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SUPREME COURT OF INDIA
Abhay S.Oka, Ujjal Bhuyan, JJ.
William Stephen – Appellant
Versus
The State of Tamil Nadu and anr. – Respondents
Criminal Appeal No. 607 of 2024 With Criminal Appeal No. 608 of 2024
Decided On : 21-02-2024
Indian Penal Code, 1860 – Section 364A read with Section 34 – Indian Evidence Act, 1872 – Section 65B – Kidnapping for ransom – Common intention – Life sentence – 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 said act is coupled with threat to cause death or hurt to such person, offence under Section 364A is attracted – At relevant time, age of child was eight years – In examination-in-chief, he has given vivid account of what exactly transpired at the time of incident – There was no reason for father of victim to falsely implicate appellants and tutor the child to depose against them – It can be said that ‘kidnapping’ within meaning of Section 361 of IPC was established by prosecution – Appellants are guilty of offence punishable under Section 363 of IPC – Record relating to call details has been discarded by High Court as there was no certification under Section 65B of Evidence Act – Call records could have been best possible evidence for prosecution to prove threats allegedly administered by accused and demand of ransom – Prosecution failed to lead cogent evidence to establish second part of Section 364A about threats given by accused to cause death or hurt to such person – Demand and threat by accused have not been established by prosecution – Conviction of appellants for offence punishable under Section 364A of IPC will have to be set aside – However, there will be conviction for lesser offence of kidnapping defined by Section 361 of IPC, which is punishable under Section 363 of IPC – Appellants have undergone more than maximum sentence prescribed – They shall be forthwith set at liberty. (Paras 10, 11, 14, 15, 16, 17 and 18)
Facts of the case:
Appellants-accused have been convicted for offence punishable under Section 364A read with Section 34 of Indian Penal Code, 1860. Both of them have been sentenced to undergo life imprisonment.
Findings of Court:
Investigating Officer, was not aware of procedure to be followed for obtaining a certificate under Section 65B of Evidence Act. He cannot be blamed as a proper training was not imparted to him. State Government must ensure that Police Officers are imparted proper training on this aspect.
Result : Appeals partly allowed.
JUDGMENT :
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 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 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.
OUR VIEW
8. We have carefully considered t
Call records require certification under Section 65B of Evidence Act, 1872.
Kidnapping for ransom – Conviction and sentence cannot be sustained where prosecution has failed to prove conditions together as envisaged under Section 364-A, IPC.
Kidnapping for ransom – Unless all conditions as enumerated in Section 364A of IPC are fulfilled, no conviction can be recorded.
The prosecution must prove the essential elements of the offence beyond reasonable doubt.
The prosecution must prove threats to cause death or hurt for a conviction under Section 364A IPC; failure to do so leads to a conviction under Section 365 IPC for wrongful confinement.
The prosecution must prove all elements of Section 364(A) IPC, including a clear connection between the act of hurt and the ransom demand; failure to do so warrants a lesser charge.
Kidnapping for ransom under Section 364A requires proof of abduction and threats of death or harm, which was established in this case.
Supreme Court has wide power to alter charge under Section 216 of Cr.P.C. whilst not causing prejudice to accused.
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