Holding

The appellant cannot be convicted under Section 364‑A IPC as the charge was not framed, but can be convicted under Section 364 IPC with life imprisonment.

Summary

The appellant, Anil Raju Namdev Patil, was convicted of kidnapping a five‑year‑old boy for ransom, the boy’s murder and related offences, and sentenced to death and five years’ rigorous imprisonment. He appealed, arguing that the charge of kidnapping for ransom with intent to murder (Section 364‑A IPC) was never framed, that his confession was involuntary, and that the suicide note of co‑accused was inadmissible. The Supreme Court held that the trial court erred in convicting him under Section 364‑A because the essential ingredients of that offence were not put to him in the charge, but affirmed conviction under Section 364 IPC, modifying the death sentence to life imprisonment. The Court also ruled that the confession recorded under Section 164 CrPC was voluntary and admissible, that statements leading to discovery of facts are admissible under Section 27 Evidence Act, and that the suicide note is inadmissible under Section 32 Evidence Act. The appeal was dismissed with the sentence modified.

Issues considered

The trial court’s conviction under Section 364‑A IPC despite the charge not being framed
Whether misjoinder or omission of charges prejudices the accused
Admissibility and voluntariness of the confession recorded under Section 164 CrPC
Admissibility of statements leading to discovery of fact under Section 27 Indian Evidence Act
Admissibility of the suicide note of co‑accused under Section 32 Indian Evidence Act
Whether conviction for a lesser offence (Section 364 IPC) is permissible

Legislation cited

Code of Criminal Procedure, 1973s. 164, s. 215, s. 221, s. 251, s. 313, s. 364, s. 464, s. 465
Indian Evidence Act, 1872s. 27, s. 32
Indian Penal Code, 1860s. 201, s. 302, s. 34, s. 364, s. 364A

Subjects

kidnappingransommurderconfessionmisjoinder of chargesSection 364 IPCSection 364-A IPCSection 27 Evidence ActSection 32 Evidence Actlife imprisonmentdeath sentenceDNA evidencesuicide note

Judgment

A ANIL@RAJU NAMDEV PATIL
v.
ADMINISTRATION OF DAMAN & DIU, DAMAN AND ANR.

NOVEMBER 24, 2006

B
[S.B. SINHA AND MARKANDEY KA TJU, JJ.]

Criminal Trial.

C Code of Criminal Procedure, 1973-Sections 215, 221 and 364-
Misjoinder of charges-Effect-Held, accused should not suffer any prejudice
by reason of misjoinder of charges-Conviction for lesser offence is
permissible-Minor child kidnapped for ransom and murdered-Charge framed
under section 364-Conviction under section 364A-Held, prejudice caused
to accused as ingredients of higher offence not put while framing charge-
D In the facts, sentence modified from death sentence to rigorous imprisonment
fdr llfe-lndian Penal Code, 1860-Sections 201,364 and 364A.

Indian Evidence Act, 1872-Section 27-Statement of accused-
Discovery of fact-Whether admissible in evidence-Held, information
E disclosed leading to discovery of fact based on mental state of affair of
accused is admissible in evidence.

Indian Evidence Act, 1872-Section 32-Co-accused committing suicide
leaving behind suicide note implicating other co-accused-Whether admissible
in evidence-Held, suicide note implicating other co-accused is inadmissible
in evidence.
F
Prosecution alleged that on 3.8.2000 at 6:15 P.M., a phone call was
received by mother of 5 year old boy, P, informing that P was in their custody
and a demand of Rs. 25 lakhs was made as ransom money for returning the
child safely. A, father of P, thereafter went to the police station and lodged a
G complaint. A was asked to come to a place near Ankleshwar with the amount
of ransom. A trap was arranged at Ankleshwar but nobody turned up to claim
the amount of ransom. The name of the appellant-accused was disclosed '\vhen
a query was made to A as to whether he knew a person who was a resident of
Ankleshwar. Appellant had worked as driver with family of A for 3 months.

