#kidnapping Archives - Prime Legal

26 Jan

Section 364A IPC Requires Proof of Abduction Coupled with Ransom Demand and Life Threat for Conviction: Supreme Court

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Case Title: Neeraj Sharma v. State of Chhattisgarh

Case No: Criminal Appeal No. 1420 of 2019

Decided on: 3^rd January, 2024

CORAM: THE HON’BLE MR. JUSTICE SUDHANSHU DHULIA AND HON’BLE MR. JUSTICE SATISH CHANDRA SHARMA

Facts of the Case

The Supreme Court received two appeals challenging the High Court’s decision to uphold the conviction order of the Trial Court. The appellants had been found guilty under Sections 307, 120B, 364-A, 392, and 397 of the Indian Penal Code, 1860 (IPC), and were sentenced to life imprisonment under Section 364A. Notably, the third accused was acquitted by the Trial Court. According to the prosecution, the appellants kidnapped a Class 12th student with the intention of demanding ransom, and during the incident, they attempted to kill him. Despite suffering severe injuries, the victim managed to escape, resulting in the amputation of his right leg. The accused had lured the victim, who was staying as a paying guest, for a motorcycle ride but later assaulted him, attempting to strangle him. Believing him to be dead, the accused poured petrol on him, set him on fire, and looted his mobile phone and cash. Miraculously, the victim survived, escaped, and sought medical assistance, leading to police intervention.

Issue

The main issue is the conviction of appellants for abduction, attempted murder, and ransom demand, leading to life imprisonment, with a key legal question about the sufficiency of evidence.

Legal Provision

Section 364A of the Indian Penal Code, 1860 is an offence where kidnapping or abduction is made and a person is put to death or hurt; or a person is threatened with death or actually murdered, on demand of ransom.

Court’s analysis and decision

The Supreme Court has ruled that an offense under Section 364A of the Indian Penal Code, 1860 (IPC) does not apply if kidnapping or abduction occurs without any ransom demand. The Court resolved an appeal challenging the High Court’s affirmation of the conviction order by the Trial Court under Sections 307, 120B, 364-A, 392, and 397 of the IPC. It noted the prosecution’s failure to prove the existence of a ransom call, leading to the conclusion that the accused cannot be held liable under Section 364A IPC. Justices Sudhanshu Dhulia and Satish Chandra Sharma emphasized that Section 364A involves kidnapping or abduction resulting in a person’s death or harm, or a threat of death or murder upon a ransom demand.

The Court referred to the case of Shaik Ahmed v. State of Telangana [(2021) 9 SCC 59], highlighting three conditions to establish an offense under Section 364A. First, there must be a kidnapping or abduction. Second, there should be a threat of death or harm to the person, or the accused’s conduct must reasonably indicate such a threat. Third, the act must aim to compel the government, foreign state, intergovernmental organization, or any other person to perform or abstain from an act or pay a ransom.

The Court observed that the victim did not mention any ransom demand during examination, and the only mention in a supplementary police statement lacked substantial evidence. The Court criticized the Trial Court and High Court for overlooking this critical flaw in Section 364A evidence. It corrected the High Court’s characterization of the supplementary statement as a “dying declaration,” clarifying it as a statement under Section 162 of the Criminal Procedure Code, 1973 (CrPC).

The Bench partially allowed the appeals, changing the Section 364A conviction to Section 364 IPC with a ten-year rigorous imprisonment and a fine of Rs.10,000/- for the accused. The remaining convictions under Sections 307, 120B, 392, and 397 IPC were upheld, along with a fine of Rs.50,000/- and a compensation of Rs.5,00,000/- directed to be paid to the victim under Section 357A of CrPC. The Court thus disposed of the appeal.

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Written by- Afshan Ahmad

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3 Nov

Taking Away Of A Minor By His/Her Father Can’t Amount To Kidnapping: High Court Of Bombay

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Blog #Father, #guardian, #kidnapping, #Natural guardian

Citation: Criminal Application No.552 Of 2023

Coram: Vinay Joshi And Valmiki Sa Menezes, Jj.

Decided On: 06.10.2023.

Introduction:

This is an application seeking to quash the First Information Report in Crime No.431 of 2023 registered with the Gadge Nagar Police Station, Amravati City for the offence punishable under Sections 363 of the Indian Penal Code (‘IPC’). At the instance of the report lodged by the biological mother, crime has been registered against the biological father.

The mother in the present case has alleged that, on 29.03.2023 the applicant father forcibly took away their minor son aged 3 years, and thus committed an offence of kidnapping. Here the issue is whether a father can be booked for the offence of kidnapping for taking away his own minor child from the custody of the mother.

