LexSUNDER @ SUNDARARAJAN versus STATE BY INSPECTOR OF POLICE
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[2013] 4 S.C.R. 25 SUNDER @ SUNDARARAJAN V. STATE BY INSPECTOR OF POLICE (Criminal Appeal Nos.300-301 of 2011} FEBRUARY 5, 2013 [P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.] Penal Code, 1860- ss.364A, 302 and 201- Kidnapping A .B for ransom and murder - Of seven year old boy - Circumstantial evidence - Conviction and death sentence by C courts below - Held: Conviction as well as the sentence does not call for interference - Kidnapping and demand of ransom proved by witnesses - Factum of kidnapping having been proved, the inference of consequential murder is liable to be presumed in the absence of discharge of onus by the D kidnapper to prove the release of the kidnapped - Accused failed to prove the release of the deceased from his custody - Thus in .the circumstances of the case, charge of murder also proved ._ In view of various aggravating circumstances and lack of any mitigating circumstance, award of death E sentence justified - Evidence Act, 1872 - s. 106 - Sentence/ Sentencing - Death sentence. · Evidence Act, 1872 - s. 106 - Burden to prove - Shifting of onus - ·in kidnapping and murder case - Held: Once F factum of kidnapping p(OVed, onus would shift on the kidnapper to establish the· release of the kidnapped from his custody. Appellant- accused alongwith another accused was prosecuted for having kidnapped a 7 year old boy for G ransom, and when the ransom was not paid, he killed the child. PWs 2 and 3 was last seen with the appellant- accused. PW-8 deposed that the appellant had called her to take the mobile number of the mother of the deceased 25 H 26 SUPREME COURT REPORTS [2013] 4 S.C.R. A (PW1) and thereafter he made ransom call on the same number. Appellant-accused was also identified by two witnesses in Tl Parade. Trial Court convicted the appellant-accused u/ss.364A, 302 and 201 IPC and awarded death sentence. Another accused was acquitted. B High Court affirmed the conviction and also confirmed the death penalty. Hence the present appeal. Dismissing the appeals, the Court HELD: 1.1. The accused-appellant had been identified C through cogent evidence as the person who had taken away the deceased when he disembarked from school van on the date of the incident. The factum of kidnapping of the deceased by the accused-appellant, thereto.re, D stands duly established. [Para 24] [46-G-H; 47-A] 1.2. Having proved the factum of kidnapping, the inference of the consequential murder of the kidnapped person, is liable to be presumed. Once the person concerned has been shown as having been. kidnapped, E the onus would shift on the kidnapper to establish how and when the kidnapped individual came to be released from his custody. In the absence of any such proof produced by the kidnapper, it would be natural to infer/ presume, that the kidnapped person continued in the F kidnapper's custody, till he was eliminated. The instant conclusion would also emerge from Section 106 of the Evidence Act, 1872. [Para 26] [48-A-C] 1.3. In the facts and circumstances of the present case, there is sufficient evidence on the record on the G basis whereof even the factum of murder of the deceased at the hands of the accused-appellant stands established. In the facts and circumstances of this case, it has been duly established, that the deceased was kidnapped by the accused-appellant; the accused- H appellant was not able to produce any material on the SUNDER@ SUNDARARAJAN v. STATE BY INSPECTOR 27 OF POLICE record to show the release of the deceased from his A custody. Section 106 of the Evidence Act, 1872 places the onus on him. In the absence of .any such material produced by the accused-appellant, it has to be · accepted, that the custody of the deceased had remained with the accused-appellant, till he was murdered. The B motive/reason for the accused-appell~nt, for taking the extreme step was, that ransom as demanded by him, had not been paid. [Para 27] [48-G-H; 49-A-B] 1.4. The accused-appellant had made a confessional C statement in the presence of PW13 stating that he had strangulated the deceased to death, whereupon his body was put into a gunny bag and thrown into a particular tank. It was thereafter, on the pointing out of the accused- appellant, that the body of the deceased was recovered from that tank. It was found in a gunny bag, as stated by D the accused-appellant. PW12, the doctor concluded after holding the post-mortem examin
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