Lal Bihari Mahto vs The State Of Bihar
2023 Latest Caselaw 2410 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.398 of 2016
  Arising Out of PS. Case No.-211 Year-2010 Thana- BOCHAHAN District- Muzaffarpur
======================================================

Subodh Sahani s/o Ram Bachan Sahani R/o Village- Madhopur Punarwara, P.S.- Hathauri, District- Muzaffarpur

... ... Appellant/s Versus

The State of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 454 of 2016 Arising Out of PS. Case No.-211 Year-2010 Thana- BOCHAHAN District- Muzaffarpur ====================================================== Lal Bihari Mahto S/o Late Dwarika Mahto, Resident of village- Pakari Barkhodar, P.S.- Hathauri, District- Muzaffarpur

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 398 of 2016) For the Appellant/s : Mr. Shiva Shankar Sharma, Advocate For the Respondent/s : Mr. Binod Bihari Singh, APP (In CRIMINAL APPEAL (DB) No. 454 of 2016) For the Appellant/s : Mr. Shiva Shankar Sharma, Advocate Mr. Pancham Lal Jaiswal, Advocate For the Respondent/s : Mr. Binod Bihari Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA)

Date : 16-05-2023

Heard Mr. Shiv Shankar Sharma, learned counsel

appearing on behalf of the appellant in Criminal Appeal (DB)

No. 398 of 2016, Mr. Shiv Shankar Sharma and Mr. Pancham Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

Lal Jaiswal, learned counsels appearing on behalf of the

appellant in Criminal Appeal (DB) No. 454 of 2016 and Mr.

Binod Bihari Singh, learned Additional Public Prosecutor

appearing on behalf of the State in both Criminal Appeal (DB)

No. 398 of 2016 and 454 of 2016.

(2) By the impugned judgement and order dated

22.04.2016 passed by the learned Sessions Judge, Muzaffarpur,

in S.Tr. No. 466/12 arising out of Bochahan P.S. Case No.

211/2010, the appellants have been convicted and sentenced as

under:-

IN CRIMINAL APPEAL (DB) NO. 398 of 2016 Appellant's Conviction Sentence Name under Sections Imprisonment Fine (Rs.) In default of fine Subodh Sahani 364(A) and 34 For life 15,000/- Simple of the Indian Imprisonment of Penal Code 6 months

IN CRIMINAL APPEAL (DB) NO. 454 of 2016 Appellant's Conviction Sentence Name under Sections Imprisonment Fine (Rs.) In default of fine Lal Bihari 364(A) and 34 For life 10,000/- Simple Mahto of the Indian Imprisonment of Penal Code 6 months

(3) Calyx of prosecution case is the self-written

statement of Sub-Inspector, Jitendra Kumar Singh, (PW-4)

addressing to S.H.O.-Bochahan, which was recorded on

28.12.2010 at about 2:45 P.M. at Tilak Tajpur Chowk police

station stating thereof that he received information today itself Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

at about 7:45 A.M. from one Dilip Kumar Sinha, resident of

Bhusahi, Police Station- Bochahan over telephone that his son,

namely, Shubham Sinha (PW-5/victim), aged about 13-14 years,

who is a student of class - 9th of D.A.V school, while going to

Bhusahi in connection with his study by bicycle and as so going

after short distance, a red coloured Bolero vehicle bearing

registration no. BR06P5449 carrying five to seven persons and

one silver coloured platina motorcycle bearing registration no.

BR06N6912 driving by a person kidnapped his son Shubham

Sinha (PW 5/victim) and went towards Bhutane leaving a paper

note on spot, raising demand for Rs. 20,00,000/- (Rupees

Twenty Lacs) as ransom. It is stated further that a sanha of said

information was registered by him and information of this

occurrence was also given to the senior police officers,

thereafter, he alongwith A.S.I. Kameshwar (PW- 6), A.S.I.

Ramprit Singh (PW- 1), Havaldar-Radhey Mohan Singh,

Constable No. 621, Surendra Prasad Yadav, Constable No. 394

and one Home-guard Ramesh Rai also the driver of police

vehicle started to follow kidnappers. While chasing

kidnappers/criminals, as they arrived on Bhutane chowk and

enquired from local people, they were informed that one red

coloured Bolero vehicle bearing registration no. BR06P5449 Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

carrying five to seven persons alongwith one silver coloured

platina motorcycle bearing registration no. BR06N6912

aheading Bolero just crossed this place with high speed. He

passed over this information to his senior officers and also

informed to nearby police stations. In the meantime Deputy

Superintendent (East Zone) Sibli Nomani also arrived to

Bhutane Chowk with all armed police forces to cooperate and

he also narrated the episodes to them. Thereafter, they

collectively started to chase kidnappers/criminals in same

direction, and in course of chasing as they arrived on Chapra

chowk, they again enquired from locals, who again confirmed

that a red coloured Bolero vehicle bearing registration no.

