SOMASUNDARAM @ SOMU versus THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE

[2020] 10 S.C.R. 27

SOMASUNDARAM @ SOMU

THE STATE REP. BY THE DEPUTYCOMMISSIONER OF POLICE

(Criminal Appeal No. 403 of 2010)

JUNE 03, 2020

[R. F. NARIMAN, K.M. JOSEPH AND

V. RAMASUBRAMANIAN, JJ.]

Penal Code, 1860: ss.365 and 302 – Abduction followed bymurder in appropriate cases can enable court to presume that theabductor is the murderer – The principle is that after abduction, theabductor would be in position to explain what happened to hisvictim and if he failed to do so, it is only natural and logical that anirresistible inference may be drawn that he has done away with thehapless victim.

Penal Code, 1860: s.107 – Abetment – The key andindispensable elements under the law to constitute abetment isinstigation, conspiracy or the intentional aiding by any act or illegalomission, the doing of the thing – The law does not permit the abettorto escape punishment for abetment even if the actual player whocommits the offence is not criminally liable for the actual act whichresults in the commission of an offence.

Penal Code, 1860: ss.364, 201 365/109, 302 – Abductionand murder – Prosecution case was that the accused abducted thevictim-deceased (MLA) and illegally detained him and demandedhuge sum and when he refused to succumb to demand, bystrangulation murdered him and cremated his body under fictitiousname – Trial court convicted all the accused while acquitting A12and A18 based on circumstantial evidence, accomplice evidence(PW10 and PW11) and evidence of other prosecution witnesses –High Court acquitted A10 also – On appeal, held: A3 belonged toa political party – Other accused except A12 were all henchmen ofA3 – The plan was brain child essentially of A1 and A2 – A3organised the whole thing which commenced with the search for anappropriate house where the victim could be confined after theabduction – Role of A3 along with his men in carrying out the crime

Aculminating in cremation under fictitious name of the abductedperson is clear – Not only there was evidence of PW10 and PW11but other evidence which included PW32, PW33, PW36 and PW8 –The other players were roped in on the basis of their acts whichwas in tune with the conspiracy hatched by A1 and A2 – Evidenceshowed that it was the body of the deceased which was crematedBand fictitious name was used and certificate issued at the instanceof A3 which circumstance was clinching in establishing theprosecution case – Recovery of nylon rope and chain at theinstance of A16 strengthened the prosecution case – The evidenceof PW33 was that A3 engaged A13, and at the behest of A3, aCcertificate was issued by PW32 certifying that one person passedaway on the fateful day – PW11 stated that on 30.12.2001, he sawthree cars at the factory led by Tata Sumo (recovered at the instanceof A9) – While A4, A11, A15, A16 and A17 were guilty under s.364which was already found by the courts below, other appellants wouldbe guilty under s.364 read with s.109 on the basis that they activelyDaided the abduction – Also as far as A5, A6, A7, A8, A11 and A14were concerned, there was evidence of PW10 that he saw thedeceased in clear state of wrongful confinement, as he was foundtied on the first floor of the factory where A5, A6, A7, A8, A11 andA14 were present – They were also convicted under ss.347 and 387E– A4, A11, A16 and A17 were referred in the evidence of PW 11 asemerging out of the car along with the deceased – PW3 witnessedthree persons pushing another into Maruti Van on day deceasedwent missing – The accomplices were credible witnesses and asregards the crime and the accused, their testimony brought homethe truth – There was no motive attributed to them to falsely implicateF– If that is so, even in the absence of any direct evidence relating tomurder, the presumption of murder, being committed by the appellantswould apply – Having regard to the facts and circumstances, itcannot be contended that no case was made out against theappellants.GPenal Code, 1860: s.109 – For charge under s.109, aminimum of two persons are required – There can be any number ofaccused charged with the aid of s.109 – In order that there isabetment, it is indispensable also that there is person who abets

another – There is principal player and the abettor – The principalHplayer would be guilty for the acts or omissions which amount tooffences under the law.

Code of Criminal Procedure, 1973: s.164 – Importance ofthe evidence of the statement recorded u/s.164 and whether itconstitutes substantial evidence – statement of witness recordedunder s.164 cannot be used as substantive evidence and can beused only for the purpose of contradicting or corroborating him.

Constitution of India: Art.136 – Supreme Court’s jurisdictionin an appeal generated by Special Leave under Art.136 of theConstitution of India – Discussed.

Evidence Act, 1872: s.133 – Accomplice – Testimony of,evidentiary value – Held: s.133 declares that an accomplice is acompetent witness – The corroboration must be in relation to thematerial particulars of the testimony of an accomplice – Accompliceis familiar with the general outline of the crime, he is the one whoparticipated in the same and therefore, indeed, be familiar with thematter in general terms – The connecting link between particularaccused and the crime, is where corroboration of the testimony ofan accomplice would assume crucial significance.

Criminal Law: Principles laid down in *Dalbir Kaur –Discussed.

Criminal Law: Destroying the corpus delicti by cremation –There cannot be medical evidence relating to murder in case wherethe body stood cremated.

Code of Criminal Procedure, 1973: s.306 – Procedure formaking person an approver – Held: An elaborate procedure formaking person an approver, has been set out in s.306 – The exerciseis undertaken before the competent Magistrate – His evidence isrecorded – He receives pardon in exchange for the undertakingthat he will give an unvarnished version of the events in which he isa participant in the crime – He would expose himself to proceedingsunder s.308 which contemplates that if such person has not compliedwith the condition on which the tender of pardon was given eitherby wilfully concealing anything essential or by giving false evidence,he can be put on trial for the offence in respect to which the pardonwas so tendered or for any other offence of which he appears to bea guilty in connection with the same matters.

Penal Code, 1860: ss.364 and 365 – Essential ingredientsand distinguishing features – The essence of abduction is forced

Amovement, inter alia, from any place – The offence would be committedby any one who effects such abduction at any or all points of theroute – In given case, an abduction may attract both ss.364 and365 – The distinguishing feature between the two kinds of abduction,is the difference in the intent with which the abduction, inter alia (asss.364 and 365 also deal with kidnapping), is carried out – But soBfar as the intention attracts both provisions in given case,conviction under both sections is not impermissible.

Disposing of the appeals, the Court

HELD: 1. The key and indispensable elements under theClaw to constitute abetment is instigation, conspiracy or theintentional aiding by any act or illegal omission, the doing of thething. The law does not permit the abettor to escape punishmentfor abetment even if the actual player who commits the offence isnot criminally liable for the actual act which results in thecommission of an offence. Equally, there need not be meeting ofDminds between all the persons involved in conspiracy and it issufficient if person is engaged in the conspiracy following whichthe offence is committed. [Para 54][74-G; 75-A-B]

2.1 Section 133 of the Evidence Act declares that anaccomplice is competent witness and further that convictionEbased on the uncorroborated testimony of an accomplice is notillegal only on account of it being so. The combined result ofSections 133 read with illustration (b) to Section 114 of EvidenceAct is that the Courts have evolved, as rule of prudence, therequirement that it would be unsafe to convict an accused solelyFbased on uncorroborated testimony of an accomplice. Thecorroboration must be in relation to the material particulars ofthe testimony of an accomplice. It is clear that an accomplicewould be familiar with the general outline of the crime as he wouldbe one who has participated in the same and therefore, indeed,be familiar with the matter in general terms. [Paras 59, 65][80-E;G85-A-B]

K. Hashim v. State of Tamil Nadu (2005) 1 SCC 237 :[2004] 6 Suppl. SCR 1; Haroom Haji Abdulla v. Stateof Maharashtra AIR 1968 SC 832 : [1968] 2 SCR 641;Sheshanna Bhumanna Yadav v. State of MaharashtraHAIR 1970 SC 1330 : [1971] 1 SCR 617 – relied on.

2.2 An accomplice is in many cases, pardoned and hebecomes what is known as an approver. An elaborate procedurefor making person an approver, has been set out in Section 306of the CrPC. The exercise is undertaken before the competentMagistrate. His evidence is recorded. He receives pardon inexchange for the undertaking that he will give an unvarnishedversion of the events in which he is participant in the crime. Hewould expose himself to proceedings under Section 308 of theCrPC. Section 308 contemplates that if such person has notcomplied with the condition on which the tender of pardon wasgiven either by wilfully concealing anything essential or by givingfalse evidence, he can be put on trial for the offence in respect towhich the pardon was so tendered or for any other offence ofwhich he appears to be guilty in connection with the samematters. This is besides the liability to be proceeded against forthe offence of perjury. Sub-section (2) of Section 308 declaresthat any statement which is given by the person accepting thetender of pardon and recorded under Section 164 and Section306 can be used against him as evidence in the trial under Section308(1) of the CrPC. [Para 67][85-G-H; 86-A-C]

George and Others v. State of Kerala and Another AIR1998 SC 1376 : [1998] 2 SCR 303; R. Shaji v. State of

Kerala AIR 2013 SC 651 : [2013] 3 SCR 1172 –relied on.

3. Section 364 of the IPC, more graver than Section 365 ofthe IPC, occurs when abduction, inter alia, is done with theintention to commit murder or that he is so disposed of so as toput the abducted person in danger of being murdered. Section365 of the IPC is attracted when the abduction takes place tocause the abducted person to be secretly and wrongfully confined.It is true that in given case, person may be abducted to besecretly and wrongfully confined and also to commit murder. Sucha situation may attract both Sections 364 and 365 of the IPC. Aswith any other offence, there could be the actual offender, whoabducts. Any other person could be roped in with the aid of Section120A of the IPC or Section 109 of the IPC (abetting). Also,principle of vicarious liability, under Section 34 of the IPC or acharge under Section 149 of the IPC, if proved, could visit anotherwith criminal liability. [Paras 80, 81, 82][91-C-E]

AJagjit Singh v. State of Punjab (2018) 10 SCC 593 :[2018] 13 SCR 405; *Dalbir Kaur v. State of Punjab(1976) 4 SCC 158 : [1977] 1 SCR 280 – relied on.

