Full Judgment Text
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CASE NO.:
Appeal (crl.) 449 of 2006
PETITIONER:
Anil @ Raju Namdev Patil
RESPONDENT:
Administration of Daman & Diu, Daman & Anr.
DATE OF JUDGMENT: 24/11/2006
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
Appellant herein is before us having been convicted for alleged
commission of an offence under Section 364-A of the Indian Penal Code and
imposed with sentence of death. He was also convicted for commission of
an offence punishable under Section 201 of the Indian Penal Code and
sentenced to suffer five years’ rigorous imprisonment and to pay fine of Rs.
2000/- in default whereof to further suffer rigorous imprisonment for one
year.
Paras, deceased herein was aged about 5 years. He was a student in
Coast Guard School. He went to the school on 3.08.2000. His parents are
owner of a factory situated in Daman. The appellant admittedly was
appointed as a driver by them and worked for about three months.
At around 6.15 p.m. on the said date, a phone call was attended by
Alpa, mother of the deceased. When she heard the caller, she started
weeping at which point their neighbour Khimjibhai picked up the phone and
from other end he was informed that the boy was in their custody. A demand
of Rs. 25 lakhs was made as ransom money for returning the child safely.
Ashwin, father of Paras, thereafter went to the police station and lodged a
complaint. A few calls demanding ransom were received in the next two
days. Ashwin was asked to come to a place near Ankleshwar with the
amount of ransom in his Armada Car. Further instructions as to how money
should be handed over were also furnished. A trap was arranged at
Ankleshwar but nobody turned up to claim the amount of ransom. When a
query was made as to whether he knew a person who was a resident of
Ankleshwar, the name of the appellant was disclosed. He was arrested and
on conducting a search his personal diary was seized. He made a confession
that the boy had been murdered. He made a statement which led to recovery
of a few bones on 7.08.2000 at about 4.00 p.m. from a nalla. The bones
recovered were examined by a Medical Officer who opined that they might
be of a boy who would be of the same age as that of the deceased. Bones
along with blood samples of the parents were sent for DNA test to
Hyderabad. The bones were found to be that of Paras. We would refer to
the said statements a little later.
Two other persons Satish and Chhotu who were also allegedly
involved in commission of the crime committed suicide in a hotel. A
purported suicide note written by Satish was found wherein they implicated
not only themselves but also the appellant. On 15.08.2000, the appellant
was sent to judicial custody. On 16.08.2000, a request was made to the
Chief Judicial Magistrate, Daman for recording the purported confessional
statement of the appellant. It was recorded on 17.08.2000 and 18.08.2000.
He therein admitted to have kidnapped Paras for the purpose of demanding
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ransom but stated that he was murdered by Chhotu @ Dharamraj and Satish.
Indisputably, the suicide note and other specimen documents in the
handwriting of Satish were sent to the government examiner for opinion.
The prosecution in support of its case examined a large number of
witnesses and also proved a large number of documents.
The learned Sessions Judge in recording the judgment of conviction
and sentence opined that the prosecution case has been proved inter alia on
the basis of :
’1. Discovery of remnants.
2. Inquest of bones.
3. Medical evidence.
4. DNA test report.
5. Articles and burnt clothes recovered from
scene of offence.
6. Identification of clothes and articles by the
relatives.
7. Sketches and photographs.
8. Child was missing from school.’
As regards the discovery of remnants, it was found to have been
proved by the evidences of Mr. Jallauddin Mohamed Dali (PW-2) a Block
Development Officer, Mr. John Bosco Machado (PW-3) an Assistant
Secretary (Personnel) in the Administration of Daman as also the evidence
of one Clifford Coutinho (PW-10) a diver attached with the Coast Guard
School and that of the Investigating Officer Mr. Rosario (PW-41).
The following articles were recovered:
"1. Skull in part.
2. Lower jaw with nine teeth erupted and
intact.
3. Two last teeth present in socket.
4. One socket of front teeth is found empty.
5. Six pieces of bones of length as under :
(i) 20’ cm. (ii) 20’ cm. (iii) 17= cm.
(iv) 14’ cm (v) 18 cm. (vi) 13’ cm.
6. Pieces of partly burnt hair.
7. Two pieces of bones which were found
inside the water, one of 10’ cm. (curve) and
one straight of 10=’ cm."
Recovery of the said articles was also proved by the aforementioned
witnesses.
As regards medical evidence, the learned Judge noticed the evidence
of Dr. Bhagirath Chand (PW-35) who opined that although it was not
possible to determine the cause and time of death, the age of human skull
and mandible provided showed that the same was of a boy of less than six
years of age.