BR06P5449 having five to seven persons just went towards

Padri Kawahi O.P., alongwith one silver coloured platina

motorcycle bearing registration no. BR06N6912 driving by a

young person. This information was again passed over to senior

police officers and entire police team moved towards Padri

Kawahi O.P., in the mean time Minapur S.H.O. (Station House

Officer), namely, Jitendra Prasad also joined them. On further

enquiry at Padari Kawahi O.P. they came to know that both

vehicles went in direction of Mahilwara. This information was

also passed over to senior police officers and nearby police Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

stations, and thereafter, police party moved towards Mahilwara.

As he alongwith police personnels arrived at Mahilwara, it was

confirmed by locals that red coloured Bolero vehicle bearing

registration no. BR06P5449 and silver coloured platina

motorcycle bearing registration no. BR06N6912 driven by one

young person just crossed this place in very high speed. He

again informed senior officers about the development and

continued to chase both vehicles. While they were chasing

kidnappers/criminals and as so they were just behind 150 to 160

yards of Tilak Tajpur chowk, they found one red coloured

Bolero vehicle and one platina motorcycle were running with

high speed, coming close while chasing, police party asked

them to stop, resultantly, Bolero vehicle and motorcycle stopped

and the persons, who were inside the vehicle and were riding the

motorcycle started to run away, who were apprehended

immediately after chasing for a short distance. All apprehended

five persons brought near to Bolero vehicle bearing registration

no. BR06P5449 and by the same time some people arrived there

on motorcycle claiming to be the family members of Shubham

Sinha (PW- 5/victim). Said Bolero vehicle was searched by

complying the rules in presence of two witnesses, namely,

[email protected] Gaurav (PW- 2) son of Rajesh Kumar and Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

Sanjeev [email protected] Srivastava (PW- 3) son of Late

Satyadev Prasad, both resident of Sakni Gosabadh road

Rajendra Maarg of Town P.S., Dist.-Muzaffarpur, whereupon

after search of Bolero, a young boy aged about 13-14 years old

found sitting under the back seat of vehicle, whose hand was

tied up with red muffler. On enquiry, said young boy disclosed

his name as Shubham Sinha (PW- 5/victim) and his muffler was

un-tied immediately, who disclosed his father's name as Dilip

Kumar Sinha resident of village Bhusahi, P.S.-Bochahan. It was

stated by him that today i.e., on 28.12.2010 he as usual was

going to his D.A.V. school, located as Bakhari from his house at

Bhusahi and as he travelled for a short distance, all apprehended

persons forcibly taken him inside Bolero vehicle on point of

pistol. It is also stated by Shubham Sinha (PW- 5/victim) that

four kidnappers/criminals leave vehicle on way for undisclosed

destination. On enquiry, Shubham Sinha (PW- 5/victim) further

disclosed that they were talking about the ransom money of Rs.

20,00,000/- (Rupees Twenty Lacs) and naming each other as Lal

Bihari, Pankaj, Md. Azibul Rahman, Subodh Sahani, Lal Babu

Singh, Ravi Singh, Vinay Sahani and Balkrishan. The person,

who were apprehended from Bolero vehicle and motorcycle

were disclosed their name as:- (i) Lal Bihari, resident of Pakri, Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

P.S.- Hathaudi, Dist.- Muzaffarpur (ii) Pankaj Kumar, son of

Vinod Sahni resident of Kawahi, P.S.- Runnisaidpur, Dist.-

Sitamarhi, (iii) Md. [email protected], son of Md. Habib resident of

Malahi, P.S.- Paaru, Dist.- Muzaffarpur, (iv) Pankaj Kumar son

of Kameshwar Singh resident of Galhaul, P.S.- Sindhia, Dist.-

Samastipur, who presently reside at Rampur colony, P.S.- Sadar,

Dist.- Muzaffarpur and (v) Subodh Sahani son of Rambachan

Sahani, resident of Punarwara shyam, P.S.- Hathauri, Dist.-

Muzaffarpur. He also disclosed the name of their accomplice in

said occurrence as:- (i) Lal Babu Singh son of Radhey Krishna

Bhagat and (ii) Ravi Singh son of Lal Babu Singh, both village

of Kanhara, P.S.- Bochahan, Dist.- Muzaffarpur, (iii) Vinay

Sahani son of Mahabir Sahani, resident of Dubarbanna, P.S.-

Hathauri, Dist.- Muzaffarpur and (iv) Bal Krishan Sahani son of

Sukeshwar Sahani, village-Bhushra, P.S.- Gayghat, Dist.-

Muzaffarpur, who were equipped with arms and leave Bolero

vehicle somewhere in way. It was also disclosed by them that

after planning they kidnapped Shubham Sinha (PW- 5/victim)