4. It is established from reading the evidence of PWs 1, 2,3 and 13 that the deceased used to go for morning walk. He wasBindeed sighted by PW13 who also used to go for morning walk.PW3 indeed witnessed person being pushed into Maruti OmniVan by three persons and the van going away followed by themotorcycle. These facts were established. PW10 has, inter alia,stated that A1 and A2 were there at the house of A9 on 30.12.2001.Both of them told A3 that they have brought the MLA (deceased)Cand only money had to be collected from him. PW11 has statedthat on 30.12.2001, he saw three cars at the factory led by TataSumo (recovered at the instance of A9), Ford Escort Car(recovered at the instance of A4) and finally came the Zen Car(recovered at the instance of A3). Four persons identified as A4,DA11, A16 and A17 brought the deceased out of the Ford Car.This took place within hours of abduction on the same day. PW11also spoke of three persons coming out of the Zen Car. PW10also said that on 31.12.2001, he found that the deceased was tied-up with chain and his eyes were covered with cloth. He waswearing black pant and sandal colour t-shirt. He deposed that itEwas A5, A6, A7, A8, A10, A11 and A14, who were present. Stillfurther, he said that A3 threatened him that he would kill him andhis family members if he discloses anything about the matter. Hefurther stated that “we had kidnapped ex-MLA Balan itself, youare nothing to me”. The trial court found that no one else wasFkidnapped on the same day. [Paras 87, 88][94-B-G]

5. PW32-A Medical Practitioner proved Exhibit-P27-DeathCertificate. He deposed that PW33 who was working in theGovernment General Hospital and acquainted with him for fifteenyears, came to him and told that one person known to him, viz.,G‘RC’ was 61 years old and poor, died on 01.01.2002 at 06.00 P.M.due to cardiac arrest. There was no body to cremate him and healone had to do all the work for him. He wanted death certificate.Then, PW32 told PW33 that he would go to see him (apparently,the deceased). PW33 told him, he very well knows PW32 for the

past fifteen years, would he lie to him and that no one else waswith him (deceased) and PW33 has to do everything and he didnot have time. Believing what he stated to be true, PW32 saidthat he issued P27-death certificate without seeing the dead body.The evidence of PW33 was that A3 engaged A13, and at thebehest of A3, certificate was issued by PW32 certifying thatone ‘RC’ had passed away on 01.01.2002. PW38 that no person,as shown in Certificate died. Then, PW36-Office Assistant In-charge also supported the prosecution version. Thus, not onlywould the cremation and that too under false name attract theoffence under Section 201 of IPC, which deals with the destructionof evidence of committing of offence but it is an important chainin the list of circumstances which unerringly points to the role ofA3 and others in the crime of murder also. The circumstance is avital corroborative link which establishes the case of not onlymurder but relates back to the abduction. The contention thatnon-production of the body is fatal to the prosecution case is notaccepted. The hand of A3 from the beginning, i.e., from theselection of the factory, arranging of vehicles, confinement andcremation, is crystal clear and his role in the murder isestablished. The evidence of PW34 clearly confirms clinchinglythe role of A3 and sufficiently corroborates PW10 and PW11.[Paras 89, 90, 91, 105, 106][95-A-C; 96-B-C; 110-B-G]6.1 With regard to A4, he made confessional statementwitnessed by PW39. It led to the recovery of Ford Escort WhiteCar (MO6). The use of the said car is mentioned by PW10thereafter by deposing that on 05.12.2001, A3 went out in thesaid car which was given by him for rent. He also identified A4 asone among the three persons who followed them on that day.PW11 noted the Ford Escort car on 30.12.2001 as the car fromwhich four persons got down and those persons brought thedeceased by closing his eyes and mouth and hands being tiedand took him to the first floor. MO6 was recovered on the basisof the statement given by A4. This is case based essentially oncircumstantial evidence. The condition of the deceased, viz., hiseyes and mouth being closed and hands being tied and beingtaken to the first floor, are matters of moment in connecting A4with the gory episode having its origin in the abduction of the

Adeceased, his illegal confinement and culminating in his murderand cremation. [Paras 107, 108][110-G-H; 111-D-G]

6.2 With regard to A5, on the fateful day, when the murdertook place, PW10 named A5 as going in motorcycle to thecompany. He went inside and was standing in the light. clothBbag was there in the bike. The body of the deceased was broughtfrom upstairs by four persons. PW10 then deposed that clothwas taken from the bag brought by A5 and tied around the bodyof the deceased like doing for dead body. A5 was cited by PW10as going in his motorcycle. The facts discovered based onstatement by A5 are very significant, and hence, most relevant,Cnot only in revealing his involvement but unravelling the entireprosecution case. statement under Section 27 of the EvidenceAct is not only about the thing as such which is discoveredconsequent upon the statement but the knowledge attributableto the person who makes the statement about the matter,Ddiscovered, based on the statement. The evidence of PW44 whowas Revenue Inspector and witness to the statement of A5 andidentification by A5, helps establishing his clear link andsufficiently corroborates PW10 and PW11. Lastly, PW34 hasspoken about the presence of A5 on 30.12.2001 and identifiedhim. [Paras 109, 110][112-G-H; 113-A-B]E

6.3 PW10 identified A6, A7, A8 and A11 as the personswho carried the dead body of the deceased on 01.01.2002. PW10and PW11 spoke about the body being loaded in golden colourMaruti van. It was corroborated by the evidence of PW35 (PoliceConstable). The evidence clinchingly points to A6, A7, A8 andFA11 being involved apparently at the behest of A3 and carryingdead body of the deceased on the fateful day in the van and theirpresence near the place where the deceased came to be cremated.[Para 115][114-F-H]

6.4 With regard to A14, his involvement in the matterGemerges as one of the persons who stood in the upstairs of thebuilding with the deceased when the deceased was in the state ofillegal confinement. This, no doubt, is based on the testimony ofPW10. No doubt, as far as A14 is concerned, there is no recovery.It is true that there is no direct evidence that the accusedHabducted or murdered the victim. The case hinges on

circumstantial evidence. A10 was acquitted by the High Court.A10 himself was also named by PW10 as present along with A14at the time of the illegal confinement. The High Court assignedcogent reasons for acquitting A10, including, inter alia, that PW11though had identified A10 in the Test Identification Parade, couldnot identify him in the Court. The evidence against A14 wasbelieved by both the Courts. [Para 122][116-E-F]

6.5 A15 stated that he got the motorcycle from PW48. Inhis deposition, he has stated that he was having fashion motorbike Hero Honda. He further states that PW10 was known tohim well. He used to take his vehicle often. Last year, duringNovember, 2001, PW10 apparently, had taken his vehicle anddid not return it. It is the motorcycle which was apparently seenby PW3 and used at the time of abducting the deceased. Thevehicle was recovered at the instance of A15. Even ignoring theshoe which is recovered on the basis of the statement, theevidence sufficiently implicates A15. [Para 125][117-C-D, H;118-A]

6.6 Regarding A16, he was taken into custody, and onquestioning in the presence of PW47 and another witness, hegave confessional statement. He stated that if he is taken, hewould produce the black bag, cell phone and knife from the houseat Villivakkam. On being so taken to the place at Villivakkam,he identified Panasonic Cell Phone, sim card with charger, oneblack colour carry bag, nine feet long yellow colour nylon ropeand two chains. This is besides knife and three locks. Therefore,it cannot be said that there was no corroboration for the role ofA16. It is quite clear that A16 was amongst the accused whobrought the deceased. His role in the abduction became clear.The deceased was not only not alive but was undoubtedly doneaway by way of murder. Having abducted the deceased, the roleof A16, as assessed by the Trial Court and further accepted bythe High Court, did not require interference. A17 was againanother accused who was one of the four persons identified byPW11 who brought the deceased on 30.12.2001 to the factory.[Paras 126, 127][118-B-F]

7. For charge under Section 109 of the IPC, minimumof two persons are required. There can be any number of accused

CDEF

Acharged with the aid of Section 109 of the IPC. In order thatthere is abetment, it is indispensable also that there is personwho abets another. There is principal player and the abettor.The principal player would be guilty for the acts or omissionswhich amount to offences under the law. The abettor though doesnot trigger the gun, “is the moving force behind it and becomesBliable as such”. In this case, the Trial Court has proceeded tofind the appellants (except A5) guilty of the fifth charge underSection 302 IPC whereas the A1 and A2 were found guilty of thecharge of conspiracy under Section 120B of the IPC. In otherwords, the idea to commit the offences came into being in theCminds of A1 and A2. The other players were roped in on thebasis of their acts which was in tune with the conspiracy hatchedby A1 and A2. The acquittal of A12, who was charged underSection 120B of the IPC and also for offences under Sections419, 420 and 387 of the IPC read with Section 109 of the IPCwould not detract from the criminality of the acts committed byDthe other accused and, in the facts of this case, there is no illegalityinvolved in convicting the appellants in the manner done underSection 302 of the IPC. The Trial Court found that the plan wasthe brainchild essentially of A1 and A2. [Paras 136, 137][123-D-H; 124-A]E8. The acquittal of A12 would not deflect from the factum ofthe conspiracy between A1 and A2. So also, the acquittal of A3 inthis regard. A1 and A2 have been convicted under Section 302read with Section 109. Accused 1 and 2 have been held guiltyunder Section 120B. This means that since accused 1 and 2 areFheld guilty under Section 120B of the IPC to commit the murderof the deceased, they are to be punished as if they have abettedthe said offence. The judgment of the trial Court is to beunderstood in the said vein. It is true that abetment by conspiracyis only one form of abetment. There can be alternate charges.There can be abetment by instigation and intentional acting evenGwhen there is no conspiracy and, therefore, no abetment byconspiracy. The fifth charge against A1, A2, A5, A9, A12 and A13would be in the form of an alternate charge. This is so as A5(Appellant) is charged and found guilty of murder under Section302 of the IPC read with Section 109 of the IPC. The role of A5,Hparticularly, having regard to the statement under Section 27 of

the Evidence Act, leading to recovery of the Van, the discoveryof the site of the factory and the cremation ground besides otherevidence, cannot be ignored. It is clear that their acquittal underSection 120B of the IPC will not impact their conviction underthe other provisions. [Paras 138, 139][124-E-F; 125-B-E]

9. The evidence of PW10 and PW11 was credible and thepresence and role attributable to A6 cannot be brushed aside.The presence of A6 spoken to by the accomplices on 05.12.2001,30.12.2001 and, particularly, on 01.01.2002 on which last day incarrying the dead body in the van which is later identified by thepolice officer at spot near the cremation ground is certainly avital circumstance which cannot be brushed aside. The role ofA6 in the illegal confinement appears to be established.[Para 140][126-A-C]

10. As far as the murder is concerned, there is no directevidence that deceased is murdered by strangulating him.However, it is equally true that on the basis of recovery made atthe instance of A16, nylon rope and chain was recovered whichundoubtedly strengthens the prosecution case. There cannot bemedical evidence relating to murder in case where the bodystood cremated. The players thought it through meticulously bydestroying the corpus delicti by cremation. The abductionfollowed by murder in appropriate cases can enable court topresume that the abductor is the murderer. The principle is thatafter abduction, the abductor would be in position to explainwhat happened to his victim and if he failed to do so, it is onlynatural that an irresistible inference may be drawn that he hasdone away with the hapless victim. Section 106 of the EvidenceAct would come to the assistance of the prosecution. [Paras 141,142][126-E-H]

State of W.B. v. Mir Mohamad Omar (2000) 8 SCC 382:

[2000] 2 Suppl. SCR 712 – referred to

11. Section 387 is heightened form of extortion in whichthe victim is put in the fear of death or grievous hurt. Section 347involves wrongful confinement of person for the purpose ofcommitting extortion. The appellants were convicted under

