Full Judgment Text
2024 INSC 6
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1420 OF 2019
NEERAJ SHARMA …APPELLANT(S)
Versus
STATE OF CHHATTISGARH …RESPONDENT(S)
CRIMINAL APPEAL NO.36 OF 2024
(@ SPECIAL LEAVE PETITION (CRIMINAL) NO.5676 OF 2021)
ASHWANI KUMAR YADAV …APPELLANT(S)
Versus
STATE OF CHHATTISGARH …RESPONDENT(S)
J U D G M E N T
SUDHANSHU DHULIA, J.
Leave granted.
2. Both these appeals arise out of a common judgment and
Signature Not Verified
Digitally signed by
Nidhi Ahuja
Date: 2024.01.03
16:52:04 IST
Reason:
order dated 26.06.2018 passed by the High Court of Chhattisgarh
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at Bilaspur in Criminal Appeal No.200 of 2015, which has
dismissed the Criminal Appeal of the present appellants,
upholding the conviction and sentence of the trial court. The two
appellants were convicted for offences under Sections 307/120B,
364-A and 392/397 and were sentenced, inter alia, for life
imprisonment under Section 364A Indian Penal Code, 1860 (for
short ‘IPC’).
The third accused in this case, called Ravi Kumar Dwivedi,
was acquitted by the trial court.
3. The case of the prosecution is that appellants had abducted
th
one Arjit Sharma (PW-6), a Class 12 student of KPS School, Durg.
The abduction, as per the prosecution, was for ransom, and a
dastardly attempt was also made by the accused to kill the victim,
although the victim miraculously escaped, but not before
sustaining grievous injuries, which eventually led to the
amputation of his right leg.
The complainant/victim (PW-6) was at the relevant time
residing as a paying guest in the house of Smt. Seema Singh
(PW-7) at Priyadarshni Nagar, Durg. The accused, Neeraj Sharma
and complainant were known to each other and on 02.01.2013,
the two decided to go on a motorcycle ride to Nehru Nagar and
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Yugandar College, Rajnandgaon. The complainant was picked
from his guest house by the two accused i.e., Neeraj Sharma and
Ashwani Kumar Yadav and the three took off on their motorcycle
to a place called “Doundilohara”. At about 1:00 am in the night
when the complainant was trying to ease himself, the two accused
made an attempt to kill him by throttling his neck by the clutch
wire of the motorcycle. As a result, the complainant fell on the
ground unconscious and the appellants thinking that the
complainant had died, poured petrol on his body and set him on
fire.
As per the prosecution case the body was set on fire, but
before setting the body on fire, the complainant/victim’s mobile
phone and cash of Rs.5000/- (Rupees Five Thousand only) were
looted from him, by the two accused Neeraj Sharma and Ashwani
Kumar Yadav.
4. The complainant, however, was not dead, but as it turned out
managed to escape from the scene and was later rescued by
strangers whom he met on his way while escaping who helped him
call an ambulance and he was taken to Doundilohara Hospital
from where he was referred to Rajnandgaon and ultimately to
Sector -9 Hospital, Bhilai. While he was at Doundilohara hospital,
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the doctor (PW-4) who had examined the complainant had also
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informed the Police and therefore a “Dehati Nalishi” (Ex.P/12) was
recorded on 03.01.2013. The doctor PW-4 (Jai Kumar Chunarkar)
who had examined the complainant/victim at Doundilohara
hospital, notes the following burn injuries in his report (Ex.P/09).
“Injured had worn underwear of dark
chocolate colour, which was not burnt and
smell of skin burning was emitting from his
entire body and he was in semi-conscious
condition. He was very restless and he
had complaint of plain and burn on the
burning spots.”
