SHAIK AHMED versus STATE OF TELANGANA

Citation: [2021] 6 S.C.R. 462 · Decided: 28-06-2021 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Case Partly allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 6 S.C.R.
SHAIK AHMED
v.
STATE OF TELANGANA
(Criminal Appeal No. 533 of 2021)
JUNE 28, 2021
[ASHOK BHUSHAN AND R. SUBHASH REDDY, JJ.]
Penal Code, 1860: s.364A – Essential ingredients – For
covering an offence under s.364A, apart from fulfillment of first
condition i.e. “whoever kidnaps or abducts any person or keeps a
person in detention after such kidnapping or abduction”, the second
condition, i.e., “and threatens to cause death or hurt to such person”
also needs to be proved in situation the case is not covered by
subsequent clauses joined by “or”.
Penal Code, 1860: s.364A – Prosecution case was that
accused kidnapped 13 years old school boy (PW-2) and telephoned
to his father (PW-1) demanding Rs.2 lakhs for release of PW-2 –
Sessions Judge held that prosecution clearly established the guilt
of the accused for the offence under s.364A IPC and sentenced
him to undergo life imprisonment – High Court dismissed the appeal
holding that prosecution clinchingly proved the guilt of the accused
beyond all reasonable doubt for the offence punishable under
s.364A – On appeal, held: High Court did not deal with the grounds
taken before it by the accused that no threat to cause death or hurt
was extended by him – There was no finding regarding fulfillment
of second condition of s.364A – In the cross-examination, the
complainant, father of the kidnapped boy has categorically stated
that his son was not physically assaulted nor the boy complained of
bad behavior or assault – Even, PW-2, the victim himself in his
cross examination stated that he was not assaulted rather was treated
in a good manner – Thus, neither PW-1, the father of the victim nor
the victim said that any accused threatened to cause death or hurt –
Neither there was any such conduct of the accused discussed by
the courts below to give a reasonable apprehension that victim may
be put to death or hurt nor there was anything in the evidence on
the basis of which it can be held that second part of the condition
was fulfilled – The second condition having not been proved to be
[2021] 6 S.C.R. 462
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established, conviction of the appellant is unsustainable under
s.364A and is set aside – However, from the evidence on record
regarding kidnapping, it is proved that accused had kidnapped the
victim for ransom and demand of ransom was also proved – Thus,
the offence of kidnapping has been fully established to which effect
the trial court has recorded a categorical finding – Appellant is
liable to conviction under s.363.
Partly allowing the appeal, the Court
HELD: 1.1 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”.  [Para 13][471-H;
472-A-C]
1.2 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.
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
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”. The word “and” is used as conjunction. The use
SHAIK AHMED v. STATE OF TELANGANA
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SUPREME COURT REPORTS
[2021] 6 S.C.R.
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