Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
2024 INSC 146
CRIMINAL APPEAL NO. 607/2024
WILLIAM STEPHEN APPELLANT(S)
VERSUS
THE STATE OF TAMIL NADU AND ANR. RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. 608/2024
J U D G M E N T
ABHAY S. OKA, J.
FACTS
1. These two Appeals have been preferred by the accused nos.2 and
th
1 respectively against the impugned judgment dated 27 July, 2016
passed by the High Court of Judicature at Madras, whereby their
conviction and sentence have been confirmed. The appellants-accused
have been convicted for the offence punishable under Section 364A
read with Section 34 of the Indian Penal Code, 1860 (for short,
“IPC”). Both of them have been sentenced to undergo life
imprisonment.
2. With a view to appreciate the controversy, a brief reference
to the factual aspects will be necessary. PW-1 and PW-3 are
respectively the father and the mother of PW-2 (the child who is
the victim of the offence). The age of the child-PW-2 at the
Signature Not Verified
Digitally signed by
ASHISH KONDLE
Date: 2024.02.27
17:02:21 IST
Reason:
relevant time was eight years. The child/PW-2 was taking education
in third standard. After returning from the school, the child-PW-2
CRIMINAL APPEAL NO. 607/2024 1
used to visit the house of PW-5, who was running tuition classes.
The child-PW-2 used to return around 07:30 p.m.
th
3. On 20 October, 2010, the child-PW-2 did not return from the
tuition class at usual hour. The case of the prosecution is that
after the tuition class was over, while the child-PW-2 was walking
back towards his home, a Maruti Car came there. Two persons
(appellants-accused) came out and told the child-PW-2 that his
father was going to purchase a car from them and, therefore, he
should accompany them. Accordingly, the child-PW-2 got into the
car and was kidnapped by the appellants-accused.
th
4. The case of the prosecution is that on 20 October, 2010, from
a particular cell phone number, there was a call received by PW-3
of a male person who informed her that he has kidnapped the child.
He demanded ransom of Rs.5 lakhs for releasing the child. The PW-1
lodged a complaint on the same date in the night with the Police.
PW-14 (who was running a shop in the locality) informed the PW-1
and PW-3 that he saw the child being taken in a Maruti Swift grey
colour car. Accordingly, a First Information Report under Section
364A of IPC was registered. PW-19 is the Investigating Officer.
As per the information received, PW-19 went to Pallikonda toll
st
gate, Vellore District on 21 October, 2010. Around 12:00 noon, the
car in question came towards the toll gate which was intercepted.
In the car, the appellants-accused along with the child were found.
PW-19 arrested the accused and rescued the child.
5. The prosecution evidence, as can be seen from both the
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judgments, was in the form of the call records and the evidence of
PW-1 to PW-3 and PW-19, the Investigating Officer. As far as the
call records are concerned, we find that the entire evidence of the
prosecution has been discarded by the High Court for want of a
certificate as required under Section 65B of the Indian Evidence
Act, 1872 (for short, “the Evidence Act”).
SUBMISSIONS
6.
The learned senior counsel appearing for both the appellants
have taken us through the evidence of the prosecution witnesses.
Their submission is that there is absolutely no evidence regarding
the demand of ransom or any threat being administered by the
appellants-accused to kill the child or to put him to some harm.
Therefore, the necessary ingredients of Section 364A of IPC have
not been proved. By inviting our attention to the evidence of the
child, who is PW-2, and, in particular, his cross-examination by
the learned counsel representing the accused no.2, the learned
senior counsel contended that the victim child was tutored by his
father-PW-1 and, therefore, his testimony cannot be considered.
7.
The learned senior counsel appearing for the State submitted
that this was a case where there was a reasonable apprehension in
the mind of the PW-1 and PW-3 that the accused, who had kidnapped
their son, may put their son to death or cause hurt to him. He
would, therefore, submit that on the basis of the evidence of PW-1
and PW-3, the ingredients of Section 364A of IPC have been proved
by the prosecution.
CRIMINAL APPEAL NO. 607/2024 3
OUR VIEW
8.
We have carefully considered the submissions. Firstly, we may
refer to Section 361 of IPC which defines ‘kidnapping from lawful
guardianship’. It provides that whoever takes or entices any minor
male child under sixteen years of age, out of the keeping of the
lawful guardian of such minor, without the consent of such
guardian, is said to kidnap such minor or person from lawful
guardianship. In this case, there is no dispute about the lawful
guardianship of PW-1 and PW-3. The kidnapping from lawful
guardianship is made punishable under Section 363 of IPC and the
maximum punishment is imprisonment of either description which may
extend to seven years.
9.
Now, we turn to Section 364A of IPC which reads thus:
“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.”
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
CRIMINAL APPEAL NO. 607/2024 4
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.
