In the instant case, the Hon’ble bench comprising Hon’ble Justice Ashok Bhushan and Hon’ble Justice R Subhash Reddy held that for a person to be liable section 374A of Indian Penal Code, 1860 (hereinafter referred to as “IPC, 1860”) it is not enough to be proved that the accused had kidnapped a person but along with that it must be proved there is conduct from the accused that gave rise to a reasonable apprehension of death or hurt to the person so kidnapped.
The present case is an appeal filed by the accused in the present case against the judgment of the Hon’ble High Court questioning his conviction and sentence under Section 364A IPC, 1860.
In the instant case, the accused is an auto-rickshaw driver involved in the kidnap of a 6th standard schoolboy and demanded 2lakhs from the victim’s father.
From the submissions made by counsels for both parties, materials on record before the court following are the issues framed by the hon’ble court in the instant case:
- What are the essential ingredients of Section 346A IPC, 1860 to be proved beyond reasonable doubt by the prosecution for securing the conviction of an accused under Section 364A IPC, 1860?
- Whether every ingredient as mentioned under Section 364A IPC, 1860 needs to be proved for securing conviction under Section 364A IPC, 1860 and non-establishment of any of the conditions may vitiate the conviction under Section 364A IPC?
- Whether the Hon’ble Sessions Judge, as well as the Hon’ble High Court, recorded any finding that all ingredients of Section 364A IPC, 1860 were proved by the prosecution?
- Whether there was any evidence or findings by the Hon’ble Courts below that the accused had threatened to cause death or hurt to the victim or by his conduct gave rise to a reasonable apprehension that the victim may be put to death or hurt?
Conditions to attract section 364A IPC, 1860 are broadly discussed in the judgment gist of which are as follows:
The first essential condition as incorporated in Section 364A IPC, 1860 is “whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction”.
The second condition begins with the conjunction “and”. The second condition has also two parts, i.e., 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. Either part of the above condition, if fulfilled, shall fulfill the second condition for an offense.
Judgment of the Hon’ble Court is as follows:
Firstly, the offense of kidnapping having been proved, the appellant deserves to be convicted under Section 363 IPC, 1860. This means condition No.1 of section 364A of IPC, 1860 i.e., section 364A(1) of IPC, 1860 is proved.
But, coming to condition No.2, of 364A IPC, 1860 i.e., “threatens to cause death or hurt to such person or reasonable apprehension that such person may be put to death or hurt”. Neither there is any such conduct of the accused discussed by the Hon’ble Courts below, which may give a reasonable apprehension that the victim may be put to death or hurt nor there is anything in the evidence-based on which it can be held that second part of the condition is fulfilled.
Thus, the evidence on record did not prove the fulfillment of the second condition of Section 364A of IPC, 1860 which is condition precedent, which is requisite to be satisfied to attract Section 364A of IPC, 1860.
The Second condition having not been proved to be established, having found substance in the submission of the learned Counsel for the appellant that conviction of the appellant is unsustainable under Section 364A IPC, 1860. The judgment of the Hon’ble High Court is thus, set aside i.e., the conviction of the appellant under Section 364A IPC, 1860 is set aside.
Finally, The appellant is convicted for an offense under section 363 of IPC, 1860 for kidnapping and hence is held that appellant is to be sentenced to imprisonment of seven years and a fine of Rs.5,000/-.