In regard to report of DNA test, the learned Judge relied upon the
evidence of Dr. G.V. Rao (PW-39) as also the evidences of others who
collected the blood sample of the parents of the deceased and sent them to
C.D.F.D. Hyderabad. Dr. Rao opined that the remnants were that of the
deceased.
The learned Judge also relied upon the recovery of articles and other
burnt clothes from the scene of offence which was pointed out by way of
corroborative evidence by the appellant. He also relied upon the recovery of
the bones in furtherance of the disclosure/ statement made by the appellant
in his confession leading to the recovery of the bones.
Reliance was also placed on the confession of the accused. Noticing
that there was no direct evidence, the following circumstances were held to
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be sufficient to prove his guilt :
"1. Discovery of Remnants and articles at the
instance of accused.
2. Confession before the Magistrate.
3. Extra judicial confession of co-accused.
4. Finding of telephone diary.
5. Recovery of three licenses from room No.4
of landlord Soma.
6. A chit written by deceased co-accused.
7. Phone calls.
8. Accused was seen 5-6 days prior moving
around the house of complainant, and
9. Motive to extort ransom."
The circumstance No. 2 was proved by PW-33 I.B. Shaikh. The extra
judicial confession of co-accused was proved by Gyaneshwar Narayan Patil
(PW-8), Ashok Shyamrao Patil (PW-38) and finding of the telephone diary
from Raju which was, however, not been relied upon by the learned Trial
Judge. PW-12 proved recovery of three licences from Room No. 4 of
landlord Soma. The suicide note purported to have been written by the
deceased co-accused Satish was not relied upon by the learned Trial Judge.
No reliance was also placed on the chart showing the phone calls made from
some PCO. The fact that the appellant had been seen for 5-6 days moving
round the house of the complainant was believed by the learned Trial Judge
on the basis of the statement made by Alpa (PW-21) mother of the deceased.
The motive on the part of the appellant in committing the crime for extorting
ransom was also believed.
The High Court affirmed the aforementioned findings of the learned
Sessions Judge.
Mr. Shivaji M. Jadhav, learned counsel appearing on behalf of the
appellant would principally raise the following contentions in support of this
appeal:
(i) Charges having only been framed under Sections 364, 302 and 201
of the Indian Penal Code, the appellant could not have been
convicted under Sections 364-A and 201 thereof.
(ii) Circumstances found against the appellant and in particular the
discovery of bones cannot be said to be free from doubt. The
purported confession made by the appellant being not voluntary;
could not have been relied upon. In any event even if the same is
taken to be correct in its entirety, it does not lead to an inference
that the appellant has committed an offence under Section 304A of
the Indian Penal Code.
Mr. B.B. Singh, learned counsel appearing on behalf of Respondent
No. 1, on the other hand, would submit:
(i) having regard to the provisions contained in Sections 221, 215 and
364 of the Code of Criminal Procedure, the appellant having not
been prejudiced by wrong framing of a charge, the impugned
judgment should not be interfered with.
(ii) The confession of the accused, disclosing information leading to
discovery of bones proved the place where the dead body was
disposed of and, thus, establishes his knowledge as to how he was
murdered and how his dead body was disposed of, and thus
established his knowledge as to how he was murdered and how his
dead body was disposed of and the same having been proved by
two eye-witnesses, full reliance thereupon has rightly been placed
by the learned Sessions Judge.
(iii) Judicial confession made by the appellant having not been
retracted, the same would form the best evidence to sustain the
judgment of conviction wherefor inculpatory statements made
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therein can be relied upon and exculpatory statement thereof can
be rejected.
(iv) Suicide note written by Satish was admissible in evidence under
Section 32 of the Indian Evidence Act.
The purported statement made by the appellant on 7.08.2000 leading
to recovery reads as under:
"On 3-8-2000 one Jagdish Solanki brought one
boy Paras from Coast Guard School on a scooter to
Mashal Chowk and I along with Jagdish and two
other Satish and Chotu took the boy in a D.C.M.
Toyota to Kachigam near Kabra factory and from
there took him in a isolated place near a nalla and
after removing his clothes threw him in the nalla,
after the dead body came up we removed the dead
body and hided in a pithole and covered it with
plastic sheet. We then burnt the clothes and other
belonging, of the boy. In the night we came back
to the spot with a kerosene cane and some
cardboard and removed the dead body and burnt it
in the field near the nalla and left while it was
burning. Next day morning I and Satish came
back again to the spot and found that the upper half
portion of the body was not fully burnt we picked
up the remaining part of the body and threw into
the nalla. I am ready to show the place where the
boy was killed and the dead body hidden and
thereafter thrown in the nalla come with me."
