ABHAY S. OKA, J. FACTS

1. These two Appeals have been preferred by the accused nos.2 and 1 respectively against the impugned judgment dated 27th 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 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 Digitally signed by ASHISH KONDLE Date: 2024.02.27 17:02:21 IST Reason:

Signature Not Verified 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.

3. On 20th 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.

4. The case of the prosecution is that on 20th 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 gate, Vellore District on 21st 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 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 thei