Janjgir-Champa, Chhattisgarh v. 1 - State of Chhattisgarh Through S.H.O. P.S. Baloda District Janjgir Champa Chhattisgarh., District
Case Details
1 2025:CGHC:8883-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1196 of 2021 1 - Vishwajeet @ Raja Kurrey S/o Shri Ramphal Kurrey Aged About 22 Years R/o Village Thadgabahara, P.S. Baloda, District Janjgir Champa Chhattisgarh., District : Janjgir-Champa, Chhattisgarh --- Appellant(s) versus 1 - State of Chhattisgarh Through S.H.O. P.S. Baloda District Janjgir Champa Chhattisgarh., District : Janjgir-Champa, Chhattisgarh --- Respondent(s) CRA No. 1332 of 2021 1 - Ankit @ Atul Khandekar S/o Jagmohan Aged About 20 Years R/o Devgaon, P. S. Masturi, District Bilaspur Chhattisgarh ---Appellant(s) Versus 1 - State of Chhattisgarh Through Station House Officer, Police Station Baloda, District Janjgir Champa Chhattisgarh --- Respondent(s) For Appellant(s) : Mr. Ravindra Sharma, Advocate (CRA No. 1196/2021) Ms. Anju Ahuja, Advocate along with Mr. Palash Rajani, Advocate (CRA No. 1332/2021) For Respondent/State : Mr. Sakib Ahmad, Panel Lawyer. 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ravindra Kumar Agrawal, J. 20/02/2025 1. Both these appeals are arising out of same crime number, same sessions trial, and by a common judgment, therefore, both these appeals are being heard and decided together. 2. Both these appeals being filed by the respective appellants against the judgment of conviction and sentence dated 04.10.2021 passed by Learned Additional Sessions Judge (FTC) Janjgir, District Janjgir-Champa in Sessions Case No. 05/2021, whereby the appellants have been convicted and sentenced as under: Conviction Sentence U/s 363/34 of IPC RI for 07 years and fine amount of Rs. 500/- in default of payment of fine amount additional RI for 10 days. U/s 364-A/34 of IPC Life Imprisonment and fine amount of Rs. 5000/- in default of payment of fine amount additional RI for 100 days. Both the sentences shall concurrently. 3. Brief facts of the case are that on 04.11.2020 at about 06:30 a.m. the complainant Rajendra Kumar Kurrey (PW-1) had gone to sell the grocery items by his four wheeler mobile shop to village Shanichara Dhotla and about 10:00 a.m. when he return back, his wife has informed him that their minor son Anuj Kurre, who was playing near the shop of Abhi Chaturvedi with his friends, an unknown person took him on his motorcycle and both of them had gone towards village Mahuda at about 09:30 a.m. and have not returned. When the complainant searched him in nearby places he could not 3 found his whereabouts and then he lodged the missing report to the police station Baloda on which the offence under Section 363 of IPC has been registered against the unknown person through the FIR Ex.P/1 on 04.11.2020 about 11:00 a.m. At about 02:30 p.m., a ransom call was made in the mobile phone of the complainant from the mobile No. 9123751429 and demanded Rs. 5 lakh as ransom. When the said mobile phone was kept under surveillance, it was found that its location is changing frequently, ultimately on 04.11.2020 at about 22:30 p.m. the victim Anuj Kurre was recovered from the house of the appellant Ankit @ Atul Khandekar at village Devgaon and recovery panchnama Ex.P/7 was prepared. An identification panchnama of Ankit @ Atul Khandekar, was also prepared at 04.11.2020 at 22:35 p.m. which is Ex.P/8. From the appellant Ankit @ Atul Khandekar two mobile phones having SIM Nos. 9399153689 and 9131751429 and one motorcycle have been seized vide seizure memo Ex.P/10. On being inquiry from the appellant Ankit @ Atul Khandekar he disclosed that the appellant Vishwajeet @ Raja Kurrey is also involved in the offence then the mobile phone of Vishwajeet @ Raja Kurrey have been seized vide seizure memo Ex.P/ 9 in the mobile seized from the Vishwajeet @ Raja Kurrey SIM No. 8959581354, 9340362386 was there. The mobile phone of the complainant Rajendra Kumar Kurrey in which the SIM No. 7067968579 was there, has been seized vide seizure memo Ex.P/5. The spot map Ex.P/2 was prepared by the police and Ex.P/3 was prepared by the Patwari. 4. The victim Anuj Kurrey was sent for his medical examination to District Hospital, Janjgir where he was being medically examined by Dr. M. Jagat and no injuries have been found on the body of the victim. The police has seized the call detail record (CDR) of all the aforesaid mobile numbers and obtained customer application form (CAF). The said mobile phone seized from the accused as well as the complainant were sent to Cyber Cell, Bilaspur from where report Ex.P/21 was received. A certificate under Section 4 65-B of the Indian Evidence Act, 1872 has also been received from the Cyber Cell, Bilaspur with respect to the authenticity of the report. 5. Statement of the witnesses under Section 161 of Cr.P.C. have been recorded and statement of the victim under Section 164 of Cr.P.C. has also been recorded and after completion of usual investigation charge-sheet was filed against the appellants for the offence under Sections 363, 364-A, 34 of
Facts
IPC before the learned Judicial Magistrate First Class, Akaltara, District Janjgir-Champa. The case was committed to the Court of learned Sessions Judge, Janjgir-Champa from where it has been transferred to the learned trial Court for its trial. 6. The learned trial Court has framed charge against the appellants for the offence under Sections 363/34 and 364-A/34 of IPC. They denied the charge and claimed trial. 7. In order to prove the charge against the appellants the prosecution has examined as many as 10 witnesses. Statement of the appellants under Section 313 of Cr.P.C. have also been recorded, in which they denied the circumstance appears against them, plead innocence and have submitted that they have been falsely implicated in the offence. 8. After appreciation of oral as well as documentary evidence led by the prosecution, the learned trial Court has convicted and sentenced the appellants as mentioned in the earlier part of this judgment. Hence this appeal. 9.