11. We have carefully perused the evidence of the child-PW-2, who
is the victim of the offence. At the relevant time, the age of the
child was eight years. In the examination-in-chief, he has given
vivid account of what exactly transpired at the time of the
incident. He stated thus:
“… I had been getting back home around 07.00 ‘O’
Clock at night, after attending the tuition, as
usual. A Swift Car, in grey shade, bearing
Reg.No.TN 05 V 7290, gave a halt by my side.
There were two persons on board. They summoned
me, stating that my father is going to buy a car.
They took me on board. They sought the phone
number of my father. I gave them my father’s
phone number 98840 49011. They asked my mother’s
number. I gave them my mother’s phone number
98402 58273. Subsequently, I fell asleep in the
car. When I got up in the morning, I found the
car in a check post. The police got them napped.
The persons who took me in the car as such are the
accused who are present before this Court. The
car is marked as M.O.1. The police questioned me.
I have recounted the turn of events.”
12. We have carefully perused the cross-examination. On the main
incident, his version has not been shaken in the cross-examination.
It is true that in response to the questions put to him in the
cross-examination by the Advocate appearing for the accused no.2,
the child-PW-2 deposed that his father-PW-1 taught him the
CRIMINAL APPEAL NO. 607/2024 5
particulars which need to be reproduced in the Court and that he
has recounted the particulars taught by his father before the
Court.
13.
We find from the cross-examination of the child-PW-2 that
there is hardly any challenge to the main incident. In fact, a
suggestion was given to him that the men who had taken him in the
car are the ones who were acquaintance with him and his father.
This is the defence as reflected from the cross-examination.
14. It is not brought on record by the accused that there was a
prior enmity or animosity between the parents of the victim child
and the accused. There was no reason for the father of the victim
to falsely implicate the appellants and tutor the child to depose
against them. Therefore, the case sought to be made out that the
child was tutored by his father was not rightly accepted by the
Courts below. Therefore, it can be said that the ‘kidnapping’
within the meaning of Section 361 of IPC was established by the
prosecution. Hence, the appellants are guilty of the offence
punishable under Section 363 of IPC.
15. The learned senior counsel appearing for the appellants were
at pains to point out inconsistent versions of PW-1 and PW-3 about
who received the phone call demanding ransom. However, this issue
need not detain us. The details of the phone call records were
produced by the Police. It is an admitted position that the Police
could not trace the name of the person who was holding the cell
phone number stated by both, the PW-1 and PW-3, in their
CRIMINAL APPEAL NO. 607/2024 6
examination-in-chief. Their version is that they received the call
demanding ransom from the said number. The record relating to the
call details has been discarded by the High Court as there was no
certification under Section 65B of the Evidence Act. The call
records could have been the best possible evidence for the
prosecution to prove the threats allegedly administered by the
accused and the demand of ransom. Even taking the evidence of PW-1
and PW-3 as correct, all that is proved is that they received a
phone call from someone for demanding ransom and the person
threatened to kill their son in case ransom is not paid. However,
the prosecution is not able to connect the alleged demand and the
threat with both the accused. Therefore, the ingredients of Section
364A of IPC were not proved by the prosecution inasmuch as the
prosecution failed to lead cogent evidence to establish the second
part of Section 364A about the threats given by the accused to
cause death or hurt to such person. In a given case, if the
threats given to the parents or the close relatives of the
kidnapped person by the accused are established, then a case can be
made out that there was a reasonable apprehension that the person
kidnapped may be put to death or hurt may be caused to him.
However, in this case, the demand and threat by the accused have
not been established by the prosecution.
16.
Therefore, the only conclusion is that the conviction of the
appellants for the offence punishable under Section 364A of IPC
will have to be set aside. However, there will be a conviction for
the lesser offence of kidnapping defined by Section 361 of IPC,
CRIMINAL APPEAL NO. 607/2024 7
which is punishable under Section 363 of IPC. It is not in dispute
that the appellants have undergone actual incarceration for a
period of more than eight years. The maximum sentence for the
offences punishable under Section 363 of IPC extends to seven years
with fine. The appellants have undergone more than the maximum
sentence prescribed.
17. Before we part with the judgment, we must note here that the
PW-19, the Investigating Officer, was not aware of the procedure to
be followed for obtaining a certificate under Section 65B of the
Evidence Act. He cannot be blamed as a proper training was not
imparted to him. The State Government must ensure that the Police
Officers are imparted proper training on this aspect.
18. Therefore, the Appeals are partly allowed and the conviction
and sentence of the appellants for the offence punishable under
Section 364A of IPC is hereby quashed and set aside and it is held
that the appellants are guilty of the offence punishable under
Section 363 of IPC. As the appellants are in custody and as they
have undergone maximum sentence for the offence punishable under
Section 363 of IPC, we direct that they shall be forthwith set at
liberty.
..........................J.
(ABHAY S.OKA)
..........................J.
(UJJAL BHUYAN)
NEW DELHI;
FEBRUARY 21, 2024.
CRIMINAL APPEAL NO. 607/2024 8