Case BriefsSupreme Court

Supreme Court: The bench of Ashok Bhushan* and R. Subhash Reddy, JJ has laid down the essential ingredients required to be proved by prosecution to convict an accused under Section 364A IPC, i.e. kidnapping for ransom.

The essential ingredients are:

(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.

The Court explained that 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.

The Court was dealing with a case wherein a 13-year-old was kidnapped for ransom by a driver of an auto that the child had hired to go home from his school.

On 03.02.2011, the child went to a picnic organised by the school and returned to school at around 3:00 pm. Usually, he would wait for a regular (fixed) auto to drop him home from school but unfortunately on the said date, the same did not turn up. He then took another auto, after being advised the same by his father.

The accused, who was driving the said auto, took the child to the house of his sister and demanded a ransom of Rs.2 lakhs from the child’s father.

After receiving the phone call, the child’s father went to the police station and lodged report. The accused was apprehended by the Police while the child’s father was trying to handover the ransom to the accused. The Child was found in an auto a short distance away.

It is important to note that as per the statement of the child, he had himself stated he was treated in a good manner. He had also not alleged that any threat was extended to cause death or hurt to the victim.

In such circumstances, the second condition highlighted above, which is “and threatens to cause a death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt”, stood unfulfilled.

The Court, hence, 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 also proved.

“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.”

The Court, hence, sentenced the accused to imprisonment of seven years and fine of Rs.5,000/- and directed that after completion of imprisonment of seven years (if not completed already) the appellant shall be released.

[Shaik Ahmed v. State of Telangana,  2021 SCC OnLine SC 436, decided on 28.06.2021]

*Judgment by: Justice Ashok Bhushan

Case BriefsHigh Courts

Punjab and Haryana High Court: Harnaresh Singh Gill, J., held that the husband of the Hind minor is the legal guardian of his wife.

The facts of the case where such that the petitioner had solemnized marriage with respondent 3-Gulista on 20-03-2020 and she herself fled away with the petitioner and thereafter performed marriage willingly. A kidnapping case was registered against the petitioner. The petitioner, while relying on the judgment in Madan Lal v. State of Punjab, CRM-M-20909- 2014 and Jitender Kumar Sharma v. State, 2010 (4) RCR (Criminal) 20, contended that respondent 3-Gulista had got recorded her statement under Section 164 CrPC, in which she had stated that she had performed marriage with Vikas (petitioner) and had been residing with him willingly.

The statements of the respondent-wife were recorded under Sections 161 and 164 of CrPC, wherein she had specifically stated that she had been residing with the petitioner who was her husband. Considering the above recorded statements, the Bench found out that the respondent 3-Gulista was alleged to be minor at the time of performing marriage but also that she had performed marriage with the petitioner with her own free will. The Bench opined that since the girl at the time of marriage, the marriage was voidable in terms of the Hindu Marriage Act, 1955 but because the couple had chosen their life partners against the wishes of their parents and were carrying on the relationship by living together, the Court could take the cognizance of the fact as per Section 25 of the Guardians and Wards Act, 1890, as the welfare of the ward was of paramount importance, which could not be ignored. Thus, the Bench opined,

The petitioner being the husband is in relationship with respondent 3 and in terms of Sections 19 and 21 of the Guardians and Wards Act read with Sections 6, 10 and 13 of the Hindu Minority and Guardianship Act, 1956 has a right to hold as the natural guardian of the minor Hindu girl who is married to him which as per the statute is the girl’s husband. Thus, it cannot be said that there is any element of taking away or enticing her.

Noticing that the petitioner and respondent 3 were living together, the Bench stated that the couple had rights of protection of life and liberty granted under Article 21 of the Constitution.

Reliance was placed by the Court on Jitender Kumar Sharma v. State, WP (CRL) 1003 of 2010, wherein the Delhi High Court had held, “A reading of the 1890 Act and the 1956 Act, together, reveals the guiding principles which ought to be kept in mind when considering the question of custody of a minor hindu. We have seen that the natural guardian of a minor hindu girl whose is married, is her husband…Furthermore, that no guardian of the person of a minor married female can be appointed where her husband is not, in the opinion of the court, unfit to be the guardian of her person. The preferences of a minor who is old enough to make an intelligent preference ought to be considered by the court.

