Madhya Pradesh High Court
Ramasre @ Fakkad vs State Of M.P. on 11 November, 2021
Author: Rajeev Kumar Shrivastava
-( 1 )- CRA No. 282/2010
Ramasre @ Fakkad vs. State of MP
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: G.S.AHLUWALIA
AND
RAJEEV KUMAR SHRIVASTAVA, JJ.
Criminal Appeal No. 282/2010
Ramasre @ Fakkad S/o Badelal @ Badke
Resident of Gram Odere Sinkandra
District Kanpur Dehat (UP)
Versus
State of Madhya Pradesh
Through Police Station Umri
District Bhind (MP)
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Shri D.S. Rajawat, counsel for the appellant.
Shri C.P. Singh, Panel Lawyer for the respondent/State.
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Reserved on : 8th November, 2021
Whether approved for reporting:
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JUDGMENT
(Delivered on 11/11/2021)
Per Rajeev Kumar Shrivastava, J.:
This appeal has been preferred against the judgment dated
12.03.2010 passed by Special Judge (Dacoity) Bhind in S.T.
No.01/1989 (Dacoity) whereby the appellant has been convicted
under Section 364-A of IPC read with Section 13 of MPDVPK Act
and sentenced to life imprisonment.
2. The prosecution story, in short, is that on 02.10.1984 at
around 8.00 pm the complainant Vidyaram was abducted from
village Pulawali by 7-8 persons armed with guns. They had also
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abducted Teshil Khan and demanded Rs.20,000/- for releasing the
abductees. Tehsil Khan was released after sometime of his
abduction and Vidyaram was kept in Uttar Pradesh. The person
who abducted Vidyaram, was belonging to the gang of Ramasre @
Fakkad, who is the present appellant. The ransom was demanded
by the accused person from Kedarnath, brother of the abductee. FIR
was lodged at Crime No.132/84 for commission of offence under
Sections 364, 365, 386 and 400 of IPC and Section 11 and 13 of
MPDVPK Act. The abductee was released. Statements under
Section 161 of CrPC were recorded. Accused was arrested. The
present appellant was shown as absconded while filing of charge
sheet. The trial Court passed judgment on 20.1.1992 wherein the
co-accused Sitaram was convicted for the offences under Sections
365 and 384 of IPC and other co-accused Shyamsharam, Ramakant
and Ramdas were acquitted. The present appellant was arrested on
28.10.2006. Thereafter, trial was commenced.
3. The trial Court framed charges under Sections 364-A of IPC
read with Section 13 of MPDVPK Act against the present
appellant. Appellant abjured the guilt and stated that he has not
committed any offence and he has also submitted that Sitaram,
Munna and Raman are of different gang. Therefore, after due
consideration, the trial Court has convicted and sentenced the
appellant as under:-
Name of Section Punishment Fine In default,
accused punishment
Ramasre 364 (A) IPC Life Imprison- - -
@ Fakkad read with ment
Section 13
of MPDVPK
Act
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4. Challenging the impugned judgment of conviction and
sentence, it is submitted by learned Counsel for the appellant-
accused that looking to the quality of the evidence which has been
adduced by prosecution, it cannot be said that accused had
committed offence under Section 364-A of IPC along with Section
13 MPDVPK Act. Learned counsel for the appellant has submitted
that in the present case only three prosecution witnesses have been
examined. Vidyaram (PW/1) who was alleged to be abducted,
Kedarnath (PW/2), the brother of abductee Vidyaram and Tehsil
Khan (PW/3) who also was simultaneously abducted and was
released after sometime of abduction. All the aforesaid three
prosecution witnesses have not supported the prosecution case.
Therefore, no case is made out against the present appellant. While
recording of evidence none other than accused person was kept
present in the Court for doc identification and the abductee
Vidyaram himself has not supported the prosecution case.
Similarly, Kedarnath (PW/2) and Tehsil Khan (PW/3) have also
not supported the prosecution case. As the case is of no evidence,
therefore, prayed for setting aside the impugned judgment of
conviction and sentence.