Facts:

The parties are here governed under Hindu law and It is contented that the applicant being a father and natural guardian of a minor, he cannot be booked for the aforesaid offence.

The explaination in the section 361 of IPC which defines kidnapping from lawful guardianship expands the word “Lawful guardian” to include any person lawfully entrusted with the care or custody of such minor or other person. However to complete the offence the person who takes away the minor must not fall within the conspectus of the terms “lawful guardian”.

And by Bare perusal of Section 6 of the Hindu Minority and Guardianship Act, 1956 conveys that for a Hindu minor, the father is a natural guardian, and after him, the mother. Sub-clause (a) only speaks about the custody of a minor up to the age of 5 years. Therefore, it is abundant clear that the applicant father is a natural guardian of a minor in absence of the order otherwise passed by a Court of competent jurisdiction.

Court’s Analysis and Judgement:

In case at hand, the applicant is a natural guardian. Moreover, he is a lawful guardian too along with the mother, therefore, in absence of any prohibition by the order of the competent Court, the applicant father cannot be booked for taking away his own minor child from the custody of his mother.

The father of a child will not come within the scope of section of 361 of the IPC, even if he takes away the child from the keeping of the mother, she may be a lawful guardian as against any other except the father or any other person who has been appointed as a legal guardian by virtue of an order of the Competent Court. So long there is no divestment of the rights of the guardianship of a father, he cannot be guilty of an offence under Section 361 of the IPC.

The effect of natural father taking away the child from custody of the mother in real sense amounts to taking a child from the lawful guardianship of the mother to the another lawful guardianship of the father. Natural father of the minor child is also a lawful guardian along with the mother, and therefore, father of the minor cannot be said to have committed the offence under Section 361 of the IPC so as to made punishable under Section 363 of the Code of Criminal Procedure.

Written by- Sushant Kumar Sharma

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5 Sep

The Bombay High Court at Goa grants bail to two accused convicted of kidnapping, based on the grounds of prolonged trial, lack of criminal precedents and no flight risk.

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The Bombay High Court at Goa grants bail to two accused convicted of kidnapping, based on the grounds of prolonged trial, lack of criminal precedents and no flight risk.

Title: Vijay and Anurag Kumar v. Police Inspector

Decided on: July 10, 2023

Citation: 2023 SCC OnLine Bom 1369

CORAM: HON’BLE JUSTICE M.S. KARNIK

Introduction

The Bombay High Court at Goa grants bail to two accused convicted of kidnapping for ransom, based on the grounds of prolonged duration of trial, lack of criminal precedents and flight risk.

Facts of the Case

This is an application for bail by each of the applicant for the offence registered vide FIR No. 18/2021 of Vasco Police Station. They have been charged with offences punishable under Sections 365, 364(A), 465, 471, 394, 120(B) read with Section 34 of IPC. The victim was kidnapped by the accused, who are 12 in number and was detained in a villa for ransom on pretext of providing visa to go to Canada. It is alleged by the victim that he was held as a hostage for ransom and was tortured. Due to alertness and smartness of the victim, an Afganistani national, who gave a clue to his fiancee, that the culprits could be apprehended.

Court Analysis and Judgement:

After taking into account the facts of the case, the Court considered the possibility of a long, stretched trial process. The Court said that the trial is likely to take a long time to conclude. The Court also found that the applicants did not appear to be flight risk and there were no criminal antecedents reported against them. Based on these grounds, the Court saw no reason to withhold their bail and granted both the applicants bail on a bond each costing rupees 25000.

Written by- Reema Nayak

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22 Aug

Bombay High Court dismisses appeal challenging the conviction order under Sec. 302 IPC

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Title: Smt. Sangita Vilas Kiwade v. State of Maharashtra

Decided on: 4th JULY 2023

CRIMINAL APPEAL NO. 619 OF 2021

CORAM: REVATI MOHITE DERE & GAURI GODSE, JJ.

Facts of the Case

The case revolves around an incident that occurred on November 18, 2010, in Mukundnagar, Dias plot Canal at Gultekdi, Pune. The appellant was allegedly involved in an illegal money-lending business and had lent a sum of Rs. 50,000 at 10% interest to the complainant two years prior to the incident. Allegedly harboring resentment over non-repayment of the loan, the appellant kidnapped the complainant’s grandchildren – Rohit (9), Rahul (7), Anmol (5), and Tejas (3). The appellant then took them in an auto-rickshaw to the canal and pushed Rohit, Rahul, and Anmol into the water, attempting to kill them. Tejas drowned in the canal, and his body was found later. The prosecution charged the appellant under sections 363 (kidnapping), 366 , 307 (attempted murder), and 302 (murder) of the Indian Penal Code (IPC) and Section 32-B(b) of the Bombay Money Lenders Act 1946.