BCDE

ASections 347 and 387 of the IPC. This is not an inexorable rulebut to be applied based on the factual matrix presented beforethe court. Where abduction is followed by illegal confinementand still later by death, the inference becomes overwhelming thatthe victim died at the hands of those who abducted/confined him.The deceased was brought in Ford Escort car. He was broughtBby A4, A11, A16 and A17. The case of the prosecution is thatexcept A12, A4 to A18 were the henchmen of A3. Theaccomplices are credible witnesses when the whole circumstancesare borne in mind. Their evidence may not be immaculate incharacter. But the test is whether it is safe to convict the accusedCbelieving such witnesses. As regards the crime and the accused,their testimony brings home the truth, as regards accused whoare appellants. There is no motive attributed to PW10 and PW11to falsely implicate. The presumption of murder was rightly drawn.[Paras 143, 144][128-F-G; 129-G-H; 130-A-B]

D12. The role of A15 is clear who was not only been referredto in the accomplice evidence but corroborates his link in theabduction with the recovery of motorcycle at his instance. Itrightfully earned him conviction under Section 365 IPC. Therewere two cars apart from the Ford Escort on 30.12.2001 at thesite of the illegal confinement. From the Maruti Zen, threeEpersons emerged as witnessed by PW11. It is true that PW11has not identified them. That apart there was also Tata Sumo,PW11 no doubt identified A5 and A7 apart from A15 as the personswho came back on 30.12.2001 with tiffin after leaving the factory.The trial court convicted A4, A11, A15, A16 and A17 under SectionF365 which is unassailable in regard to these accused. There is noerror in the court drawing the presumption that they are alsoguilty of murdering the deceased. PW3 spoke of three menpushing another into van on 30.12.2001. The van moved and itwas followed by motorcycle. A15 gave statement leading tothe recovery of motorcycle. The evidence is relied by the twoGcourts and there is no reason to take different view. [Paras 145,146, 147][130-C-E]

13. As far as A3, A5, A6 and A8 are concerned, they wereconvicted under Section 365 read with Section 109. Abetting isto be understood in the context of their acting on the conspiracyH

which stood proved against A1 and A2. No doubt, abetting alsotakes place when there is instigation or intentional aiding. Therole of A3 looms large. It is clear that he organised the wholething and it commenced with the search for an appropriate housewhere the victim could be confined after the abduction. His rolealong with his men in carrying out the crime culminating in thecremation under fictitious name of the abducted person is clear.[Para 148][130-F-H]

14. As far as A7 and A14 were concerned, they were alsoconvicted under Section 365 and also under Section 364. Theinvolvement of A7 is clear. He makes his maiden appearance inthe accomplice evidence as early as on 05.12.2001. PW10witnessed him standing along with certain other accused by theside of the deceased who was then clearly in the state of illegalconfinement. He further established his complicity by bringingdown the body of the deceased on 01.01.2002 along with threeothers. A7 and A14 ought to have been convicted under Section365 read with Section 109 of the IPC. A3, A5, A6 and A8 stoodconvicted under Section 365 read with Section 109. Howeverthe charge as against A7 and A14 was under Section 365. Thecharge against A14 is also under Section 365 read with Section109 of the IPC. All the appellants were convicted also underSection 364 of IPC. The evidence in this case no doubt throughthe mouth of PW10 and PW11 who alone have witnessed whattruly happened would establish that on 31.12.2001, PW10 sawA5, A6, A7, A8, A11 and A14 when he saw the deceased who wasat that time tied up on the first floor. Thus A5, A6, A7, A8, A11and A14 are persons who can be and have also been convicted inconnection with the illegal confinement of the deceased.[Paras 149, 150, 152][131-A-D, F, G]

15. A4, A7, A11, A14, A15, A16 and A17 are persons whowere found guilty under Section 365 of the IPC. A3, A5, A6 andA8 stood convicted under Section 365 of the IPC with the aid ofSection 109 of IPC. All of them were also convicted under Section364 of the IPC. In this regard there is dichotomy involved.The law attaches criminality to the act or omission by person.Another person may become liable as an abettor, person whohas conspired and thus liable under Section 120B, person who

Ahas shared common object and thus become vicariously liableand if there be five or more persons u/s. 141 read with Section149 or if the principle of vicarious liability embedded in Section34 of the IPC is attracted. In other words, for conviction underSection 364, actual abduction is necessary. person could nodoubt be liable under Section 364 read with Section 34 or underBSection 364 read with Section 149 or under Section 364 readwith Section 109 or if he is found guilty under Section 120B. Inthis case, there is no scope for either Section 120B or 149.However just as they have been found guilty under Section 365,they are liable to conviction under Section 364 in the same mannerCnamely the abduction within the meaning of Section 364. Theabduction is alleged to have been taken place on 30.12.2001.The essence of abduction is forced movement, inter alia, fromany place. The offence would be committed by any one who effectssuch abduction at any or all points of the route. In given case,an abduction may attract both sections 364 and 365. TheDdistinguishing feature between the two kinds of abduction, is thedifference in the intent with which the abduction, inter alia (asSections 364 and 365 also deal with kidnapping), is carried out.But so far as the intention attracts both provisions in givencase, conviction under both sections is not impermissible.EHowever, when some of the appellants are convicted under Section365 simpliciter and others are convicted under Section 365 readwith Section 109, then the position of those accused/appellantsin regard to conviction under Section 364 must also be the same.However, this difference in the matter of conviction under Section364, cannot advance the case of the appellants, as abductionFwhether it is with the aid of Section 109 or which is under Section364 simpliciter, enables the Court to raise the presumption ofmurder, in the absence of any explanation offered within themeaning of Section 106 of the Evidence Act. In other words, whileA4, A11, A15, A16 and A17 are guilty under Section 364 which isGalready found by the courts below, other appellants would be guiltyunder Section 364 read with Section 109 IPC on the basis thatthey have been actively aided the abduction. Also as far as A5,A6, A7, A8, A11 and A14 are concerned, there is the evidence ofPW10 that when he saw the deceased in clear state of wrongfulconfinement, as he was found tied on the first floor of the factory,HA5, A6, A7, A8, A11 and A14 were present. They were alsoconvicted under Sections 347 and 387 of the IPC. Also, in fact,on 30.12.2001, PW11 has deposed about three cars out of whichthe deceased emerged out of one of them, viz., the Ford Escort.A4, A11, A16 and A17 were referred in the evidence of PW 11 asemerging out of the car along with the deceased but it is quiteclear that there were more persons than A4, A11, A16 and A17who were involved in the abduction. In this regard, PW3 witnessedthree persons pushing another into Maruti Van early in themorning on 30.12.2001. No doubt there is also man on theMotorcycle. Within hours when he is brought to the factorybuilding, he comes out of Ford Escort. There were two othercars which accompanied it. Under Section 362 of the IPC,abduction has been defined, inter alia, as compelling person togo from any place. It, no doubt, also includes, such movementprocured by deceitful means. The plot reveals the abduction, theillegal confinement, the death of the deceased and his subsequentcremation, the role of A3, A5, A6, A7, A8 and A14 in aiding theabduction, appears to be made out. It is also clear that A5, A6,A7, A8, A11 and A14 were involved in the wrongful confinementof the deceased. As far as A14 is concerned, there is no recovery,as such, effected from him under Section 27 of the Evidence Actand there is essentially the evidence of PW10. The same isposition about A17, whose involvement has been referred to byPW11, the other accomplice. However, the accomplice witnesses,who were relied upon by two courts, are to be treated as crediblewitnesses and, even in the absence of corroborative evidence, inthe facts and circumstances of this case, there is no reason todisturb that conviction. If that is so, even in the absence of anydirect evidence relating to murder, the presumption of murder,being committed by the appellants would apply. In fact, the courtsbelow drew presumption about murder being committed. Thisis presumption which cannot be said to be drawn without anybasis. [Para 153][131-G-H; 132-A-H; 133-D-G]

Somasundaram alias Somu v. State Represented byDeputy Commissioner of Police (2016) 16 SCC 355 :[2016] 7 SCR 263; Siri Ram Batra and Others v.Financial Commissioner, Delhi and Others (2004) 12

[2020] 10 S.C.R.

ASCC 52 : [2004] 4 Suppl. SCR 470; Baldev Singh v.State of Punjab (1990) 4 SCC 692; ZiyauddinBurhanuddin Bukhari v. Brijmohan Ramdass Mehraand Others (1976) 2 SCC 17 : [1975] Suppl. SCR 281;Vijayan v. State of Kerala (1999) 3 SCC 54 : [1999] 1SCR 659; Mohanlal Shamji Soni v. Union of IndiaBand Another (1991) Suppl. 1 SCC 271 : [1991] 1 SCR712; Nanak Chand v. State of Punjab AIR 1955 SC274 : [1955] 1 SCR 1201; Pramatha Nath Talukdar v.Saroj Ranjan Sarkar AIR 1962 SC 876 : [1962] 2Suppl. SCR 297; Arjun Singh v. State of HimachalCPradesh AIR 2009 SC 1568 : [2009] 1 SCR 983; NoorMohammad Mohd. Yusuf Momin v. State of Maharashtra(1970) 1 SCC 696 : [1971] 1 SCR 119; R.v. Baskerville1916 (2) KB 658; Mohd. Husain Umar Kochra Etc. v.K.S. Dalipsinghji and Another Etc. (1969) 3 SCC 429: [1969] 3 SCR 130; Chonampara Chellapan Etc. v.DState of Kerala Etc. (1979) 4 SCC 312 : [1969] 3 SCR130; Kehar Singh and Others v. State (DelhiAdministration (1988) 3 SCC 609 : [1988] 2 Suppl. SCR24; Ranganayaki v. State by Inspector of Police (2004)12 SCC 521 : [2004] 5 Suppl. SCR 452; Sarwan SinghERattan Singh v. State of Punjab AIR 1957 SC 637 :[1957] SCR 953; Chandran and Others v. State ofKerala (2011) 5 SCC 161 : [2011] 8 SCR 273; SuchaSingh v. State of Punjab AIR 2001 SC 1436 : [2001] 2SCR 644 – referred to.

SOMASUNDARAM @ SOMU v. THE STATE REP. BY THEDEPUTY COMMISSIONER OF POLICE

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.403 of 2010.

From the Judgment and Order dated 06.10.2007 of the High Courtof Judicature at Madras in Criminal Appeal No. 698 of 2004.

With

Criminal Appeal Nos. 827, 828 of 2013, 1504, 2006-2007 and 2008-2009 of 2017.

P. V. Yogeswaran, Ashish Kumar Upadhyay, Y. Lokesh,Ms. V. Susheatha, Babul Kumar, P. Abinesh Karthik, Arun Singh,Ms. V. Keerthana, B. Karunakaran, M. Tabish Zia, Anirudh J.,S. Gowthaman, Aditya Kr. Choudhary, Aman Singh, Gurmehar VaanSingh, Vaibhav Prasad Deo, Rajesh Singh Chauhan, M. Yogesh Kanna,Ms. Meha Aggarwal, S. Raja Rajeshwaran, Advs. for the appearingparties.

