Top Court sets aside conviction u/s 364A of IPC, however, imposes punishment u/s 363 in kidnapping case where demand & threat by accused had not been established by prosecution
Justices Abhay S. Oka & Ujjal Bhuyan [21-02-2024]

Read Order: WILLIAM STEPHEN v. THE STATE OF TAMIL NADU AND ANR [SC- CRIMINAL APPEAL NO. 607/2024]

Tulip Kanth

New Delhi, February 28, 2024:In a case of kidnapping where the Investigating Officer was not aware of the procedure to be followed for obtaining a certificate under Section 65B of the Evidence Act, the Supreme Court has held that the State Government must ensure that police officers are imparted proper training on this aspect.

The facts of the case which led to the filing of the appeal were such that the child/PW-2, 8 years old, 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. On October 20, 2010, the child-PW-2 did not return from the tuition class at the usual timing. The case of the prosecution was that after the tuition class was over, while the child-PW-2 was walking back towards his home, two persons (appellants-accused) came out of a Car 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.

The case of the prosecution was that 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 Rs5 lakh for releasing the child. PW-1 lodged a complaint on the same date. PW-14 (who was running a shop in the locality) informed PW-1 and PW-3 that he saw the child being taken in a grey colour Maruti Swift car. Accordingly, a First Information Report under Section 364A of IPC was registered. The next day, PW-19- Investigating Officerreached Pallikonda toll gate in Vellore District and interceptedthe car in which the appellants-accused along with the child were found. PW-19 arrested the accused and rescued the child.

The appellants-accused had approached the Top Court challenging the impugned judgment whereby their conviction and sentence had been confirmed. The appellants-accused had been convicted for the offence punishable under Section 364A read with Section 34 of the Indian Penal Code, 1860and both of them were sentenced to undergo life imprisonment.As far as the call records are concerned, the entire evidence of the prosecution had been discarded by the High Court for want of a certificate as required under Section 65B of the Indian Evidence Act, 1872.

It was the case of the appellants that there was 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 had not been proved. It was contended that the victim child was tutored by his father-PW-1 and, therefore, his testimony couldn’t be considered.

The State Counsel 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. On the basis of the evidence of PW-1 and PW-3, the ingredients of Section 364A of IPC had been proved by the prosecution.

The Division Bench of Justice Abhay S. Oka & Justice Ujjal Bhuyan referred to Section 361 of IPC which defines ‘kidnapping from lawful guardianship’ and 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”, it said.

The Bench further made it clear that 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 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.

Noting that the child’s version had not been shaken in the cross-examination, the Bench stated that there was hardly any challenge to the main incident.A suggestion was given to him that the men who had taken him in the car were the ones who were acquaintance with him and his father. This was the defence as reflected from the cross-examination.

Considering the fact that nothing was brought on record by the accused that there was a prior enmity or animosity between the parents of the victim child and the accused, the Bench observed that 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”, the Bench said.

As per the Top Court, the record relating to the call details had 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. However, it was stated that the prosecution was 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”, the Bench held.

Setting aside the conviction of the appellants for the offence punishable under Section 364A of IPC, the Bench held that there will be a conviction for the lesser offence of kidnapping defined by Section 361 of IPC, which is punishable under Section 363 of IPC. Considering that the maximum sentence for the offences punishable under Section 363 of IPC extends to seven years with fine and the appellants had undergone actual incarceration for a period of more than eight years,the Bench directed that they shall be forthwith set at liberty.

Lastly, noticing that the Investigating Officer, was not aware of the procedure to be followed for obtaining a certificate under Section 65B of the Evidence Act, the Bench said, “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.”