In the light of above, the Bench held that since respondent 3-Gulista had performed marriage with the petitioner of her own will and had been residing happily with him at her matrimonial home, no useful purpose would be served in allowing the criminal proceedings to continue. Accordingly, this petition was allowed. The FIR registered under Section 346 IPC and later on added Sections 363, 366 IPC were quashed qua the petitioner.[Vikas Tomar v. State of Haryana, 2021 SCC OnLine P&H 1269, decided on 05-04-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

For the Petitioner: Adv. Naresh Kumar Chhokar
For the State of Haryana: Addl. AG. Ashok Singh Chaudhary

Case BriefsHigh Courts

Madras High Court: R. Pongiappan, J., observed that:

“…saptpadi for Hindus is the necessary requirement, which if completed make a marriage valid in the eyes of law provided the parties are of sound mind and don’t fall within the prohibited degrees of relationship with each other.”

Instant appeal was filed to set aside the judgment and conviction passed by Sessions Judge.

Accused was charged for the offences under Sections 366 and 376(1) of Penal Code, 1860.

Analysis and Decision

Bench noted that in respect to alleged marriage, PW 10 who is the victim girl had stated before the trial Court that on the date of occurrence, both herself and the accused ran away from the village and accused tied thali to her. In light of the said evidence, it appeared that the victim girl had also consented for the marriage.

Additional Public Prosecutor appearing for the State contended that since the alleged marriage had happened to the victim was at the age of 15 years and 10 months, the said marriage is not legally valid and also the same has not been solemnised as per Hindu rites and customs.

This Court also found that the girl had not completed the age of 16 years at the time of above-stated alleged marriage for which she consented

Further, the Bench observed that during the time of occurrence, the accused had induced the victim girl to go to Palani and afterwards, he tied a thali, Section 361 of IPC was referred which talks about the “kidnapping from lawful guardianship”.

Applying the abovesaid provision along with Section 366 IPC, Court stated that the victim girl was kidnapped for the purpose of marrying her.

Void Marriage

“… a marriage in which either the girl is below 18 years of age, or the boy is below 21 years of age is child marriage.”

Court expressed that in our country, the essential condition for the validity of any marriage is solemnization of the religious ceremonies prescribed by the religion to which the parties belong.

In respect to the instant matter, it was found that the accused and victim girl had not performed the necessary religious ceremonies prescribed by the religion and since the victim girl was of 16 years of age, the alleged marriage with the accused was void.

Sexual Intercourse

With regard to alleged forcible sexual intercourse, it was found that victim girl stayed the accused for a considerable period but during that time, she did not seek for help or even try running away from the place, the said attitude of the victim girl proves that the alleged sexual intercourse had happened only with her consent.

Section 375 IPC

As per the definition of Section 375 IPC, since the victim girl had not completed the age of 18 years at the time of occurrence, according to 6th description of the said Section, Court found that the accused had committed an offence of rape.

Therefore trial Court’s finding of charging the accused under Sections 366 and 376(1) IPC was within four corners of law and no infirmity was found in the said findings.

Since both the victim girl and accused got married themselves and separated along with respective spouses, Court modified the sentence as 5 years instead of 7 years under Section 366 IPC and for the offence under Section 376(1) IPC, Court modified the sentence as 7 years instead of 10 years.

Hence, the Criminal Appeal was partly allowed.[Prakash v. State, 2020 SCC OnLine Mad 6025, decided on 30-11-2020]

Advocates who appeared before the Court:

For Appellant: B. Thirumalai for S.Nagarajan

For Respondent: S. Karthikeyan Additional Public Prosecutor

Hot Off The PressNews

Supreme Court: When the UP law student who went missing was brought before the bench of R Banumathi and AS Bopanna, JJ after being found in Rajasthan, she told the Court that she wants to stay in Delhi and not return to her home. She was brought to the court after two judges said they wanted to speak to her. A BJP leader and former Union Minister, Chinmayanand, had been accused by the young woman’s parents of kidnapping her.