for a ransom money of Rs. 20,00,000/- (Rupees Twenty Lacs),

where Bolero vehicle was of Pankaj Singh and the motorcycle

was of Lal Bihari Mahto (appellant/convict). On search in

presence of two witnesses, namely, [email protected] Gaurav Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

(PW- 2) son of Sri Rakesh Kumar and [email protected]

Srivastava (PW- 3) son of Late Satydev Prasad, both resident of

Golabadh road P.S. town, dist.- Muzaffarpur from possession of

arrested accused persons three mobiles set of Soni Erection of

Nokia Company and one Chinese mobile set were seized.

Further from Bolero vehicle tie, belt of red colour and red

colour muffler were also recovered which was used to tie up the

hand of Shubham Sinha (PW- 5/victim). One black glove was

also recovered. In presence of these witnesses, (i) red coloured

Bolero vehicle having SLE No. BR06P5449, Chasis No.

MA1PL2GAK82F39839, Engine No. A84 F40683, (ii) One

silver coloured platina motorcycle having registration no.

BR06N6912, (iii) Five mobile sets from the accused persons

and (iv) Tie, belt, muffler and gloves were seized and

accordingly, a seizure list was prepared which were duly signed

by these witnesses. A copy of seizure list was supplied to

arrested accused persons/appellants. In present raid, active role

was also played by nearby police station. Lastly, he claimed that

all apprehended five accused persons alongwith non-

apprehended co-accused, namely, Lal Babu Singh, Ravi Singh,

Vinay Sahani and Bal Krishna Sahani for the ransom of Rs.

20,00,000/- (Rupees Twenty Lacs) kidnapped Shubham Sinha Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

(PW- 5/victim). It is stated that offence of section 364 (A) and

34 of the Indian Penal Code (in short 'I.P.C.') is a cognizable

offence. Hence, all these accused persons were arrested.

Accordingly, the appropriate legal proceedings was requested to

initiate.

(4) On the basis of above self-statement of informant

(PW- 4) Bochahan P.S. Case No. 211 of 2010 dated 29.12.2010

under Sections 364(A) and 34 of the Indian Penal Code (in short

'I.P.C.') was registered, where after investigation the charge-

sheet was submitted under Sections 364(A) and 34 against

accused persons including appellants/convicts. After taking

cognizance by learned concerned Judicial Magistrate 1 st Class,

the matter was committed to the Court of Session on

08.08.2012, where charge was framed on 10.09.2012.

Apprehended co-accused Vinay Sahani and Pankaj Kumar

found juvenile and, as such, their case was separated and sent to

J.J.B. (for short 'Juvenile Justice Board') vide order dated

10.07.2015. Considering the materials available on records, in

totality the charges were framed against accused persons

including appellants/convicts under Sections 364 (A) and 34 of

the Indian Penal Code (in short 'I.P.C.'), which they plead "not

guilty" and claimed trial, where after conclusion of trial, the Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

accused persons including appellants/convicts were convicted

for the offence under Sections 364 (A) and 34 of the Indian

Penal Code (I.P.C.), where sentence was awarded for life

imprisonment alongwith fine.

                 (5)     Hence the present appeals;

                 (6)     To substantiate its case prosecution altogether

examined six (06) witnesses, namely, PW- 1, Ramtapit Singh

S/o Late Devnath Singh, PW- 2, Roshan [email protected] S/o Sri

Rakesh Kumar, PW -3, Sanjeev [email protected] Srivastava S/o

Late Satyadev Prasad, PW- 4, Jitendra Kumar Singh S/o Sri

Deepnarayan Singh (informant), PW- 5, Shubham Sinha

(victim) S/o Sri Dilip Kumar Sinha and PW- 6, Kameshwar

Singh S/o Late Suryadev Singh, who is the investigating officer

of this case;

(7) Further prosecution relied upon the following

exhibits/documents which are as Ext.- 1- Signature of PW- 2 on

the statement made under Section 164 of the Cr.P.C., Ext. -2-

Signature of PW- 2 on seizure list, Ext.- 2/1- Signature of PW-

3 on seizure list, Ext. -4- Seizure List, Ext.- 5- Self-statement

and Ext. -6- Signature of PW- 5 on his statement recorded

under Section 164 of the Cr.P.C.

