GAURI MAHTO @ GAURI KUMARversusTHE STATE OF BIHAR

                 [2025] 2 S.C.R. 2122 : 2025 INSC 817

                      Gauri Mahto @ Gauri Kumar
                                  v.
                          The State of Bihar
                     (Criminal Appeal No. 1134 of 2016)
                               27 February 2025
            [J.K. Maheshwari* and Aravind Kumar, JJ.]


                            Issue for Consideration
       Whether in the facts of the case, prima-facie offence u/s.364-A,
       IPC against appellant is made out or not.

                                   Headnotes†
       Penal Code, 1860 – s.364-A – Kidnapping for ransom, etc. –
       Offence u/s.364-A, if prima-facie made out against appellant:
       Held: No – No investigation was conducted to determine whether
       the house from where the child (PW-12) was recovered belonged
       to appellant or not – Appellant was not identified either by the
       father (PW-13) of the child or the child himself – No cogent
       evidence regarding any ransom demand made by the appellant –
       Furthermore, the child in his testimony did not depose anything
       to the effect that appellant had threatened him to cause death or
       hurt – Prosecution’s case suffers with infirmities and creates serious
       doubt insofar as the involvement of appellant in the present crime
       is concerned – It failed to prove conditions together as envisaged
       u/s.364-A, in particular, paragraph 33 of the judgment of this Court
       in Shaik Ahmed case – Judgment of sentence and conviction
       passed by the 1st Additional Sessions Judge, confirmed in appeal
       by the High Court, set-aside. [Paras 12-14, 15]
       Penal Code, 1860 – s.364-A – Kidnapping for ransom, etc. –
       Three essential ingredients – Discussed. [Para 10]
       Words and Phrases – ‘and’ after the first condition in s.364-A,
       Penal Code, 1860 – Significance, stated. [Para 10]

                                Case Law Cited
       Shaik Ahmed v. State of Telangana [2021] 6 SCR 462 : (2021) 9
       SCC 59 – relied on.

* Author
[2025] 2 S.C.R.                                                       2123

           Gauri Mahto @ Gauri Kumar v. The State of Bihar


                               List of Acts
     Penal Code, 1860.

                            List of Keywords
     Section 364-A of Penal Code, 1860; Kidnapping for ransom;
     Conditions under Section 364-A of Penal Code, 1860; Loot; Child
     Kidnapped; Ransom note; No ransom demand; No threat to cause
     death or hurt to the child.

                           Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     1134 of 2016
     From the Judgment and Order dated 22.07.2015 of the High Court
     of Patna in CRLAP No. 1051 of 2009

                         Appearances for Parties
     Advs. for the Appellant:
     Ms. Fauzia Shakil, Ms. Tasmiya Taleha.
     Advs. for the Respondent:
     Samir Ali Khan, Anil Kumar Verma.

                Judgment / Order of the Supreme Court

                               Judgment

     J.K. Maheshwari, J.

1.   Challenging the judgment of conviction and sentence dated
     22.07.2015, for the offence under Section 364A of Indian Penal
     Code, 1860 (in short “IPC”) passed by the High Court of Judicature
     at Patna in Criminal Appeal (DB) No. 1051 of 2009 confirming the
     judgment dated 27.10.2009 passed by the 1st Additional Sessions
     Judge, Barh, in Sessions Trial No. 1046 of 2004, the present appeal
     has been filed by appellant-convict. The appellant has been sentenced
     to undergo life imprisonment with fine of Rs. 5000/-, and in case of
     default, further sentence of three months.
2.   The prosecution case in nutshell is that, on 24.10.2002 at about
     8.30 p.m., three unknown accused persons armed with deadly
2124                                                     [2025] 2 S.C.R.