Justices R Banumathi and AS Bopanna spoke with the woman in closed court before continuing the hearing. Later, the judges announced that the woman was to be kept wherever she felt safe and comfortable. The Delhi Police has been asked to bring her parents to the capital. The Court said,

“She left her place with college friends for her protection. She doesn’t want to go back to UP till she meets her parents. She stated that she will decide her future course of plan after meeting them,”

Earlier, asking the UP government to give the information “within five minutes”, the Supreme Court had said,

“Find out her exact location now. How much time will she take to be present in court.”

Replying to the Court, the state government said the “exact location” of the woman was near Fatehpur Sikri and it would take her two and a half hours to reach Delhi.

The Supreme Court decided on Thursday to take up the case on its own after a group of lawyers raised concerns that it could turn into the another “Unnao” – the case involving Kuldeep Singh Sengar, an MLA expelled only recently from the BJP amid outrage, he is accused of raping a minor girl from his village in 2017 and then trying to murder her in a car crash. Fearing for the woman’s safety, the lawyer said,

“Only the police are making the statement but she has not been seen on TV,”

Chinmayananda’s lawyer called the allegations against him a “conspiracy”.

The woman, a law student, went missing on Saturday after posting a video on Facebook alleging that a “big leader of the Sant Samaj” had “destroyed the lives of many other girls and also has threatened to kill me”. She requested Chief Minister Yogi Adityanath and Prime Minister Narendra Modi to help her. Based on her video, which went viral, her father blamed Chinmayanand, a former union minister who heads the management of the college where the woman studies.

The police filed the family’s case only on Tuesday, three days after she went missing, and charged Chinmayanand with kidnapping and criminal intimidation.

(Source: NDTV)

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sandeep Mehta and Abhay Chaturvedi, JJ. contemplated an appeal where the appellant had been convicted and sentenced under Sections 363 and 376 of Penal Code, 1860 and Section 3(2)(v) of SC/ST Act i.e. commission of any offence under the IPC punishable with imprisonment for a term of ten years or more against a person or property [knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member], shall be punishable with imprisonment for life and with fine.

Minimal facts relevant for proper appreciation of the case are that one Asha Bhai lodged an FIR against the appellant for alleged rape and kidnapping of the minor granddaughter of the complainant. Complainant, victim and the appellant were travelling to Ahmedabad when the appellant alleged drugged Asha and when he regained her consciousness there was no trace of the minor victim and the appellant. Subsequently, an investigation was conducted and charge-sheet was filed. Appellant was charged under various Sections of IPC and under Section 3(1) (xii) of SC/ST (Prevention of Atrocities) Act. As the charge under SC\ST Act was added the case was duly transferred to the Special Judge for trial. After the trial, the Judge convicted the appellant, hence the instant appeal was preferred.

The counsel for the appellant, Pradeep Shah, submitted that judgment passed by the trial court was bad in the eyes of law. He urged that there was no allegation of any of the prosecution witnesses that the accused kidnapped or subjected the victim to rape with the intention of committing offence on a member of the Scheduled Caste community. He further argued that the conviction of the accused of the offence under Section 3(2)(v) of the SC/ST Act was prima facie illegal. It was further submitted that the victim was not a minor and there was no proper evidence to prove otherwise. It was contended that the alleged victim resided with her own will and never protested hence the physical relation was consensual and no case of rape was to be made.

Learned Public Prosecutor, N.S. Bhati vehemently and fervently opposed the submissions advanced by the appellant. He urged that the victim had given cogent testimony at the trial stating that she was a minor on the date of the incident. The accused lured her away on the premise that he would get her father released from prison. Entertaining this bonafide belief, she accompanied the accused and her grandfather for going to Ahmedabad. The accused gave a slip to her grandfather and forced her to board a train. She was taken to Mahsana where she was kept in a house which is at an isolated place. There, the accused repeatedly subjected her to sexual intercourse. It was further submitted that the medical report pointed towards the alleged rape and the age of the minor was also confirmed accordingly.

The Court, gave thoughtful consideration to the arguments of the parties and observed that “Prima facie, from the evidence available on record, it is duly established and we are fully satisfied that the accused committed the offence under Sections 363 & 376 IPC not because he wanted to sexually assault a member of the scheduled caste community but these offences were perpetrated by the accused in order to satisfy his carnal desires.”