5. On the other hand, learned counsel for the State supported
the impugned judgment of conviction and sentence and has
submitted that the prosecution witnesses have supported the
prosecution case and the trial Court has rightly convicted the
accused-appellant as the appellant was identified by the abductee
during recording of his evidence. There is no infirmity in the
judgment of conviction and sentence passed by the learned trial
Court and the trial Court did not err in convicting and sentencing
the accused for the alleged offences as indicated above.
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6. Heard the learned counsel for the rival parties and
perused the record.
7. In the present case, the following question emerges for
consideration :
"(i) Whether appellant Ramsare @ Fakkad had
abducted Vidyaram for getting ransom on
02.10.84 at around 8.00 pm from village
Pulawali?
(ii) Whether, appellant Ramasre @ Fakkad
threatened the abductees to cause death or
hurt to such persons, or by his conduct,
gives rise to a reasonable apprehension that
such person may be put to death or caused
hurt ?
8. Section 364(A) of Indian Penal Code runs as under :-
"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
organisation or any other person to do or abstain
from doing any act or to pay a ransom, shall be
punishable with death, or imprisonment for life,
and shall also be liable to fine."
9. Section 365 of Indian Penal Code runs as under :-
"365. Kidnapping or abducting with intent secretly
and wrongfully to confine person.-- Whoever
kidnaps or abducts any person with intent to cause
that person to be secretly and wrongfully confined,
shall be punished with imprisonment of either
description for a term which may extend to seven
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years, and shall also be liable to fine."
10. It is relevant to point out that Section 364A of IPC had been
introduced in the Indian Penal Code by virtue of Amendment Act
42 of 1993. The Statement of Objects and Reasons are as follows :-
"Statement of Objects and Reasons.-- Kidnapping
by terrorists for ransom, for creating panic
amongst the people and for securing release of
arrested associates and cadres have assumed
serious dimensions. The existing provisions of law
have proved to be inadequate as deterrence. The
Law Commission in its 42 nd Report has also
recommended a specific provision to deal with this
menace. It was necessary to amend the Indian
Penal Code to provide for deterrent punishment to
persons committing such acts and to make
consequential amendments to the Code of Criminal
Procedure, 1973."
11. While considering the facts of the present case, it would be
appropriate to deal with the relevant provisions along with the
dictum of various Courts.
12. Section 364(A) of IPC is attracted and a person/accused is
convicted only if the prosecution proves following ingredients :-
(i) the accused must have kidnapped, abducted
or detained any person;
(ii) he must have kept such person in custody
or detention; and,
(iii) kidnapping, abduction or detention must
have been for ransom. To pay a ransom, in
the ordinary sense means to pay the price or
demand for ransom. This would show that
the demand has to be communicated.
13. In Omprakash Shrivastava vs. State [2007 CrLJ 696
(Del), it is observed that to establish a charge of kidnapping for
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ransom a demand for ransom has to be made and it should be
properly communicated not only to the third person but also to the
victim himself. It was held that this plea will not be entertained that
ransom demand was made to the complainant/victim himself and
not to any other person.
14. Hon'ble Apex Court in Shaik Ahmed vs. State of Telangana
(Criminal Appeal No. 533 of 2021, decided on 28 th June, 2021),
has observed as under :-
"7. From the submissions made by the learned
counsel for the parties and materials on record,
following questions arise for consideration in this
appeal:-
I. What are the essential ingredients of
Section 346A to be proved beyond
reasonable doubt by the prosecution for
securing the conviction of an accused
under Section 364A IPC?
II. Whether each and every ingredient as
mentioned under Section 364A needs to
be proved for securing conviction under
Section 364A and non-establishment of
any of the conditions may vitiate the
conviction under Section 364A IPC?
III. Whether the learned Sessions Judge as
well as the High Court recorded any
finding that all ingredients of Section
364A were proved by the prosecution?