The first part of the said statement is not admissible in evidence.
The appellant was taken to the place pointed by him with Mr.
Jallauddin Mohamed Dali (PW-2) and Mr. John Bosco Machado (PW-3).
They were also accompanied by the diver of the Coast Guard School
Clifford Coutinho (PW-10). They were requested by the investigating
officer to serve as panch witnesses in preparing the recovery panchnama of
the said case. The preparation of panchnama commenced at 1610 hrs and
concluded at 1630 hrs.
The only infirmity, pointed out from their evidence was, whereas PW-
2 in his evidence stated that the appellant did not enter the nalla to take out
the bones; according to PW-3, he did so. However, on perusal of their
evidences, we find that both of them have stated that it was one person PW-
10 who went into the nalla and took out the bones. Both PW-2 and PW-3 as
also PW-10 gave a vivid description as to the mode and manner in which the
appellant pointed out the place whereat the dead body of Paras was burnt,
the nalla wherefrom the bones were recovered and the spot where some
burnt pieces of cardboard and ashes were seen. The grass area of that spot
was also found to have been burnt. On the other side of the nalla, burnt
shoes and burnt trousers were found. That spot was at a distance of about
500 mtrs. from a factory known as Midley. It was an isolated place and was
a grassy area.
Section 27 of the Indian Evidence Act reads as under:
"27. How much of information received
from accused may be proved.\026 Provided that,
when any fact is deposed to as discovered in
consequence of information received from a
person accused of any offence, in the custody of a
police officer, so much of such information,
whether it amounts to a confession or not, as
relates distinctly to the fact thereby discovered,
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may be proved."
The information disclosed by the evidences leading to the discovery
of a fact which is based on mental state of affair of the accused is, thus,
admissible in evidence.
Relevance of discovery of a fact in contradistinction to an object was
highlighted by the Privy Council in Pulukuri Kottaya and others v. Emperor
[AIR 1947 PC 67], wherein it was stated:
"Section 27, which is not artistically worded,
provides an exception to the prohibition imposed
by the preceding section, and enables certain
statements made by a person in police custody to
be proved. The condition necessary to bring the
section into operation is that discovery of a fact in
consequence of information received from a
person accused of any offence in the custody of a
Police Officer must be deposed to, and thereupon
so much of the information as relates distinctly to
the fact thereby discovered may be proved. The
section seems to be based on the view that if a fact
is actually discovered in consequence of
information given, some guarantee is afforded
thereby that the information was true, and
accordingly can be safely allowed to be given in
evidence; but clearly the extent of the information
admissible must depend on the exact nature of the
fact discovered to which such information is
required to relate. Normally the section is brought
into operation when a person in police custody
produces from some place of concealment some
object, such as a dead body, a weapon, or
ornaments, said to be connected with the crime of
which the informant is accused\005"
It was furthermore observed :
"On normal principles of construction their
Lordships think that the proviso to S.26, added by
S.27, should not be held to nullify the substance of
the section. In their Lordships’ view it is fallacious
to treat the ’fact discovered’ within the section as
equivalent to the object produced; the fact
discovered embraces the place from which the
object is produced and the knowledge of the
accused as to this, and the information given must
relate distinctly to this fact. Information as to past
user, or the past history, of the object produced is
not related to its discovery in the setting in which it
is discovered. Information supplied by a person in
custody that "I will produce a knife concealed in
the roof of my house" does not lead to the
discovery of a knife; knives were discovered many
years ago. It leads to the discovery of the fact that
a knife is concealed in the house of the informant
to his knowledge, and if the knife is proved to have
been used in the commission of the offence, the
fact discovered is very relevant. But if to the
statement the words be added ’with which I
stabbed A’ these words are admissible since they
do not relate to the discovery of the knife in the
house of the informant."
The said decision has been cited with approval in a large number of
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cases by this Court.