AThe Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. Six appeals arise out of common judgment rendered by theHigh Court confirming the conviction and sentence of the appellants bythe Trial Court. The earliest of the aforesaid appeals, i.e., Criminal AppealBNo. 403 of 2010, is filed by the fourth accused. Criminal Appeal No. 827of 2013 and Criminal Appeal No. 828 of 2013 are filed by the third andthe fifteenth accused, respectively.

WHY THIS THREE-JUDGES BENCH?

C2. The appeals filed by the third, fourth and fifteenth accusedcame to be heard by Bench of two learned Judges. There was acleavage of opinion among the learned Judges. One learned Judge (JusticeV. Gopala Gowda), by his Judgment, proceeded to acquit the accusedwhile Justice Arun Mishra dismissed the appeals. The Judgment renderedby the two learned Judges is reported in Somasundaram alias Somuv.DState Represented by Deputy Commissioner of Police1. After thejudgment was rendered, it is that the other appeals came to be filed bythe other accused. They are as follows:

a. A5 and A8 have filed Criminal Appeal Nos. 2008 of 2017;

b. A6 has filed Criminal Appeal No.1504 of 2017;E

c. A7, A11, A14, A16 and A17 have together filed Criminal AppealNo. 2006 of 2017;

d. Though Criminal Appeal No.2007 of 2017 and Criminal AppealNo. 2009 of 2017 were also filed, subsequent to the hearing,Fapplications have been filed seeking to withdraw the aforesaidtwo appeals and they are liable to be dismissed as withdrawn.

THE PROSECUTION CASE

3. On M.K. Balan (hereinafter referred to as ‘the deceased’, forshort), who was an Ex. M.L.A., was reported to be missing by his son-GPW1 after he went for his morning walk on 30.12.2001. On the basis ofthe complaint, law was set in motion. PW67-Inspector of Police, tookover the investigation on 12.01.2002 from PW66. It was, in fact, PW66,who initially conducted investigation. PW66 has spoken about informationof the absconding person being given to the Police Control Room and toH1 (2016) 16 SCC 355

all Police Stations by wireless. He has sent photograph of abscondingperson to be published in the daily newspapers. Inquiry was conductedin hospitals. He has examined large number of witnesses. It is, asnoted, on 12.01.2002, further investigation was taken over by PW67-Deputy Superintendent of CBCID. The evidence of PW67 would showthat from 13.01.2002, the Officer has examined several witnesses.According to the prosecution, the breakthrough came on the basis ofinformation, as per which, the A5 (fifth accused) came to be arrested on18.03.2002. On the very next day, A6 came to be arrested. Still, withinthe space of twenty-four hours, viz., on 20.03.2002, A7 came to bearrested. A8 was arrested on 22.03.2003. A1 was arrested on 23.03.2002.A3 was arrested on 25.03.2002. A4 came to be arrested on 09.04.2002.A15 was arrested on 25.04.2002. It is the prosecution case that theaccused made confessional statements within the meaning of Section27 of the Indian Evidence Act, 1872 (hereinafter referred to as ‘theEvidence Act’, for short) yielding information leading to recoveries. It isthe case of the prosecution that the deceased had been abducted (thoughit is shown as kidnapped) on 30.01.2002, taken and kept in factorypremises which belonged to PW34-Krishna Pandi with whom PW10and PW11 had become partners. huge sum, running into several crores,motivated the accused to hatch the conspiracy to abduct the deceased.It was the further case of the prosecution that the accused decided to doaway with the deceased in case he did not yield to the demand. As ittranspired as the deceased did not yield, he was murdered while he waskept captive in the first floor of the vermicelli factory, which, as alreadynoted, was being operated by PW34. A3 was noted as leader of theADMK. A12, it was alleged, who was married to the A2, was made tospeak in the voice of an AIADMK leader Shashikala to A3. In this, theA1 and A2 played role. It is, according to the prosecution, on being sospurred by the command given by A12, apparently mimicking the voiceof the AIADMK leader, A3 acts. A9 contacted PW10 and PW11. It isalleged that PW10 and PW11 were persuaded to search for houses.Not satisfied with many of the houses shown to A3 and A9, they finallyfound favour with the factory premises which is located in Mudichur. Itis the further case of the prosecution that after he was murdered, thebody of the deceased came to be cremated at the Corporation cremationground on 01.01.2002 and, in order to accomplish the same, PW33-anemployee working in Government Hospital, was roped in by A3 toprocure false death certificate. Accordingly, PW33, it was alleged,

Aapproached PW32-a Medical Practitioner. The Medical Practitioner givesa death certificate wherein the name of person is indicated in thecertificate, and allegedly residing at an address, which, the Police, oninvestigation, found, was not the abode of the person. In other words,the name of non-existing and fictional person was used to concoct adeath certificate and, under the cover of the same, the body of theBdeceased came to be cremated.

4. On the basis of the charge-sheet and after complying with theformalities, the Trial Court framed charges against the accused. Thefollowing are the charges framed against the various accused as evidentfrom the Trial Court Judgment:

“The following charges were framed against the accusedin this case: That during the month of November 2001, the 1[st], 2[nd]and 3[rd] accused conspired together and discussed about the matteras to how the Ex.M.L.A. M.K. Balan could be kidnapped andextract money from him and it was decided to murder him in caseif he refuses to pay any amount and that consequent upon suchconspiracy on 30.12.01 early morning, he was kidnapped nearMRC Nagar and he was illegally kept at T.K.P. Vermicelli factoryat Mudichur and on account of committing him murder on 1.1.02night at about 9:00 p.m., thereby charge under section 120.B.IPC has been framed as against the accused 1 to 18 in this case.

Secondly for the purpose fulfilling the object of suchconspiracy, while the said Ex.M.L.A. M.K. Balan was walking inthe morning on 30.12.01 near MRC Nagar, at the knife point hewas kidnapped near Iyyapan temple at about 5.30 am by theaccused 4,7,10,11,14,15,16 and 17 in the Maruti van bearing Regn.No.: TN-A-7484 and at that time the 15[th] accused went in frontof that van in Hero Honda to show the route for them and lastlythe said M.K. Balan was kept illegally at Vermicelli factorybelonging to one Krishnapandi at Mudichur road, thereby the saidaccused have been charged under Section 365 IPC and forabetment of the said offence the accused 1,2,3,5,6,8,9 and 13 to18 accused in going in car bearing Regn. No.: TN-10-F-5555have been charged under Section 365 read with Section 109 IPC.

Thirdly in order to fulfil the object of such conspiracy, in thesaid place on the said date the said M.K. Balan (Ex.M.L.A.) wastied with iron chain and rope in cot and he was threatened to

part with Rs.16 crores of Rupees or else to execute the documentin respect of his properties in their favour, thereby the accused 1to 11 and 14 to 18 have been charged under Section 387 IPC.

Fourthly, in order to fulfil such conspiracy and in pursuantof the same at the instance and instigation of the accused 1 and 2,the 12[th] accused spoke to the third accused over phone by changingthe voice as that of Smt. Sasikala uttering the words” if possibleget the amount or else close him and come along with Senthil andmeet me and Senthil would tell you everything later, thereby thesaid accused have been framed charges under Section 419, 420and 387 IPC read with 109 IPC.

Fifthly in order to fulfil the object of the said conspiracyand consequent upon the said occurrence on 1.1.02 night at about9:00p.m. the accused 3,4,6 to 8,10,11 and 14 to 18 committed themurder of M.K. Balan who refused to pay any money or to executeany documents in respect of his properties, by tying rope aroundthe neck and tightened, thereby all the above said accused personshad committed the offence punishable under section 302 IPC.Likewise the accused 1,2,5,9,12 and 13 were charged under section302 read with section 109 IPC for having committed the offenceof abetment for the act of committing the murder.

Sixthly, consequent upon the same on the same day in thesaid occurrence, with an object of extracting the property fromthe deceased M.K. Balan, he was kidnapped thereby accused 3to 11 and 13 to 18 were framed charge under section 347 and 364IPC and for being abetment for the said offence, the accused 1,2and 12 have been framed charge under section 347 read with 109and 364 read with 109 IPC.

Seventhly, after committing the murder of the deceasedM.K. Balan, the body was taken to the cremation ground andcremated in Perambur cremation ground by getting false deathcertificate as if one Rajamani Chettiar died due to heart ailmentand that therefore by suppressing the real facts in order to screenthe crime, accused 8,10,11 and 13 to 18 have been framed chargeunder section 201 IPC.”

5. The prosecution has sought to discharge its burden by examining67 witnesses. It has also produced and proved large number of

Adocuments (P1 to P86) and also material objects (MO1 to MO39). Fivewitnesses were examined by the accused. D1 to D8 were proved ontheir behalf. The Trial Court, on appreciation of the evidence, foundmerit in the case of the prosecution, except in regard to the A12 andA18. Resultantly, the Trial Court convicted the accused as follows:

B(i)A1 and A2 were found guilty of the offences under Sections120B of The Indian Penal Code, 1860 (hereinafter referredto as ‘the IPC’, for short), Section 365 read with Section109 of the IPC, Section 387 of the IPC, Section 302 readwith Section 109 of the IPC, Section 347 read with 109 ofthe IPC and under Section 364 read with Section 109 ofCthe IPC.

(ii)A3 is found to have acted upon the conspiracy of A1 andA2. He was found guilty of the offences under Section 365read with Section 109 of the IPC, Section 387 of the IPC,Section 302 of the IPC, Section 347 of the IPC, SectionD364 of the IPC and Section 201 of the IPC. He was acquittedunder Section 120B of the IPC. (See paragraph 194 of theTrial Court Judgment);

(iii)A4 was found guilty of the offences under Section 365 ofthe IPC, Section 387 of the IPC, Section 302 of the IPC,ESection 347 of the IPC, Section 364 of the IPC and Section201 of the IPC. He was acquitted under Section 120B ofthe IPC;

(iv)A5 was found guilty under Section 365 read with Section109 of the IPC, Section 387 of the IPC, Section 302 readFwith Section 109 of the IPC, Section 347 of the IPC, Section364 of the IPC and Section 201 of the IPC. He was,however, acquitted under Section 120B of the IPC.

