1. Legal Background of Section 364 A
Legally, kidnapping and abduction are different. The offence of Kidnapping from lawful guardianship is provided under the Indian Penal Code under Section 361 and Section 363 provides for punishment for this kidnapping.
Section 364 deals with kidnapping or abduction in order to murder. Parliament while inserting Section 364A 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. The present case was around section 364A.
2. Elements of Section 364A of the IPC
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 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 intergovernmental 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 364A is “whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction”.
The second condition begins with the conjunction “and”. The second condition has also two parts, i.e., (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 the above condition, if fulfilled, shall fulfil the second condition for the 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. The 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 of the IPC contains a heading “kidnapping for ransom, etc.
The court found that the first condition the second condition is joined by the 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.
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 conjunction “and”, which joins the first and second conditions. Thus, for covering an offence under Section 364A, apart from the fulfilment of the 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”.
The word “and” is used as conjunction. The use of the word “or” is clearly distinctive. Both the words have been used for different purposes and objects.
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.
2. The Bench Decision
A bench of Justices Ashok Bhushan and R. Subhash Reddy made the observation while setting aside the conviction of an autorickshaw driver, who had kidnapped a minor and demanded a ransom of Rs 2 lakh from his father.
The top court said that there are three essential ingredients to convict an accused under Section 364A (kidnapping for ransom) which need to be proved by the prosecution.
After noticing the statutory provision of Section 364A 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 364A are required to be proved by the prosecution.
Thus, after establishing the first condition, one more condition has to be fulfilled since, after first condition, the word used is “and”. Thus, in addition to the first condition either condition (ii) or (iii) has to be proved, failing which conviction under Section 364A cannot be sustained.
The second condition which is “and threatens to cause a 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” is relevant for consideration in this case since the appellant has confined his submission only regarding nonfulfillment of this condition. We may also notice that the appellant has filed grounds of appeal before the High Court in which following was stated in grounds No. 6 and 7:-
“6. The learned Judge failed to see that PW-2 stated that he was treated well and as such there was no threat to cause death or hurt.
7. The learned Judge should have seen that PW-1 did not state that the accused threatened to cause death or hurt to his son.”
It said the three essential ingredients are —- kidnapping or abduction of any person or keeping him in detention; threatening to cause death or hurt to such person, or the kidnapper’s conduct gives rise to a reasonable apprehension that victim may be put to death or hurt in order to compel the Government, foreign State or any Governmental organization or any other person to pay a ransom.
Referring to the punishment of life or death sentence provided for convictions under Section 364A, the top court said, “In addition to the first condition either condition (ii) or (iii) has to be proved, failing which conviction under Section 364A cannot be sustained.”
The top court was hearing an appeal filed by Telangana resident Shaik Ahmed challenging a high court order. The High Court had dismissed his plea against conviction and sentence of life imprisonment under section 364 A of the IPC.
The top court set aside the conviction under section 364 A of the IPC.
From the evidence on record regarding kidnapping, it is proved that accused had kidnapped the victim for ransom, demand of ransom was also proved. Even though offence under Section 364A has not been proved beyond reasonable doubt but the offence of kidnapping has been fully established to which effect the learned Sessions Judge has recorded a categorical finding.
The offence of kidnapping having been proved, the appellant deserves to be convicted under Section 363 (Punishment for kidnapping). 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, the bench said. The apex court said that it is satisfied that the appellant deserves to be sentenced with imprisonment of seven years and also liable to pay fine of Rs 5,000.
