Case: Anil @ Raju Namdev Patil Vs. Adminstration Of Daman &amp; Diu, Daman &amp;Anr

2. 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 months3. 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 later4. 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 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 opinion5. The prosecution in support of its case examined a large number of witnesses and also proved a large number of documents6. 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 remnants2. Inquest of bones4. DNA test report5. Articles and burnt clothes recovered from scene of offence6. Identification of clothes and articles by the relatives7. Sketches and photographs8. Child was missing from school.7. 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 part2. Lower jaw with nine teeth erupted and intact3. Two last teeth present in socket4. One socket of front teeth is found empty5. 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 cm6. Pieces of partly burnt hair7. Two pieces of bones which were found inside the water, one of 10 cm. (curve) and one straight of 10= cm8. Recovery of the said articles was also proved by the aforementioned witnesses9. 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 age10. 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 deceased11. 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 bones12. Reliance was also placed on the confession of the accused. Noticing that there was no direct evidence, the following circumstances were held to be sufficient to prove his guilt :1. Discovery of Remnants and articles at the instance of accused2. Confession before the Magistrate3. Extra judicial confession of co-accused4. Finding of telephone diary5. Recovery of three licenses from room No.4 of landlord Soma6. A chit written by deceased co-accused8. Accused was seen 5-6 days prior moving around the house of complainant, and9. Motive to extort ransom13. 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 believed14. The High Court affirmed the aforementioned findings of the learned Sessions Judge.

Reasoning:
17. 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 evidence19. 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 hrs20. 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.22. 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.26. 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 ]27. 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 Kotayyas 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 Councils 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 recorded29. 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 17.08.2000.30. 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. 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.31. 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 previouslyWithin 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 driverMy 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 JuneSince I got a better job I left the job at Dilipbhai on 20/4/2000 and joined in R.K. Plastic company on 20/4/2000Before 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 meI 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 villageBeing 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 daysWe 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 Oclock. 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 meWe 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.. 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-33.37. 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...38. 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 ]41. 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 Magistrate42. Furthermore, in the meantime the other two co-accused had also committed suicide. They left a suicide note which implicated him also43. 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 case44. 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.54. 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 charges55. 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 ransom56. 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 charge57. It is not a case unlike Kammari Brahmaiah (supra) where the offence was of a lesser gravity, as has been observed by Shah J.