“Burn injuries were found on frontal and
backside of both legs of the injured and
skin of that spots had peeled out from
surface. Burn injuries and many burning
blisters on the lower portion of his belly
and burn injury was on the waist and burn
injury was on the upper portion of right
side on the chest and a ligature mark like
a lining was present on the frontal portion
of neck of the injured, which was in light
red colour, it had length of 122 to 14 cms
and abrasion injuries were found on the
frontal portion of his neck which had size
of 3x2, 2x2 and 2x2 cms respectively. In
this connection he had submitted his
Report (exhibit P-9).”
There were first degree burn injuries on the body of the victim
as the burnt area was 45% to 48% of his body. Statement of the
1
Dehati Nalishi is something akin to a zero FIR.
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victim (PW-6) was recorded before a Nayab Tehsildar on
04.01.2013 at 12 noon. The overall circumstances under which
this statement was recorded makes it an important piece of
evidence. We must also remember that this is a statement given
by an eighteen year old boy who has just come out of a harrowing
incident where a dastardly attempt was made on his life. He is also
grievously injured and apparently had consulted no one before
giving this statement before an Executive Magistrate. The veracity
of this statement should not be in doubt. He states how he was
taken on a motorcycle by Neeraj Sharma and Ashwani Kumar
Yadav and how he was asked to consume alcohol on the way and
then at 1:00 AM in the night, how the two accused first tried to
strangulate him with clutch wire and later set his body on fire,
thinking he is dead. It is important here to note that there is no
mention here of any demand or talk of ransom.
5. The police after completing its investigation filed its
Chargesheet against the three accused under Sections 120B,
364A, 307, 392/397 and in the alternative section 394 of IPC. As
it was a Sessions triable offence, it was committed to Sessions from
where it went to First Additional Sessions Judge Balod, who
ultimately framed charges on 15.04.2013 under Sections 364A,
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307, 120B, 392, 397 and in the alternative 394 of IPC against all
the accused persons i.e., Neeraj Sharma, Ashwani Kumar Yadav
and Ravi Kumar Dwivedi.
The prosecution examined in all 11 witnesses and placed
several exhibits before the Court. The accused pleaded not guilty
and faced trial. The Trial Court passed its Judgement dated
03.01.2015 by which the accused appellants were convicted for
offences under sections 307/120B, 364A and 392/397 IPC for
which they were sentenced to life imprisonment inter alia for the
major offence under section 364-A IPC which has also been upheld
by the High Court.
6. While issuing notice in the Special Leave Petition on
30.11.2018 this Court in the case of Neeraj Sharma in fact issued
a limited notice to his conviction under section 364-A while
confirming his conviction under sections 307 read with 120B along
with sections 392 read with 397 of IPC. The said order is produced
below:
“We do not find any good ground
warranting interference with the conviction
of the petitioner under Section 307 IPC
read with 120 (B) and Section 392 IPC
read with 397.
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Issue notice limited to the conviction under
Section 364A returnable within eight
weeks.”
All the same nothing of this nature has been observed by this
Court while issuing notice in the case of Ashwani Kumar Yadav
which was issued on 02.08.2021.
As far as an attempt to murder and robbery are concerned,
we have no doubt in our mind that the prosecution has been able
to establish its case beyond a reasonable doubt. At the same time,
we have our doubts about the conviction of the accused under 364-
A of the IPC. In fact, this doubt was also in the mind of this Court,
at least in the case of Neeraj Sharma, as this Court has issued a
limited notice as only to the applicability of 364-A in the case.
7. The most important witness in this case is the complainant
himself. He is also an injured witness. The injuries sustained by
him in the incident match the case of the prosecution. An attempt
was made by the two accused to dispose of the body of the victim
by burning the body. There were burn injuries on both his legs.
The strong ligature mark on his neck was again significant as it is
the case of the prosecution that the two accused had tried to
strangulate him with the clutch wire. The condition of the victim
was precarious to say the least, and he gave a statement before the
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Executive Magistrate, B.K. Verma who was the Nayab Tehsildar
and Executive Magistrate, Durg, he said:
“At 6.30-7.00 hrs in the evening Neeraj
Sharma and Ashwini Yadav came to me and
said that lets go to Youganthar College
Rajnandgaon. I had not seen Youganthar
College so I went along with them in motor
cycle to see the college.”
