2006 Supreme(SC) 1172

2007(2) Supreme 220
SUPREME COURT OF INDIA
(From Bombay High Court)
S.B. Sinha and Markandey Katju, JJ.
Anil @ Raju Namdev Patil—Appellant
versus
Administration of Daman & Diu, Daman & Anr.—Respondents
Criminal Appeal No. 449 of 2006
Decided on 24-11-2006
Counsel for the Parties :
For the Appellant : Shivaji M. Jadhav and Himanshu Gupta, Advocates.
For the Respondent No. 1 : B.B. Singh, Kumar Rajesh Singh and Ms. Sunita Sharma (for D.S. Mahra), Advocates.
For the Respondent No. 2 : Aniruddha P. Mayee, Advocate.

IMPORTANT POINT
Suit note by deceased co-accused implicating himself as well accused facing trial would not be admissible as dying declaration u/s 32 Evidence Act.

Headnote:Indian Penal Code, 1860—Sections 364A and 201—Appellant convicted for kidnapping a five year old son of complainant for a demand of ransom—Appellant was appointed as a driver by parents of deceased for about three months—Child did not return from school and then calls on telephone were received demanding ransom of Rs. 25 lakhs—Appellant was arrested and he made confession which led to recovery of a few bones—DNA test established that bones were of deceased kidnapped child—Two other accused involved in crime committed suicide and a suicide note left behind implicating appellant in the crime—Accused made confession in judicial custody which was recorded by Magistrate—Conviction by trial Court and death sentence was awarded—High Court affirmed the findings of trial Court—Appeal—Convincing evidence by PWs 2, 3 and 10 that appellant pointed out the place whereat dead body of victim child was burnt, nalla from where bones were recovered—Spot was isolated place and was grassy area—Confessional statement was recorded by Magistrate and requirements of Section 164 Cr.P.C. were fully complied with and confession was not retracted during trial except in his examination u/s 313 Cr.P.C.—Confession was voluntary and free from undue influence, coercion and threat—Charge specific u/s 364A IPC was not framed but was framed u/s 364 IPC alone—Conviction u/s 364A IPC could only be recorded sentence of life imprisonment awarded.

       Held : 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.(Para 21)

       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.(Para 29)

       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 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.(Para 41)

       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 therein, i.e., the rigorous imprisonment for life and we direct accordingly.(Paras 54 to 57)

       (ii) Evidence Act, 1872—Section 32—Suicide note by deceased co-accused implicating accused facing trial would not be admissible as dying declaration.

       Held : 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.(Paras 43 & 44)

       (iii) Criminal Procedure Code, 1973—Sections 221, 251 and 364—Omission to frame proper charge—Charge was framed u/s 364 IPC—Conviction u/s 364A IPC was not possible in absence of specific charge.

       Held : 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. (Paras 53 to 55)