IV. Whether there was any evidence or
findings by the 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
victim may be put to death or hurt?
8. The appeal having arisen out of order of
conviction under Section 364A, we need to notice the
provisions of Section 364A IPC before proceeding
further to consider the points for consideration.
9. Sections 359 to 374 of the Indian Penal Code
are contained in the heading "of Kidnapping,
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Ramasre @ Fakkad vs. State of MP
Abduction, Slavery and Forced Labour". Offence of
Kidnapping for lawful guardianship is defined under
Section 361 and Section 363 provides for punishment
for kidnapping. Section 364 deals with kidnapping or
abduction in order to murder.
10. The Law Commission of India took up the
revision of Indian Penal Code and submitted its
report, i.e., 42nd Report (June, 1971). In Chapter 16,
offences affecting the human body was dealt with.
The chapter on kidnapping and abduction was dealt
by the Commission in paragraphs 16.91 to 16.112.
Section 364 and 364A was dealt by the Commission
in paragraphs 16.99 to 16.100 which are as follows:-
"16.99. Section 364 punishes the offence
of kidnapping or abduction of a person in order
to murder him, the maximum punishment being
imprisonment for life or for ten years. In view
of our general recommendation as to
imprisonment for life, we propose that life
imprisonment should be omitted and term
imprisonment increased to 14 years.
The illustrations to the section do not
elucidate any particular ingredient of the
offence and should be omitted.
16.100. We consider it desirable to have a
specific section to punish severely kidnapping
or abduction for ransom, as such cases are
increasing. At present, such kidnapping or
abduction is punishable under section 365 since
the kidnapped or abducted person will be
secretly and wrongfully confined.
We also considered the question whether
a provision for reduced punishment in case of
release of the person kidnapped without harm
should be inserted, but we have come to the
conclusion that there is no need for it. We
propose the following section:-
"364A. Kidnapping or abduction for
ransom .--Whoever kidnaps or
abducts any person with intent to
hold that person for ransom shall be
punished with rigorous imprison-
ment for a term which may extend to
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14 years, and shall also be liable to
fine."
11. Although the Law Commission has in
paragraph 16.100 proposed Section 364A, which
only stated that whoever kidnaps or abducts any
person with intent to hold that person for ransom be
punished for a term which may extend to 14 years.
Parliament while inserting Section 364A by Act
No.42 of 1993 enacted the provision in a broader
manner also to include kidnapping and abduction to
compel the Government to do or abstain from doing
any act or to pay a ransom which was further
amended and amplified by Act No.24 of 1995.
Section 364A as it exists after amendment is as
follows:-
"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
organisation or any other person to do
or abstain from doing any act or to
pay a ransom, shall be 12 punishable
with death, or imprisonment for life,
and shall also be liable to fine."
12. We may now look into section 364A to find out
as to what ingredients the Section itself contemplate
for the offence. When we paraphrase Section 364A
following is deciphered:-
(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
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Ramasre @ Fakkad vs. State of MP
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."
13. The first essential condition as incorporated in
Section 364A 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 fulfill 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
word "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 364A contains a heading "kidnapping for
ransom, etc." The kidnapping by a person to demand
ransom is fully covered by Section 364A.
14. We have noticed that after the first condition
the second condition is joined by conjunction "and",
thus, 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.
15. The use of conjunction "and" has its purpose
and object. Section 364A uses the word "or" nine
times and the whole section contains only one
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conjunction "and", which joins the first and second
condition. Thus, for covering an offence under
Section 364A, apart from fulfillment 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".
16. 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 cojunctive
words, and vice versa, if such action
adversely affects the accused."