(v)A6 was found guilty under Section 365 read with Section109 of the IPC, Section 387 of the IPC, Section 302 of theGIPC, Section 347 of the IPC, Section 364 of the IPC andSection 201 of the IPC. He stood acquitted under Section120B of the IPC;

(vi)A7 was found guilty under Section 365 of the IPC, Section387 of the IPC, Section 302 of the IPC, Section 347 of theH

IPC, Section 364 of the IPC and Section 201 of the IPC.He stood acquitted under Section 120B of the IPC;

(vii)A8 was found guilty under Section 365 read with Section109 of the IPC, Section 387 of the IPC, Section 302 readwith Section 109 of the IPC, Section 347 of the IPC, Section364 of the IPC and Section 201 of the IPC and he stoodBacquitted under Section 120B of the IPC;

(viii)A11, who is one of the appellants before us, was convicted,Section 365 of the IPC, Section 387 of the IPC, Section302 of the IPC, Section 347 of the IPC, Section 364 of theIPC and Section 201 of the IPC and was acquitted underSection 120B of the IPC;

(ix)A12 was acquitted of all the charges;

(x)A14, A15, A16 and A17 were convicted under Section 365of the IPC, Section 387 of the IPC, Section 302 of the IPC,Section 347 of the IPC, Section 364 of the IPC and Section201 of the IPC and the charge under Section 120B of theIPC was found not proved against them and they stoodacquitted.

6. It is necessary to notice the details of the findings against eachof the accused (appellants):

“211. The accused 3,6 and 8 for having abetted the crimeof conspiracy of the accused 1 and 2, on 30.12.01 at about5:30 a.m. the former M.L.A. M.K. Balan was kidnapped andkept in secret place at Vermicelli factory at Mudichur road,Tambaram, committed the offence under section 365 read with109 IPC and for having made an attempt to extract money orproperty from the said M.K. Balan, former MLA, committed theoffence under section 387 IPC and when it was not able to getthe same, by committing the murder of the said M.K. Balan,committed the offence under section 302 IPC and beforecommitting murder him, for having kept him in secret placeunlawfully and illegally, committed the offence under section 347IPC and for having kidnapped him for the purpose of murderinghim, committed the offence under section 364 IPC and after themurder of the said M.K. Balan, former M.L.A., the body wascremated at the crematorium at Erukkancherry, Perambur and

[2020] 10 S.C.R.

with view to screen the traces and giving false information,committed the offence under section 201 IPC and accordinglythey are found guilty of the above said offences.

212. In order to fulfil the object of on 30.12.01 at about5.30 a.m. the former M.L.A. M.K. Balan was kidnapped andkept in secret place at Vermicelli factory at Mudichur road,Tambaram, committed the offence under section 365 read with109 IPC and for having made an attempt to extract money orproperty from the said M.K. Balan, former MLA, committed theoffence under section 387 IPC and when it was not able to getthe same, by committing the murder of the said M.K. Balan,committed the offence under section 302 IPC and beforecommitting murder him, for having kept him in secret placeunlawfully and illegally, committed the offence under section 347IPC and for having kidnapped him for the purpose of murderinghim, committed the offence under section 364 IPC conspiracy ofthe accused 1 and 2, the 4[th] accused has been charged for theabove said offences.

213. The 5[th] accused is found guilty of the offences forhaving fulfilled the conspiracy of the accused 1 and 2 on 30.12.01at about 5:30 a.m. the former M.L.A. M.K. Balan was kidnappedand kept in secret place at Vermicelli factory at Mudichur road,Tambaram, committed the offence under section 365 read with109 IPC and for having made an attempt to extract money orproperty from the said M.K. Balan, former MLA, committed theoffence under section 387 IPC and when it was not able to getthe same, by committing the murder of the said M.K. Balan,committed the offence under section 302 IPC and beforecommitting murder him, for having kept him in secret placeunlawfully and illegally, committed the offence under section 347IPC and for having kidnapped him for the purpose of murderinghim, committed the offence under section 364 IPC and after themurder of the said M.K. Balan, former MLA, the body wascremated at the crematorium at Erukkancherry, Perambur andwith view to screen the traces and giving false information,committed the offence under section 201 IPC and accordingly heis found guilty of the above said offences.

214. The 7[th], 10[th], 11[th] and 14[th] accused were charged forthe offences for having colluded with the accused 1 and 2 infulfilling their conspiracy by stating that on 30.12.01 at about 5.30a.m. the former M.L.A. M.K. Balan was kidnapped and kept in asecret place at Vermicelli factory at Mudichur road, Tambaram,committed the offence under section 365 read with 109 IPC andfor having made an attempt to extract money or property fromthe said M.K. Balan, former MLA, committed the offence undersection 387 IPC and when it was not able to get the same, bycommitting the murder of the said M.K. Balan, committed theoffence under section 302 IPC and before committing murderhim, for having kept him in secret place unlawfully and illegally,committed the offence under section 347 IPC and for havingkidnapped him for the purpose of murdering him, committed theoffence under section 364 IPC and after the murder of the saidM.K. Balan, former M.L.A., the body was cremated at thecrematorium at Erukkancherry, Perambur and with view toscreen the traces and giving false information, committed theoffence under section 201 IPC and accordingly, they are foundguilty of the above said offences as decided in this case.

215. It is stated as against the accused 9 and 13 that forfulfilling the object of conspiracy of the accused 1 and 2 on 30.12.1at about 5.30 a.m. the former M.L.A. M.K. Balan was kidnappedand kept in secret place at Vermicelli factory at Mudichur road,Tambaram, committed the offence under section 365 read with109 IPC and for having made an attempt to extract money orproperty from the said M.K. Balan, former M.L.A., committedthe offence under section 387 IPC and when it was not able toget the same, by committing the murder of the said M.K. Balan,committed the offence under section 302 IPC and beforecommitting murder him, for having kept him in secret placeunlawfully and illegally, committed the offence under section 347IPC and for having kidnapped him for the purpose of murderinghim, committed the offence under section 364 IPC and accordinglythey were found guilty of the above said offences.”

7. The sentencing is as follows:

“220. Further the accused 3, 6 and 8 are convicted for theoffence under section 365 read with 109 IPC and sentenced to

ABC

undergo 7 years RI and to pay fine of Rs. 5000/- each in defaultto undergo one year RI each; convicting them for the offenceunder section 387 IPC and sentencing them to undergo 7 yearsRI and to pay fine of Rs. 5000/- in default to undergo one year RIeach and that convincing them for the offence under section 302IPC and sentencing them to undergo life imprisonment and to payfine of Rs. 50000/- each and convicting them for the offenceunder section 347 IPC and sentencing them to undergo three yearsRI each and to pay fine of Rs. 5000/- in default to undergo sixmonths RI each; also convicting them for the offence under section364 IPC and sentencing them to undergo 10 years RI and to payfine of Rs. 5000/- in default to undergo two years RI each;convicting them for the offence under section 201 IPC andsentencing them to undergo 7 years RI and to pay fine ofRs. 10000/- in default to undergo one year RI each and that thetotal fine amount imposed on them each Rs. 80000/- (Rupeeseighty thousand only) and that it is ordered that all the sentencesimposed on these accused shall run concurrently.221. The 4[th] accused is convicted for the offence undersection 365 IPC and sentenced to undergo 7 years RI and to payfine of Rs. 5000/- and in default to undergo one year RI andconvicting him for the offence under section 387 IPC andsentenced to undergo 7 years RI and to pay fine of Rs.5000/- indefault to undergo one year RI; that convicting him for the offenceunder section 302 IPC and sentencing him to undergo lifeimprisonment and to pay fine of Rs. 50,000/- convicting him forthe offence under section 347 IPC and sentencing him to undergo3 years and to pay fine of Rs. 5000/- in default to undergo sixmonths RI; convicting him to undergo 10 years RI and to pay fineof Rs. 5000/- in default to undergo 2 years RI and that it is orderedthat all the sentences imposed on this accused shall runconcurrently (total fine amount imposed on him is Rs. 70,000/-Rupees seventy thousand only).

222. The 5[th] accused is convicted for the offence underSection 365 read with 109 IPC and sentenced to undergo 7 yearsRI and to pay fine of Rs.5000/- in default to undergo one year RI;convicting him for the offence under section 387 IPC andsentencing him to undergo 7 years RI and to pay fine of

Rs.5000/- in default to undergo one year RI; convicting him forthe offence under section 302 IPC read with 109 IPC andsentencing him to undergo life imprisonment and to pay fine ofRs.50,000/- convicting him for the offence under section 347 IPCand sentencing him to undergo 3 years RI and to pay fine of Rs.5000/- in default to undergo six months RI and convicting him forthe offence under section 364 IPC and sentencing him to undergo10 years RI and to pay fine of Rs. 5000/- in default to undergotwo years RI; convicting him for the offence under section 201IPC and sentencing him to undergo 7 years RI and to pay fine ofRs. 10,000/- in default to undergo one year RI and that total fineimposed on this accused is Rs. 80,000/- (Rupees eighty thousandonly) and that all the sentences imposed on this accused shall runconcurrently;

223. The 9[th] accused is convicted for the offence undersection 365 read with 109 IPC and sentenced to undergo 7 yearsRI and to pay fine of Rs. 5000/- in default to undergo one year RI,convicting him for the offence under section 387 IPC andsentencing him to undergo 7 years RI and to pay fine ofRs.5000/- in default to undergo one year RI; convicting him forthe offence under section 302 read with 109 IPC and sentencinghim to undergo life imprisonment and to pay fine of Rs. 50,000/-and also convicting him for the offence under section 347 IPCand sentencing him to undergo 3 years RI and to pay fine of Rs.5000/- in default to undergo six months RI; and also convictingthe accused for the offence under section 364 IPC and sentencinghim to undergo 10 years RI and to pay fine of Rs. 5000/- in defaultto undergo 2 years RI as decided. It is ordered that all thesentences imposed on him in this case shall run concurrently (totalfine amount is Rs. Seventy thousand only).

224. Further the 13[th] accused is convicted for the offenceunder section 365 read with 109 IPC and sentenced to undergo 7years RI and to pay fine of Rs. 5000/- in default to undergo oneyear RI; convicting the accused for the offence under section302 read with 109 IPC and sentencing him to undergo lifeimprisonment and to pay fine of Rs. 50000/- and also convictinghim for the offence under section 347 IPC and sentencing him toundergo 3 years RI and to pay fine of Rs. 5000/- in default to

ABC

undergo six months RI; convicting him for the offence undersection 364 IPC and sentencing him to undergo 10 years RI andto pay fine of Rs. 5000/- in default to undergo two years RI;convicting him for the offence under section 201 IPC andsentencing him to undergo 7 years RI and to pay fine ofRs. 10000/- in default to undergo one year RI as ordered. All thesentences imposed on him shall run concurrently. (Total fineamount imposed on this accused is Rs. Seventy five only). It isfurther ordered that this 13[th] accused shall undergo the sentencesimposed on him in respect of the case in S.C. No. 206/03 alongwith the sentences imposed on him in this case concurrently.