(8) Appellants/convicts were examined by learned Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

Trial Court u/s 313 of the Criminal Procedure Code (Cr. P.C.),

where complete innocence was shown by denying the

incriminating circumstances as appears against

appellants/convicts.

(9) The following defence witnesses were also

examined on behalf of appellants/convicts which are: DW-1-

Sumitra Devi D/o Jogi Mahto, DW- 2- Baijnath Sahani S/o

Saryug Sahani, DW -3 - Permanand Rai S/o Late Jaymangal Rai

and DW- 4 - Chulahai Sahani S/o Lakshaman Sahani.

(10) ARGUMENT ON BEHALF OF THE LEARNED

COUNSEL APPEARING FOR THE APPELLANTS/CONVICTS:-

It is submitted by learned counsel appearing on

behalf of the appellants/convicts that from the available

evidence, it can be gathered safely that prosecution failed to

established its case beyond all reasonable doubts. In support of

submissions, it is submitted that though victim/PW 5 rescued by

the police personnels, F.I.R. was lodged on the next day of the

recovery and moreover, same was communicated to learned

Jurisdictional Magistrate after 48 hours, which creates a

suspicion about entire occurrence as narrated through F.I.R. It is

submitted that no demand of ransom can be said proved as the

father of victim, namely, Dilip Kumar Sinha was not examined

before the learned Trial Court and even the cheat of paper Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

through which alleged demand of ransom of Rs. 20,00,000/-

(Rupees Twenty Lac) was made, not collected during the course

of investigation. It is submitted that PW -5, who is the victim of

this case, namely, Shubham Sinha is also not supporting the fact

that any demand of ransom raised to him while he was in

captivity during the course of kidnapping, rather it was stated by

him that kidnappers were talking about ransom money with

each other. It is submitted that PW -2 Roshan [email protected],

who is the cousin of victim Shubham Sinha (PW- 5) also failed

to support the factum of demand of ransom money and same is

also about PW-3, namely, Sanjeev [email protected] Srivastava,

who is the uncle of victim Shubham Sinha (PW- 5). It is

submitted that with such evidence in hand it cannot be said that

important ingredients as to established case under Section 364-A

of the I.P.C., i.e., demand "to pay a ransom" was proved.

Learned counsel further submitted that threshold of assault

caused to victim boy (PW-5) is of not such level, which may be

accepted for an offence where minimum punishment is of life

imprisonment and, as such, the prosecution failed to established

its case beyond all reasonable doubts. Learned counsel

appearing on behalf of the appellants/convicts relied upon the

legal report of Shaik Ahmed vs. State of Telengana {as Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

reported through (2021) 9 SCC 59}. Learned counsel also relied

upon the report of Hon. Supreme Court in the matter of Ravi

Dhingra vs. State of Haryana {reported as AIR 2023 Supreme

Court 1243}.

(11) ARGUMENT ON BEHALF OF THE LEARNED APP

APPEARING FOR THE STATE:-

It is submitted by learned APP while arguing on behalf

of the State that all ingredients under Section 364-A of the I.P.C.

is well established in present case. It is submitted that victim

(PW- 5) rescued during the course of kidnapping itself and

appellants/convicts were also arrested during course of

occurrence. It is submitted that PW- 5, namely, Shubham Sinha,

who is the victim himself clearly stated that kidnappers i.e.,

appellants/convicts alongwith other co-accused persons were

talking with each other for a ransom of Rs. 20,00,000/- (Rupees

Twenty Lac) and one of them also said to kill him after

receiving the ransom amount, as he identified them. Victim boy

(PW-5) also caused hurt during kidnapping. It is submitted that

reasonable apprehension to commit murder is there as victim

identified them and only due to timely arrival of the police

parties, the life of victim/Shubham Sinha (PW- 5) could saved

from the hand of kidnappers including appellants/convicts.

(12) In view of the evidences as available on record and Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

rival submissions as advanced by the parties, issue for

consideration which appears to us in this appeal as to whether

the facts of this case attracts offence under Section 364-A of the

I.P.C. and if the answer is negative whether it would be

appropriate to modify the conviction to a sentence under Section

363 of the I.P.C. It would be appropriate to discuss all the

relevant and inter-related provisions of the I.P.C. as available u/s

361, 363, 364 ad 364-A of the I.P.C. with comparative analysis,

as to better understanding of the legal propositions with

available set of facts and circumstances:

Section 361. Kidnapping from lawful guardianship:-

Whoever takes or entices any minor under sixteen (16) years of

age if a male, or under eighteen (18) 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 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 Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

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.