17. We may also notice certain judgments of this
court where conjunction "and" has been used. In
Punjab Produce and Trading Co. Ltd. Vs. The CIT,
West Bengal, Calcutta (1971) 2 SCC 540, this Court
had occasion to consider Section 23-A Explanation
b(iii) of Income Tax Act, 1922 which provision has
been extracted in paragraph 5 of the judgment which
is to the following effect:-
"Explanation. -- For the purposes of this
section a company shall be deemed to be a
company in which the public are
substantially interested--
(a) If it is a company owned by the
Government or in which not less than forty
per cent of the shares are held by the
Government. (b) If it is not a private
company as defined in the Indian
Companies Act, 1913 (7 of 1913) and--
(i) its shares (not being shares
entitled to a fixed rate of dividend,
whether with or without a further
right to participate in profits)
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carrying not less than fifty per cent
of the voting power have been
allotted unconditionally to, or
acquired unconditionally by, and
were throughout the previous year
beneficially held by the public (not
including a company to which the
provisions of this section apply):
Provided that in the case of any
such company as is referred to in
sub-section (4), this sub-clause
shall apply as if for the words 'not
less than fifty per cent' the words
'not less than forty per cent', had
been substituted;
(ii) the said shares were at any time
during the previous year the subject
of dealing in any recognised stock
exchange in India or were freely
transferable by the holder to other
members of the public; and
(iii) the affairs of the company or
the shares carrying more than fifty
per cent of the total voting power
were at no time during the previous
year controlled or held by less than
six persons (persons who are
related to one another as husband,
wife, lineal ascendant or
descendant or brother or sister, as
the case may be, being treated as a
single person and persons who are
nominees of another person
together with that other person
being likewise treated as a single
person:
Provided that in the case of any
such company as is referred to in
sub-section (4), this clause shall
apply as if for the words 'more than
fifty per cent', the words 'more
than sixty per cent', had been
substituted."
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Ramasre @ Fakkad vs. State of MP
18. This Court held following in paragraph 8:-
"8. ........................The clear import of
the opening part of clause (b) with the word
"and" appearing there read with the negative
or disqualifying conditions in sub-clause (b)
(iii) is that the assessee was bound to satisfy
apart from the conditions contained in the
other subclauses that its affairs were at no
time during the previous year controlled by
less than six persons and shares carrying
more than 50 per cent of the total voting
power were during the same period not held
by less than six
persons............................"
19. In another judgment, Hyderabad Asbestos
Cement Products and Anr. Vs. Union of India, (2000)
1 SCC 426, this Court had occasion to consider Rule
56-A of Central Excise Act, 1944. The Court dealt
with interpretation of conjunctive and disjunctive
"and", "or". Proviso to Rule 56-A also uses the
conjunctive word "and". The Provision of the Rule as
quoted in paragraph 4 is as below:-
"56-A. Special procedure for movement of
duty-paid materials or component parts for
18 use in the manufacture of finished
excisable goods.--(1) Notwithstanding
anything contained in these rules, the Central
Government may, by notification in the
Official Gazette, specify the excisable goods
in respect of which the procedure laid down
in sub-rule (2) shall apply.
(2) The Collector may, on application made
in this behalf and subject to the conditions
mentioned in sub-rule (3) and such other
conditions as may, from time to time, be
prescribed by the Central Government,
permit a manufacturer of any excisable
goods specified under sub-rule (1) to receive
material or component parts or finished
products (like asbestos cement), on which
the duty of excise or the additional duty
under Section 2-A of the Indian Tariff Act,
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Ramasre @ Fakkad vs. State of MP
1934 (32 of 1934), (hereinafter referred to as
the countervailing duty), has been paid, in
his factory for the manufacture of these
goods or for the more convenient
distribution of finished product and allow a
credit of the duty already paid on such
material or component parts or finished
product, as the case may be:
Provided that no credit of duty shall be
allowed in respect of any material or
component parts used in the manufacture of
finished excisable goods--
(i) if such finished excisable goods
produced by the manufacturer are
exempt from the whole of the duty of
excise leviable thereon or are
chargeable to nil rate of duty, and
(ii) unless--
(a) duty has been paid for such material
or component parts under the same item
or sub-item as the finished excisable
goods; or
(b) remission or adjustment of duty paid
for such material or component parts
has been specifically sanctioned by the
Central Government:
Provided further that if the duty paid on
such material or component parts (of
which credit has been allowed under
this sub-rule) be varied subsequently
due to any reason, resulting in payment
of refund to, or recovery of more duty
from, the manufacturer or importer, as
the case may be, of such material or
component parts, the credit allowed
shall be varied accordingly by
adjustment in the credit account
maintained under sub-rule (3) or in the
accountcurrent maintained under sub-
rule (3) or Rule 9 or Rule 178(1) or, if
such adjustment be not possible for any
reason, by cash recovery from or, as the
case may be, refund to the manufacturer
availing of the procedure contained in
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Ramasre @ Fakkad vs. State of MP
this rule."