He also said,
rd
“In the night of 3 at 1.30 hrs there is a
plant towards Balod I do not know its
name, near to that, Neeraj Sharma and
Ashwini Yadav first strangulated me with
clutch wire I had stopped my breath they
thought that me dead, then set me fire by
pouring petrol.”
8. Apart from this, the veracity of the incident is further
established by the deposition of Santosh Shukla (PW-1), who was
the first person in the Bhilai Plant who saw the complainant in a
burnt condition and who inquired from him as to what led to his
injuries and was informed that these injuries were caused by his
friends, and his money was also looted by them. PW-4, Dr. Jai
Kumar Chunarkar, was the first to medically examine the
complainant at Doundilohara Hospital. He had recorded burn
injuries on his body which we have already referred above. Praneet
Sharma (PW-5), is the father of the complainant who stated that
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on the midnight of 03.01.2013, he was informed by Aman Singh,
that his son Arijit Sharma is not well and his son has been
hospitalized at Sector -9 Hospital, Bhilai and when he reached the
hospital, he saw his son in burnt condition and in severe pain. His
son informed him that the two appellants were the ones who tried
to kill him. He also said that at 12 noon on 03.01.2023 he received
a phone call from the mobile number 7869590607, where the
caller demanded a sum of Rs.8,00,000/- as ramson for the release
of his son, Arijit Sharma. When he said that his son is in hospital
with him and he would file a complaint against the caller, the
phone got disconnected. This part of the statement of this witness
(PW-5) who is the father of the complainant/injured, as regards
the demand of ransom, however, has not been established in any
manner.
The complainant himself was examined as PW-6 who said in
his examination in chief that he was staying in Bhilai as paying
guest and on 02.01.2013 the accused Neeraj Sharma who was
known to him called on his mobile phone and asked him to come
to Nehru Nagar, Bhilai, from where they were supposed to go
somewhere on a motorbike. After informing his land lady, he went
to meet Neeraj Sharma at Nehru Nagar. Neeraj Sharma arrived
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after a few minutes on a motorcycle with Ashwani Kumar Yadav
riding their pillion. The three went on this motorcycle towards
Yugandar College and on their way, they also consumed liquor.
They had also met Rahul, the brother of Neeraj Sharma, on their
way. Past midnight, he requested Neeraj Sharma to stop the
vehicle, as he wanted to ease himself and when the complainant
was talking to Neeraj Sharma, the other accused Ashwani Kumar
Yadav, came from behind and tied clutch wire around his neck and
then both Ashwani Kumar Yadav and Neeraj Sharma made an
attempt to strangulate him with the clutch wire. As a result, he
fell down semi-conscious and he was thought to be dead by the
two assailants who then poured petrol on him. He also heard
Neeraj Sharma and Ashwani Kumar fetching petrol from their
motorcycle. Neeraj Sharma also took away Rs.5000/- from his
purse, and his cell phone. Later petrol was poured on him and
then he was set on fire. He somehow escaped and reached the
nearby Bhilai plant and he informed the guard about the incident
and gave the number of his landlord to him and subsequently
ambulance was called and he was sent to the hospital.
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This witness was cross-examined at length by the defence
counsel but nothing has come out which may cast a doubt on any
of his statements.
9. PW-7 is the land lady Seema Singh, where the complainant
was staying as a paying guest who also testified against the
accused. She has said that the complainant had informed her that
he is going with his friend towards another place on 02.01.2013
for which he sought her permission.
The mobile phone was traced by the police belonged to one of
the accused Ashwani Kumar Yadav. The police during their
investigation arrested Neeraj Sharma and Ashwani Kumar Yadav
on 03.01.2013 and their Hero Honda Motorcycle and Mobile
Phones were recovered.
