Willian Stephen vs The State Of Tamil Nadu And Anr.

IN THE SUPREME COURT OF INDIA 2024 INSC 146 CRIMINAL APPELLATE JURISDICTION

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

1 respectively against the impugned judgment dated 27 th 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 relevant time was eight years.

ASHISH KONDLE Date: 2024.02.27 The child/PW-2 was taking education 17:02:21 IST Reason:

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.

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 20 th 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

CRIMINAL APPEAL NO. 607/2024 2 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