20. This court held that when the provisos 1 & 2
are separated by conjunctive word "and", they have
to be read conjointly. The requirement of both the
proviso has to be satisfied to avail the benefit.
Paragraph 8 is as follows:-
"8. The language of the rule is plain and
simple. It does not admit of any doubt in
interpretation. Provisos (i) and (ii) are
separated by the use of the conjunction "and".
They have to be read conjointly. The
requirement of both the provisos has to be
satisfied to avail the benefit. Clauses (a) and
(b) of proviso (ii) are separated by the use of
an "or" and there the availability of one of the
two alternatives would suffice. Inasmuch as
cement and asbestos fibre used by the
appellants in the manufacture of their finished
excisable goods are liable to duty under
different tariff items, the benefit of pro forma
credit extended by Rule 56-A cannot be
availed of by the appellants and has been
rightly denied by the authorities of the
Department."
21. Thus, applying the above principle of
interpretation on condition Nos. 1 & 2 of Section
364A which is added with conjunction "and", we are
of the view that condition No.2 has also to be
fulfilled before ingredients of Section 364A are
found to be established. Section 364A also indicates
that in case the condition "and threatens to cause
death or hurt to such person" is not proved, there are
other classes which begins with word "or", those
conditions, if proved, the offence will be established.
The second condition, thus, as noted above is
divided in two parts- (a) and 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.
22. Now, we may look into few cases of this Court
where different ingredients of Section 364A came for
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consideration. We may first notice the judgment of
this Court in Malleshi Vs. State of Karnataka, (2004)
8 SCC 95. The above was a case where kidnapping
of a major boy was made by the accused for ransom
and before this Court argument was raised that
demand of ransom has not been established. In the
above case, the Court referred to Section 364A and in
paragraph 12 following was observed:-
"12. To attract the provisions of Section 364-
A what is required to be proved is: (1) that
the accused kidnapped or abducted the
person; (2) kept him under detention after
such kidnapping and abduction; and (3) that
the kidnapping or abduction was for ransom.
Strong reliance was placed on a decision of
the Delhi High Court in Netra Pal v. State
(NCT of Delhi) [2001 Cri LJ 1669 (Del)] to
contend that since the ransom demand was
not conveyed to the father of PW 2, the
intention to demand was not fulfilled."
23. This court in paragraphs 13 to 15 dealt with
demand for ransom and held that demand originally
was made to 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 meantime does not take away the effect of
conditions of Section 364A. In the above case, this
Court was merely concerned with ransom, hence,
other conditions of Section 364A were not noticed.
24. The next judgment is Anil alias Raju Namdev
Patil Vs. Administration of Daman & Diu, Daman
and Another, (2006) 13 SCC 36. In the above case,
this Court noticed the ingredients for commission of
offence under Section 364 and 364A. Following was
laid down in paragraph 55:-
"55. ...........................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
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Ramasre @ Fakkad vs. State of MP
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 intergovernmental organi-
sation or any other person to do or abstain
from doing any act or to pay a ransom."