The prosecution story therefore as far as abduction and
attempt to murder is concerned can hardly be in doubt. The
prosecution has been able to prove its case beyond a reasonable
doubt. The most important witness here is the complainant
himself, who is an 18-year-old boy, studying at the relevant time
in a college near Bhilai, who trusted his friends, not aware that he
is being taken by deceit by his friends who had planned his
murder. PW-6 is also an injured witness.
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10. The first doctor who had examined PW-6 was Dr. Jai Kumar
Chunarkar (PW-4), who works at the District Hospital at Balod. He
had examined the injured complainant in the early hours of
morning on 03.01.2013. His observation as to the injuries of PW-
6 and his general condition are as follows :
“Opinion : - Burn injuries were found over
the body of the patient, which were of durmel
peed burn nature, which expressed the first
degree burn. The area of burnt was
approximately 45 to 48 percentage. Exhibit P-
9 is the examination report given by me, part
A to A of which bears my signature.
On the same date, on receiving the memo from
the Station House Officer Daundilohara for
recording, statement of injured Arjit Sharma, I
had opined that, “injured Arjit Sharma was
not in the condition to give statement on
03.01.13 at 4:30 hours in the morning.”
The injured was then referred to Bhilai Hospital where he was
examined by Dr. Uday (PW-9). His observation is as follows :
“On examination, I found that both legs of the
patient were deeply burnt from top to bottom
and some blisters were therein stomach and
both hands, which were burnt up to 40 to 45
percentage. There were mark in his neck,
which probably was comes due to pressure of
clutch wire. The treatment of which was
undergone in my Hospital at about 60 days, in
which he was operated twice, First operation
was done on 15.01.13, during which we
compelled to cut his right legs below the knee,
which was rotten due to heavily burnt.
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Second operation was done on 12.02.13,
wherein at the place on deep injury, the skin
from other places were grafted. Therafter, it
started improving gradually the condition of
the patient and on 04.03.13, he has been
discharged from the hospital. Registration
Sheed (Bedhead Ticket) of indoor patient
regarding admission in our hospital is Exhibit
P-14, which is in 166 pages, wherein on each
pages at part A to A bears my signature.”
The other person who had met the injured while he had escaped
was PW-1 i.e. Santosh Shukla. The statement of PW-1 is as follows:
“I am posted to the post of Senior Executive
H.R. in Godawari Steel Plant Gidhali since
January, 2009. It is the matter of first week of
the January of this year, at that time I was on
duty at night shift. On the night in between
about 2 to 3, the Guard of the plant informed
me that one boy in burning condition has come
inside the plant and then reaching out from the
office I saw that the boy was burnt at leg, back
and hand etc., he had worn underwear only.
On enquiring by me, the boy told that, “My
friends carried me to the forest and burnt me
and looted money from me”. Then I phoned to
the Police-station of Daundilohara and had
also phone to Sanjivani 108. Thereafter,
Sanjivani Ambulance reached and had taken
the boy to Daundilohara Hospital for
treatment.
Police personnel Station House Officer Sahu
had come to investigate the incident and had
prepared Nazari map (Exhibit P-01) of the
incident, part A to A of which bears my
signature. Similarly, Halka Patwari had
prepared the Nazari map (Exhibit P-02) of the
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incident, part A to A of which bears my
signature. The police personnel had seized
pants, which was burnt, burnt shirt and pants
jeep in burnt condition, disposal glass,
cigarette box etc. before me and two hand cuff
persons. The said seizure proceeding of above
articles was done according to Seizure memo
(Exhibit P-3), from the place of the incident in
the presence of accused Neeraj Sharma,
present in the Court, wherein at part A to A,
there was my signature. The Police personal
had recorded my statement after enquiry.”
11. The importance of injured witness in a criminal trial cannot
be over stated. Unless there are compelling circumstances or
evidence placed by the defence to doubt such a witness, this has
to be accepted as an extremely valuable evidence in a criminal
Trial.