Legal Reasoning
the judgment of this Court in Malleshi Vs. State of Karnataka, (2004) 8 SCC 95. The above was a case where kidnapping of a major boy was made by the accused for ransom and before this Court argument was raised that demand of ransom has not been established. In the above case, the Court referred to Section 364A and in paragraph 12 following was observed:- “12. To attract the provisions of Section 364-A what is required to be proved is: (1) that the accused kidnapped or abducted the person; (2) kept him under detention after such kidnapping and abduction; and (3) that the kidnapping or abduction was for ransom. Strong reliance was placed on a decision of the Delhi High Court in Netra Pal v. State (NCT of Delhi) [2001 Cri LJ 1669 (Del)] to contend that since the ransom demand was not conveyed to the father of PW 2, the intention to demand was not fulfilled.” 22. This court in paragraphs 13 to 15 dealt with demand for ransom and held that demand originally was made to person abducted and the mere fact that after making the demand the same could not be conveyed to some other person as the accused was arrested in meantime does not take away the effect of conditions of Section 364A. In the above case, this Court was merely concerned with ransom, hence, other conditions of Section 364A were not noticed. 23. The next judgment is Anil alias Raju Namdev Patil Vs. Administration of Daman & Diu, Daman and Another, (2006) 13 SCC 36. In the above case, this Court noticed the ingredients for commission of offence under Section 364 and 364A. Following was laid down in paragraph 55:- “55. ………………………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 18 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 intergovernmental organisation or any other person to do or abstain from doing any act or to pay a ransom.” 24. At this stage, we may also notice the judgment of this Court in Suman Sood alias Kamaljeet Kaur Vs. State of Rajasthan (2007) 5 SCC 634. In the above case, Suman Sood and her husband Daya Singh Lahoria were accused in the case of abduction. They were tried for offence under Section 364A, 365, 343 read with Section 120-B and 346 read with Section 120-B. The trial court convicted the appellant for offence under Sections 365 read with 120-B, 343 read with 120-B and 346 read with 120- B. She was, however, acquitted for offence punishable under Section 364- A. Her challenge against conviction and sentence for offences punishable under Sections 365 read with 120- B, 343 read with 120-B and 346 read with 120-B IPC was negatived by the High Court. But her acquittal for offences punishable under Sections 364-A read with 120-B was set aside by the High Court in an appeal and she was also convicted for the offence under Section 364A and was sentenced to life imprisonment. In the appeal filed by her challenging her conviction under Section 364A, this Court dealt with acquittal of Suman Sood under Section 364A by trial Court. In Paragraph 64 this court noticed as follows:- “64. According to the trial court, the prosecution had failed to prove charges against Suman Sood for an offence punishable under Sections 364-A or 364-A read with 120-B IPC “beyond reasonable doubt” inasmuch as no reliable evidence had been placed on record from which it could be said to have been established that Suman Sood was also a part of “pressurise tactics” or had terrorised the victim or his family members to get Devendra Pal Singh Bhullar released in lieu of Rajendra Mirdha. The trial court, therefore, held that she was entitled to benefit of doubt.” 25. The findings of trial court that no reliable evidence had been placed on record from which it could be said to have been established that Suman Sood was also a part of pressurise tactics or has terrorized the victim or his family. This court approved the acquittal of Suman Sood by trial court and set aside the order of the High Court convicting Suman Sood. In paragraph 71 following was held by this Court:- “71. On the facts and in the circumstances in its entirety and considering the evidence as a whole, it cannot be said that by acquitting Suman Sood for offences punishable under Sections 364-A read with 120-B IPC, the trial court had acted illegally or unlawfully. The High Court, therefore, ought not to have set aside the finding of acquittal of accused Suman Sood for an offence under Sections 364-A read with 120-B IPC. To that extent, therefore, the order of conviction and sentence recorded by the 19 High Court deserves to be set aside.” 26. Thus, the trial court’s findings that there was no evidence that Suman Sood was part of pressurize tactics or terrorized the victim or his family members, hence, due to non-fulfillment of the condition as enumerated in Section 364A, the trial court recorded the acquittal, which has been confirmed by this Court. The above case clearly establishes that unless all conditions as enumerated in Section 364A are fulfilled, no conviction can be recorded. 27. Now, we come to next judgment, i.e., Vishwanath Gupta Vs. State of Uttaranchal (2007) 11 SCC 633. In the above case, the victims were abducted from district of Lucknow, State of U.P. demands for ransom and threat was extended from another district, i.e., Nainital and the victim was done to death in another district, i.e., Unnao in the State of U.P. This Court had occasion to consider the ingredients of Section 364A and in paragraphs 8 and 9, the following was laid down:- “8. According to Section 364-A, whoever 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 Penal Code. Any of the three ingredients can take place at one place or at different places. In the present case the demand of the money with the threat perception had been made at (Haldwani) Nainital. The deceased were kidnapped at Lucknow and they were put to death at Unnao. Therefore, the first offence was committed by the accused when they abducted Ravi Varshney and Anoop Samant at Lucknow. Therefore, Lucknow court could have territorial jurisdiction to try the case.” 28. This Court in the above case , laid down that there are three stages in the Section, one is kidnapping or abduction, second is threat of death coupled with demand of money and third when the demand is not met, then causing death. The Court held that if the three ingredients are available that will constitute the offence under Section 364 of the IPC. Dealing with Section 364A in context of above case, following was laid down in paragraph 17:- “17. ……………But here, in the case of Section 364-A something 20 more is there, that is, that a person was abducted from Lucknow and demand has been raised at Haldwani, Nainital with threat. If the amount is not paid to the abductor then the victim is likely to be put to death. In order to constitute an offence under Section 364-A, all the ingredients have not taken place at Lucknow or Unnao. The two incidents took place in the State of Uttar Pradesh, that is, abduction and death of the victims but one of the ingredient took place, that is, threat was given at the house of the victims at Haldwani, Nainital demanding the ransom money otherwise the victim will be put to death. Therefore, one of the ingredients has taken place within the territorial jurisdiction of Haldwani, Nainital. Therefore, it is a case wherein the offence has taken place at three places i.e. at Haldwani, Nainital, where the threat to the life of the victim was given and demand of money was raised, the victim was abducted from Lucknow and he was ultimately put to death at Unnao. ………………….” 