The Court further relied on the judgment in, Masumsha Hasanasha Musalman v. State of Maharashtra, (2000) 3 SCC 557, where the Supreme Court in a similar case opined that, the case was not designated against the SC/ST community specifically. Hence the Court opined that the finding recorded by the trial court whereby the accused was held liable for the offence under Section 3(2)(v) of the SC/ST Act and was sentenced to life imprisonment on this count is ex-facie illegal and contrary to record. Hence, the Court set aside the impugned judgment to that extent. Further, it observed that the remaining Judgment of the trial court was legal. Thus the appeal was allowed partly.[Kesa Bhai v. State of Rajasthan, 2019 SCC OnLine Raj 1403, decided on 02-07-2019]

Case BriefsHigh Courts

Delhi High Court: Mukta Gupta, J. dismissed an appeal filed by the appellant against the judgment of the trial court whereby he was convicted for offences punishable under Sections 367 (kidnapping or abducting in order to subject person to grievous hurt, slavery, etc.) and 393 (attempt to robbery) IPC.

The appellant was of the accused persons who tried to rob the complainant of his motorcycle and other belongings. The appellant was however apprehended on the spot. He was tried and convicted as aforesaid.

Naomi Chandra, Advocate for the appellant contended that the recovery of gun from the appellant was highly doubtful. His associate put a gun on him and ran away. Furthermore, nothing was found in personal search of the appellant. Per contra, Ashok Kumar Garg, APP submitted that the impugned judgment suffered from no illegality.

Considering the evidence, the High Court found that it was proved that the appellant was arrested at the spot. It was observed: “The complainant in his statement does not say that the appellant was the one who showed him the pistol, however, the fact that the appellant sat on the motorcycle of the complainant and made him take the motorcycle to Loni which the complainant avoided smartly by reaching a place where PCR van was parked is sufficient to uphold the conviction of the appellant for the offence punishable under Sections 367 and 393 IPC.”

At the same time, since the appellant did not show the gun or open fire, despite the fact that he had weapon of offence in his hand, it was held that he was rightly acquitted of the offences punishable under Sections 186, 353 and 307 IPC.

In such view of the matter, the Court found no reason to interfere with the judgment of the trial court. Accordingly, the appeal was dismissed. [Sher Mohd. v. State (NCT of Delhi), Crl. A. No. 1175 of 2017, decided on 20-05-2019]

Case BriefsHigh Courts

Meghalaya High Court: A Bench of Mohammad Yaqoob Mir, C.J. and H.S. Thangkhiew, J. set aside the conviction and sentence inflicted upon the appellant for an offence of “kidnapping abducting or inducing woman to compel her marriage, etc.”, punishable under Section 366 IPC.

As per the prosecution, on the day of the incident, the prosecutrix boarded the appellant’s auto rickshaw for her home. It was alleged that the appellant deliberately avoided to stop the autorickshaw at the destination (home of the prosecutrix). This prompted the prosecutrix to jump out of the autorickshaw, as a result whereof she was injured and became unconscious. The appellant was booked for an offence under Section 366  and was convicted by the trial court. Aggrieved thereby, he filed the present appeal.

The High Court noted that the star witness — the prosecutrix —  did not support the prosecution case of kidnapping. As per the Court, the case was registered on the basis of imaginationIt was further noted that the appellant did not know the home of the prosecutrix or the point where he had to stop and as stated by him, there was noise of trucks and maybe due to that, he was unable to hear the voice of prosecutrix. Referring to the ingredients under Section 366, it was observed: “There is not an iota of evidence to suggest that the prosecutrix was in any manner compelled to marry or likely to be compelled to intercourse so as to constitute offence punishable under Section 366 intention directly or indirectly shall be gatherable from the evidence.”

Furthermore, an important question is whether the accused knew where the house of the prosecutrix was situated nor it is stated in any manner that she had asked the driver to stop and he refused. It is nowhere emerging from the evidence that the auto rickshaw driver while driving the auto rickshaw … had deviated from the main road..”

Holding that the prosecutrix got apprehensive of her own and there was nothing on part of the appellant which could constitute offence under Section 366 IPC, the Court observed: “Learned trial court appears to have been swayed by the rise of cases of sexual harassment against women and minor children …Any offence against women and minor children is totally unacceptable but in the name of the same, an innocent person cannot be convicted or sentenced. Any person who dares or tries to commit such offence cannot be shown any leniency but at the same time without any basis, a person cannot be convicted and sentenced.”