In the case of Balu Sudam Khalde v. State of Maharashtra
2023 SCC OnLine SC 355 this Court summed up the principles
which are to be kept in mind when appreciating the evidence of an
injured eye-witness. This court held as follows:
“26. When the evidence of an injured
eye-witness is to be appreciated, the
under-noted legal principles enunciated
by the Courts are required to be kept in
mind:
(a) The presence of an injured eye-
witness at the time and place of the
occurrence cannot be doubted unless
there are material contradictions in his
deposition.
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(b) Unless, it is otherwise established
by the evidence, it must be believed
that an injured witness would not allow
the real culprits to escape and falsely
implicate the accused.
(c) The evidence of injured witness
has greater evidentiary value and
unless compelling reasons exist,
their statements are not to be
discarded lightly.
(d) The evidence of injured witness
cannot be doubted on account of some
embellishment in natural conduct or
minor contradictions.
(e) If there be any exaggeration or
immaterial embellishments in the
evidence of an injured witness, then
such contradiction, exaggeration or
embellishment should be discarded
from the evidence of injured, but not the
whole evidence.
(f) The broad substratum of the
prosecution version must be taken into
consideration and discrepancies which
normally creep due to loss of memory
with passage of time should be
discarded.”
12. In the case at hand the case of abduction and attempt to
murder are well established by the prosecution. All that is now left
for us to determine is whether an offence under Section 364A of
IPC is made out?
15
While abduction simpliciter may not technically be an offence
under the IPC, it becomes a punishable offence when it is
combined with another act. For example, abduction in order to
commit murder is an offence under Section 364 IPC. So is
abduction an offence if it is done with an intent to secretly or
wrongfully confine a person (Section 365, IPC), or when it is done
to compel a woman for marriage etc. (Section 366, IPC). Similarly,
Section 364A is an offence where kidnapping or abduction is made
and a person is put to death or hurt; or a person is threatened with
death or actually murdered, on demand of ransom.
Section 364A IPC was inserted in the Indian Penal Code by
an Act of Parliament (Act No.42 of 1993 with effect from 22nd May,
1993). That was a period when kidnapping and abduction for the
purposes of ransom were on the rise and therefore, the Law
Commission of India in its 42nd Report in 1971 had recommended
insertion of Section 364A in IPC, though it was ultimately
incorporated in the year 1993, it 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
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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.”
This Court in the case of Vikram Singh v. Union of India
(2015) 9 SCC 502 has observed as follows:
“53. Applying the above to the case at
hand, we find that the need to bring in
Section 364-A IPC arose initially
because of the increasing incidence of
kidnapping and abduction for ransom.
This is evident from the
recommendations made by the Law
Commission to which we have made
reference in the earlier part of this
judgment. While those recommendations
were pending with the Government, the
spectre of terrorism started raising its
head threatening not only the security
and safety of the citizens but the very
sovereignty and integrity of the country,
calling for adequate measures to curb
what has the potential of destabilising
any country. With terrorism assuming
international dimensions, the need to
further amend the law arose, resulting in
the amendment to Section 364-A IPC, in
the year 1994. The gradual growth of the
challenges posed by kidnapping and
abductions for ransom, not only by
ordinary criminals for monetary gain or
as an organised activity for economic
gains but by terrorist organisations is
what necessitated the incorporation of
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Section 364-A IPC and a stringent
punishment for those indulging in such
activities.”
It needs to be clarified, as it was done in Vikram Singh
(supra), that Section 364A IPC does not merely cover acts of
terrorism against the Government or Foreign State but it also
covers cases where the demand of ransom is made not as a part of
a terrorist act but for monetary gains for a private individual.
13. In the present case, the evidence placed by the prosecution
to establish a case under Section 364-A is in the form of a phone
call to the father of the victim at 12 noon by Ravi Kumar Dwivedi
(the third accused who was acquitted by the Trial Court).
Although, according to the prosecution the number has been
traced to Ashwani Kumar Yadav, one of the two accused here, but
no evidence to this effect, as required under Section 165 of the
Evidence Act, has been placed before the Court.