29. Next case which needs to be noticed is a Three Judge Bench Judgment of this Court in Vikram Singh alias Vicky and Anr. Vs. Union of India and Ors., (2015) 9 SCC 502. In the above case, this Court elaborately considered the scope and purport of Section 364A including the historical background. After noticing the earlier cases, this Court laid down that section 364A has three distinct components. In Paragraph 25, following was laid down with regard to distinct components of Section 364A:- “25. …………….Section 364-A IPC has three 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…………………...” 30. We may also notice one more Three Judge Bench Judgment of this Court in Arvind Singh Vs. State of Maharashtra, (2020) SCC Online SC 400. In the above case, an eight year old son of Doctor Mukesh Ramanlal Chandak (PW1) was kidnapped by the accused A1 and A2. Accused A1 was an employee of Dr. Chandak. It was held that A1 had grievance against Dr. Chandak. A2 who accompanied A1 when the boy was kidnapped and after the kidnapping of the boy it was found that boy was murdered and at the instance of A1, the dead body was recovered from a bridge constructed over a Rivulet. Trial court had sentenced both A1 and A2 to death for the offences punishable under Sections 364A read with 34 and 302 read with 34. The High Court had dismissed the appeal affirming the death sentence. On behalf of A2, one of the arguments raised before this Court was that although child was kidnapped for ransom but there was no intention to take the life of the child, therefore, offence under Section 21 364A is not made out. This Court noticed the ingredients of Section 364A, one of which was “threatening to cause death or hurt” in paragraphs 90, 91 and 92, the following was observed:- “92. An argument was raised that the child was kidnapped for ransom but there was no intention to take life of the child, therefore, an offence under Section 364A is not made out. To appreciate the arguments, Section 364A of the IPC is reproduced as under: “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 intergovernmental organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.” 93. Section 364A IPC has three ingredients relevant to the present appeals, one, the fact of kidnapping or abduction, second, threatening to cause death or hurt, and last, the conduct giving rise to reasonable apprehension that such person may be put to death or hurt. 94. The kidnapping of an 8-year-old child was unequivocally for ransom. The kidnapping of a victim of such a tender age for ransom has inherent threat to cause death as that alone will force the relatives of such victim to pay ransom. Since the act of kidnapping of a child for ransom has inherent threat to cause death, therefore, the accused have been rightly been convicted for an offence under Section 364A read with Section 34 IPC. The threat will remain a mere threat, if the victim returns unhurt. In the present case, the victim has been done to death. The threat had become a reality. There is no reason to take different view that the view taken by learned Sessions Judge as well by the High Court.” 31. We need to refer to observations made by Three Judge Bench in paragraph 92 where this Court observed that kidnapping of an eight year old victim for ransom has inherent threat to cause death as it alone will force the relatives of victim to pay ransom. The Court further held that since the act of kidnapping of a child has inherent threat to cause death, therefore, the accused have been rightly convicted for an offence under Section 364A read with Section 34 IPC. In the next sentence, the Court held that the threat will remain a mere threat, if the victim returns unhurt, “the victim has been done to death the threat has become a reality”. 32. The above observation made by Three Judge Bench has to be read in context of the facts of the case which was for consideration before this Court. No ratio has been laid down in paragraph 92 that when an eight 22 year old child (or a child of a tender age) is kidnapped/abducted for ransom there is inherent threat to cause death and the second condition as noted above, i.e., threatens to cause death or hurt to such person, is not to be proved. The observations cannot be read to mean that in a case of kidnapping or abduction of an eight year old child (or child of a tender age), presumption in law shall arise that kidnapping or abduction has been done to cause hurt or death. Each case has to be decided on its own facts. In the foregoing paragraphs, we have noticed that all the three distinct conditions enumerated in Section 364A have to be fulfilled before an accused is convicted of offence under Section 364A. Thus, the observations in paragraph 92 may not be read to obviate the establishment of second condition as noticed above for bringing home the offence under Section 364A. 33. 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 which are required to be proved by 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 organization or any other person to do or 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 364A cannot be sustained." 41. Now, coming to the second part of the condition No.2, i.e., “or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt”. Neither there is any such conduct of the accused discussed by the Courts below, which may give a reasonable apprehension that victim may be put to death or hurt nor there is anything in the evidence on the basis of which it can be held that second part of the condition is fulfilled. We, thus, are of the view that evidence on record did not prove fulfillment of the second condition of Section 364A. Second condition is also a condition precedent, which is requisite to be satisfied to attract Section 364A of the IPC. 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 364A IPC. We, thus, set aside the conviction of the appellant under Section 364A. However, from the evidence on record regarding kidnapping, it is proved that accused had kidnapped the victim for ransom, demand of ransom was 23 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 in paragraphs 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. " 27. In the matter of Ravi Dhingra vs. State of Haryana reported in 2023 (6) SCC 76 that the prosecution must prove beyond reasonable doubt that the act of kidnapping should have been coupled with demand and ransom with the threat to life of a person who has been kidnapped, the Hon'ble Supreme Court in para 23, 24 and 25 has held as under: 23. This Court, notably in Anil vs. Administration of Daman & Diu, (2006) 13 SCC 36 (“Anil”), Vishwanath Gupta vs. State of Uttaranchal (2007) 11 SCC 633 (“Vishwanaths Gupta”) and Vikram Singh vs. Union of India, (2015) 9 SCC 502 (“Vikram Singh”) has clarified the essential ingredients to order a conviction for the commission of anoffence under Section 364A of the IPC in the following manner: 23.1. 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 364A of the IPC when the charge framed was under Section 364 read with Section 34 of the IPC. 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.