H 466
ANIL@RAJUNAMDEV PATIL v. ADMIN. OF DAMAN & DIU, DAMAN 467

Appellant was arrested and on conducting search his personal diary was A
sei7.ed. Appellant made confession that the boy P had been murdered. Appellant
made statement which led to recovery of a few bones on 7.08.2000 which along
with blood samples of the parents of P were sent for DNA test to Hyderabad.
Two other persons, Sand C, who were also allegedly involved in commission
of the crime committed suicide in a hotel. A purported suicide note written by B
S was found wherein they implicated not only themselves but also the appellant
Appellant was sent to judicial custody on 15.08.2000 and a request was made
to the Chief Judicial Magistrate, Daman on 16.08.2000 for recording the
confessional statement of appellant which was recorded on 17.08.2000 and
18.08.2000 wherein appellant admitted kidnapping P for ransom but stated
that P was murdered by S and C. Trial Court inter alia relying upon C
circumstantial evidence viz discovery of remnants and articles at the instance
of accused ; confession before the Magistrate ; extra judicial confession of
co-accused ; motive to extort ransom, etc. convicted appellant for commission
of offence under Section 364-A of the Indian Penal Code, 1860 and imposed
sentence of death and also convicted him for commission of an offence
punishable under Section 201 IPC. High Court affirmed the order of the Trial D
Court. Hence the present appeal by the accused.

Appellant inter alia contended that charges having only been framed
under sections 364, 302 and 201 IPC, the appellant could not have been
convicted under Sections 364-A and 201 thereof; and that the purported E
confession made by the appellant being not voluntary could not have been relied
upon.

Respondent inter alia contended that when the provisions of the Code
of Criminal Procedure, 1973 viz., Sections 221, 251and364 have substantially
been complied with, mere omission to frame proper charge may not be F
sufficient to absolve appellant there'from only on mere technicality ; that the
confession of the accused, disclosing information leading to discovery of bones
proved the place where the dead body was disposed of and, thus, established
his knowledge as to how P 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 trial Court; that judicial confession G
made by the appellant having not been retracted, the same would form the
best evidence to sustain the judgment of conviction ; and that suicide note
written by co-accused, S, was admissible in evidence under Section 32 of the
Indian Evidence Act, 1872.
H
468 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A Dismissing the appeal, the Court

HELD: 1. The first part of the statement purported to have been made
by the appellant-accused on 7.8.200 leading to recovery is not admissible in
evidence. 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
B dead body of P 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 the spot was also found to have been burnt. On the other side of tlte
nalla, burnt Shoes and burnt trousers were found. The spot was at a distance
of about 500 mtrs. form a facto9' known as Midley. It was an isolated place
C and was a grassy area. 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. [475-H; 476-C, D, FJ

Jaipur Development Authority v. Radhey Shyam, [1999] 4 SCC 370;
State of Maharashtra v. Suresh, (2000) 1 SCC 471; State (NCT of Delhi) v.
D Navjot Sandhu alias Afsan Guru, [2005] 11 SCC 600 and Pulukuri Kottaya
and Ors. v. Emperoor, AIR (1947) PC 67, relied on. ·

2.1. 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 16.08.200. The Magistrate took the requisite
E 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 17.082000. His
statement was recorded after the court time was over. All persons had been
F 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 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 18.08.200, the Magistrate again satisfied himself
G 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. It is however a case where the Magistrate did make preliminary
inquiries, give warning to him, send him back to the judicial custody for a
H few days or at least one day and then he was called back again. The magistrate
ANIL@RAJU NAMDEV PATIL v. ADMIN. OF DAMAN & DIU, DAMAN 469

examined himself as PW-33. The confession was not retracted during the A
course of the trial. It was purported to have been done only in his examination
under Section 313 of the Criminal Procedure Code.
(478-G, H; 479-A, B, C; 480-F, G; 483-AI

Hanumant v. The State of Madhya Pradesh, [ 1952) SCR 1091 Palvinder
Kaur v. The State of Punjab, [1953) SCR 94; Aher Raja Khima v. State of B
Saurashtra, AIR (1956) SC 217, Subramania Goundan v. The state of Madras,
[1958) SCR 428; Bharat v. State ofU.P., [197113 SCC 950, Bhagwan Singh
Rana v. The State of Haryana, AIR (1976) SC 1797 and State (NCT of Delhi)
v. Navjot Sandhu alias Afsan Guru, [2005111 SCC 600, referred to.