This Court in Jaipur Development Authority v. Radhey Shyam
[(1999) 4 SCC 370] opined that when an object is discovered from an
isolated place pointed out by the appellant, the same would be admissible in
evidence. [See also State of Maharashtra v. Suresh, (2000) 1 SCC 471]
We may also refer to a recent decision of this Court in State (NCT of
Delhi) v. Navjot Sandhu alias Afsan Guru [(2005) 11 SCC 600] wherein this
Court opined:
"The history of case law on the subject of
confessions under Section 27 unfolds divergent
views and approaches. The divergence was mainly
on twin aspects: (i) Whether the facts
contemplated by Section 27 are physical, material
objects or the mental facts of which the accused
giving the information could be said to be aware
of. Some Judges have gone to the extent of holding
that the discovery of concrete facts, that is to say
material objects, which can be exhibited in the
Court are alone covered by Section 27. (ii) The
other controversy was on the point regarding the
extent of admissibility of a disclosure statement. In
some cases a view was taken that any information,
which served to connect the object with the
offence charged, was admissible under Section 27.
The decision of the Privy Council in Kotayya’s
case, which has been described as a locus
classicus, had set at rest much of the controversy
that centered round the interpretation of Section
27. To a great extent the legal position has got
crystallized with the rendering of this decision.
The authority of Privy Council’s decision has not
been questioned in any of the decisions of the
highest Court either in the pre or post
independence era. Right from 1950s, till the advent
of the new century and till date, the passages in
this famous decision are being approvingly quoted
and reiterated by the Judges of this apex Court.
Yet, there remain certain grey areas as
demonstrated by the arguments advanced on behalf
of the State."
We have noticed hereinbefore the confessional statement of the
appellant and the manner in which the same was recorded.
The appellant was not in police custody when a request was made to
record his confessional statement. He was in judicial custody. He was
produced before the Magistrate on 16.08.2000. The learned Magistrate took
the requisite precaution in not recording his statement on that day. The
requirements of Section 164 of the Code of Criminal procedure have, thus,
fully been complied with. He was asked to come on the next day. A note of
caution as envisaged in law was again administered. His statement was
recorded on 17.08.2000.
His statement was recorded after the court time was over. All persons
had been asked to go out of the court room except the court peon. The
questions put to him on 17.08.2000 clearly go to show that the learned
Magistrate took all the requisite precautions before recording the said
statement. He was produced from the magisterial custody. He did not stop
there. He gave him another opportunity to think over the matter and
remanded him to the magisterial custody till the next day. On 18.08.2000,
the learned Magistrate again satisfied himself about the requirements of law.
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He made an inquiry as to when police had arrested him. He asked other
relevant questions including the question as to whether the police had led a
trap to arrest in Ankleshwar to which he pleaded ignorance.
His confessional statement reads as under:
"My name is Anil @ Raju Namdev Patil, age 22
years, r/o Shevga Bk., Taluka Parola, District Jalgoan.
I came to Daman in search of job in Nov. 99. My
friend Dharamraj Vasantrao Patil @ Chhotu also came.
The (sic) was working in village Somnath at Daman
previously.
Within two days I got the job as a driver on tempo
407 belonging to priest of Somnath temple Dilipbhai.
Myself and my friend Dharamraj Patil were staying in
Amlia at village (Somnath). Dharamraj @ Chhotu was
working elsewhere as a driver.
My cousin uncle Satish Shyamrao Patil r/o Shevge,
Taluka Parola came to Daman in March 2000 in search
of a job and started staying with me. He got a temporary
job as a helper in June.
Since I got a better job I left the job at Dilipbhai on
20/4/2000 and joined in R.K. Plastic company on
20/4/2000.
Before 9/7/2000 my father had come to Somnath
but I was not given leave by the owner of R.K. Plastic
Ashwinbhai shah. So my father could not meet me.
Again my father and mother came to see me and I went
along with them. On 21/7/2000 I returned, my uncle was
with me.
I had left the job, my uncle was also jobless. So,
Chhotu @ Dharamraj and my uncle Satish told me to
kidnap son of Ashwinbhai and for that to give me Rs. 1
Lakh and also told that after getting ransom all would go
back to village.
Being greedy of money I thought for the whole
night, I would get Rs.1 lakh and for that I had to look
after the boy only for 2-3 days.
We three i.e. myself, Satish and Dharamraj as per
plan on 3/8/2000, I and Satish went in a rickshaw to
collect Paras from Coast Guard School. Paras knew me.
I told Paras that your father has called you in factory so
Paras came and sat with us in rickshaw. At 2.15 p.m. we
reached our house along with Paras. We three had
devide (sic) the work to be done. My work was to bring
Paras. Satish was to telephone and take ransom from
Ashwinseth, Dharamraj had to look after the child and
with Satish to go for collecting ransom.