In such view of the matter, the appeal was allowed and set at liberty. [Jerman Syngkli v. State of Meghalaya, Crl. A. No. 1 of 2019, Order dated 01-05-2019]

Case BriefsHigh Courts

Delhi High Court: R.K. Gauba, J., gave benefit of doubt to the appellant in the present appeal who was convicted by the trial court for the offences punishable under Sections 363 (punishment for kidnapping) and 368 (wrongfully concealing or keeping in confinement, kidnapped or abducted person) read with Section 34 IPC.

It was alleged that the appellant gave intoxicated sweets to the prosecutrix (victim) after which she started to feel giddy and thereby helped the co-convict in kidnapping the prosecutrix. She was tried and convicted by the trial court as aforestated. Represented by G.P. Thareja and Mani Mishra, Advocates, the appellant filed the present appeal.

The High Court noted that the prosecutrix changed her statement regarding the involvement of the appellant at least twice. It was stated: “The prosecutrix had changed her stand from one version to the other, the narration of sequence of evidence in the first statement under Section 161 CrPC being materially distinct from what was deposed by her before the Magistrate at the time of her statement under Section 164 CrPC, the Court deposition being even further at variance from the previous two.”

Observing that “The Court deposition of the prosecutrix against the appellant several days after she had been recovered cannot be believed on its face value”, the Court gave benefit of doubt to the appellant and acquitted her. The appeal was thus allowed. [Arti v. State (NCT of Delhi), 2019 SCC OnLine Del 7823, decided on 12-03-2019]

Case BriefsHigh Courts

Manipur High Court: A writ petition filed against the order of detention passed by the District Magistrate was allowed by the Division Bench comprising of N. Kotiswar Singh, ACJ and Kh. Nobin Singh. J.

The petition was filed against the detention order passed against appellant who was a member of Kuki National Front- President (KNF-P). The petitioner along with others, was charged for kidnapping and killing of members of another organisation. Detention Orders were passed against the appellants in furtherance of the said charges. The petitioner challenged the Detention Order contending that the provisions of Section 10 of the National Security Act, 1980 were not complied with.

The High Court perused the record as well as Section 10 of the National Security Act and found that the provisions and requirements of the said section need to be strictly complied with. Section 10 provides that the Government shall place the grounds of detention along with the representation presented by the detenu, if any, before the Advisory Board, within three weeks from the date of detention. However, in the present case, the Court found that the said provision was not complied with within three weeks of the date of detention of the petitioner. The Court held that violation of the provisions of Section 10 has prejudiced the right of the petitioner. Hence, the order of detention was liable to be quashed which was ordered accordingly. [Lalkhosem Kipgen v. District Magistrate, 2018 SCC OnLine Mani 38, dated 07-05-2018]

Case BriefsHigh Courts

High Court of Jharkhand: The Division Bench comprising of H.C. Mishra and B.B. Mangalmurti, JJ., recently heard an appeal against the acquittal of the respondent who had been accused under Sections 364 and 34 of the Penal Code.

The appellant’s son had been taken forcibly by the respondents owing to certain prevailing land disputes between the two parties. The appellants had alleged that the respondents had broken into their house by breaking through the thatched roof and kidnapped the son which after examining the evidence on record, was found to be untrue by the Trial Court and hence, the accused was acquitted of the charges framed against him.

The Court observed that the victim himself had testified that he had been forcibly taken away from his house for 20-21 days and eventually brought near the Deoghar Court and left by the accused. It noted that Section 364 of the Penal code mandates the intention of murdering the victim or putting him in the danger of being murdered, for the offence to be labeled as kidnapping under the impugned section. Since, the evidence showed that the victim had been left near the Deoghar Court after a few days, it was obvious that no intention to kill had been present in the minds of the accused and hence, offence under Section 364 Penal Code, couldn’t be made out. Thus, the appeal was dismissed. [Kamruddin Sheikh v. State of Jharkhand, 2018 SCC OnLine Jhar 123, order dated 26.2.2018]