Arguments
Ms. Anju Ahuja, learned counsel appearing for the appellant- Ankit @ Atul Khandekar in (CRA No. 1332/2021) would submit that the prosecution has failed to prove its case beyond reasonable doubt. There are material omissions and contradictions in the evidence of prosecution witnesses which cannot be made basis for conviction of the appellant in the alleged offence in question. She would submits that there is no sufficient evidence on record that the victim boy was recovered from the possession of the present 5 appellant rather he was also in search of the victim body along with his family members. There is no test identification parade conducted by the prosecution to identify the actual culprit. There is also no evidence with respect to any ransom call made by the present appellant. The mobile call detail is not sufficient to hold that the present appellant has made ransom call to the father of the victim body, therefore, there is no evidence that the victim boy was kidnapped for ransom by the present appellant , therefore, he is entitled for acquittal. 10. Mr. Ravindra Sharma, learned counsel appearing for the appellant- Vishwajeet @ Raja Kurrey in (CRA No. 1196/2021) would submit that the victim body was not recovered from the possession of the present appellant Vishwajeet @ Raja Kurrey and it is alleged that when the co-accused Ankit @ Atul Khandekar disclosed the name of present appellant, he has been made accused in the case and his mobile phone has also been seized whereas the present appellant Vishwajeet @ Raja Kurrey is no nexus with the offence in question. There is no identification of the present appellant Vishwajeet @ Raja Kurrey he too have kidnapped the victim boy for ransom. The material witnesses have not supported the prosecution case. He would also submits that the mobile call detail is not sufficient to hold that the present appellant has made ransom call in absence of any voice frequency test. He would further submits that the ingredients of Section 364-A of IPC is missing in the case, therefore, there is lack of cogent and clinching evidence against the appellant and he is also entitled for acquittal. 11. Per contra, learned counsel for the State opposes the submissions made by learned counsel for the appellants and submitted that the prosecution has proved its case beyond reasonable doubt against the appellants. But for minor omissions and contradictions the evidence of prosecution witnesses are fully reliable. The victim (PW-2) and her father (PW-1) and other witnesses have duly supported the case of the prosecution. When the victim 6 himself has supported and identify the person who have kidnapped him and his evidence is reliable, the same is not required to be corroboration from other evidence. The ransom call has been proved by the parents of the victim boy (PW-1) and (PW-4). The victim boy was recovered from village Devgaon from the house of the appellant Ankit @ Atul Khandekar. From the call detail report, it has also proved that at the relevant point of time the accused persons have closely connected with the mobile phone, they have made a ransom call to the mobile phone of the complainant. Therefore, there is sufficient evidence available on record and the learned trial Court after considering the evidence available on record, rightly convicted the appellants for the offence in question and their appeals are liable to be dismissed. 12. We have heard learned counsel for the parties and perused the record of the case with utmost circumspection. 13. PW-2, Anuj Kurrey, who is the victim of the offence, have stated in his evidence that on the date of incident in the morning hour, when he was playing near his shop along with his friends, a person came there on his motorcycle and said him that his father is asked for diesel. When he refused to go with him he took him on his motorcycle to a house but he did not know where he has taken him. In the night police persons came there and took him back to his parents. He pointing towards the appellant Ankit @ Atul Khandekar that he is the person who took him on his motorcycle. In cross- examination he stated that he saw the appellant Ankit @ Atul Khandekar first time in the police station and the police persons have informed his name as Ankit @ Atul Khandekar and he has never seen him (Ankit @ Atul Khandekar) before in the village. The person who took him on his motorcycle has completely covered his face by cloth except his eyes. The police has shown the appellant Ankit @ Atul Khandekar to him in the police station and stated that he is the person who took him on his motorcycle. 7 14. This witness/victim has not stated anything about the appellant Vishwajeet @ Raja Kurrey or any point of time, he joined with Ankit @ Atul Khandekar and at the time when he recovered by the police persons the co-accused Vishwajeet @ Raja Kurrey was also there. He even have not stated that on the way, appellant Vishwajeet was also met them and both the accused persons took him to an isolated house. He kept completely silent about other accused Vishwajeet @ Raja Kurrey. 15. PW-1, Rajendra Kumar Kurrey who is the father of the victim have stated in his evidence that on the date of incident he had gone to village Shanichara at about 06:00 a.m. to sell grocery items in his four wheeler mobile shop at about 10:00 a.m. when he return back to his house his wife informed that his minor son Anuj Kurrey was being taken by a person on his motorcycle and they have gone towards village Mahuda. When he could not found his whereabouts despite his search, he lodged the report to the police Ex.P/1. The police has seized his mobile phone vide Ex.P/5. He further stated that on the same day at about 02:00 p.m. he received a ransom call from an unknown person and he demanded Rs. 5 lakh and informed that his son is with him and he called him at Janjgir along with the ransom money. He again made a telephonic call in the evening and asked about the amount of ransom then he called him at Akaltara. Since he is receiving repeated calls, he informed it to the police and thereafter on the basis of towar location of the mobile phone the police traced his son and recovered his son from the house of the Ankit @ Atul Khandekar. 16. In cross-examination he admitted that he had not gone with the police to the place from where his son was recovered. He further admitted that due to missing of his minor son, all his well-wishers were in search of the minor victim by their own means and mobile phones. Admittedly this witness was not present in his house when the victim was being kidnapped. It comes in his evidence that when he return back from his work at about 10:00 a.m. he 8 was being informed by his wife about missing of the minor victim and then at about 02:00 p.m. he received ransom call of Rs. 5 lakh and called him at Janjgir. In the evening again he received ransom call and asked him to come to Akaltara he has not stated in his evidence that any threatening was given to him that if he will not give the ransom money, his son will be murdered or he would face any consequence. 