25. At this stage, we may also notice the judgment
of this Court in Suman Sood alias Kamaljeet Kaur
Vs. State of Rajasthan (2007) 5 SCC 634. In the
above case, Suman Sood and her husband Daya
Singh Lahoria were accused in the case of abduction.
They were tried for offence under Section 364A, 365,
343 read with Section 120-B and 346 read with
Section 120-B. The trial court convicted the
appellant for offence under Sections 365 read with
120-B, 343 read with 120-B and 346 read with 120-
B. She was, however, acquitted for offence
punishable under Section 364-A. Her challenge
against conviction and sentence for offences
punishable under Sections 365 read with 120- B, 343
read with 120-B and 346 read with 120-B IPC was
negatived by the High Court. But her acquittal for
offences punishable under Sections 364-A read with
120-B was set aside by the High Court in an appeal
and she was also convicted for the offence under
Section 364A and was sentenced to life
imprisonment. In the appeal filed by her challenging
her conviction under Section 364A, this Court dealt
with acquittal of Suman Sood under Section 364A by
trial Court. In Paragraph 64 this court noticed as
follows:-
"64. According to the trial court, the
prosecution had failed to prove charges
against Suman Sood for an offence
punishable under Sections 364-A or 364-A
read with 120-B IPC "beyond reasonable
doubt" inasmuch as no reliable evidence
had been placed on record from which it
could be said to have been established that
Suman Sood was also a part of "pressurise
tactics" or had terrorised the victim or his
family members to get Devendra Pal Singh
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Bhullar released in lieu of Rajendra Mirdha.
The trial court, therefore, held that she was
entitled to benefit of doubt."
26. The findings of trial court that no reliable
evidence had been placed on record from which it
could be said to have been established that Suman
Sood was also a part of pressurise tactics or has
terrorized the victim or his family. This court
approved the acquittal of Suman Sood by trial court
and set aside the order of the High Court convicting
Suman Sood. In paragraph 71 following was held by
this Court:-
"71. On the facts and in the circumstances
in its entirety and considering the evidence
as a whole, it cannot be said that by
acquitting Suman Sood for offences
punishable under Sections 364-A read with
120-B IPC, the trial court had acted illegally
or unlawfully. The High Court, therefore,
ought not to have set aside the finding of
acquittal of accused Suman Sood for an
offence under Sections 364-A read with
120-B IPC. To that extent, therefore, the
order of conviction and sentence recorded
by the High Court deserves to be set aside."
27. Thus, the trial court's findings that there was
no evidence that Suman Sood was part of pressurize
tactics or terrorized the victim or his family
members, hence, due to non-fulfillment of the
condition as enumerated in Section 364A, the trial
court recorded the acquittal, which has been
confirmed by this Court. The above case clearly
establishes that unless all conditions as enumerated
in Section 364A are fulfilled, no conviction can be
recorded.
28. Now, we come to next judgment, i.e.,
Vishwanath Gupta Vs. State of Uttaranchal (2007) 11
SCC 633. In the above case, the victims were
abducted from district of Lucknow, State of U.P.
demands for ransom and threat was extended from
another district, i.e., Nainital and the victim was done
-( 18 )- CRA No. 282/2010
Ramasre @ Fakkad vs. State of MP
to death in another district, i.e., Unnao in the State of
U.P. This Court had occasion to consider the
ingredients of Section 364A and in paragraphs 8 and
9, the following was laid down:-
"8. According to Section 364-A, whoever
kidnaps or abducts any person and keeps
him in detention 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.
In the present case the demand of the
money with the threat perception had
been made at (Haldwani) Nainital. The
deceased were kidnapped at Lucknow and
they were put to death at Unnao.
Therefore, the first offence was
committed by the accused when they
abducted Ravi Varshney and Anoop
Samant at Lucknow. Therefore, Lucknow
court could have territorial jurisdiction to
try the case."
