Mere Demand For Ransom After Kidnapping Won’t Amount To Section 364A IPC Offence If There’s No Death Threat: SC
Introduction: The Supreme Court, in a significant judgment (Criminal Appeal No. 607 of 2024), clarified that the mere demand for ransom after kidnapping does not constitute an offense under Section 364A IPC if there is no death threat. The case involved the accused kidnapping a child and demanding ransom, leading to a detailed legal analysis.
It cannot be dismissed lightly that none other than the Apex Court Division Bench comprising of Hon’ble Mr Justice Abhay S Oka and Hon’ble Mr Justice Ujjal Bhuyan in a most learned, laudable, landmark, logical and latest judgment titled William Stephen vs The State of Tamil Nadu And Anr in Criminal Appeal No. 607 of 2024 and cited in 2024 LiveLaw (SC) 168 minced just no words to unequivocally hold that mere demand for ransom after kidnapping won’t amount to Section 364A IPC offence if there is no death threat. We thus see that the Apex Court in the fitness of things acquitted most sagaciously an accused who had been charged under Section 364A of the Indian Penal Code i.e., kidnapping for ransom after finding that the prosecution failed to establish that there was an instant threat of death to the kidnapped from the accused. We thus see that the Supreme Court rightly set aside the conviction under Section 364A but sustained the conviction for the lesser offence of kidnapping defined by Section 361 of IPC which is punishable under Section 363 of IPC. The Apex Court thus so very rightly held that, “As the appellants are in custody and as they have undergone maximum sentence for the offence punishable under Section 363 of IPC, we direct that they shall be forthwith set at liberty.”
At the very outset, this brief, brilliant, bold and balanced judgment sets the ball in motion by first and foremost putting forth in para 1 that, “These two Appeals have been preferred by the accused nos.2 and 1 respectively against the impugned judgment dated 27th July, 2016 passed by the High Court of Judicature at Madras, whereby their conviction and sentence have been confirmed. The appellants-accused have been convicted for the offence punishable under Section 364A read with Section 34 of the Indian Penal Code, 1860 (for short, “IPC”). Both of them have been sentenced to undergo life imprisonment.”
To recapitulate, the Bench observes in para 2 that, “With a view to appreciate the controversy, a brief reference to the factual aspects will be necessary. PW-1 and PW-3 are respectively the father and the mother of PW-2 (the child who is the victim of the offence). The age of the child-PW-2 at the relevant time was eight years. The child/PW-2 was taking education in third standard. After returning from the school, the child-PW-2 used to visit the house of PW-5, who was running tuition classes. The child-PW-2 used to return around 07:30 p.m.”
As we see, the Bench lays bare in para 3 that, “On 20th October, 2010, the child-PW-2 did not return from the tuition class at usual hour. The case of the prosecution is that after the tuition class was over, while the child-PW-2 was walking back towards his home, a Maruti Car came there. Two persons (appellants-accused) came out and told the child-PW-2 that his father was going to purchase a car from them and, therefore, he should accompany them. Accordingly, the child-PW-2 got into the car and was kidnapped by the appellants-accused.”
To put things in perspective, the Bench envisages in para 4 that, “The case of the prosecution is that on 20th October, 2010, from a particular cell phone number, there was a call received by PW-3 of a male person who informed her that he has kidnapped the child. He demanded ransom of Rs.5 lakhs for releasing the child. The PW-1 lodged a complaint on the same date in the night with the Police. PW-14 (who was running a shop in the locality) informed the PW-1 and PW-3 that he saw the child being taken in a Maruti Swift grey colour car. Accordingly, a First Information Report under Section 364A of IPC was registered. PW-19 is the Investigating Officer. As per the information received, PW-19 went to Pallikonda toll gate, Vellore District on 21st October, 2010. Around 12:00 noon, the car in question came towards the toll gate which was intercepted. In the car, the appellants-accused along with the child were found. PW-19 arrested the accused and rescued the child.”
As it turned out, the Bench enunciates in para 5 that, “The prosecution evidence, as can be seen from both the judgments, was in the form of the call records and the evidence of PW-1 to PW-3 and PW-19, the Investigating Officer. As far as the call records are concerned, we find that the entire evidence of the prosecution has been discarded by the High Court for want of a certificate as required under Section 65B of the Indian Evidence Act, 1872 (for short, “the Evidence Act”).”
Do note, the Bench notes in para 10 that, “The first ingredient of Section 364A is that there should be a kidnapping or abduction of any person or a person should be kept in detention after such kidnapping or abduction. If the said act is coupled with a threat to cause death or hurt to such person, an offence under Section 364A is attracted. If the first act of kidnapping or abduction of a person or keeping him in detention after such kidnapping is coupled with such conduct of the person kidnapping which gives rise to a reasonable apprehension that the kidnapped or abducted person may be put to death or hurt, still Section 364A will be attracted. In the light of this legal position, now we refer to the evidence of the child-PW-2.”