17. PW-4,Usha Bai is the mother of the victim, she stated in her evidence that on the date of incident her minor son was playing outside of the shop and as and when she came from godown, she could not found her minor son there. Abhi Chaturvedi has informed him that her son was being taken by a person on his motorcycle who covered his face. She tried to search him but could not found when her husband came there she informed the incident to her husband and thereafter they lodge the police report. She too have stated at about 02:00 p.m. a ransom call was received in the mobile phone of her husband and they immediately informed it to the police. Thereafter, the police started tracing of location and ultimately taken her son back in the night. On the next day in the SP Office, the appellant Ankit @ Atul Khandekar has admitted that he made a ransom call and demanded Rs. 5 lakh. In cross-examination she stated that the Ankit @ Atul Khandekar has admitted at SP Office that he made ransom call and demanded Rs. 5 lakh have been disclosed in her police statement Ex.D/1 and if it is not there she could not tell the reason. She too have admitted that the police persons have shown them the accused persons that they have kidnapped her son. She too have admitted on being information given by the police she came to know about the appellant Ankit @ Atul Khandekar. 18. PW-5, Devi Dayal Kurrey is the person who accompanied with PW-1 Rajendra Kumar Kurrey when they have gone to sell grocery item on their four wheeler mobile shop. When they received information about missing of the son of the complainant, they started searching him. But they could not 9 found him. Subsequently, Rajendra has made a telephonic call to him that his son is recovered. He denied that the victim boy was recovered in his presence but admitted his signature in recovery panchnama Ex.P/7. At this stage he has declared hostile and not supported the prosecution case. 19. PW-6, Abhishek, aged about 6 years, is the body who was playing with the victim Anuj Kurrey. He stated in his evidence that on the date of incident when he along with Anuj Kurrey were playing, a person came there and took Anuj Kurrey on his motorcycle by saying that his father is in need of diesel. He stated in his evidence that he did not know the appellant Vishwajeet @ Raja Kurrey as well as Ankit @ Atul Khandekar. In cross-examination he further stated that he could not identify the person who has taken his friend Anuj Kurrey with him. Since his face was covered by gamcha he could not identify him. 20. PW-7, Vinod Mandavi who is the Inspector of Police have stated in his evidence that he conducted the investigation and recovered the victim boy Anuj Kurrey from the possession of Ankit @ Atul Khandekar and prepared recovery panchnama Ex.P/7. The identification panchnama Ex.P/8 and was also prepared. He proved the part of the investigation which he has conducted. He admitted in his cross-examination that in the entire investigation except Abhishek Chaturvedi, there is no other eye-witnesses. He further admitted that during the investigation he came to know that the appellant Vishwajeet @ Raja Kurrey was also in search of the victim boy as he is his uncle. He further admitted that on 04.11.2020 victim boy was in his house along with his parents and his parents have taken him to the police station on 05.11.2020. He admitted that on 04.11.2020 he has not recorded the statement of the victim boy and his friend Abhishek. He further admitted that he has not seized any document with respect to the ownership of the house from where the victim was recovered and has not called its owner during the investigation. There is no witness in the case from village Devgaon. 10 21. PW-8, Kapil Ram Sahu is the Assistant Sub Inspector of Police who recorded the FIR Ex.P/1 with respect to the missing of the minor boy Anuj Kurrey. 22. PW-9, Prabhakar Tiwari is the Sub Inspector posted at Cyber Cell, Bilaspur he stated in his evidence that the police has sent the mobile phones which have been seized in Crime No. 369/2020 registered at police station Baloda, District Jajgir-champa. He examined those mobile phones by advance logical method and recovered the data from it. He sent the relevant report along with the certificate under Section 65-B of the Evidence Act which is Ex.P/ 21 and the certificate of Section 65-B of the Evidence Act is Ex.P/22. As per the data recovered from the mobile phones. The conversation between mobile Nos. 9399153689 and 7067968579 were recovered. The data of the mobile No. 8959581354 and 9131751429 with respect the incoming and outgoing calls have also been recovered and sent it to Janjgir police. In cross-examination he admitted that it has not been informed to him which was the owners of the article A, B and C i.e. mobile phones. He would further admitted that before opening the articles he has not prepared any panchnama. 23. PW-10, Manoj Tigga is the Head Constable and posted as in-charge Cyber Cell, Office of Superintendent of Police have stated in his evidence that the mobile phone seized by the Baloda police have been received for its forensic examination in sealed condition and it was marked as A, B and C. He has not tempered or change on its nature and it was sent to Cyber Cell, Bilaspur there the person came from Baloda police and his certificate Ex.P/25. In cross-examination he admitted that who is the owner of the said mobile phone and who is using that mobile phone, he did not tell. He further admitted that if the person purchased mobile phone and instead of his own name if he feeded any other name, the same name would be reflected in 11 truecaller. From all these evidence it comes on record that on 04.11.2020 the victim boy Anuj Kurrey (PW-2) aged about 6 years was being kidnapped by the accused persons who took him to village Devgaon in the house of appellant Ankit @ Atul Khandekar from where he was recovered by the police. From the mobile call details it also come that the accused person were closely connected with each other at the relevant point of time and on the basis of the mobile tower location of the accused persons he was recovered from the house of the appellant Ankit @ Atul Khandekar. There is no force used by the accused persons against the victim boy and there is no evidence that they have committed marpeet with him or tortured him in any manner. From the evidence came on record it cannot be said that the appellants have not kidnapped the victim boy and kept him away from his lawful guardianship. The kidnapping is defined in Section 361 of IPC and punishment is defined under Section 363 of IPC which reads ad under: 361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] 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 illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. 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. 24. From the definition given in Section 361 of I.P.C., it is amply clear that if any person takes any minor under 16 years of age out of keeping of the lawful guardian of such minor without the consent of such guardian is said to 12 kidnap such minor from lawful guardianship. In the present case although he is one of his relative in presence of his parents, the appellant cannot be considered to be the guardian of the minor victim and when he forcefully took him without any consent of her guardian/parents, the appellant is definitely guilty for the offence of kidnapping as provided under Section 361 of I.P.C. 25. So far as the kidnapping for ransom is concerned, the offence is defined under Section 364-A of the I.P.C. which reads as under: 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 organisation or any other person] to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.] 