2.2. There is another reason which indicates that there is a ring of truth C
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 hand 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. D
The act of others is apparent from the statement before the Magistrate.
[484-D, EI

3. The other two co-accused had committed suicide. They left a suicide
note which implicated the appellant also. The said suicide note is not admissible
in evidence under Section 32(1) of the Indian Evidence Act. The statement of E
a deceased may be admissible in evidence in terms of Section 32(1) of the
Indian Evidence Act, 1872 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, the statements made in the suicide not
implicating other co-accused would not be admissible there under. F
1484-F, H; 485-A)

Sharad Birdhi Chand Sarda v. State of Maharashtra, 1198511SCR88:
(1984) 4 sec 116, held inapplicable.

4. This Court has held that (i) the appellant should not suffer any
prejudice by reason of misjoinder of charges ; (ii) a conviction for lesser G
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.
1488-F,H]

K. Prema S. Rao and Anr. v. Yadla Srinivasa Rao and Ors., [2003) 1 H
470 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A SCC 217; Kammari Brahmaiah and Ors. v. Public Prosecuto1~ High Court of
A.P.. {1999) 2 SCC 522; Dalbir Singh v. State of U.P., (2004) 5 SCC 334,
Kamalanantha and Ors. v. State ofT.N., (2005) 5 SCC 194 and Har} it Singh
v. State of Punjab, (2006) 1 SCC 463, relied on.

B
5. The ingredients for commission of offence under Sections 364 and
364-A of the Indian Penal Code, 1860 are different. Whereas the intention to
·-
kidnap in order thtat 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 office under
Section 364-A thereof it is necessary to prove that not only such kidnapping
C 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 of causes hurt
death to such person in order to compel the Government of 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
D part of the 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 he appellant while framing a
charge. The prejudice to the appellant is apparent as the ingredients of a
E higher offence had not been put to him while framing any charge.
(489-A, B, C, DJ

6. The appellant could not have been convicted under Section 364-A IPC.
He, however, is found guilty of commission of an offence under Section 364
IPC. He deserves the highest punishment prescribed therein, i.e., the rigorous
F imprisonment for life and it is directed accordingly. The appeal is dismissed
with the modification of sentence as also quantum thereof. (489-FJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.449 of
2006.

G From the Judgment and Order dated 29-11··2005 of the High Court of
Judicature at Bombay in confirmation Case No.2 of 2005 and Criminal Appeal
No.18212005.

Sbivaji M. Jadhav and Himanshu Gupta for the Appellant.

B.B. Singh, Kumar Rajesh Singh and Sunita Sharma (for D.S. Mabra), for
H
-.
ANIL@RAJUNAMDEVPATILv. ADMIN.OFDAMAN&DJU,DAMAN[S.B.SINHA,J.] 471

the Respondent No. I. A
Aniruddha P. Mayee for the Respondent No.2.

The Judgment of the Court was delivered by
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 B
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.
c
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 D
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 E
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 F
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 G
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. H
472 SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R.

A
-
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
B @ Dharamraj and Satish. Indisputably, the suicide note and other specimen
documents in the handwriting ofSatish 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.
c 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:

'I. Discovery of remnants.

D 2. Inquest of bones.
3. Medical evidence.

4. DNA test report.
5. Articles and burnt clothes recovered from scene of offence.
E 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
F 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- I 0) a diver attached with the Coast Guard School and that of the
Investigating Officer Mr. Rosario (PW-41).
G The following articles were recovered:

"I. Skull in part.
2. Lower jaw with nine teeth erupted and intact.

