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SUPREME COURT OF INDIA
A. M. Ahmadi, V. Ramaswami and M. Pathima Beevi, JJ.
Chandra Kant Chiman Lal Desai -Appellant
versus
State of Gujarat -Respondent
Criminal Appeal Nos. 327 and 495 of 1979
Decided on 12.12.1991
(Para 4)
(ii) Indian Penal Code, 1860-Section 302, l20B, 201, 404, 507 r/w 34-Circumstancial evidence-Accused/appellants alleged to have kidnapped and murdered a four years old child-No eye witness to the occurrence and whole case depending upon circumstantial evidence-Prosecution must fully establish the incriminating facts and circumstances by cogent and reliable evidence and the facts so established must be consistent with the guilt of accused and should not be capable of being explained away on any other reasonable hypothesis than of his guilt Trial court found to have given cogent reasons for not accepting the evidence of prosecution witnesses deposing the chain of circumstances-High Court found to have made confessional statement of one of the appellants as the basis and then tried to find out if the facts stated therein were corroborated in material particulars by other evidence instead of analysing the evidence first and trying to find out whether the evidence was reliable and the facts established were consistent with the guilt of accused-Approach of the High Court was wrong.
(Para 5)
(iii) Indian Penal Code, 1860-Sections 302, 120B, 201, 404 and 507 r/w 34-Confession before Magistrate-Appellants/accused alleged, to have kidnapped and murdered a four years old child-First accused made a confession before magistrate but retracted at the time when he was questioned under section 313 Cr. P.C.-Confession of an accused can not be made the foundation of a conviction and it can only be used in support of other evidence-Trial court found that Magistrate had not taken sufficient precaution before recording confessional statement to ensure that it was voluntary-Approach of the High Court that the confessional statement was corroborated in material particulars without first considering and marshalling the evidence against accused excluding confession altogether, was wrong-Prosecution in such circumstances cannot be said to have established its charge beyond reasonable doubt.
(Para 5)
JUDGMENT
V. Ramaswami, J.-The first accused Subamiya Deshmohmed is the appellant in , Criminal Appeal No. 495 of 1979 and the second accused Chandrakant Chimanlal Desai is the appellant in Criminal Appeal No. 327 of 1979. They were charged under Section 302 read with 120B and Section 302 read with 34,- 201134,404 and 507, IPC for having entered, into a criminal conspiracy to kidnap and murder a four years old child by name Tinu and for having committed, in furtherance of a common intention and the conspiracy, the murder of the said child. The motive for the commission of such heinous crime was stated by the prosecution to be the deep craving of the second accused, who was childless, to have a child and the confidence or advice he had received from a Sadhu or a Saint, who had assured him that his desire would fructify, if he offered the tuft of hair of a young boy to Kalka Mata a deity. The prosecution case as brought out in the evidence show that the deceased Tinu is the sone of one Budhi Prasad (P.W 35) and this child was born to him after the birth of six daughters. Budhi Prasad is a Kandoi by profession and runs a shop of sweets and Nimkins at Prantij, a town in Gujarat State. The deceased Tinu used to go to shop of his father, which was situated near the S. T. Bus Stand, in the town and be with the father playing in or around that area. On the day of occurrence, namely, 27th of August, 1977 the boy was as usual with his father and around 1.30. P.M., both father and the boy went to their houses for noon meal and returned around 3.00 or 3.30p.m. At the time the first accused who was known to the family and who used to play with the child was also seen sitting on a bench lying near the shop. Around 4.30.P.M. Budhi Prasad noticed that his son was missing. He immediately sent his servant to find out where the child had gone. On being told that he was not found even in his house he became suspicious and made a search for the child in the entire town. Not finding any clue regarding his whereabouts at about 7.00 P.M. he informed the Prantij Police that his son Tinu was missing. It was the further case of the prosecution that around 10.3Op.m. the news of missing of the child having spread like fire, a crowd of people collected near Nagar Panchayat office and the people had caught hold of accused No.1 obviously on suspicion. The second accused was also a member of that crowd. At that time accused 1 asked or enquired of Budhi Prasad to had come there whether he had any doubts in his mind against him. Since Budhi Prasad at that time did not entertain any doubts about him he informed the people that he entertained no suspicion against him. The crowd accordingly freed accused 1. The prosecution case further went on to say that on the next day, namely, 28th of August, 1977 at about 5.30 p.m. Budhi Prasad was going to S. T Stand and that time he saw accused 2 sitting near the Octroi Cabin. The second accused inquired of Bud hi Prasad as to whether Tinu had been traced. Budhi Prasad gave a negative reply and was proceeding further. However, the second accused called him and told him that there was a "Jasa Chitthi" demanding a ransom. When Budhi Prasad demanded accused 2 to give him the Jasa Chitthi the accused did not hand it over but allowed him to read the same while keeping the Jasa Chitthi in his own hand. This Jasa Chitthi cautioned that the fact of the demand should not be told to the police on pain of certain consequences. The details of the Jasa Chitthi need not be set out at this stage. Budhi Prasad went home and later in the day he sent his brother Chinubhai (PW 27) to the second accused to bring the said Jasa Chitthi and accordingly Chinubhai went to the second accused and got the Jasa Chitthi and handed over the same to Budhi Prasad. Later Budhi Prasad is said to have handed over that letter to one Dhirubhai (PW 28). It is further stated that on the 29th of August, 1977 around 5.30p.m. Budhi Prasad heard the news that a dead bod
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