225. Further the accused 7,10,11,14,15,16 and 17 areconvicted for the offence under section 365 IPC and sentencedto undergo seven years RI and to pay fine of Rs.5000/- in defaultto undergo one year RI each; convicting them for the offenceunder section 387 IPC and sentencing them to undergo 7 yearsDRI and to pay fine of Rs. 5000/- in default to undergo one year RIeach; convicting them for the offence under section 302 IPC andsentencing them to undergo life imprisonment and to pay fine ofRs. 50000/- each and also convicting them for the offence undersection 347 IPC and sentencing them to undergo 3 years RI andto pay fine of Rs. 5000/- in default to undergo six months RIEeach; convicting them for the offence under section 364 IPC andsentencing them to undergo 10 years RI and to pay fine ofRs. 5000/- in default to undergo two years each; convicting themfor the offence under section 201 IPC and sentencing them toundergo 7 years RI and to pay fine of Rs. 10,000/- in default toFundergo one year RI each as decided. (The total fine amountbeing Rs. 80,000/- each) All the sentences imposed on theseaccused shall run concurrently as ordered.”

8. The High Court confirmed the judgment of the Trial Courtexcept as regards A10 who was acquitted.

9. We heard the learned Counsel for the appellants.

10. We have also heard the learned Counsel appearing for therespondent-State in all the appeals.

11. Learned Counsel for A3 would submit that the case of theprosecution was based on the theory of conspiracy. It is accordingly thatH

the charge under Section 120B was framed against the accused includingA3. The case of the prosecution in this regard was, A12, who was marriedto A2, made phone calls to A3. A3 was told over phone by A12 allegedlyin the voice of Shashikala that A1 and A2 would meet A3 and he wasasked to do what they would ask him to do. There were further calls. Infact, the conspiracy was, according to the prosecution, hatched in theminds of A1 and A2. A1 flaunted his proximity to M.K. Stalin (a politicalleader) stating that he was about to marry his daughter. A2 was in direfinancial straits. He had contracted an inter-religious marriage with A12.They hit upon the idea of abducting the deceased and to compel him topart with large sum of money (Rs.16 crores) and, in case he refused,to do away with him. It is pointed out that the Trial Court has disbelievedthe case of the prosecution relating to criminal conspiracy whichculminated in the court acquitting A12 of the charge against her. Theappellant also stood acquitted under Section 120B of the IPC. The entireedifice of the prosecution case was built on the alleged criminal conspiracywhich involved A12. Once this edifice was knocked out by the acquittalof A12, the superstructure sought to be built by the prosecution mustnecessarily fall to the ground.12. Next, it is pointed out that the prosecution case is otherwisebased on the testimony of PW10 and PW11. He would point out thatPW10 and PW11 were unreliable witnesses. It is clear that PW10 andPW11 were accomplices. They were untrustworthy witnesses. It ispointed out that it is settled law that the court would not act on thedeposition of accomplices unless they are found reliable and, furthermore,there is corroboration of their testimony from other reliable evidence.Neither are PW10 and PW11 reliable nor is there any corroborativeevidence forthcoming in this case, it is submitted. As far as convictionemploying Section 109 of the IPC is concerned, learned Counselsubmitted that in order that Section 109 may apply apart from mereconspiracy, some act or illegal omission in pursuance of the so-calledconspiracy is indispensable. He would further submit that though V. K.Shashikala was interrogated by PW67-Officer, she has not beenexamined as witness. There is no evidence relating to what her voiceis. Unless the voice of Shashikala was known to A12, it would be well-nigh impossible to believe that the A12 could speak in her voice to A3which ultimately is what the prosecution case is all about. There is noevidence of Shashikala having made public speech. Though A3 maybe familiar with her voice being party functionary, it hardly suffices as

Athere is no evidence to conclude that A12 was familiar with her voicewithout which it is incredible that she could mimic Shashikala.

13. He would further contend that in this case once the prosecutioncase relating to conspiracy under Section 120B of the IPC failed, relianceplaced on Section 109 of the IPC, which contemplates conspiracy andBsomething more would have no legs to stand on. Leave alone any illegalact or omission based on conspiracy, no conspiracy itself is proved.Therefore, Section 109 of the IPC can have no play. Regarding therecovery of Maruti Zen car at the instance of A3, it is pointed out thatA3 is not the owner of the car. PW10 and PW11 were active participants.They were not tendered pardon under Section 306 of The Code ofCCriminal Procedure, 1973 (hereinafter referred to as ‘the CrPC’ forshort). He would further contend that the evidence of PW3 does notestablish involvement of A3. PW3 has merely stated that at 05.30 A.M.,he saw three persons and that he was at the distance of 75 meters whenhe saw three persons pushing another person into Maruti Van. EvidenceDof PW1, who is the son of the deceased, would show that the shoesallegedly recovered as was worn by the deceased, did not belong to hisfather. The case of abduction is not proved on the basis of the evidencetendered by PW3. The Van, which was recovered, has not been identified.The Motorcycle, which was recovered, again was not identified. Therecovery was also not proved, he contends. The prosecution has failedEto prove that A3 brought the deceased to the factory. PW34, on whosetestimony prosecution has placed considerable reliance, is also anaccomplice. He drew our attention to the judgment[2] of Justice ArunMishra in paragraph 115, which reads as follows:

“115. With respect to charge of murder against A-3 and A-F4 it is apparent that MO 31 is in the handwriting of A-1. It wasread out by A-12 and heard by A-3 and was acted accordingly.Evidence of Sahul Hameed, PW 47 also proves recovery of chainwith which M.K. Balan was tied and that of other articles. It isapparent that M.K. Balan was abducted. There was an attemptGto extract money when it was not possible, he was murdered infactory premises. The appellants were charged for committingthe murder by putting nylon rope around his neck and tighteningit. Though there is no direct evidence with respect to that but itcan be inferred in the circumstances that they committed the

offence of murder also. Once they had abducted M.K. Balan itwas for them to explain how they dealt with him. The dead bodyof M.K. Balan could not be found as it was cremated in the nameof fictitious person—Rajamani Chettiar. His post-mortem alsocould not be conducted but the evidence clearly indicates that thedead body of M.K. Balan was taken from the vermicelli factory.It gives an inference that the accused persons had murdered thevictim. It is not necessary for recording conviction that corpusdelicti to be found. There is ample evidence leading to aninescapable conclusion that M.K. Balan was done to death by theappellants. His dead body was seen by the witnesses.”

14. He complains that this approach involves shifting of the burdento be shouldered by the prosecution to the accused. Since abductionitself has not been proved, in order that the prosecution should succeedin the matter of securing conviction under Section 302 of the IPC, theprosecution ought to have proved the case as set out by it. chain wasallegedly used to commit murder of the deceased. A14 and A16 were injail. The chain and the nylon rope were recovered on the basis of thestatements given by them. He would point out that however the saidrecoveries cannot be used against the other accused. He reminds thecourt of the backdrop in which the investigation proceeded following themissing of high-profile person, as the deceased was an Ex-MLA. AHabeas Corpus Petition was filed in the Madras High Court. There wasmuch pressure. The matter engaged the attention of the media also.This forced the Investigating Officers to manufacture the version indeedin order to cater to the general public. PW 21 and PW35 are PoliceOfficers. They are alleged to have identified some of the accused asloitering in public road after midnight on 01.01.2002, which wasimmediately after the alleged commission of the crimes including murder.But this cannot result in conviction of A3. PW12 and PW19 areprosecution witnesses produced to prove the case under Section 201 ofthe IPC, viz., destruction of the body of the deceased after the commissionof the crime, PW12 and PW19 worked at the cremation ground. It ispointed out that as far as PW12 is concerned, he has turned hostile. It ispointed out, in this regard, that the ashes were not recovered. The bonesof the deceased person were not recovered or sent for scientificinvestigation.

15. He would submit that the body of the deceased itself is notfound or not produced, and therefore, the case of the prosecution cannot

Abe accepted. There is evidence to show that for person above 60years, death certificate is not required for conducting cremation. Thisis the submission made in the context of evidence relied on by both thecourts and also learned Single Judge of this Court to conclude that A3was involved in procuring false death certificate. According to theprosecution, PW32-Doctor was approached by PW33 at the instance ofBA3. It was mentioned to the Doctor that another person had passedaway. Believing PW33, PW32-Doctor has deposed that he gave deathcertificate. According to PW19, the dead body was cremated in thenight on 01.01.2002. The death certificate is, no doubt, dated 02.01.2002.[But what weighed with the courts is the role played by A3 in setting upCa false case that person, other than deceased, involved in this case,had passed away and securing death certificate which paved the wayfor cremation of the body of the deceased resulting in the destruction ofthe evidence relating to the body of the deceased].

16. Learned Counsel for the A3 pointed out that A3 must beDconnected with the matter as sought to be done by both courts whichwas not the case.

17. Regarding the recovery effected from A3, it is pointed outthat, MO12 is the Maruti Zen Car. He would point out that the relevanceof the recovery (apart from the infirmity attached with the recovery) isEnot established. MO28 are the audio cassettes. Regarding the same, it ispointed out that it was incumbent upon the prosecution to establish thecontent by providing the transcript. The audio was supposed to containconversation of the deceased but it cannot be relied on in the absence ofa transcript. The relevancy of the content has not been established. Thevoice of the speaker has not been proved. Regarding MO12-Maruti ZenFCar, recovery at the instance of A3, it is contended that the evidencewould show that the owner of the said car had given MO12 to A3 inNovember, 2001 and A3 has given back the car in February, 2002. Thereis no particular role which is attributed to the Maruti Zen Car.

18. Regarding audio evidence, it is submitted that it did not satisfyGthe requirements of Section 3 of the Evidence Act. MO33 is bit ofpaper on which, in the alleged handwriting of A1, the message from A12to A3 was written [it will be remembered that it is the case of theprosecution that A12, imitating the voice of Shashikala, had commandedA3, party functionary, to oblige A1 and A2 and this set in motion theHchain of events culminating in the gruesome murder of the deceased]. It

is the acquittal of A12 who allegedly messaged to A3, which is the subjectmatter of MO33, which is pressed before us to remove any importanceit may otherwise have had. Till 10.04.2002, the evidence of PW67 wouldshow that it was not sealed thus robbing the material object of any legalefficacy it may have otherwise had, it is contended. It is further contendedthat the voice of the deceased, is not proved through PW1. LearnedCounsel would submit that if statement under Section 27 is made and aperson making it is acquitted, such statement cannot be used againstother accused. Learned Counsel would contend that in the case of aconviction employing Section 109 of the IPC, the principal offender mustbe identified. He drew our attention in regard to the judgment reportedin Siri Ram Batra and othersv. Financial Commissioner, Delhi and others3.He pointed out that Justice Arun Mishra, has proceeded on the basisthat confession under Section 164 of the CrPC is substantive pieceof evidence, which, it is not. In this regard, our attention is drawn to thejudgments of this Court. In George and othersv. State of Kerala andanother4, it was held as follows:

“36. We may now turn to the evidence of PW 50, detailedearlier. From the judgment of the trial court we notice that thesubstantial parts of its comments, (quoted earlier) are based onhis statement recorded under Section 164 CrPC and not hisevidence in court. The said statement was treated as substantiveevidence; as would be evident from the following, amongst otherobservations made by the learned trial court:

“If Ext. P-42 (the statement recorded under Section 164CrPC) is found to be genuine statement it can be used as animportant piece of evidence to connect the accused with thecrime.”