26. In the matter of Shaik Ahmed vs. State of Telangana 2021 (9) SCC 59, the Hon'ble Supreme Court has considered the pre-requisite of Section 364-A which has to be satisfy before convicting the accused for the offence and held in Para 9 to 33 and 41, 42 that:- 9.The Law Commission of India took up the revision of Indian Penal Code and submitted its report, i.e., 42nd Report (June, 1971). In Chapter 16, offences affecting the human body was dealt with. The chapter on kidnapping and abduction was dealt by the Commission in paragraphs 16.91 to 16.112. Section 364 and 364A was dealt by the Commission in paragraphs 16.99 to 16.100 which are as follows:- “16.99. Section 364-Amendments proposed.- punishes the offence of kidnapping or abduction of a person in order to murder him, the maximum punishment being imprisonment for life or for ten years. In view of our general recommendation as to imprisonment for life, we propose that life imprisonment should be omitted and term imprisonment increased to 14 years. The illustrations to the section do not elucidate any particular ingredient of the offence and should be omitted. 16.100. Section 364-A-Kidnapping or abduction for ransom- We consider it desirable to have a specific section to punish 13 severely kidnapping or abduction for ransom, as such cases are increasing. At present, such kidnapping or abduction is punishable under section 365 since the kidnapped or abducted person will be secretly and wrongfully confined. We also considered the question whether a provision for reduced punishment in case of release of the person kidnapped without harm should be inserted, but we have come to the conclusion that there is no need for it. We propose the following section:- “364-A. Kidnapping or abduction for ransom .—Whoever kidnaps or abducts any person with intent to hold that person for ransom shall be punished with rigorous imprisonment for a term which may extend to 14 years, and shall also be liable to fine.” 10. Although the Law Commission has in paragraph 16.100 proposed Section 364A, which only stated that whoever kidnaps or abducts any person with intent to hold that person for ransom be punished for a term which may extend to 14 years. Parliament while inserting Section 364A by Act No.42 of 1993 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 by Act No.24 of 1995. 11. Section 364A as it exists after amendment is as follows:- “364A. 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 organisation or any other person to do or abstain from doing any act or to pay a ransom, shall be punishable with death, or imprisonment for life, and shall also be liable to fine.” 12. We may now look into section 364A to find out as to what ingredients the Section itself contemplate for the offence. 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 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 364A is “whoever 14 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”. Section 364A contains a heading “kidnapping for ransom, etc.” The kidnapping by a person to demand ransom is fully covered by Section 364A. 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 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”. 15. The word “and” is used as conjunction. The use of word “or” is clearly distinctive. Both the words have been used 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 cojunctive words, and vice versa, if such action adversely affects the accused.” 16. We may also notice certain judgments of this court where conjunction “and” has been used. In Punjab Produce and Trading Co. Ltd. Vs. The CIT, West Bengal, Calcutta (1971) 2 SCC 540, this Court had occasion to consider Section 23-A Explanation b(iii) of Income Tax Act, 1922 which provision has been extracted in paragraph 5 of the judgment which is to the following effect:- “Explanation. — For the purposes of this section a company shall be deemed to be a company in which the public are substantially interested— (a) If it is a company owned by the Government or in which not less than forty per cent of the shares are held by the Government. (b) If it is not a private company as defined in the Indian Companies Act, 1913 (7 of 1913) and— 15 (i) its shares (not being shares entitled to a fixed rate of dividend, whether with or without a further right to participate in profits) carrying not less than fifty per cent of the voting power have been allotted unconditionally to, or acquired unconditionally by, and were throughout the previous year beneficially held by the public (not including a company to which the provisions of this section apply): Provided that in the case of any such company as is referred to in sub-section (4), this sub-clause shall apply as if for the words ‘not less than fifty per cent’ the words ‘not less than forty per cent’, had been substituted; (ii) the said shares were at any time during the previous year the subject of dealing in any recognised stock exchange in India or were freely transferable by the holder to other members of the public; and (iii) the affairs of the company or the shares carrying more than fifty per cent of the total voting power were at no time during the previous year controlled or held by less than six persons (persons who are related to one another as husband, wife, lineal ascendant or descendant or brother or sister, as the case may be, being treated as a single person and persons who are nominees of another person together with that other person being likewise treated as a single person: Provided that in the case of any such company as is referred to in sub-section (4), this clause shall apply as if for the words ‘more than fifty per cent’, the words ‘more than sixty per cent’, had been substituted.” 17. This Court held following in paragraph 8:- “8. …………………...The clear import of the opening part of clause (b) with the word “and” appearing there read with the negative or disqualifying conditions in sub-clause (b)(iii) is that the assessee was bound to satisfy apart from the conditions contained in the other sub- clauses that its affairs were at no time during the previous year controlled by less than six persons and shares carrying more than 50 per cent of the total voting power were during the same period not held by less than six persons……………………….” 18. In another judgment, Hyderabad Asbestos Cement Products and Anr. Vs. Union of India, (2000) 1 SCC 426, this Court had occasion to consider Rule 56-A of Central Excise Act, 1944. The Court dealt with interpretation of conjunctive and disjunctive “and”, “or”. Proviso to Rule 56-A also uses the conjunctive word “and”. The Provision of the Rule as quoted in paragraph 4 is as below:- “56-A. Special procedure for movement of duty-paid materials or component parts for use in the manufacture of finished excisable goods.