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 364-A. 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 Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

from doing any act or to pay a ransom, shall be punishable with

death, of imprisonment for life, and shall also be liable to fine.

(13) It would be appropriate to reproduce paragraph no.

12, 13 and 14 of Ravi Dhingra vs. State of Haryana {reported

as AIR 2023 Supreme Court 1243} for better understanding as

same appears relevant with the given set of facts and

circumstances:-

Paragraph 12:- We note that Section 363 of the I.P.C.

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 364-A 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 Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

Haryana, {reported as (2009) 17 SCC 106}, wherein this Court

observed as under:

"15. ... It is true that kidnapping as

understood under Section 364-A of the I.P.C. 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 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."

Paragraph 13:- This Court, notably in Anil vs.

Administration of Daman & Diu, {reported as (2006) 13 SCC

36 ("Anil")}, Vishwanath Gupta vs. State of Uttaranchal

{reported as (2007) 11 SCC 633 ("Vishwanath Gupta")} and

Vikram Singh vs. Union of India, {reported as (2015) 9 SCC

502 ("Vikram Singh")} has clarified the essential ingredients to

order a conviction for the commission of an offence under Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

Section 364-A of the I.P.C. 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 364-A of the I.P.C. when the

charge framed was under Section 364 read with Section 34 of

the I.P.C. 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.

(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 Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

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 Indian 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 Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

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 Indian 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 of the I.P.C. has three Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

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 of the I.P.C. The

deficiency in the existing legal framework was

noticed by the Law Commission and a separate

provision in the form of Section 364-A I.P.C.

proposed for incorporation to cover the ransom

situations embodying the ingredients mentioned

above."

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 Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

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.

Paragraph 14:-Most recently, this Court in SK Ahmed

has emphasised that Section 364-A of the I.P.C. 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:

(i) "Whoever kidnaps or abducts any person or keeps a Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

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 Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

abstain from doing any act or to pay a ransom. Third condition

begins with the words "or causes hurt or death 398 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 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 Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

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 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 Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

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 I.P.C. 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 Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

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."

(14) Now, we shall consider the essential ingredients

and applicability of the above laid legal ratio to the fact of

present case to deal with the argument advanced on behalf of

appellants/convicts about absence of ingredients in present case

as required to establish the case under Section 364-A of the

I.P.C.

(15) It is appearing from deposition of PW- 4, who is

Jitendra Kumar Singh, Sub-Inspector and also informant of this

case that he proceeded after lodging a Sanha to the effect that

the son of one Dilip Kumar Sinha, a student of class nine (09) of

D.A.V school, was kidnapped by some unknown persons, while

he was on way to his school. It is also deposed by him that the

occurrence of kidnapping took place through Bolero vehicle Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

bearing registration no. BR06P5449 and one platina silver

coloured motorcycle bearing registration no. BR06N6912. It is

clear from his deposition that after giving information to his

senior officers, he proceeded alongwith his team to chase the

vehicles of kidnappers in the directions in which it was taken

away. It is also appearing from his deposition that D.S.P. of East

Sibli and S.H.O. Minapur also joined him in exercise to trap

kidnappers and rescue the victim/PW- 5 (Shubham Sinha). It

appears that police team apprehended kidnappers and seized

alleged Bolero and motorcycle after following them for certain

distance, where victim, Shubham Sinha (PW- 5) recovered from

Bolero vehicle bearing registration no. BR06P5449, while his

hand was tied up with red colour muffler. The said muffler was

seized alongwith gloves and tie of the victim and seizure list of

that effect was prepared on spot itself. He identified his

signature over said seizure list during trial which was exhibit

before the learned Trial Court as Ext. 4. It is deposed that on

enquiry victim boy, PW-5 said that he was kidnapped on point

of pistol for the purpose of ransom. He deposed specificly that

the chit of paper demanding ransom of Rs. 20,00,000/- (Rupees

Twenty Lac) was disclosed to him by the guardian of the victim

(PW -5). It appears from his deposition that the victim (PW -5) Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

rescued during the course of kidnapping but the demand for

paying ransom of Rs. 20,00,000/- (Rupees Twenty Lac) was not

made to him rather he came to know about ransom demand

from his guardian and also from communication amongst co-

accused including appellants/convicts.