In making the above and similar comments the trial courtagain ignored fundamental rule of criminal jurisprudence that astatement of witness recorded under Section 164 CrPC cannotbe used as substantive evidence and can be used only for the”purpose of contradicting or corroborating him.

(Emphasis supplied)

3 (2004) 12 SCC 52

4 (1998) 4 SCC 605

60SUPREME COURT REPORTS

A19. Learned Counsel for A3 relied upon the following decisions.In Baldev Singhv. State of Punjab5, this Court noted that the High Courthad fallen into error in relying upon the statement of the witness underSection 161 of the CrPC as well as on the FIR regarding identificationof the accused in case where, in his cross-examination in the court, hedeposed that he could not, due to darkness, identify the culprits. TheBcourt emphasised that the statement under Section 161 of the CrPC isnot to be used for any purpose except to contradict the witness in themanner provided in Section 162 of the CrPC. Obviously, this judgment isinvoked against the court relying upon the evidence of PW19.

20. In Ziyauddin Burhanuddin Bukhariv. Brijmohan RamdassCMehra and others6, is relied on to point out that while taking record ofspeeches as documents under Section 3 of the Evidence Act, theadmissibility would depend upon the following conditions being fulfilled:

“(a) The voice of the person alleged to be speaking mustbe duly identified by the maker of the record or by others whoDknow it.

(b) Accuracy of what was actually recorded had to beproved by the maker of the record and satisfactory evidence,direct or circumstantial, had to be there so as to rule out possibilitiesof tampering with the record.E(c) The subject-matter recorded had to be shown to berelevant according to rules of relevancy found in the EvidenceAct.”

21. He also pointed out that if the photograph of the accused isFshown to the witnesses and the witnesses then depose about identifyingthe accused, it would deprive the identification of any value it wouldhave otherwise. He relied on the judgement of this Court in Vijayanv.State of Kerala7:

“8. Another circumstance sought to be established wasthrough the evidence of PW 4, young girl living few yardsGaway from the house of the deceased. According to her, she heardthe sound of somebody running and when she turned, she sawaccused Vijayan running away after crossing water channel5 (1990) 4 SCC 6926 (1976) 2 SCC 17H7 (1999) 3 SCC 54

and wearing blue pant and blue shirt. It is no doubt true that sheidentified accused Vijayan in the test identification parade but forthe reasons already advanced while discussing the evidence ofPWs 3 and 9, the identification of the accused in the testidentification parade cannot be relied upon. The High Courtunfortunately appears to have taken view that the identificationof the accused by PW 4 in the test identification parade should berelied upon. We are unable to agree with this conclusionparticularly when it is apparent from the prosecution material thatmuch before the holding of the test identification parade, thephotograph of the accused Vijayan had been published in thenewspaper and because of certain sensation in the locality, ithad lot of publicity and there was sufficient opportunity for thewitnesses being shown the accused person.In this view of thematter, in our considered opinion, the High Court erroneouslyinterfered with the conclusion of the learned Sessions Judge inthis regard and came to hold that the identification of Vijayan byPW 4 could be relied upon. We have examined the evidence ofthe said PW 4 in great detail and we are unable to subscribe tothe view the High Court has taken on the evidence of the aforesaidwitness. We also really fail to understand how witness seeingan unknown man running away could be able to identify him at alater point of time. No special feature was also indicated by thewitness. In our view, the evidence of PW 4 is totally unworthy ofcredit and, as such, cannot be relied upon for bringing home thecharge.”

(Emphasis supplied)

It was case where also just before the Test Identification Parade,someone told her to identify the tallest man in the Parade.

22. Learned Counsel would point out that the accused are entitledto request the Court to draw an adverse inference against the prosecutionwhen the best evidence has not been produced [See Mohanlal ShamjiSoniv. Union of India and another8. Clearly, the accused was entitled toat least the benefit of doubt.

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62SUPREME COURT REPORTS

ACRIMINAL APPEAL NO. 2006 OF 2017

23. The learned Counsel for A3 also adopted arguments in CriminalAppeal No. 2006 of 2017 where he appeared for A7, A11, A14, A16 andA17 about PW10 and PW11 and other submissions.

CRIMINAL APPEAL NO. 403 OF 2010BAPPEAL BY ACCUSED NO.4(A4)

24. The learned Counsel would submit that no value can be givento the Test Identification Parade (TIP) conducted insofar as A4 isconcerned. He would point out that PW10 and PW11 are proved to befamiliar with A4 by having seen him on number of occasions prior toCthe TIP. This would deprive the alleged identification of any value itwould have. MO6 is the Ford Escort Car, which is recovered from A4on the basis of the statement given under Section 27 of the EvidenceAct. The recovery is attacked by the learned Counsel on the basis thatit is planted evidence. He took us through the deposition of PW25 toDimpugn the recovery. According to PW67, he points out that car wasparked outside. He would complain that the courts have relied on PW10and PW11 as if they were reliable witnesses, which they were not. Hewould also emphasise that being accomplices, they should not only bereliable but their evidence must stand the test of corroboration. He pointsout that the prosecution has tried to build up the case that the saidEwitnesses had not approached the Police out of fear for their lives andthat of their family members but he would point out that on perusal oftheir evidence, it would be clear that they were involved with the matterright from the beginning and nothing prevented them from approachingthe law enforcement authorities. Their evidence, therefore, should notFinspire the confidence of the court. He would point out that PW10 andPW11 were in police custody for about more than two months. Theywould have bargained with the police and their testimony is suspect.The TIP was held after 45 days on 24.05.2002. He would point outcontradiction between the testimony of PW10 and PW11. In other words,he would point out that leave alone corroboration from other evidenceGavailable on record, there is no corroboration of evidence of PW10 evenfrom the evidence of PW11 as their deposition reveal contradictions.The learned Counsel otherwise adopts arguments of A3.

25. Substantially, similar arguments are addressed in regard to A5as in respect of A3. It is also contended that PW67 was aware of theHinvolvement of all and the evidence of PW10 and PW11 was unreliable.

CRIMINAL APPEAL NO. 1504 OF 2017

26. Herein the appellant is A6. The learned Counsel for theappellant would address the following submissions. He would submitthat there are four circumstances used against A6. It is first sought to becontended by the prosecution that A6 was seen on 05.12.2001. Next, hispresence on 31.12.2001 at the factory, where the deceased was allegedlydone to death, is used against him. Still further, the deposition of PW10that he saw him on 01.01.2002 and that he threatened PW10, are usedagainst him. He would also point out the contradiction between PW10and PW11, in this regard. MO8 is the white colour Maruti Van recoveredat the instance of A6. The said vehicle bore Number - TN-22-BO/343.He would point out that there is no evidence to show that the said vehiclewas used for abduction or transportation. He would, in other words,question its very relevance to secure conviction of his client. He wouldfurther point out that PW24-Police Officer has in fact identified A8 asA6. In this regard, he drew our attention to paragraph 147 of the TrialCourt judgement. He further submitted that PW12-the employee at thecrematorium, did not identify A6 though PW19 identified A6. Identificationby PW19 is unreliable as he did not mention about physical features ofA6. He would complain that PW19 would have seen photographs in themedia, complaint which is being echoed on behalf of the other accused,also. Next, the circumstance used against A6 is deposition of PW21 andPW35, Police Head Constable and Constable, respectively. He would,in fact, submit that even accepting their deposition, it would prove nothingmore than the fact A6 was there on the public road on the midnight of01.01.2002. It would not connect A6 with the crime. He would furtherpoint out that the deposition of PW35 would show that contrary to theusual practice in the Beat Note, there is nothing noted about A6 thoughhe has deposed that along with three others, A6 presence was noted.The identification of A6 by the Police Officers is not reliable, it iscontended. It is pointed out that the Police Officer would have visitedthe jail and also been in the court premises where he would have seenA6. Therefore, the identification of A6 by the Police Officers loses allmeaning.

27. He also relied on deposition of PW1 that the Reebok Shoesdid not belong to his father-the deceased. There is no corroboration ofthe evidence relating to the presence of A6 on 30.01.2001 and 31.01.2001.There is no evidence to establish the presence of A6 on 01.01.2002.

APW10 and PW11, accomplices, were tutored by the Police Officersconsidering the pressure on the Investigating Officers consequent uponthe fact that the case attracted considerable publicity as result of theHabeas Corpus Petition being filed in the High Court. He would submitthat PW67-Investigating Officer, after the arrest of A5 on 18.03.2002,was completely aware of involvement of all the persons.B

28. It is also the case of the appellant-A15 that no reliance couldbe placed on the recovery of the shoe when PW1-son of the deceased,has himself deposed that the shoe which is recovered was not the onewhich was worn by his father. It is also the contention that PW31 hasnot been able to identify the person who took away allegedly the shoeCfrom the factory.

29. Per contra, the learned Counsel appearing on behalf of theState would begin by submitting that PW10 and PW11 were notaccomplices. Their evidence would, therefore, not require corroboration.He tried to make good this submission by pointing out that qua the offenceDunder Section 302 of the IPC, PW10 and PW11 had no involvement andthe mere fact that they were familiar with the developments leading tothe murder and other acts of the accused, they could not be treated asaccomplices. He would point out, in fact, that accused nos. 1 and 2,have been convicted under Section 120B read with 302 of the IPC. HeEwould draw considerable support from the deposition of PW34. He furthersubmitted that A1 and A2 were the principal conspirators. The otheraccused, who have been convicted under Section 109 of the IPC, haveaided and connived, within the meaning of Section 109 of the IPC, withA1 and A2. He would submit that the acquittal of A12 would have noimpact on the conviction of the appellants. He would point out that thisFCourt, in the case of this nature, which is based on circumstantial evidence,what is to be looked into is the cumulative effect of all the circumstancesput together. In regard to any defect in charge, he drew our attention toSection 460 of the CrPC and contended that there is no incurable illegalityinvolved in this case. He drew our attention to the deposition of PW60.GHe referred us to the recoveries which have led to relevant evidencebelieved in by two courts, and what is more, learned Single Judge ofthis Court. He would further point out to the deposition of PW19. Hepoints out that both PW12 and PW19 had made statements under Section164 of the CrPC. Statement under Section 164 of the CrPC could beused for the purpose of corroborating though it could not be used as aH

substantive evidence by itself. He also drew considerable support fromdeposition of PW32 read with PW33. The hand of A6 in the murder ofa public man is clearly made out, runs the argument. He fairly does notdispute the contention of A6 in regard to MOs 28 and 33. He assures theCourt that the Court can eschew the said items of evidence but he wouldsubmit that even dehors the same, there is sufficient material before theCourt to confirm the conviction of the appellants. Learned Counsel forA3, in reply, would point out that in fact, even A1 and A2 have also beenconvicted with the aid of Section 109 of the IPC. In other words, it is hiscase that even A1 and A2 are not the principal actors so that the otheraccused could be convicted for abetting them. They were themselvesconvicted on the basis that they abetted the crimes in question. He furtherpointed out that PW10 and PW11 have been treated as accomplices bythe High Court contrary to what is sought to be espoused by the learnedCounsel for the State.