-( 19 )- CRA No. 282/2010
Ramasre @ Fakkad vs. State of MP
29. This Court in the above case, laid down that there
are three stages in the Section, one is kidnapping or
abduction, second is threat of death coupled with
demand of money and third when the demand is not
met, then causing death. The Court held that if the
three ingredients are available that will constitute the
offence under Section 364 of the IPC. Dealing with
Section 364A in context of above case, following
was laid down in paragraph 17:-
"17. ...............But here, in the case of
Section 364-A something more is there,
that is, that a person was abducted from
Lucknow and demand has been raised at
Haldwani, Nainital with threat. If the
amount is not paid to the abductor then
the victim is likely to be put to death. In
order to constitute an offence under
Section 364-A, all the ingredients have
not taken place at Lucknow or Unnao.
The two incidents took place in the State
of Uttar Pradesh, that is, abduction and
death of the victims but one of the
ingredient took place, that is, threat was
given at the house of the victims at
Haldwani, Nainital demanding the
ransom money otherwise the victim will
be put to death. Therefore, one of the
ingredients has taken place within the
territorial jurisdiction of Haldwani,
Nainital. Therefore, it is a case wherein
the offence has taken place at three places
i.e. at Haldwani, Nainital, where the
threat to the life of the victim was given
and demand of money was raised, the
victim was abducted from Lucknow and
he was ultimately put to death at Unnao.
......................"
30. Next case which needs to be noticed is a Three
Judge Bench Judgment of this Court in Vikram Singh
alias Vicky and Anr. Vs. Union of India and Ors.,
(2015) 9 SCC 502. In the above case, this Court
elaborately considered the scope and purport of
Section 364A including the historical background.
-( 20 )- CRA No. 282/2010
Ramasre @ Fakkad vs. State of MP
After noticing the earlier cases, this Court laid down
that section 364A has three distinct components. In
Paragraph 25, following was laid down with regard
to distinct components of Section 364A:-
"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
........................"
31. We may also notice one more Three Judge
Bench Judgment of this Court in Arvind Singh Vs.
State of Maharashtra, (2020) SCC Online SC 400. In
the above case, an eight year old son of Doctor
Mukesh Ramanlal Chandak (PW1) was kidnapped by
the accused A1 and A2. Accused A1 was an
employee of Dr. Chandak. It was held that A1 had
grievance against Dr. Chandak. A2 who accompanied
A1 when the boy was kidnapped and after the
kidnapping of the boy it was found that boy was
murdered and at the instance of A1, the dead body
was recovered from a bridge constructed over a
Rivulet. Trial court had sentenced both A1 and A2 to
death for the offences punishable under Sections
364A read with 34 and 302 read with 34. The High
Court had dismissed the appeal affirming the death
sentence. On behalf of A2, one of the arguments
raised before this Court was that although child was
kidnapped for ransom but there was no intention to
take the life of the child, therefore, offence under
Section 364A is not made out. This Court noticed the
ingredients of Section 364A, one of which was
"threatening to cause death or hurt" in paragraphs 90,
-( 21 )- CRA No. 282/2010
Ramasre @ Fakkad vs. State of MP
91 and 92, the following was observed:-
"90. An argument was raised that the child
was kidnapped for ransom but there was
no intention to take life of the child,
therefore, an offence under Section 364A
is not made out. To appreciate the
arguments, Section 364A of the IPC is
reproduced as under:
"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
intergovernmental organisation or
any other person to do or abstain
from doing any act or to pay a
ransom, shall be punishable with
death, or imprisonment for life, and
shall also be liable to fine."
91. Section 364A IPC has three
ingredients relevant to the present appeals,
one, the fact of kidnapping or abduction,
second, threatening to cause death or hurt,
and last, the conduct giving rise to
reasonable apprehension that such person
may be put to death or hurt.
92. The kidnapping of an 8-year-old child
was unequivocally for ransom. The
kidnapping of a victim of such a tender
age for ransom has inherent threat to cause
death as that alone will force the relatives
of such victim to pay ransom. Since the
act of kidnapping of a child for ransom
has inherent threat to cause death,
therefore, the accused have been rightly
been convicted for an offence under
Section 364A read with Section 34 IPC.
