IMPORTANT POINT
Kidnapping and murder – Conviction cannot be based only on confessions.

JUDGMENT :

K.VINOD CHANDRAN, J.

The prosecution story commences with a person having left home for Hyderabad, who could not be reached on the telephone, even on the next day. After two days, his father receives a ransom call and instructions to deposit an amount of Rs.2,00,000/- in an account in a bank. Two days later, fatherPW1 lodges a complaint (Exhibit P1) with the police and also deposits an amount of Rs.1,50,000/- in the account of one Geetanjali. Analyzing the calls between the two phone numbers, the Investigating Officer (I.O) was led to A6, who was arrested. A6 is said to have pointed out a flat, inside which the missing person’s body was recovered, tucked away in a refrigerator. A6 also confessed about the involvement of A1 to A5.

2. Six persons were arrayed as accused responsible for the kidnapping and murder. A4 died in the course of trial and A1, A2, A3, A5 and A6 stood convicted and sentenced by the Trial Court. The High Court acquitted A2, A3, A5 and A6 but affirmed the conviction of A1. The conviction was on the sole testimony of PW3 and the circumstance of A1 having not explained the presence of the body inside the apartment he leased out, found to be incriminating under Section 106 of the Indian Evidence Act, 1862¹[Hereinafter referred to as ‘the Evidence Act’].

3. The story projected by the prosecution on the confessions elicited from the accused was that, A1 was a habitual criminal who met A4 while both were in jail. On release from the prison, A1 took up residence at Siricilla, from where A4 hailed and they indulged in politics. A1 developed intimate relationship with A2, who was a tenant in the house of the deceased who too had an illicit relationship with A2. A1 and A2 hatched a plot to kidnap the deceased for ransom since A2 informed A1 that his father had the wherewithal to pay the ransom. Though, A2 tried to lure him into the flat where she was staying with A1, the deceased could not come, due to his personal commitments. Later, A1 is said to have married A3, with whom also he had intimacy and then A1, together with A3 to A6 hatched the plan to carry out the kidnapping of the deceased, which led to the murder.

4. We have to immediately notice that there was nothing to substantiate the above story but for the confessions, which definitely cannot be relied on to inculpate any of the accused.

5. The Trial Court convicted the accused on the circumstances of the missing of the victim for two days, the phone call for ransom received by PW1, the amounts deposited by PW1, money withdrawn by the accused and the cash seized at the instance of A1 and A6. The further circumstances relied on were the call details leading to apprehension of A6, the information provided by A6, which led to the discovery of the body from an apartment, the recovery of the body itself, the circumstance of A1 having taken the flat on rent from PW4, the testimony of PW3 with respect to handing over the key of the flat to A1 on behalf of PW4, last seen theory of PW3 having seen A1 with the deceased entering the flat and A1 & A3 to A5 leaving the flat after four days. The identification of A1 & A3 to A5 by PW3 in the Test Identification Parade (TIP) was also relied on.

6. The High Court found that the CCTV footage showing the withdrawal of the amounts, can only be disbelieved since it was not possible to identify the accused from the footage and also for the absence of a certificate, as required for an electronic evidence to be brought in evidence under Section 65B of the Evidence Act. The cellphone records, as produced by the I.O, were also not looked into since the Nodal Officer of the service provider was not examined and here too, there was absence of the certificate under Section 65B of the Evidence Act.

7. It was also noticed by the High Court that PW3, but for the statement that the apartment had five floors consisting of 17 flats, could not provide the details of the occupants, neither produced the register of visitors nor did he speak of