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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.