3. Two last teeth present in socket.
H
ANIL@RAJU NAMDEV PATIL v. ADMIN. OF DAMAN & DIU, DAMAN [S.B. SINHA,J .J 473

4. One socket of front teeth is found empty. A
5. Six pieces of bones of length as under: (i) 20' cm. (ii) 20' cm. (iii)
17\/z 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 B
IO' cm. (curve) and one straight of IOYi' cm."

Recovery of the said articles was also proved by the aforementioned
witnesses.

As regards medical evidence, the learned Judge noticed the evidence C
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 D
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 E
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
be sufficient to prove his guilt : F
"l. Discovery of Remnants and articles at the instance of accused.
2. Confession before the Magistrate.

3. Extra judicial confession of co-accused.
G
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.
H
A
474

8.
SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

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 J.B. Shaikh. The extra
B 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 recoveryofthree 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
C 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.
D
The High Court affirmed the aforementioned findings of the learned
Sessions Judge.

Mr. Shivaji M. Jadhav, learned counsel appearing on behalf of the '
E 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 µnder Sections 364-A and 201 thereof.

F (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
G 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
H
ANIL@RAJU NAMDEV PATIL v. ADMIN. OF DAMAN & DIU, DAMAN [S.B. SINHA,J.J 475

and 364 of the Code of Criminal Procedure, the appellant having A
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 B
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.
c
(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
therein can be relied upon and exculpatory statement thereof can
be rejected.
D
(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
E
Guard School on a scooter to Masha! 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 F
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 G
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 tlie
dead body hidden and thereafter thrown in the nalla come with me."

The first part of the said statement is not admissible in evidence.
H
476 SUPREME COURT REPORTS (2006] SUPP. 9 S.C.R.

A 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
B 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-
C IO 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
D 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:

E "27. How much of information received from accused may be
proved. 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, may be proved."
F
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
G 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
H
ANIL@RAJUNAMDEVPATILv. ADMIN.OFDAMAN&DIU,DAMAN[S.B.SINHA,J.) 477

condition necessary to bring the section into operation is that A
discovery of a fact in consequence of infonnation 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 infonnation 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 infonnation given, some guarantee is afforded thereby B
that the infonnation was true, and accordingly can be safely allowed
to be given in evidence; but clearly the extent of the infonnation
admissible must depend on the exact nature of the fact discovered to
which such information is required to relate. Nonnally the section is
brought into operation when a person in police custody produces C
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"

It was furthennore observed :
D
"On nonnal 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, E
and the infonnation given must relate distinctly to this fact. lnfonnation
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.
lnfonnation 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 F
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
infonnant 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 G
discovery of the knife in the house of the informant."

The said decision has been cited with approval in a large number of
cases by this Court.

ThisCourt.hJaipur Development Authority v.Radhey Shyam [1999] H
478 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A 4 sec 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] l 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
B 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
c accused giving the infonnation 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
D statement. In some cases a view was taken that any infonnation,
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
E 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
F 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.
G
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
H
ANIL@RAJUNAMDEVPATIL ~·. ADMIN. OF DAMAN & DIU, DAMAN (S.B. SINHA, J.] 479

with. He was asked to come on the next day. A note of caution as envisaged A
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 B
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 C
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., D
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 E
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 F
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 G
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 @ H
480 SUPREME COURT REPORTS [2006) SUPP. 9 S.C.R.