On 3/8/2000 at 2.30 p.m. we went to Vapi to
telephone Ashwinsheth. Ashwinseth was not available
on phone. We returned. Dharamraj @ Chhotu and Paras
were not in the room. Satish went to search Chhotu. At
5.30 Chhotu and Satish came back to the room. They
told that Paras is kept at the safe place. At night 8 p.m.
both left the room and returned at 12 midnight.
On 4/8/00 Chhotu went for his work at 9 O’clock.
Myself and Satish went to ring up Ashwinseth. Satish
took me to Kachigam. He took me near a hill in jungle,
there Satish showed me a burnt body of a male child. I
started to cry. They have cheated me.
We three had thrown the half burnt body into
water. The body was of Paras.
Statement is recorded as per the say of accused and
it is read over to him."
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The confession was not retracted during the course of the trial. It was
purported to have been done only in his examination under Section 313 of
the Criminal Procedure Code. The learned Magistrate examined himself as
PW-33.
Before we embark upon the evidentiary value of alleged confession
made by the appellant, we may notice some precedents of this Court on the
subject.
In Hanumant v. The State of Madhya Pradesh [1952 SCR 1091], this
Court in the fact situation obtaining therein opined :
"\005It is settled law that an admission made by a
person whether amounting to a confession or not
cannot be split up and part of it used against him.
An admission must be used either as a whole or
not at all. If the statement of the accused is used as
whole, it completely demolishes the prosecution
case and, if it is not used at all, then there remains
no material on the record from which any
inference could be drawn that the letter was not
written on the date it bears."
In Palvinder Kaur vs. The State of Punjab, [1953 SCR 94], this Court
held:
"Not only was the High Court in error in
treating the alleged confession of Palvinder as
evidence in the case but it was further in error in
accepting a part of it after finding that the rest of it
was false. It said that the statement that the
deceased took poison by mistake should be ruled
out of consideration for the simple reason that if
the deceased had taken poison by mistake the
conduct of the parties would have been completely
different, and that she would have then run to his
side and raised a hue and cry and would have sent
immediately for medical aid, that it was incredible
that if the deceased had taken poison by mistake,
his wife would have stood idly by and allowed him
to die. The court thus accepted the inculpatory part
of that statement and rejected the exculpatory part.
In doing so it contravened the well accepted rule
regarding the use of confession and admission that
these must either be accepted as a whole or
rejected as a whole and that the court is not
competent to accept only the inculpatory part
while rejecting the exculpatory part as inherently
incredible\005"
In Aher Raja Khima vs. State of Saurashtra [AIR 1956 SC 217], this
Court held:
"Now the law is clear that a confession
cannot be used against an accused person unless
the Court is satisfied that it was voluntary and at
that stage the question whether it is true or false
does not arise. It is abhorrent to our notions of
justice and fair play, and is also dangerous, to
allow a man to be convicted on the strength of a
confession unless it is made voluntarily and unless
he realises that anything he says may be used
against him; and any attempt by a person in
authority to bully a person into making a
confession or any threat or coercion would at once
invalidate it if the fear was still operating on his
mind at the time he makes the confession and if it
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would appear to him reasonable for supposing that
by making it he would gain any advantage or avoid
any evil of a temporal nature in reference to the
proceedings against him: Section 24 of the Indian
Evidence Act. That is why the recording of a
confession is hedged around with so many
safeguards and is the reason why Magistrates
ordinarily allow a period for reflection and why an
accused person is remanded to jail custody and is
put out of the reach of the investigating police
before he is asked to make his confession. But the
force of these precautions is destroyed when,
instead of isolating the accused from the
investigating police, he is for all practical purposes
sent back to them for a period of ten days. It can be
accepted that this was done in good faith and we
also think that the police acted properly in sending
the appellant up for the recording of his confession
on the 21st; they could not have anticipated this
long remand to so-called jail custody. But that is
hardly the point. The fact remains that the remand
was made and that that opened up the very kind of
opportunities which the rules and prudence say
should be guarded against; and, as the police are as
human as others, a reasonable apprehension can be
entertained that they would be less than human if
they did not avail themselves of such a chance."
In Subramania Goundan v. The State of Madras [1958 SCR 428], this
Court held:
"The next question is whether there is
corroboration of the confession since it has been
retracted. A confession of a crime by a person,
who has perpetrated it, is usually the outcome of
penitence and remorse and in normal
circumstances is the best evidence against the
maker. The question has very often arisen whether
a retracted confession may form the basis of
conviction if believed to be true and voluntarily
made. For the purpose of arriving at this
conclusion the court has to take into consideration
not only the reasons given for making the
confession or retracting it but the attending facts
and circumstances surrounding the same. It may be
remarked that there can be no absolute rule that a
retracted confession cannot be acted upon unless
the same is corroborated materially..."