The supplementary statement given by the complainant before
the police on 21.03.2013, (his first statement is on 03.01.2013),
has little relevance as PW-6 never speaks of this in his examination
in chief.
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14. This court in the case of Shaik Ahmed v. State of
Telangana (2021) 9 SCC 59 has held that in order to make out
an offence under Section 364 A, three conditions must be met:
A) There should be a kidnapping or abduction of a person or a
person is to be kept in detention after such kidnapping or
abduction;
B) There is a threat to cause death or hurt to such a person or
the accused by their conduct give rise to a reasonable
apprehension that such person may be put to death or hurt
C) Or cause death or hurt to such a person in order to compel
the Government or any foreign state or intergovernmental
organisation or any other person to do or abstain from doing
any act or to pay a ransom.
The necessary ingredients which the prosecution must prove,
beyond a reasonable doubt, before the Court are not only an act of
kidnapping or abduction but thereafter the demand of ransom,
coupled with the threat to life of a person who has been kidnapped
or abducted, must be there. It was reiterated by this Court in the
case of Ravi Dhingra v. State of Haryana (2023) 6 SCC 76.
In the present case, what the prosecution has miserably failed
to establish is the demand of ransom. As per the prosecution, the
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complainant’s father i.e., Praneet Sharma (PW-5) received a phone
call from which a demand of ransom was made. The phone call
was allegedly traced as being of one Ravi Kumar Dwivedi but no
evidence was placed on record to establish the demand of ransom
before the Court which was absolutely necessary in view of the law
laid done by this Court in Rajesh v. State of Madhya Pradesh,
2023 SCC OnLine SC 1202.
15. For making out a case under Section 364-A, the first
condition i.e., kidnapping or abduction must be coupled with
either the second or the third condition as held by this Court in
2
Shaik Ahmed (supra) . Under the said provision, the accused is
liable to be punished either by death or imprisonment for life and
is also liable to be fined considering the gravity of the offence. In
the present case, even if it is presumed for the sake of argument
that an offence under Section 364 is made out, we do not find that
the offence would come under the ambit of Section 364A.
‘ Abduction ’ is defined under Section 362 which reads as
under:
“362. Abduction.— Whoever by force
compels, or by any deceitful means
2
Para 33
20
induces, any person to go from any
place, is said to abduct that person.”
The offence which is made out is definitely under Section 364
which read as under:
“364. Kidnapping or abducting in
order to murder.— Whoever kidnaps or
abducts any person in order that such
person may be murdered or may be so
disposed of as to be put in danger of
being murdered, shall be punished with
[imprisonment for life] or rigorous
imprisonment for a term which may
extend to ten years, and shall also be
liable to fine.”
16. However, in order to come under the ambit of Section 364A,
something more than abduction is required, which is demand of
ransom. We do not find that there was a demand of ransom as
alleged by the prosecution. There is no worthwhile evidence placed
by the prosecution in this regard.
The demand of ransom does not come in the examination in
chief of the complainant (PW-6). He sticks to his theory of
abduction, attempt to murder, etc., but there is no whisper about
any demand of ransom, though in his supplementary statement
before the Police (under Section 161 of Criminal Procedure Code),
on 21.03.2013, he says that while he was lying on the ground after
an attempt to strangulate him was made by the two accused, he
21
had heard Neeraj Sharma telling Ashwani Kumar Yadav that they
should now demand a ransom from his father. The only deposition
in Court regarding demand of ransom has come as a bald
statement by Praneet Sharma (PW-5) who is the father of the
complainant that on 03.01.2013 when he was in the hospital one
Ravi Kumar Dwivedi demanded Rs.8,00,000/- as ransom. Ravi
Kumar Dwivedi the third accused, has already been acquitted by
the Trial Court. There was no evidence at all before the Trial Court
to have convicted the appellants under Section 364A, IPC. The
conviction of the appellants under Section 364A is not made out
and is therefore liable to be set aside.