A Dharamraj and my uncle Satish told me to kidnap son of Ashwinbhai
and for that to give me Rs. I 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. I lakh and for that I had to look after the boy only for 2-3 days.
B
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
C 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@
D 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
E 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.
F
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
G 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.
H
ANIL@RAJU NAMDEV PATIL v. ADMIN. OF DAMAN & DIU, DAMAN [S.B. SINHA,].] 481

In Hanumant v. The State of Madhya Pradesh (1952) SCR 1091, this A
Court in the fact situation obtaining therein opined :

" .. .It 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 B
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 v. The State of Punjab, [1953] SCR 94, this Court
~ c
"Not only was the High Court iri 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 D
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 ifthe deceased
had taken poison by mistake, his wife would have stood idly by and E
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 F
incredible .... "

In Aher Raja Khima v. State of Saurashtra AIR (1956) SC 217, this
Court held:

"Now the law is clear that a confession cannot be used against G
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 H
482 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A 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
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
B 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
c 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
D 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
E 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
F
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
G 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 ... "
H
ANIL@RAJUNAMDEVPATIL v. ADMIN. OF DAMAN &DIU, DAMAN [S.B. SINHA,J.J 483

It is however a case where the learned Magistrate did make preliminary A
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: B
"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 C
accepted as a whole, or not at all. For this proposition our attention
has been invited to Hanument v. The 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 D
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 E
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 p
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 l) 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
G
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 H
484 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.

A and voluntarily made~ A confession byhope 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
B 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 i.n an atmosphere free from fear,
c 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."

D 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
E 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.
F
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
G by Mr. Singh. He relied upon a decision of this Court in Sharad Birdhi Chand
Sarda v. State of Maharashtra [ 1985] l 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
H Section 32( I) of the Indian Evidence Act to prove the cause of the death or
ANIL@RAJU NAMDEV PATIL v. ADMIN. OF DAMAN & DIU, DAMAN [S.B. SINHA, J.] 485

as to any of the circumstances of the transaction which resulted in his death. A
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 lildian B
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 C
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 fllrtherance of your common intention D
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 1.P.C.

That on or about 3-8-2000 knowing that you had committed murder E
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 F
yourself from the legal punishment and thereby committed an offence
punishable 11/s 201 r/w 34 of I.P.C.

And, 1 hereby direct that you be tried by this Court on the said
charge."
G
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 01 there has been a failure of justice.
H
486 SUPREME COURT REPORTS [2006j SUPP. 9 S.C.R.

A 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
B precedents.
In K. Prema S. Rao and Anr v. Yadla Srinivasa Rao and Ors [2003] 1
SCC 217, this Court observed:

"Mere omission or defect in framing charge does not disable the
c Criminal Court from convicting the accused for the offence which is
found to have been proved on the evidence ori 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
D
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
E subjected the deceased to such cruelty and harassment as to drive her
to commit suicide. The provisions of Section 221 ofCr.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."
F
In Kammari Brahmaiah and Ors 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
G High Court convicting the appellants for the of fence punishable
urider 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 ~he deceased Itikala
H Mogulaiah. As against this, learned Counsel for' the State vehemently
ANIL@RAJUNAMDEVPATILv. ADMIN.OFDAMAN&DIU,DAMAN[S.B.SINHA,J.J 487

submitted that even though it is an error on the part of the Additional A
Sessions Judge of not framing the charge under Section 302 read with
I49 of IPC no prejudice is casued to the accused as relevant facts
were placed before the 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."
B
In Dalbir Singh v. State. of U.P. [2004] 5 SCC 334, this Court observed:

"I I. 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 C
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 D
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 E
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 F
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 establish~d that the accused had enough notice of the allegations
which could form the basis for conviction under Section 306 IPC" G
In Kamalanantha and Ors v. State of T.N. [2005] 5 SCC I 94, 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 H
488 SUPREME COURT REPORTS (2006] SUPP. 9 S.C.R.

A 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."
B
The question came up for consideration in Harjit Singh v. State of
Punjab [2006] l SCC 463, wherein, however, it was held :

"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
c 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.
D 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
E 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."
F 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.
G (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 misjoin~er must be arising out of mere
misjoinder to frame charges.
H
ANIL@RAJU NAMDEV PATIL v. ADMIN. OF DAMAN & DIU, DAMAN [S.B. SINHA, J.] 489

The ingredients for commission of offence under Section 364 and 364- A
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 B
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. C
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 D
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.
E
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. The appeal is dismissed F
with the modification of sentence as also quantum thereof.

A.KT. Apppeal dismissed.