(16) Ramtapeet Singh (PW- 1), Roshan Singh @ Vivek

(PW 2), who are the cousin of victim (PW-5) and PW- 3,

namely, Sanjeev Kumar @ Raman Srivastava, who is the uncle

of the victim (PW- 5) deposed in their examination in-chief that

they came to know about present occurrence of kidnapping from

father of victim (PW-5), namely, Dilip Kumar Sinha on

telephone at about 7:40 A.M. It is deposed by PW- 2 that on

said information he alongwith PW- 3, namely, Sanjeev Kumar

@ Raman Srivastava, who is uncle of victim, jointly proceeded

on their motorcycle towards Sitamarhi searching the alleged red

coloured Bolero which was used in kidnapping. From

deposition of PW- 2, it appears that his cousin brother, namely,

Shubham Sinha/victim (PW- 5) was found inside the Bolero

vehicle where his hand was tied up with red colour muffler. It is

deposed that accused appellant/convict Subodh Sahani, Pankaj

Sahani, Pankaj Kumar Singh, Kallu and Lal Bihari Mahto

(appellant/convict) were apprehended on spot while rescuing Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

victim/PW- 5, whereas Lal Bahadur Singh, Kheer Singh, Bal

Kishan Sahani and Ram Kishan Singh found run away. It also

appears from his cross-examination that his statement was

recorded under Section 164 of the Cr.P.C. on 03.01.2011,

whereas his statement under Section 161 was recorded on

28.12.2010 by police. These two witnesses are also appearing

the witness of seizure list and identified their signatures before

the Court which was exhibited as Ext. 2 and 3. From the

deposition of PW- 2 and PW- 3 it appears that on their

immediate arrival at the place where appellants/convicts were

arrested by police, victim (PW- 5) found inside Bolero vehicle,

where his hand was tied up with muffler. It appears that none of

these two witnesses i.e., PW- 2 and PW- 3 disclosed about

asking ransom money of Rs. 20,000,000/- (Rupees Twenty Lac)

through their depositions. Their depositions is not even

whispering about the demand of ransom money.

(17) PW- 1 is Ramtapit Singh, who is the member of

raiding team of PW- 4, who is the informant of this case. It

appears from his deposition that vehicle of kidnappers

alongwith motorcycle were intercepted at Tajpur Chowk where

four (04) persons run away but after short chasing, they were

arrested and recovered the victim (PW- 5) from the Bolero Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

vehicle, who was identified as Shubham Sinha. It was deposed

by him that victim Shubham Sinha was found in back dickey of

the Bolero vehicle where his hand was tied up. It is also deposed

by him that the family members of Shubham Sinha/victim (PW-

5) arrived on spot by motorcycle. It is also deposed that he was

told by Shubham Sinha/victim (PW- 5) that he was forced to

seat inside the vehicle the on point of revolver.

(18) From depositions of these witnesses, it is clear that

appellants/convicts were apprehended during the course of

occurrence of kidnapping itself, where victim was rescued from

the vehicle which was used for the purpose of kidnapping. Now

it would be appropriate to discuss the most important witness of

this case, who is the victim himself, who rescued during the

course of kidnapping, namely, Shubham Sinha/victim (PW- 5).

It is deposed by the victim that on 28.12.2010, in the morning

about 6:30 A.M. to 7:00 A.M. when he was going to his school

by his by-cycle and as so when he went up to 100-150 metres

two (02) persons pushed him from his cycle and taken away him

on point of pistol. It is deposed that those two (02) unknown

persons assaulted him by butt of pistol, who forced him to go

with one another person, who was already available there with

platina silver coloured motor-cycle. These two (02) unknown Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

persons accompanied him also and they were went up to a red

coloured Bolero vehicle in which six (06) persons and driver

were already seated. It was deposed that the person who rode

the motorcycle was escorting the driver of Bolero vehicle

throughout the way. It also deposed that his hand was tied up by

using red colour muffler by taking his hands on back. It is also

deposed by him that he was put in dickey where two (02) of his

kidnappers were seated there by putting their legs on him. It is

also deposed by him that they were talking to release him after

receiving the ransom money of Rs. 20,00,000/- (Rupees Twenty

Lac), where one of them told as he (victim/PW-5) identified all

of them, therefore, it would be appropriate to kill him. It is

deposed that driver of the vehicle were also talking about his

share and they were also informed by someone that police are

following them. It is deposed that someone from them said that

Balkrishan, Ravi, Lal Babu Singh and Vinay, all of you four to

leave this vehicle alongwith arms immediately, thereafter brake

was applied and immediately on stopping the vehicle all four

persons named above leave vehicle alongwith arms. It is

deposed that after moving for a short distance the vehicle was

suddenly stopped and the persons, who were sitting there, were

found to run away. In the meantime, the dickey was opened and Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