It is however a case where the learned Magistrate did make
preliminary inquiries, gave warning to him, send him back to the judicial
custody for a few days or at least one day and then he was called back again.
[See Bharat v. State of U.P. (1971) 3 SCC 950]
In Bhagwan Singh Rana v. The State of Haryana [AIR 1976 SC
1797], this Court opined:
"It has also been argued by Mr. Ramamurthy that
the courts below erred in accepting those parts of
the statements of the appellant in Exs. PB and PC
which were inculpatory and in rejecting those parts
which were ex-culpatory, and that, in doing so, the
courts lost sight of the requirement of the law that
such statements should either be accepted as a
whole, or not at all. For this proposition our
attention has been invited to Hanument v. The
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State of Madhya Pradesh etc. (2) and Palvinder
Kaur v. The State of Punjab. (3) The law on the
point has however been laid down by this Court in
Nishi Kant Jha v. State of Bihar (4) in which the
two cases cited by Mr. Ramamurthy have been
considered. After referring to Taylor’s law of
Evidence and Roscoes & Criminal Evidence this
Court has held that it is permissible to believe one
part of a confessional statement, and to disbelieve
another, and that it is enough if the whole of the
confession is tendered in evidence so that it may
be open to the Court to reject the exculpatory part
and to take inculpatory part into consideration if
there is other evidence to prove its correctness. An
examination of Exs. PB and PC shows that the
appellant admitted that he was working as Sub-
Post Master at Sohna Adda Post Office on March
21, 1967 when a Sikh by (Navatej Singh, (P.W. 5)
came to the post office and delivered a parcel
under postal certificate. The appellant also
admitted that the parcel was opened by Tej Ram in
his presence, and that he (Tej Ram) took out a
lady’s wrist Watch (Ex. P 1) and from it and gave it
to him."
In Navjot Sandhu alias Afsan Guru (supra), this Court opined:
"Confessions are considered highly reliable
because no rational person would make admission
against his interest unless prompted by his
conscience to tell the truth. "Deliberate and
voluntary confessions of guilt, if clearly proved are
among the most effectual proofs in law". (vide
Taylor’s Treatise on the Law of Evidence Vol. I).
However, before acting upon a confession the
court must be satisfied that it was freely and
voluntarily made. A confession by hope or promise
of advantage, reward or immunity or by force or
by fear induced by violence or threats of violence
cannot constitute evidence against the maker of
confession. The confession should have been made
with full knowledge of the nature and
consequences of the confession. If any reasonable
doubt is entertained by the court that these
ingredients are not satisfied, the court should
eschew the confession from consideration. So also
the authority recording the confession - be it a
Magistrate or some other statutory functionary at
the pre-trial stage, must address himself to the
issue whether the accused has come forward to
make the confession in an atmosphere free from
fear, duress or hope of some advantage or reward
induced by the persons in authority. Recognizing
the stark reality of the accused being enveloped in
a state of fear and panic, anxiety and despair while
in police custody, the Indian Evidence Act has
excluded the admissibility of a confession made to
the police officer."
We are thoroughly satisfied that the confession made by the appellant
was voluntary in nature and the same was free from undue influence,
coercion and threat. There is another reason why we think that there is a
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ring of truth in the confession of the appellant. He was a driver appointed by
the parents of the deceased. He worked with them for three months. He
might have become greedy to earn some easy money. From the tenor of his
confession, it appears that his job merely was to kidnap the boy and handed
over to other co-accused. He never thought that the boy would be murdered.
He did not have any animosity with the deceased. He might have developed
a liking for the boy. The act of others is apparent from the statement before
the learned Magistrate.
Furthermore, in the meantime the other two co-accused had also
committed suicide. They left a suicide note which implicated him also.
The said suicide note, in our considered opinion, is not admissible in
evidence under Section 32(1) of the Indian Evidence Act as was suggested
by Mr. Singh. He relied upon a decision of this Court in Sharad Birdhi
Chand Sarda v. State of Maharashtra [1985 (1) SCR 88 : (1984) 4 SCC 116]
wherein the question was as to whether the death of the deceased therein was
homicidal or suicidal. The said decision has no application in the instant
case.
The statement of a deceased may be admissible in evidence in terms
of Section 32(1) of the Indian Evidence Act to prove the cause of the death
or as to any of the circumstances of the transaction which resulted in his
death. But, when a suicide is committed by a co-accused, the statements
made in the suicide note implicating other co-accused would not be
admissible thereunder.