                        Supreme Court Reports


     weapons stormed into the house of Rajendra Kumar (the informant,
     PW-13) and committed loot taking away some cash and golden
     ornaments. In the said incident, they also tied the informant and his
     wife Suma Kumari (PW-15) and kidnapped their elder child namely
     Unnat Raj (PW-12), aged eight years with a threat to kill the boy in
     case the informant raised any hue and cry or inform the police. As
     alleged, the accused persons also left a ransom note demanding
     Rs. 6 lacs to be delivered near Rampur Dumra station by 30.10.2002,
     failing which, the boy would be killed.
3.   It is further the case of prosecution that while leaving, the accused
     persons confined the informant and his wife in separate rooms bolting
     the doors from outside. The informant somehow freed himself and
     rushed to the roof, wherefrom he saw the accused persons under
     the streetlight fleeing away with the child. On the said basis, FIR
     was lodged and during course of investigation, present appellant
     along with 6 other accused persons namely Sudhir Mahto, Diwakar
     Yadav, Dayanand Mahto, Pramod Kumar, Dhurba Yadav and Awdhesh
     Yadav @ Gama Yadav were charge-sheeted for offences punishable
     under Sections 364A/395/120(B)/34 of IPC. The trial was conducted
     and present appellant along with one Sudhir Mahto was convicted
     for offence under Section 364A of IPC, whereas, acquitted for other
     offences.
4.   During trial, the prosecution examined 15 witnesses to answer whether
     the child was illegally taken away from lawful guardianship or not.
     The Trial Court largely relied on the testimony of Rajendra Kumar
     (PW-13, informant/father of the child), Suma Kumari (PW-15, mother
     of the child) and Unnat Raj (PW-12, kidnapped child) alongside
     documentary evidence brought on record and held that the child was
     illegally taken away from the lawful guardianship of the parents. All
     the three witnesses were consistent qua the incident of kidnapping
     on the date of incident. So far as question as to who were involved
     in the alleged occurrence, the Trial Court primarily considered the
     testimony of Krishna Chandra (PW-11, Investigating officer), who
     deposed that the ransom demanded from the parents of the child,
     had to be handed over to the kidnappers at the nearby temple at
     Barahiya railway station by a man clad in white shirt, full pant and
     a gamchha who was to travel by Vikramshila train. Thereafter, the
     trap was set and when three miscreants came to collect the ransom,
[2025] 2 S.C.R.                                                       2125

           Gauri Mahto @ Gauri Kumar v. The State of Bihar


     one person namely Pramod Kumar @ Pramod Mahto was nabbed,
     while the other two escaped.
5.   On interrogation, Pramod Kumar in his confessional statement
     disclosed the names of present appellant, Nandan Mahto, Md. Ajam,
     Dewakar Yadav, Dhurba Yadav and Vikas Das being involved in the
     alleged crime. He further disclosed that the boy is with Gauri Mahto
     (present appellant) and if raid is conducted, the boy may be recovered.
     Accordingly, a raid was conducted on the house of appellant, but the
     boy was not found there, whereafter, on further disclosure by Pramod
     Mahto, another raid was conducted on second house of appellant
     and the boy was found sleeping in a room situated on the roof of
     the house. The present appellant and co-accused Sudhir Mahto @
     Sudhir Kumar were also found in the room. The recovery of the child
     was made in the presence of independent witnesses, the informant/
     father and the seizure memo of articles (‘Ex. 7’) was prepared. In
     the entirety of facts, the Trial Court held that recovery of kidnapped
     child was from conscious possession of the appellant from his house
     in his presence and is sufficient for conviction under Section 364A
     of IPC. Being aggrieved and on filing appeal, the same came to be
     dismissed by High Court vide impugned judgment confirming the
     findings of the Trial Court.
6.   The learned counsel for the appellant strenuously argued that in
     the present case, the essential ingredients of Section 364A are not
     fulfilled, therefore, conviction as directed cannot be sustained. For an
     offence under Section 364A, the essential ingredient is of detention
     of the kidnapped person along with threat to cause hurt or death or
     reasonable apprehension that death or hurt may be caused to such
     person. Both these conditions are to be read together and not in
     isolation. Additionally, there must be a demand of ransom by such
     individual. In the present case, it has not been proved that any such
     demand was made by the appellant.
7.   The entire case of the prosecution against appellant is based on
     the confessional statement of co-accused namely Pramod Kumar
     @ Pramod Mahto, which is not a substantive piece of evidence.
     Further, neither the informant Rajendra Kumar (father of the child)
     who had accompanied the investigation officer in the raid, nor the
     kidnapped child Unnat Raj (PW-12) had identified the appellant and
     the recovery of the child also appears doubtful. Therefore, it was
     prayed that the appeal be allowed, and conviction be set-aside.
2126                                                     [2025] 2 S.C.R.

