by the decision of the High Court, the appellant filed an appeal before the Supreme Court.

It was argued by Learned Counsel for the appellant that the prosecution failed to prove all elements for conviction under Section 364A, and so the conviction under Section 364A cannot stand. In addition, no evidence has been brought forth by the Courts below that there was any threat to cause death or hurt to the victim by the accused or that his conduct caused reasonable apprehension that such a person would be put to death or injured by him. The Counsel referred to the statement given by PW-2, where he said that he was treated well.

Ms. Bina Madhavan, Learned counsel appearing for the State supported the judgments of learned Sessions Judge as well as the High Court.

After hearing both sides, the Supreme Court had to decide whether each and every condition as outlined in Section 364A must be proven for conviction under the Section and how a conviction based on Section 364A can be vitiated by the failure to establish any of the conditions?

The Supreme Court stated that,

“After noticing the statutory provision of Section 364A 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 364A which are required to be proved by 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 organization or any other person to do or abstain from doing any act or to pay a ransom.” (Para 33)

The Court further observed that, “Thus, neither PW-1, the father of the victim, the complainant, nor the victim says that any accused threatened to cause death or hurt. The evidence which was led before the court suggest otherwise that the victim was not assaulted and he was treated well in a good manner as was stated by victim.” (Para 41)

The Supreme Court finally stated that, “Now, coming to the second part of the condition No.2, i.e., “or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt”. Neither there is any such conduct of the accused discussed by the Courts below, which may give a reasonable apprehension that victim may be put to death or hurt nor there is anything in the evidence on the basis of which it can be held that second part of the condition is fulfilled. We, thus, are of the view that evidence on record did not prove fulfillment of the second condition of Section 364A. Second condition is also a condition precedent, which is requisite to be satisfied to attract Section 364A of the IPC.” (Para 42)

The Court allowed the appeal partially and stated that,

“ In the facts of the present case, we are satisfied that the appellant deserves to be sentenced with imprisonment of seven years and also liable to pay fine of Rs. 5,000/-. The Judgment of the learned Sessions Judge and the High Court is modified to the above extent. The conviction and sentence of the appellant under Section 364A is set aside. The appellant is convicted for offence under section 363 of kidnapping and sentenced to imprisonment of seven years and fine of Rs.5,000/-. After completion of imprisonment of seven years (if not completed already) the appellant shall be released.”(Para 44)

View/Download Judgement : Shaik Ahmed v. State of Telangana

Utkarsh Kumar Jayaswal



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