The only question which now arises for consideration is as to whether
the appellant could have been convicted under Section 364-A of the Indian
Penal Code. The charges framed against him are as under:
"That you on or about the third day of August,
2000 at between 1.45 and 7 p.m. at Delwada, Nani
Daman in furtherance of your common intention
with deceased Satish Shamrao Patil and deceased
Dharmaraj @ Chotu Vasantrao Patil kidnapped
Paras Ashwin Shah, aged 5 years from Coast
Guard Public School in order that he may be
murdered or may be so disposed of as to be put in
danger of being murdered and thereby committed
an offence punishable u/s 364 r/w 34 of I.P.C.
That on or about 3.8.2000 after having
kidnapped said Paras Ashwin Shah, aged 5 years
in furtherance of your common intention with
deceased Satish Shamrao Patil committed murder
of said Paras by throwing him in a nalla at village
Namdeo in Gujarat State and thereby committed
an offence punishable u/s 302 r/w 34 of I.P.C.
That on or about 3-8-2000 knowing that you
had committed murder of said Paras which invites
capital punishment, in furtherance of your
common intention with deceased Satish Shamrao
Patil and deceased Dharamraj @ Chotu Vasantarao
Patil and absconding accused Jagdish Prasad
Karanji Solanki caused the evidence of the
commission of the said offence to disappear by
partly burning the dead body of deceased Paras
and again throwing him in water with intention of
screening yourself from the legal punishment and
thereby committed an offence punishable u/s 201
r/w 34 of I.P.C.
And, I hereby direct that you be tried by this
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Court on the said charge."
Mr. Singh would submit that the entire evidence was recorded in
presence of the appellant. His attention was also drawn to the circumstances
brought on records by the appellant including the demand of ransom and
murder of the deceased and in that view of the matter it cannot be said that
he was in any way prejudiced or there has been a failure of justice.
The learned counsel would submit that when the provisions of the
Code of Criminal Procedure, viz., Sections 221, 251 and 364 have
substantially been complied with, mere omission to frame proper charge
may not be sufficient to absolve him therefrom only on mere technicality.
Before we advert to the said contentions, we may notice the following
precedents.
In K. Prema S. Rao and Another v. Yadla Srinivasa Rao and Others
[(2003) 1 SCC 217], this Court observed:
"Mere omission or defect in framing charge does
not disable the Criminal Court from convicting the
accused for the offence which is found to have
been proved on the evidence on record. The Code
of Criminal procedure has ample provisions to
meet a situation like the one before us. From the
Statement of Charge framed under Section 304B
and in the Alternative Section 498A, IPC (as
quoted above) it is clear that all facts and
ingredients for framing charge for offence under
Section 306, IPC existed in the case. The mere
omission on the part of the trial Judge to mention
of Section 306, IPC with 498A, IPC does not
preclude the Court from convicting the accused for
the said offence when found proved. In the
alternate charge framed under Section 498A of
IPC, it has been clearly mentioned that the accused
subjected the deceased to such cruelty and
harassment as to drive her to commit suicide. The
provisions of Section 221 of Cr.P.C. take care of
such a situation and safeguard the powers of the
criminal court to convict an accused for an offence
with which he is not charged although on fats
found in evidence, he could have been charged for
such offence."
In Kammari Brahmaiah and Others v. Public Prosecutor, High Court
of A.P. [(1999) 2 SCC 522], this Court observed:
"3. At the time of hearing of this appeal, learned
Counsel appearing on behalf of the appellant
submitted that the Order passed by the High Court
convicting the appellants for the of fence
punishable under Section 325 read with 149 is on
the face of it illegal as no charge under Section 149
was framed against the accused. He contended that
all accused were charged only for the of fence
punishable under Section 302 of IPC for causing
injuries to the deceased Itikala Mogulaiah. As
against this, learned Counsel for the State
vehemently submitted that even though it is an
error on the part of the Additional Sessions Judge
of not framing the charge under Section 302 read
with 149 of IPC no prejudice is casued to the
accused as relevant facts were placed before the
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Court and the attention of the accused also was
drawn. Futher, they are punished for lesser of
fence, therefore, the order passed by the High
Court is justified and legal."