                        Supreme Court Reports



8.   Learned counsel for the State supported the findings of the Courts
     below and submitted that on raid, the child was found sleeping
     in the room on the roof of the house of appellant. The appellant
     and co-accused Sudhir Mahto were also found present there. The
     recovery of the child was made from the conscious possession of the
     appellant in the wee hours of the day as per information furnished
     by co-accused Pramod Mahto, who came to collect the ransom near
     the temple at Barahiya railway station, where he was nabbed by
     police. After recovery, Ex. 7 (seizure memo) was prepared, which
     was signed by the appellant and two independent witnesses namely,
     Sanjay Mahto (PW-1) and Sadanand Kumar (PW-2). This confirms
     the presence of appellant on the spot. The child was handed over
     to the informant and zimmanama was prepared. The testimony of
     the independent witnesses along with Ex. 7 and zimmanama fully
     corroborates the testimony of I.O. Krishna Chandra (PW-11) and the
     confessional statement. It was therefore urged that no interference
     is warranted in present appeal.
9.   After having heard the learned counsel for the parties at length and
     having perused the material placed on record, in connection to the
     case of prosecution, the first and foremost question that calls for
     our consideration is, whether in the facts of the case, prima-facie
     offence under Section 364-A of IPC against appellant is made out
     or not? To answer the same, Section 364-A need to be perused,
     which is quoted herein below:
          “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 organization 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.”
     On bare reading, it is clear that the afore-mentioned Section deals
     with ‘kidnapping for ransom’ a person and to convict an individual
[2025] 2 S.C.R.                                                            2127

            Gauri Mahto @ Gauri Kumar v. The State of Bihar



     for the said offence, fundamentally three essential ingredients need
     to be fulfilled; first, a person is kidnapped or abducted, and is
     kept in detention after the kidnapping or abduction; second, there
     is a threat to cause death or hurt to the kidnapped person, or a
     reasonable apprehension of such harm is created; third, the act is
     done to compel the government or a foreign state or international
     inter-governmental organization or any other person to do or not do
     something, or to pay a ransom.
10. This Court in its recent judgment in ‘Shaik Ahmed Vs. State of
    Telangana, (2021) 9 SCC 59’, re-iterated the pre-requisites required
    to be proved by prosecution to establish culpability for offence under
    Section 364-A. In paragraph 33 of the said judgment, the Court
    noticed as under –
           “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 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 364-A cannot be sustained.”
     From above, it can be inferred, the usage of word ‘and’ after the
     first condition in Section 364-A, signifies that the first condition is
     not independent, and should not be read in seclusion or isolation
     with the other conditions prescribed therein. Therefore, for conviction
2128                                                        [2025] 2 S.C.R.