17. Appellants’ conviction and sentence of life imprisonment
under Section 364A of IPC is therefore set aside. All the same, we
do find that PW-6 was abducted so that he could be murdered. We
therefore convert the findings under Section 364A to that of
Section 364. Appellants are hereby convicted under Section 364 of
IPC, instead of Section 364A IPC.
Both the trial court and the High Court have failed to detect
the flaw in the evidence led by the prosecution under Section 364A
IPC. The trial court as well as the appellate court have completely
relied upon the evidence of PW-5 (Praneet Sharma, father of the
22
victim) and PW-6 his son, the victim. As far as the evidence of
PW-6 is concerned, he makes no mention of any demand or
ransom in the court as a prosecution witness. In his first statement
given to the Executive Magistrate on 03.01.2013, again he makes
no mention of any ransom. He only mentions about ransom in his
supplementary statement recorded by the Police after two months
on 21.03.2013. The High Court believes it and calls it a “dying
declaration”. The statement given to the Police on 21.03.2023
cannot be called a dying declaration. Dying declaration is defined
under Section 32 of Indian Evidence Act, 1872 which is
reproduced below:
32. Cases in which statement of
relevant fact by person who is dead
or cannot be found, etc., is
relevant.— Statements, written or
verbal, of relevant facts made by a
person who is dead, or who cannot be
found, or who has become incapable of
giving evidence, or whose attendance
cannot be procured without an amount
of delay or expense which under the
circumstances of the case appears to the
Court unreasonable, are themselves
relevant facts in the following cases:—
(1) When it relates to cause of death.—
When the statement is made by a person
as to the cause of his death, or as to any
of the circumstances of the transaction
which resulted in his death, in cases in
23
which the cause of that person's death
comes into question.
Such statements are relevant whether
the person who made them was or was
not, at the time when they were made,
under expectation of death, and
whatever may be the nature of the
proceeding in which the cause of his
death comes into question.
(2) Or is made in course of business.—
When the statement was made by such
person in the ordinary course of
business, and in particular when it
consists of any entry or memorandum
made by him in books kept in the
ordinary course of business, or in the
discharge of professional duty; or of an
acknowledgment written or signed by
him of the receipt of money, goods,
securities or property of any kind; or of a
document used in commerce written or
signed by him; or of the date of a letter
or other document usually dated, written
or signed by him.
(3) Or against interest of maker.—When
the statement is against the pecuniary or
proprietary interest of the person making
it, or when, if true, it would expose him
or would have exposed him to a criminal
prosecution or to a suit for damages.
(4) Or gives opinion as to public right or
custom, or matters of general interest.—
When the statement gives the opinion of
any such person, as to the existence of
any public right or custom or matter of
public or general interest, of the
existence of which, if it existed, he would
have been likely to be aware, and when
such statement was made before any
controversy as to such right, custom or
matter had arisen.
24
(5) Or relates to existence of
relationship.—When the statement
relates to the existence of any
relationship [by blood, marriage or
adoption] between persons as to whose
relationship [by blood, marriage or
adoption] the person making the
statement had special means of
knowledge, and when the statement
was made before the question in dispute
was raised.
(6) Or is made in will or deed relating to
family affairs.—When the statement
relates to the existence of any
relationship [by blood, marriage or
adoption] between persons deceased,
and is made in any will or deed relating
to the affairs of the family to which any
such deceased person belonged, or in
any family pedigree, or upon any
tombstone, family portrait or other thing
on which such statements are usually
made, and when such statement was
made before the question in dispute was
raised.
(7) Or in document relating to
transaction mentioned in Section 13,
clause (a).—When the statement is
contained in any deed, will or other
document which relates to any such
transaction as is mentioned in Section
13, clause (a).
(8) Or is made by several persons and
expresses feelings relevant to matter in
question.—When the statement was
made by a number of persons, and
expressed feelings or impressions on
their part relevant to the matter in
question.