In Dalbir Singh v. State of U.P. [(2004) 5 SCC 334], this Court
observed:
"11. The High Court was further of the opinion
that the evidence on record clearly established the
charge against the accused under Section 306 IPC
and he could be convicted and sentenced for the
said offence. However, in view of the fact that no
charge under Section 306 IPC had been framed
and there was conflict of opinion in the two
decisions of this Court rendered by Benches of
equal strength and as in such a situation a later
decision was to be followed, the High Court came
to a conclusion that the accused cannot be
convicted under Section 306 IPC. On this basis the
conviction and sentence of accused under Section
498-A IPC alone were maintained.
12. The main question which requires
consideration is whether in a given case is it
possible to convict the accused under Section 306
IPC if a charge for the said offence has not been
framed against him. In Lekhjit Singh and Anr. v.
State of Punjab (supra) the accused were charged
under Section 302 IPC and were convicted and
sentenced for the said offence both by the trial
Court and also by the High Court. This Court in
appeal came to the conclusion that the charge
under Section 302 IPC was not established. The
Court then examined the question whether the
accused could be convicted under Section 306 IPC
and in that connection considered the effect of
non-framing of charge for the said offence. It was
held that having regard to the evidence adduced by
the prosecution, the cross-examination of the
witnesses as well as the answers given under
Section 313 Cr.P.C. it was established that the
accused had enough notice of the allegations
which could form the basis for conviction under
Section 306 IPC\005"
In Kamalanantha and Others v. State of T.N. [(2005) 5 SCC 194], this
Court held:
"It is clear from the aforesaid decisions that
misjoinder of charges is not an illegality but an
irregularity curable under Section 464 or Section
465 Cr.P.C. provided no failure of justice had
occasioned thereby. Whether or not the failure of
justice had occasioned thereby, it is the duty of the
Court to see, whether an accused had a fair trial
whether he knew what he was being tried for,
whether the main facts sought to be established
against him were explained to him fairly and
clearly and whether he was given a full and fair
chance to defend himself."
The question came up for consideration in Harjit Singh v. State of
Punjab [2006(1) SCC 463] wherein, however, it was held :
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"23. Faced with this situation, the learned counsel
appearing on behalf of the State relies upon a
judgment of this Court in K. Prema S. Rao v.
Yadla Srinivasa Rao wherein an observation was
made in the peculiar facts and circumstances of
that case that even if the accused is not found
guilty for commission of an offence under Sections
304 and 304-B of the Penal Code, he can still be
convicted under Section 306 IPS thereof.
24. Omission to frame charges under Section 306
in terms of Section 215 of the Code of Criminal
Procedure may or may not result in failure of
justice, or prejudice the accused.
25. It cannot, therefore, be said that in all cases, an
accused may be held guilty of commission of an
offence under Section 306 of the Penal Code
wherever the prosecution fails to establish the
charge against him under Section 304-B thereof.
Moreover, ordinarily such a plea should not be
allowed to be raised for the first time before the
court unless the materials on record are such which
would establish the said charge against the
accused."
The propositions of law which can be culled out from the
aforementioned judgments are:
(i) The appellant should not suffer any prejudice by reason of
misjoinder of charges.
(ii) A conviction for lesser offence is permissible.
(iii) It should not result in failure of justice.
(iv) If there is a substantial compliance, misjoinder of charges may not
be fatal and such misjoinder must be arising out of mere
misjoinder to frame charges.
The ingredients for commission of offence under Section 364 and
364-A are different. Whereas the intention to kidnap in order that he may be
murdered or may be so disposed of as to be put in danger as murder satisfies
the requirements of Section 364 of the Indian Penal Code, for obtaining a
conviction for commission of an offence under Section 364-A thereof it is
necessary to prove that not only such kidnapping or abetment has taken
place but thereafter the accused threatened 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
intergovernmental organization or any other person to do or abstain from
doing any act or to pay a ransom.
It was, thus, obligatory on the part of the learned Sessions Judge,
Daman to frame a charge which would answer the description of the offence
envisaged under Section 364-A of the Indian Penal Code. It may be true that
the kidnapping was done with a view to get ransom but the same should
have been put to the appellant while framing a charge. The prejudice to the
appellant is apparent as the ingredients of a higher offence had not been put
to him while framing any charge.
It is not a case unlike Kammari Brahmaiah (supra) where the offence
was of a lesser gravity, as has been observed by Shah J.
We, therefore, are of the opinion that the appellant could not have
been convicted under Section 364-A of the Act. We, however, find him
guilty of commission of an offence under Section 364 of the Indian Penal
Code. He, in our opinion, deserves the highest punishment prescribed
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therein, i.e., the rigorous imprisonment for life and we direct accordingly.
The appeal is dismissed with the modification of sentence as also quantum
thereof.