                         Supreme Court Reports



     under this Section, what is to be ensured is that first condition, i.e.,
     the act of kidnapping or abduction or detention after such kidnapping
     or abduction shall either be coupled with a threat to cause death or
     hurt or with such conduct creating reasonable apprehension of death
     or hurt in the mind of person so kidnapped or abducted; or causes
     hurt or death 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.
11. In view of the foregoing discussion, we now proceed to consider
    whether the findings of the Trial Court and the High Court are in
    consonance with the ingredient specified under Section 364-A and
    dictum of this Court in Shaik Ahmed (supra), in particular, paragraph
    33 to sustain conviction as directed.
12. In the context of the ingredients required to be proved, if we look
    into the evidence brought, then it is apparent that Rajendra Kumar
    (PW-13) - informant/father of the child, Suma Kumari (PW-15) - mother
    of the child and the kidnapped child, namely, Unnat Raj (PW-12)
    in their testimony have not identified the accused. The conviction
    is primarily based on the oral evidence of the Investigating Officer,
    Krishna Chandra (PW-11). On examination of material placed, it is
    found that the main allegation against the present appellant is based
    on the confessional statement of the co-accused Pramod Kumar
    Mahto, who is absconding. The said co-accused in his confessional
    statement disclosed that the child is in the house of the present
    appellant and on conduct of raid, the child was recovered. However,
    on perusal of records, it is seen that no investigation was conducted
    to determine whether the house from where the child was recovered
    belonged to appellant or not. It is undisputed that, the recovery was
    made from the second house and not from the original/first house
    of the appellant. Furthermore, seizure memo (Ex. 7) did not contain
    any information qua recovery of child. It is also admitted that in the
    identification parade conducted by the police, the appellant has not
    been identified by the father (PW-13). The child also has not identified
    the appellant in the Court, despite the allegation that the child was
    with the appellant for about 15 days.
13. Coming to aspect of demand of ransom, it is found out from the records
    that Suma Kumari (PW-15) after 15 days of incident, on 08.11.2002
    informed the police that her devar, Jitender Kumar, received a phone
    call from phone no. 262694 on his mobile no. 9835231064 demanding
[2025] 2 S.C.R.                                                        2129

              Gauri Mahto @ Gauri Kumar v. The State of Bihar


     ransom of Rs. 4 lakhs to be delivered at railway station Barahiya,
     for release of child. Rajendra Kumar (PW-13) has deposed that he
     received ransom notes demanding approximately Rs. 4 to 5 lacs.
     At this juncture, it is pertinent to note that the entire case of the
     prosecution is based on the testimony of Krishna Chandra (PW-11) -
     Investigating Officer, however, interestingly as borne out of records
     that, neither he has deposed anything about ransom notes nor about
     any investigation regarding phone call made by the kidnappers. The
     prosecution has also failed to bring on record any cogent evidence
     regarding any ransom demand made by the appellant.
14. Lastly, to sustain the conviction of appellant for offence under Section
    364-A, it is to be seen that whether any threat to cause death or hurt
    to the child was made by appellant or not? As per prosecution’s case,
    the kidnapped child was with appellant for a period of 15 days and
    on raid, he was found sleeping in the room of the house belonging to
    the appellant. After considering the medical report, it is found that, the
    child had only simple injury in the nature of abrasion. Furthermore,
    the child (PW-12) himself in testimony has not deposed anything
    to the effect that appellant had threatened him to cause death or
    hurt. Under such circumstances, the prosecution’s case suffers with
    infirmities and creates serious doubt insofar as the involvement of
    appellant in the present crime is concerned.
15. In view of the discussion made above, thus, we are of the considered
    view that the prosecution has failed to prove conditions together as
    envisaged under Section 364-A, in particular, paragraph 33 of the
    judgment of this Court in Shaik Ahmed (supra). Accordingly, this
    appeal is allowed. The judgment of sentence and conviction dated
    27.10.2009, passed by the 1st Additional Sessions Judge, Barh,
    confirmed in appeal by the High Court vide impugned judgment
    dated 22.07.2015 are set-aside.
16. The sentence of the appellant has already been suspended vide
    this Court’s order dated 11.01.2019. As a sequel to the acquittal,
    the appellant need not surrender. His bail bonds stand discharged.

     Result of the case: Appeal allowed.



     †
         Headnotes prepared by: Divya Pandey