Ravi Dhingra vs The State Of Haryana

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 Signature Not Verified Digitally signed by Nidhi Ahuja convictions were confirmed by the impugned judgement of the Date: 2023.03.01 17:05:29 IST Reason:

Punjab and Haryana High Court dated 13.02.2008, under

1 Sections 148, 149 and 364A of the Indian Penal Code, 1860 (‘IPC’,

for short). The details of the cases are as under:

Criminal Name of the Period of custody Appeals/ accused persons undergone with SLP No. remission Criminal Raman Goswami 6 years, 8 months & 10 Appeal No. (Deceased, Accused days as per jail custody 987 of 2009 No.3) certificate dated 31.01.2023 (Since deceased) appeal abates. Criminal Ravi Dhingra 7 years, 10 months & 13 Appeal No. (Accused No.4) days (on bail since 987 of 2009 13.05.2009 as per jail custody certificate dated 31.01.2023) Criminal Laxmi Narain Custody certificate not Appeal Nos. (Accused No.5) produced 986 of 2009 and 988 of 2009 Criminal Baljit Pahwa 7 years, 8 months & 2 Appeal No. (Accused No.2) days (on bail since 989- 13.05.2009 as per jail 990/2009 custody certificate dated 31.01.2023) SLP (Crl.) No. Parvez Khan 3 years, 7 months & 2 5296 of 2012 (Accused No.1) 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

2 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 (PW-

4) 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

3 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

4 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

5 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

6 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 PW-

20’s stance by declaring that “Discrepancy in investigation cannot

by itself a ground to reject the testimony of a reliable witness.”

7 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

8 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.

9 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

10 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 inter- governmental organization or any other person to do or abstain from doing any act or to pay a

11 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

12 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.

13 (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

14 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.”

15 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:

16 (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 inter-

governmental 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

17 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

18 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.”

19

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 appellants-

herein. 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

20 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

21 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: 22

“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

23 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.

24