he found police before him. It was also deposed by him that his

uncle Sanjeev Kumar @ Raman Srivastava (PW- 3) and his

cousin brother Roshan Singh @ Vivek (PW- 2) arrived there. It

is deposed that they all came together to Muzaffarpur. He also

deposed that police personnel untied his hand. It is deposed that

police arrested five (05) persons on spot and also seized his tie,

belt, I-card and cap from the vehicle. It is deposed by him that

later on he came to know that the name of bike rider was

Subodh Sahani (appellant/convict). The victim (PW-5)

identified Pankaj Sahani, Pankaj, Kallu driver and Lal Bihari

Mahto (appellant/convict), who were present in Court. It is

deposed by him that all persons, who are present here, were

involved in the occurrence. Victim (PW-5) further deposed that

his statement was recorded before the Magistrate under Section

164 of the Cr.P.C. and he identified his signature thereof before

the learned Trial Court, which on his identification was

exhibited as Ext. - 6. This witness was examined by accused

persons separately i.e., by Md. Azibul Rahman @ Kallu,

Subodh Sahani (appellant/convict), Vinay, Pankaj and Lal Bihari

Mahto (appellant/convict). It appears that nothing substantial

surfaced on cross-examination on behalf of co-accused Md.

Azibul Rahman @ Kallu which may creates a doubt on the Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

version of this witness. It is stated by him in his cross

examination that in vehicle altogether eight (08) persons were

available, namely, Bal Krishan, Ravi, Lal Bihari Mahto

(appellant/convict), Vinay, Pankaj Sahani, Pankaj Kumar, Kallu

and Lal Babu. It is also stated by him (victim/PW-5) that

Subodh Sahani (appellant/convict) was the bike rider and all of

them were equipped with arms. It is stated by victim/PW-5 that

he also stated before the Magistrate that driver of vehicle was

also asking for his share and he came to know about the name of

kidnappers as they were talking with each other by their name.

This fact was also disclosed by him before police and was also

stated while recording statement under 164 of the Cr.P.C. He

denied the suggestion as regard to non-involvement of

appellants/convicts in the occurrence. While cross-examination

on behalf of Subodh Sahani (appellant/convict), it was deposed

by victim/PW-5 that he never got occasion to read the contents

of the ransom letter and he also not disclosed this fact to police,

he also stated that he cannot said that who is the author of said

letter. It is deposed by him that he was handed over to his

parents after three or four hours of his recovery from the

kidnappers and till then his father was with him alongwith PW-

2, PW- 3 and one of his cousin. It was also stated by him that he Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

is not remembering that where he made his signature on seizure

list but seizure list (Ext.-4) was prepared before him. It also

appears from his cross-examination that he was brought before

the Magistrate where his father was also available. He denied

suggestions that the accused persons/appellants/convicts were

not involved in the occurrence. On Court examination victim

(PW- 5) stated that the person standing in the dock, namely,

Pankaj and Balkrishan are same persons, who pushed him from

his by-cycle and taken away by assaulting him. It is also

deposed by him that he came to know about the name of

kidnappers before he was put inside the dickey. He also stated to

identify him by his face. He further stated on Court question that

statement was recorded by Magistrate and after that Subodh

Sahani (appellant/convict) was arrested. It is also stated by him

on Court question that Pankaj Sahani, Kallu driver and Lal

Bihari Mahto (appellant/convict) was already arrested. It is also

stated by him that they were talking about some Mukhiya or

MLA and were also joking with each other. Victim further stated

on Court question that the road was dangerous as told by Lal

Bihari Mahto (appellant/convict) where in reply it was told by

Balkrishan that you are also not less dangerous. It is stated by

him that he came to know about the full name of Mahtoji only Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

after his arrest. It is also stated by him that Mahto asked mobile

from Pankaj by taking his name while he was sitting there and

all these four (04) persons standing in dock were arrested on

spot.

(19) Father of minor victim (PW-5), namely, Dilip

Sinha, who received telephonic call from kidnappers to pay

ransom of Rs. 20,00,000/- (Rupees Twenty Lac) not examined

by learned Trial Court. Alleged cheat of paper demanding Rs.