—(1) Notwithstanding anything contained in these rules, the Central Government may, by notification in the Official Gazette, specify the excisable goods in 16 respect of which the procedure laid down in sub-rule (2) shall apply. (2) The Collector may, on application made in this behalf and subject to the conditions mentioned in sub-rule (3) and such other conditions as may, from time to time, be prescribed by the Central Government, permit a manufacturer of any excisable goods specified under sub-rule (1) to receive material or component parts or finished products (like asbestos cement), on which the duty of excise or the additional duty under Section 2-A of the Indian Tariff Act, 1934 (32 of 1934), (hereinafter referred to as the countervailing duty), has been paid, in his factory for the manufacture of these goods or for the more convenient distribution of finished product and allow a credit of the duty already paid on such material or component parts or finished product, as the case may be: . Provided that no credit of duty shall be allowed in respect of any material or component parts used in the manufacture of finished excisable goods— (i) if such finished excisable goods produced by the manufacturer are exempt from the whole of the duty of excise leviable thereon or are chargeable to nil rate of duty, and (ii) unless— (a) duty has been paid for such material or component parts under the same item or sub-item as the finished excisable goods; or (b) remission or adjustment of duty paid for such material or component parts has been specifically sanctioned by the Central Government: Provided further that if the duty paid on such material or component parts (of which credit has been allowed under this sub- rule) be varied subsequently due to any reason, resulting in payment of refund to, or recovery of more duty from, the manufacturer or importer, as the case may be, of such material or component parts, the credit allowed shall be varied accordingly by adjustment in the credit account maintained under sub-rule (3) or in the account- current maintained under sub-rule (3) or Rule 9 or Rule 178(1) or, if such adjustment be not possible for any reason, by cash recovery from or, as the case may be, refund to the manufacturer availing of the procedure contained in this rule.” 19. This court held that when the provisos 1 & 2 are separated by conjunctive word “and”, they have to be read conjointly. The requirement of both the proviso has to be satisfied to avail the benefit. Paragraph 8 is as follows:- “8. The language of the rule is plain and simple. It does not admit of any doubt in interpretation. Provisos (i) and (ii) are separated by the use of the conjunction “and”. They have to be read conjointly. The requirement of both the provisos has to be satisfied to avail the benefit. Clauses (a) and (b) of proviso (ii) are separated by the use of an “or” and there the availability of one of the two 17 alternatives would suffice. Inasmuch as cement and asbestos fibre used by the appellants in the manufacture of their finished excisable goods are liable to duty under different tariff items, the benefit of pro forma credit extended by Rule 56-A cannot be availed of by the appellants and has been rightly denied by the authorities of the Department.” 20. Thus, applying the above principle of interpretation on condition Nos. 1 & 2 of Section 364A which is added with conjunction “and”, we are of the view that condition No.2 has also to be fulfilled before ingredients of Section 364A are found to be established. Section 364A also indicates that in case the condition “and threatens to cause death or hurt to such person” is not proved, there are other classes which begins with word “or”, those conditions, if proved, the offence will be established. The second condition, thus, as noted above is divided in two parts- (a) and 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. 21. Now, we may look into few cases of this Court where different ingredients of Section 364A came for consideration. We may first notice
Decision
55. The ingredients for commission of offence under Section 364 and 364-A are different. Whereas the intention to 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 24 international inter-governmental organization 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 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.” 23.2. b) In Vishwanath Gupta, it was observed as under: “8. According to Section 364-A, whoever 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 Penal Code. Any of the three ingredients can take place at one place or at different places.” 23.3. In Vikram Singh, it was observed as under: 25. … Section 364-A IPC has three 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 IPC. The deficiency in the existing legal framework was noticed by the Law Commission and a separate provision in the form of Section 364-A IPC 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 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. 24. Most recently, this Court in SK Ahmed has emphasised that Section 364A of the IPC has three stages or components, namely, 25 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. 25. 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 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 abstain from doing any act or to pay a ransom. Third condition begins with the words “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 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 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 26 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.” x x x 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 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.” 28. In the matter of Rajesh and Another vs. State of Madhya Pradesh reported in 2023 (15) SCC, 521, the Hon'ble Supreme Court held that there should be the evidence placed on record to establish the demand of ransom. The Hon'ble Supreme Court in para 45, 46 and 47 has held as under: 45. The proverbial last nails in the coffin of the prosecution’s case, if at all needed, are the shocking lapses and the slipshod investigation on the part of the police. It is on record that when the Investigating Officer (PW-16) undertook the first search of Om Prakash Yadav’s house under Ex. P-37 Panchnama, nothing was found. However, a later search with the aid of Brijesh Yadav led to the seizure of two mobile phones from a trunk in one of the rooms of Om Prakash Yadav’s house. As to why these phones were not found during the first search is not explained. That apart, Shaival @ Bambam (PW-9), a witness to the seizure of the phones, claimed that there were no SIM cards in the mobiles but candidly admitted that they did not open the mobiles and look inside. He said that they did not try to operate the mobiles or see the numbers inside and that both the phones were turned off. The self-contradictory deposition of this witness does not aid the dubious investigative process adopted by the police. 