Saturday, March 25, 2023

Intimidation of kidnapped child no ground for conviction under Section 364A IPC: Supreme Court

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The Supreme Court last week said that merely intimidating a kidnapped child for stopping him to ask for help did not prove the ingredient of threat resulting in a reasonable apprehension that such person may be hurt or killed as required for sustaining a conviction under Section 364A (kidnapping for ransom) of the Indian Penal Court.

A Division Bench comprising of Justice Sanjay Kishan Kaul and Justice B.V. Nagarathna, while substituting the convictions under Section 364,said that four men who have been accused of kidnapping a school-going-boy for ransom, for a lesser offence of kidnapping which would be considered under Section 363 (punishment for kidnapping) of the criminal code.

The bench further said that the ingredient of the charge under Section 364A, result in giving rise to a reasonable apprehension that such person may be put to death or hurt were not proved beyond reasonable doubt.

It was also said that 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.

The court explained that 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 appeal came in fore due to the 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 the appeal reached to the Apex court, the appellate jurisdiction of the Punjab and Haryana High Court had been invoked.The High Court had held that all ingredients of Section 364A had been satisfied.

The High court dismissed the contention of appellant that there were material discrepancies in the prosecution’s case, stating that the veracity of the statement of the kidnapping victim, who was a fourteen-year-old boy at the time of the incident.

After the court compared the statement by victim’ to the police immediately after the incident, 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 details were important for proving the charges 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:Kidnapping or abduction of a person and keeping them in detention, threat to cause death or hurt, and the use of kidnapping, abduction, or detention with a demand to pay the ransom, 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.

Justice Nagarathna wrote, that 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.

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