20,00,000/- (Rupees Twenty Lac) as ransom money claimed to

be found at the place of occurrence during course of

investigation was also not produced before the Court and

moreover, "sanha entry" in police station was also not brought

before the learned Trial Court by PW-4, suggesting demand to

pay ransom. Admittedly, no demand was made to PW-4

(informant), as well to PW-1, PW-2 and PW-3, who are

relative of victim (PW-5) and their deposition in support of

demand to pay ransom of Rs. 20,00,000/- (Rupees Twenty Lac)

is based upon hearsay input, as said by father of victim, namely,

Dilip Kumar Sinha, who himself failed to appear before the

learned Trial Court. As far, deposition of victim (PW-5) is

concerned he specifically deposed that he came to know about

demand to pay ransom money from his father and he never gone Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

through alleged cheat of paper recovered from place of

occurrence, making demand for ransom money doubtful,

whereas he came to know about said demand from conversation

of accused persons, while in Bolero vehicle. It also appears from

his deposition that no demand was even made to him directly. In

view of above, it can be said safely that prosecution failed to

established its case beyond reasonable doubt to the extent that

there was "demand to pay a ransom".

(20) It appears from the deposition of victim (PW-5)

that though he was assaulted by butt of pistol by kidnappers but

he never deposed that any threat to kill was advanced to him.

His hand was tied up by using his red colour muffler and

thereafter, he was put inside dickey of Bolero. Alleged hurt

appears to secure kidnapping and to ensure victim (PW-5) to

reach upto Bolero, which was parked on road. Though, he

deposed that one of the accused persons told another that as he

identified them, it is safer for them to kill victim (PW-5) after

receiving ransom money but it was not responded by others or

agreed upon. No direct threat to kill was advanced to him inside

vehicle. Admittedly, no recovery of arms made from any co-

accused persons including appellants/convicts. Victim (PW-5)

admittedly not examined by doctor. Having these evidence in Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

hand it can be said safely that for proving the ingredients of

threat, above discussed assault and circumstances is not appears

sufficient to bring charge under home of Section 364-A of the

I.P.C., particularly when sentence carrying maximum for death

and minimum of life imprisonment, being a low evidentiary

threshold as same would be amount to make punishment

meaningless for kidnapping under Section 363, 364 & 364-A of

the I.P.C.

(21) No doubt, PW-5 (victim) recovered by police team

headed by PW-4 during the course of kidnapping itself. He was

found inside the Bolero, which was used in kidnapping, where

both appellant/convicts including other co-accused apprehended

on spot. Red colour muffler which used for tieding hand of PW-

5/victim, tie, cap and gloves were recovered from Bolero itself.

PW-1, PW-2 and PW-3, who are relatives of PW-5,

immediately came to place of recovery as they were also

following the vehicles of kidnappers and found PW-5 inside

Bolero, where his hand was found tied up with red colour

muffler. This fact was also supported by PW-4, who is the

informant of this case. Nothing appears contradictory to doubt

their version and, as such, it can be said safely that prosecution

established its case to the extent of kidnapping duly punishable Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

under Section 363 of the I.P.C.

(22) Therefore, it appears to us that conviction of

appellants in both appeal under Section 364-A read with 34 of

the I.P.C. is unsustainable under law.

(23) This Court has vide power while hearing appeal to

alter charge under Section 216 of the Cr.P.C. with a note of

caution that same must be used judiciously and ensure that no

prejudice likely to be caused to the accused by addition or

alteration of charges. Sub-sec. (4) accordingly prescribes the

condition which may caused prejudice.

(24) Therefore, we allow the appeals in part by set

aside the conviction of both appellants under Section 364-A/34

of the I.P.C. and judgement of the learned Trial Court is

modified to the above extent.

(25) Accordingly, both appellants are now convicted for

the offence under Section 363 of the I.P.C. i.e., kidnapping and,

as such, both appellants ordered for sentence of seven years

with fine of Rs. 5,000/- (Rupees Five Thousand). If the

appellants/convicts have completed imprisonment of seven

years and have paid the fine of Rs. 5,000/- (Rupees Five

Thousand), we direct both above named appellants/convicts to

be released forthwith; if not wanted in any other case. If not, the Patna High Court CR. APP (DB) No.398 of 2016 dt.16-05-2023

appellants shall surrender within a period of two weeks and

serve the remainder of their sentence.

(A. M. Badar, J.)

( Chandra Shekhar Jha, J.) Pooja/-

Veena
AFR/NAFR                AFR
CAV DATE                06-04-2023
Uploading Date          16-05-2023
Transmission Date       16-05-2023