Do also note, the Bench then notes in para 11 that, “We have carefully perused the evidence of the child-PW-2, who is the victim of the offence. At the relevant time, the age of the child was eight years. In the examination-in-chief, he has given vivid account of what exactly transpired at the time of the incident. He stated thus:
“… I had been getting back home around 07.00 ‘O’ Clock at night, after attending the tuition, as usual. A Swift Car, in grey shade, bearing Reg.No.TN 05 V 7290, gave a halt by my side. There were two persons on board. They summoned me, stating that my father is going to buy a car. They took me on board. They sought the phone number of my father. I gave them my father’s phone number 98840 49011. They asked my mother’s number. I gave them my mother’s phone number 98402 58273. Subsequently, I fell asleep in the car. When I got up in the morning, I found the car in a check post. The police got them napped. The persons who took me in the car as such are the accused who are present before this Court. The car is marked as M.O.1. The police questioned me. I have recounted the turn of events.””
To be sure, the Bench observes in para 13 that, “We find from the cross-examination of the child-PW-2 that there is hardly any challenge to the main incident. In fact, a suggestion was given to him that the men who had taken him in the car are the ones who were acquaintance with him and his father. This is the defence as reflected from the cross-examination.”
It is worth noting that the Bench notes in para 14 that, “It is not brought on record by the accused that there was a prior enmity or animosity between the parents of the victim child and the accused. There was no reason for the father of the victim to falsely implicate the appellants and tutor the child to depose against them. Therefore, the case sought to be made out that the child was tutored by his father was not rightly accepted by the Courts below. Therefore, it can be said that the ‘kidnapping’ within the meaning of Section 361 of IPC was established by the prosecution. Hence, the appellants are guilty of the offence punishable under Section 363 of IPC.”
Most significantly, the Bench propounds in para 15 what constitutes the cornerstone of this notable judgment wherein it is postulated that, “The learned senior counsel appearing for the appellants were at pains to point out inconsistent versions of PW-1 and PW-3 about who received the phone call demanding ransom. However, this issue need not detain us. The details of the phone call records were produced by the Police. It is an admitted position that the Police could not trace the name of the person who was holding the cell phone number stated by both, the PW-1 and PW-3, in their examination-in-chief. Their version is that they received the call demanding ransom from the said number. The record relating to the call details has been discarded by the High Court as there was no certification under Section 65B of the Evidence Act. The call records could have been the best possible evidence for the prosecution to prove the threats allegedly administered by the accused and the demand of ransom. Even taking the evidence of PW-1 and PW-3 as correct, all that is proved is that they received a phone call from someone for demanding ransom and the person threatened to kill their son in case ransom is not paid. However, the prosecution is not able to connect the alleged demand and the threat with both the accused. Therefore, the ingredients of Section 364A of IPC were not proved by the prosecution inasmuch as the prosecution failed to lead cogent evidence to establish the second part of Section 364A about the threats given by the accused to cause death or hurt to such person. In a given case, if the threats given to the parents or the close relatives of the kidnapped person by the accused are established, then a case can be made out that there was a reasonable apprehension that the person kidnapped may be put to death or hurt may be caused to him. However, in this case, the demand and threat by the accused have not been established by the prosecution.”
Be it noted, the Bench notes in para 16 that, “Therefore, the only conclusion is that the conviction of the appellants for the offence punishable under Section 364A of IPC will have to be set aside. However, there will be a conviction for the lesser offence of kidnapping defined by Section 361 of IPC, which is punishable under Section 363 of IPC. It is not in dispute that the appellants have undergone actual incarceration for a period of more than eight years. The maximum sentence for the offences punishable under Section 363 of IPC extends to seven years with fine. The appellants have undergone more than the maximum sentence prescribed.”
Finally, the Bench then concludes by holding in para 18 that, “Therefore, the Appeals are partly allowed and the conviction and sentence of the appellants for the offence punishable under Section 364A of IPC is hereby quashed and set aside and it is held that the appellants are guilty of the offence punishable under Section 363 of IPC. As the appellants are in custody and as they have undergone maximum sentence for the offence punishable under Section 363 of IPC, we direct that they shall be forthwith set at liberty.”
In conclusion, we thus see that the Apex Court has sought to make it crystal clear that the mere demand for ransom after kidnapping won’t amount to Section 364A IPC offence if there is no death threat. It thus definitely merits no reiteration that all the Courts must certainly pay heed to what the Apex Court has held in this leading case and rule accordingly in similar such cases. No denying it!
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