-( 22 )- CRA No. 282/2010
Ramasre @ Fakkad vs. State of MP
The threat will remain a mere threat, if the
victim returns unhurt. In the present case,
the victim has been done to death. The
threat had become a reality. There is no
reason to take different view that the view
taken by learned Sessions Judge as well
by the High Court."
32. We need to refer to observations made by Three
Judge Bench in paragraph 92 where this Court
observed that kidnapping of an eight year old victim
for ransom has inherent threat to cause death as it
alone will force the relatives of victim to pay ransom.
The Court further held that since the act of
kidnapping of a child has inherent threat to cause
death, therefore, the accused have been rightly
convicted for an offence under Section 364A read
with Section 34 IPC. In the next sentence, the Court
held that the threat will remain a mere threat, if the
victim returns unhurt, "the victim has been done to
death the threat has become a reality". The above
observation made by Three Judge Bench has to be
read in context of the facts of the case which was for
consideration before this Court. No ratio has been laid
down in paragraph 92 that when an eight year old
child (or a child of a tender age) is
kidnapped/abducted for ransom there is inherent
threat to cause death and the second condition as
noted above, i.e., threatens to cause death or hurt to
such person, is not to be proved. The observations
cannot be read to mean that in a case of kidnapping or
abduction of an eight year old child (or child of a
tender age), presumption in law shall arise that
kidnapping or abduction has been done to cause hurt
or death. Each case has to be decided on its own facts.
In the foregoing paragraphs, we have noticed that all
the three distinct conditions enumerated in Section
364A have to be fulfilled before an accused is
convicted of offence under Section 364A. Thus, the
observations in paragraph 92 may not be read to
obviate the establishment of second condition as
noticed above for bringing home the offence under
Section 364A."
-( 23 )- CRA No. 282/2010
Ramasre @ Fakkad vs. State of MP
15. In the light of above annunciation of law laid down by
Hon'ble Apex Court, the evidence available on record in the present
case is required to be considered.
16. In the present case prosecution has examined three
prosecution witnesses. Vidyaram (abductee) PW/1 has not
supported the prosecution case. Rather he has deposed that in the
year 1984 he was abducted and kept confined for 45 days for
getting ransom of Rs.2,51,000/-. This witness has further stated that
he was not knowing that who abducted him. In para 3 of his cross-
examination this witness has identified the person who stood inside
of the Court and has stated that after his abduction he was brought
before the person Ramasre @ Fakkad who was identified by this
witness. But in para 6 of his cross-examination this witness has
accepted that while he was kept confined by the accused persons he
had never seen to the present accused/appellant Fakkad. Therefore,
the trial Court has erred in relying the evidence of PW/1 Vidyaram.
Other witnesses Kedarnath (PW/2) and Tehsil Khan (PW/3) have
also not supported the prosecution case. No other prosecution
witness had been examined.
17. On the basis of above discussion, it is apparent that trial
Court has erred in convicting the accused/appellant under Section
364-A of IPC along with Section 13 of MPDVPK Act as the
present case is case of no evidence.
18. As a consequence thereof, impugned judgment of conviction
and sentence passed by the Special Judge Bhind on 12.03.2010 in
S.T. No.01/1989 is hereby set aside. Accordingly, the appellant is
acquitted of charges under Section 364-A of IPC read with Section
13 of MPDVPK Act.
19. The appellant is in jail. He be released immediately, if not
-( 24 )- CRA No. 282/2010
Ramasre @ Fakkad vs. State of MP
required in any other case.
20. A copy of this judgment be provided to the appellant free of
cost.
21. The Registry of this Court is directed to immediately send a
copy of this judgment along with the Record to the Trial Court for
necessary information and compliance.
The appeal succeeds and is Allowed.
(G.S.Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
van
VANDANA VERMA
2021.11.11
17:48:25 -08'00'