Issues:

The main issues revolve around the credibility of the child witnesses’ testimonies, the intention of the appellant, and whether the evidence supports the charges of attempted murder, kidnapping, and money-lending without a valid license.

Contentions:

The prosecution argued that the child witnesses’ consistent accounts, along with the corroborative evidence, indicated that the appellant had lured the children with ice cream, kidnapped them, and attempted to kill them. They also emphasized the presence of the appellant’s daughter at the scene and her objections to the appellant’s actions. The prosecution asserted that the evidence established the appellant’s intent to commit the crimes.

The Respondents contended that the child witnesses’ testimonies were unreliable and possibly influenced by tutoring. They argued that inconsistencies in the evidence, as well as natural connections between the families, cast doubt on the prosecution’s version of events. They also argued that the incident might have been an unfortunate accident rather than a premeditated act.

Decision:

After examining the evidence and arguments presented by both sides, the court found the child witnesses’ testimonies to be credible and consistent. The court emphasized that the witnesses had undergone preliminary questioning to ensure their understanding and ability to provide rational answers. It ruled that their evidence, along with corroborating testimonies and other evidence, supported the prosecution’s case.

The court held that the appellant’s act of pushing the children into the canal indicated a clear intent to harm and even kill them. The court also found the evidence sufficient to establish the offense of kidnapping and upheld the appellant’s conviction for attempted murder, kidnapping, and money-lending without a valid license under relevant sections of the IPC and the Bombay Money Lenders Act.

Written by- Aparna Gupta, University Law College & Dept. of Studies in Law

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3 Jul

Delhi High court granted bail to an accused under the offence of Kidnapping, as per their authority under section 439 of CrPC.

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Title: Shah Alam vs State Govt. of NCT Delhi

Reserved: 01.06.2023

Pronounced: 07.06.2023

BAIL APPLN. 1033/2023

CORAM: HON’BLE MR. JUSTICE VIKAS MAHAJAN

Introduction

Delhi High court granted bail to an applicant under section 439 of CrPC seeking regular bail in FIR No.394/2020 under Sections 364A/365/342/323/506/102B/34 IPC.

Facts of the case

The mother of the victim on 03.09.2020 made a complaint to the police at 10:02 p.m. that the victim, her daughter, aged about 24 years went to HDFC Bank, Sector-02, Noida, U.P at about 01:30 p.m. with her ATM, passbook and cheque book and she has not returned home and despite searching for her, the victim could not be found. She suspected that some unknown person has kidnapped her daughter by luring her. On the basis of the said complaint, FIR was registered under Section 365 IPC.

The father of the victim also produced few video recordings as well as Whatsapp messages regarding the demand for ransom. On the basis of the statement of the father, Sections 364A/506/342/323/120B/34 IPC were also added in the case.

Search was made for the victim with the help of location and CDR of victim’s mobile number and the victim was recovered on 04.09.2020 from the custody of accused persons namely, Simpal Srivastav and her boyfriend Shah Alam (petitioner herein) from Village Chhalera, Sector-44, Noida (U.P). The said accused persons were arrested on 04.09.2020.

During investigation statement under Section 164 CrPC of the victim was recorded wherein she alleged that she was kidnapped by both the accused persons for ransom and she was also beaten by them. Her mobile phone was also taken by the accused person from which the calls were made and Whatsapp messages were sent demanding ransom. She was also threatened by the accused person and was wrongly confined.

Analysis of the court and decision

The Delhi High Court held that it is Suffice it to state that only the Magistrate’s powers, while handling petitions for the grant of bail, are governed by the punishment specified for the offence for which the bail is requested. An offence under section 364A IPC is punished with death or life in prison. Generally speaking, the Magistrate lacks the authority to issue bail unless the case is covered by the provisos attached to section 437 of the Code if the punishment specified is the life sentence or death penalty and the offence is only triable by the Court of Session (Prahlad Singh Bhati v. State (NCT of Delhi)) There are no such restrictions limiting the High Court’s or the Court of Session’s authority while using the Section 439 CrPC’s authority.

It could also be appropriate to cite the Hon’ble Supreme Court’s ruling in Sanjay Chandra v. CBI, (2012) 1 SCC 40, which outlined the specific conditions under which a person facing trial’s freedom could be restricted as –

“The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.”

Thus, without getting into the specifics of the case at this time, the court believes that, in light of the explanation above, the petitioner has established a case for the granting of bail. As a result, the petition is granted, and upon presenting a personal bond in the amount of Rs. 20,000/- and one surety bond in the same amount, the petitioner is permitted to bail, subject to the satisfaction of the learned Trial Court, CMM, or Duty Magistrate.

Written By – Shreyanshu Gupta

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