46. As regards the call data and the ransom calls, we may note that Santosh Jadhav, Assistant Nodal Officer, Reliance Communication, was examined as PW-17 and spoke of the call data of mobile number 8305620342 from which the ransom calls were made. According to him, the SIM card with the said mobile number was given to one Bhuraji, son of Deepu, whose address was House No. 433, Sanjay Gandhi Ward, Tehsil Jabalpur. He produced Bhuraji’s ‘Customer Application Form’ along with 27 his attached Election ID card. These documents were marked as Ex. D6. The call data of 28.03.2013 showed that this SIM card was used on the mobile handset with IMEI No. 358327028551270. He marked in evidence Ex. P35 in that regard. Therefore, the mobile number from which ransom calls were made was in the name of one Bhuraji, s/o Deepu, and his address was available. However, the police did not even attempt to contact Bhuraji or examine him to find out how and why his SIM card was used for making the ransom calls. 47. Even more startling is the fact that, though PW-17 placed on record actual proof of the allotment of this mobile number to Bhuraji (Ex. D6), no such steps were taken by the police to establish the link between Om Prakash Yadav and mobile number 9993135127, which was attributed to him. PW-15 baldly stated that the said mobile number was allotted to Om Prakash Yadav but did not mark in evidence any document in proof thereof. Surprisingly, he had stated in his deposition that he had brought the certified copy of the application form and the ID used when this SIM card was allotted to the subscriber, Om Prakash Yadav, but the same were not marked. In effect, no palpable connection is established between the said mobile number and Om Prakash Yadav. In the absence of such a tangible link, the call data report (Ex. P31) and the contents thereof are practically useless in establishing the prosecution’s case that the ransom calls were made from Om Prakash Yadav’s mobile phone handset by inserting Bhuraji’s SIM card, with mobile number 8305620342, therein." 29. In another matter of William Stephen vs. The State of Tamil Nadu and Another reported in 2024 INSC 146, the Hon'ble Supreme Court has observed in para 10 of its judgment as under: "10. 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." 30. In the present case (PW-1) has stated in his evidence that at about 02:00 p.m. he received a ransom call and he demanded Rs. 5 lakh and asked him to come to Janjgir. He has not disclosed in his evidence as to from which mobile number he received the ransom call. In the evening he again received a ransom call and asked him to come to Akaltara and then he informed the police about the same. He has not stated anything about any threatening given to him that if he would not give the ransom, his son would be murdered or he will face its consequence. Even the mother of the victim 28 (PW-4) Usha Bai have not stated about any threatening to them. Although the mobile call details are there in the case but what conversation they have been made it has not been proved. It is also came on record that the accused Vishwajeet @ Raja Kurrey is the uncle of the victim boy the parties are closely related and it has also come that he too have engaged in search of the victim boy. The telephonic call by the mobile phone of the accused Vishwajeet @ Raja Kurrey to any of the persons, the same cannot be connected that a ransom call was being made by him or he connected with the other co-accused in the commission of the offence. 31. From the evidence of the victim (PW-2), his father (PW-1), his mother (PW- 4) and other evidences clearly reveals that the appellants are not threatened the victim nor any ransom call was made in his presence and he is unaware about the ransom call, therefore, in the facts and circumstances of the case, in absence of any clinching evidence with respect to the demand of ransom and ransom call allegedly made to the father of the victim, the appellants cannot be convicted for kidnapping for ransom rather they can be convicted only for kidnapping the minor boy which is punishable under Section 363 of IPC, therefore, this Court is of the opinion that the prosecution has able to prove the offence against the appellants only under Section 363 of IPC and the prosecution has failed to prove the offence under Section 364-A of IPC against the appellants. Therefore, the conviction and sentence against the appellants for the offence under Section 364-A/34 of IPC are hereby set aside and they have been acquitted from that offence, however, their conviction for the offence under Section 363/34 of IPC are hereby maintained. 32. The evidence under Section 363 of IPC does not provide any minimum sentence. The appellants are young boys (Vishwajeet @ Raja Kurrey 22 years) and (Ankit @ Atul Khandekar 20 years) on the date of incident. 33. Considering the totality of the facts and circumstances of the case as also 29 the nature of allegation an the nature of the offence, awarding 7 years imprisonment, is in the opinion of this Court, is in the higher side. 34. In the matter of Mohammad Giasuddin Vs. State of Andhra Pradesh reported in (1977) 3 SCC 287 is relevant to be consider. The Hon’ble Supreme Court has observed in Para 9 of this judgment that: “9. Western jurisprudes and sociologists. from their own angle have struck a like note. Sir Samuel Romilly, critical of the brutal penalties in the then Britain, said in 1817 : “The laws of England are written in blood”. Alfieri has suggested : 'society prepares the crime, the criminal commits it'. George Micodotis, Director of Criminological Research Center, Athens, Greece, maintains that 'crime is the result of the lack of the right kind of education'. If it is thus plain that crime is a pathological aberration. that the criminal can ordinarily be redeemed. that the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an 'in terrorem' outlook, should prevail in our criminal courts. since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield : “If you are going to have anything to do with the criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences.” 35. In view of the facts and circumstances of the case, age of the appellants and also in view of the law laid down by Hon’ble Supreme Court in the above mentioned case Mohammad Giasuddin (supra), the sentence awarded to the appellants for the offence under Section 363 of IPC is reduced from 07 years RI to 01 year RI to each of the appellants with fine of Rs. 500/- each in default of payment of fine further RI for 01 month. 36. The appellant Vishwajeet @ Raja Kurrey is remained in jail from 05.11.2020 30 to 11.05.2022 and thereby he undergone about 01 year and 06 months. The appellant Ankit @ Atul Khandekar is remained in jail from 05.11.2020 to 22.03.2024 which comes about 03 years and 04 months. Therefore, they have already served the entire sentence as awarded by this Court and they need not to surrender. The appellants are reported to be on bail, therefore, their bail bond shall continue for further period of 6 months as provided under Section 481 of B.N.S.S., 2023. 37. With the aforesaid modification/observation the appeals are partly allowed. 38. Registry is directed to send a copy of this judgment to the concerned Superintendent of Jail where the appellants are undergoing their jail sentence to serve the same on the appellants informing them that they are at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. 39. Let a copy of this judgment and the original records be transmitted to the trial Court concerned forthwith for necessary information and compliance. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Alok