25
The statement given by the complainant/victim (PW-6) on
03.01.2013 was firstly to the investigating officer (PW-10). But
more importantly it cannot be called “a dying declaration” simply
because PW-6 had mercifully survived. This statement cannot be
read as a dying declaration because the person making this
statement or declaration had ultimately survived. This
supplementary statement given to the investigating officer on
21.03.2013 is nothing more than a statement under Section 162
of Criminal Procedure Code (see: Gentela Vijayavardhan Rao
3
and Another v. State of A.P. (1996) 6 SCC 241 ; Sunil Kumar
4
and Others v. State of M.P. (1997) 10 SCC 570 ; Shrawan
Bhadaji Bhirad and Others v. State of Maharashtra (2002) 10
5
SCC 56 ; State of U.P. v. Veer Singh and Others (2004) 10 SCC
6
117 and S. Arul Raja v. State of Tamil Nadu (2010) 8 SCC
7
233 .
18. In our considered opinion both the Trial Court as well as the
High Court were completely misdirected in holding this to be, inter
alia, a case under Section 364A of the IPC. There was no
3
Para 13
4
Para 20
5
Para 8
6
Para 5
7
Para 31
26
worthwhile evidence placed by the prosecution on this aspect. The
findings of the Courts on this aspect therefore needs to be
set aside. We, therefore, partly allow the present appeals to the
extent that findings recorded by the Trial Court and the High Court
of conviction under Section 364A of the IPC are hereby set aside.
We, however, find that the accused had committed an offence
under Section 364 IPC, as the offence of abduction in order to
murder the victim i.e., PW-6 stands proved. In other words, we
convert the findings of conviction under Section 364A to that of
Section 364 IPC and sentence the two accused (present appellants)
for rigorous imprisonment of Ten years each on this count and a
fine of Rs.10,000/- each, and in default further imprisonment of
three months. The rest of the conviction and sentence that is under
Section 307 of the IPC read with Section 120B as well as under
Section 392 of IPC read with Section 397 are hereby affirmed. We
are also aware that in addition to the sentence, a fine of
Rs.50,000/- each against the two accused was imposed by the
High Court. We retain the same and direct that the fine be
recovered from the present appellants, in default of payment of the
fine, the appellants shall undergo further imprisonment of one
27
year each. The above fine shall be thereafter remitted to the victim
in accordance with law.
19. A victim of a crime cannot be treated merely as a prosecution
witness. Section 357(1) of Criminal Procedure Code empowers the
court to order that the fine amount recovered be given to any
person as compensation who has suffered any loss or injury
caused due to that offence. In this case, the victim had suffered
burn injuries of 45-48% and lost one leg, when he was only
eighteen years of age. There may be times when the situation may
demand that a substantive amount of compensation be paid to the
victim and the convict may not be financially that strong to bear
that burden. For such situations, Section 357A was therefore
introduced in Criminal Procedure Code for this reason, where
compensation to the victims may be paid out of State funds, as the
State had the responsibility to protect the victim against the
offence that had been committed against the victim of the crime.
20. In the present case, the victim i.e., PW-6 has suffered
grievous injuries, not only this, his left leg below his knee had to
be amputated. Consequently, we direct that an amount of
Rs.5,00,000/- (Five Lakhs only) be paid by the State of
Chhattisgarh to the victim as compensation under Section 357A of
28
Cr.PC., instead of Rs.1,00,000/- as directed by the High Court.
Let the same be done within a period of three months from today.
21. Ashwani Kumar Yadav shall be released, subject to the
payment of fine/compensation, provided he has completed his 10
years of imprisonment and if not required in any other case. Order
dated 17.09.2019 of this Court up to the extent of suspending the
sentence of appellant Neeraj Sharma and granting him bail is
hereby vacated. The bail bonds of appellant Neeraj Sharma stand
cancelled and he is directed to surrender within two weeks from
today to complete his remaining sentence.
A copy of this judgment shall also be sent to the victim.
……...……….………………….J.
[SUDHANSHU DHULIA]
…….....………………………….J.
[SATISH CHANDRA SHARMA]
New Delhi.
January 3, 2024.
29