SECTIONS 120A, 107, 108, 109, 141 AND 149 OF THE IPC

30. Section 120A of the IPC defines “criminal conspiracy”, whichreads as follows:

“120A. Definition of criminal conspiracy.— When two or moreper-sons agree to do, or cause to be done,—

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agreementis designated criminal conspiracy:

Provided that no agreement except an agreement to commitan offence shall amount to criminal conspiracy unless some actbesides the agreement is done by one or more parties to suchagreement in pursuance thereof.

Explanation.—It is immaterial whether the illegal act is theultimate object of such agreement, or is merely incidental to thatobject.”

31. Section 141 of the IPC falls under Chapter VIII, viz., offencesagainst the public tranquillity. Section 141 defines unlawful assembly asassembly of five or more persons, the common object of the personsbeing any one of the five mentioned thereunder. It includes the commonobject to commit any mischief or criminal trespass or other offence.Section 142 of the IPC declares that if person, being aware of facts

Awhich render an assembly an unlawful assembly, either initially joins it orcontinues in it is member of such unlawful assembly.

32. Section 149 of the IPC declares the Principle of VicariousCriminal Liability. Upon an offence being committed by any member ofan unlawful assembly in prosecution of the common object, every person,Bwho at the time of the offence being committed is member of suchassembly is guilty of such offence. Equally, in the second part of Section149, the Law Giver has provided that upon an offence being committedby any member of the unlawful assembly which was such that membersof that assembly, viz., the unlawful assembly, knew to be likely to becommitted in prosecution of that object, every member of the assembly,Cthough he may not have committed the offence, is rendered guilty of theoffence.

33. In Nanak Chandv. State of Punjab9, the Court had to dealwith contention on behalf of the prosecution that Section 149 of theIPC did not create any offence at all and hence separate charge, wasDnot obligatory. This Court, therefore, found it necessary to decide aquestion whether Section 149 of the IPC creates specific offence.The Court held, inter alia, as follows:

“6. … Under this section person, who is member of anunlawful assembly is made guilty of the offence committed byEanother member of the same assembly, in the circumstancesmentioned in the section, although he had no intention to committhat offence and had done no overt act except his presence in theassembly and sharing the common object of that assembly. Withoutthe provisions of this section member of an unlawful assemblyFcould not have been made liable for the offence committed not byhim but by another member of that assembly. Therefore whenthe accused are acquitted of riot and the charge for being membersof an unlawful assembly fails, there can be no conviction of anyone of them for an offence which he had not himself committed.…”G

34. The Court, thereafter, went on to notice the distinction betweenSections 34 and 149 of the IPC. Dealing with the argument that Section149 of the IPC cannot be understood as creating an offence because itdid not itself provide for the punishment, this Court held as follows:H9 AIR 1955 SC 274

“7. … There is clear distinction between the provisionsof Sections 34 and 149 of the Indian Penal Code and the twosections are not to be confused. The principal element in Section34 of the Indian Penal Code is the common intention to commit acrime. In furtherance of the common intention several acts maybe done by several persons resulting in the commission of thatcrime. In such situation Section 34 provides that each one ofthem would be liable for that crime in the same manner as if allthe acts resulting in that crime had been done by him alone. Thereis no question of common intention in Section 149 of the IndianPenal Code. An offence may be committed by member of anunlawful assembly and the other members will be liable for thatoffence although there was no common intention between thatperson and other members of the unlawful assembly to committhat offence provided the conditions laid down in the section arefulfilled. Thus if the offence committed by that person is inprosecution of the common object of the unlawful assembly orsuch as the members of that assembly knew to be likely to becommitted in prosecution of the common object, every memberof the unlawful assembly would be guilty of that offence, althoughthere may have been no common intention and no participation bythe other members in the actual commission of that offence. InBarendra Kumar Ghosh v. Emperor [(1925) ILR LII Cal 197]Lord Sumner dealt with the argument that if Section 34 of theIndian Penal Code bore the meaning adopted by the Calcutta HighCourt, then Sections 114 and 149 of that Code would be otiose. Inthe opinion of Lord Sumner, however, Section 149 is certainly nototiose, for in any case it created specific offence. It postulatedan assembly of five or more persons having common object, asnamed in Section 141 of the Indian Penal Code and then thecommission of an offence by one member of it in prosecution ofthat object and he referred to Queen v. Sabid Ali [(1873) XXWeekly Reporter (Cr), p 5]. He pointed out that there was adifference between object and intention, for although the objectmay be common, the intentions of the several members of theunlawful assembly may differ and indeed may be similar only inrespect that they are all unlawful, while the element of participationin action, which is the leading feature of Section 34, was replacedin Section 149 by membership of the assembly at the time of the

ABC

DEF

Acommitting of the offence. It was argued, however, that theseobservations of Lord Sumner were obiter dicta. Assuming thoughnot conceding that may be so, the observations of Judge of sucheminence must carry weight particularly if the observations are inkeeping with the provisions of the Indian Penal Code. It is,however, to be remembered that the observations of Lord SumnerBdid directly arise on the argument made before the Privy Council,the Privy Council reviewing as whole the provisions of Sections34, 114 and 149 I.P.C.”

(Emphasis supplied)

C35. Further, this Court proceeded to hold that person chargedwith an offence under Section 149 of the IPC cannot be convicted ofthe substantive offence without there being specific charge framed asrequired under Section 233 of the CrPC, 1898. This Court held as follows:

“10. After an examination of the cases referred to on behalfDof the appellant and the prosecution we are of the opinion that theview taken by the Calcutta High Court is the correct view, namely,that person charged with an offence read with Section 149cannot be convicted of the substantive offence without specificcharge being framed as required by Section 233 Cr.P.C.”

E36. Section 107 falls in Chapter V of the IPC. It reads as follows:“107. Abetment of thing.—A person abets the doing of athing, who—

(First)— Instigates any person to do that thing; or

(Secondly)—Engages with one or more other person or personsFin any conspiracy for the doing of that thing, if an act or illegalomission takes place in pursuance of that conspiracy, and in orderto the doing of that thing; or

(Thirdly)— Intentionally aids, by any act or illegal omission, thedoing of that thing.

Explanation I.—A person who, by wilful misrepresentation, or bywilful concealment of material fact which he is bound to disclose,voluntarily causes or procures, or attempts to cause or procure, athing to be done, is said to instigate the doing of that thing.

Illustration A, public officer, is authorized by warrant from aCourt of Justice to apprehend Z. B, knowing that fact and alsothat is not Z, wilfully represents to that is Z, and therebyintentionally causes to apprehend C. Here abets by instigationthe apprehension of C.

Explanation II.—Whoever, either prior to or at the time of thecommission of an act, does anything in order to facilitate thecommission of that act, and thereby facilitate the commissionthereof, is said to aid the doing of that act.”

37. Section 108 of the IPC provides that person abets an offencewho abets either the commission of an offence or the commission of anact which would be an offence if committed by person capable by lawof committing an offence with the same intention or knowledge as thatof the abettor. The first Explanation provides that abetment of an illegalomission of an act may amount to an offence although the abettor maynot himself be bound to do that act. Explanation (2) declares that it is notnecessary to constitute abetment that the act abetted should be committedor that the effect requisite to constitute the offence should be caused.The Illustration(a) under Explanation II provides as follows:

“ (a) ’A’ Instigates ‘B’ to murder ‘C’. ‘B’ refuses to do so.‘A’ is guilty of abetting ‘B’ to commit murder.”

38. The second limb of the Explanation (II) is illumined by theillustration(b) and it reads as follows:

“(b) ‘A’ instigates ‘B’ to murder ‘D’, ‘B’ in pursuance ofthe instigation stabs ‘D’. ‘D’ recovers from the wound. ‘A’ isguilty of instigating ‘B’ to commit murder.”

39. Explanation (3) declares that it is not necessary that the personabetted should be capable by law of committing an offence or that heshould have the same guilty intention or knowledge as that of the abettoror any guilty intention or knowledge. The first illustration is as follows:

“(a) ‘A’, with guilty intention, abets child or lunatic tocommit an act which would be an offence, if committed by aperson capable by law of committing an offence, and having thesame intention as ‘A’. Here ‘A’, whether the act be committed ornot, is guilty of abetting an offence.”

A40. Another illustration(d) is as follows:

“(d) ‘A’, intending to cause theft to be committed, instigates‘B’ to take property belonging to ‘Z’ out of ‘Z’s possession. ‘A’induces ‘B’ to believe that the property belongs to ‘A’. ‘B’ takesthe property out of Z’s possession, in good faith, believing it to beBA’s property. ‘B’, acting under this misconception, does not takedishonestly, and therefore does not commit theft. But ‘A’ is guiltyof abetting theft, and is liable to the same punishment as if ‘B’ hadcommitted theft.”

41. Thus, Explanation (3) constitutes an exception to the mainCprovisions of Section 108 of the IPC.

42. Abetment of an offence being an offence, the abetment ofsuch abetment is also an offence under Explanation IV. Explanation Vmakes it clear that it is not necessary to the commission of offence ofabetment by conspiracy that the abettor should concert the offence withDthe person who commits and it is sufficient if he engages in the conspiracyin pursuance of which the offence is committed. The illustration underExplanation V is as follows:

“’A’ concerts with ‘B’ plan for poisoning ‘Z’. ‘A’ was tounder the agreement administer the poison. ‘B’ then explains theEplan to ‘C’ without taking the name of ‘A’. ‘C’ agrees to procurethe poison and deliver it to ‘B’ for it being used in the mannerexplained. ‘Z’ dies pursuant to the poison being administered.However, ‘A’ and ‘C’ have not conspired together yet since ‘C’has been engaged in the conspiracy in pursuant to which ‘Z’ wasmurdered, ‘C’ has committed an offence of abetment who is guiltyFfor punishment for murder.”

(Emphasis supplied)

43. Thus, abetment of thing is defined in Section 107 of IPC andthe concept of “abettor” is explained in Section 108 of the IPC. Sections107 and 108 of the IPC must be read together to glean the intention ofGthe Law Giver. So read, abetment can happen in three situations (a) Itmay happen when person instigates another person to do the thingwhich is abetted; (b) Secondly, abetment takes place if person engageswith one or more other person or persons in any conspiracy for doing ofthat thing, if an act or illegal omission takes place in pursuance of thatHconspiracy, and in order to the doing of that thing. Finally, there is

abetment when person intentionally aids, by an act or omission, thedoing of that act. At this juncture, we may have to take deeper look atthe concept of abetment by engaging in conspiracy resulting in abetmentand conspiracy as provided in Section 120A of the IPC.

44. In Pramatha Nath Talukdarv. Saroj Ranjan Sarkar10, this Courtspoke about the distinction between the offence of abetment byconspiracy and the offence of criminal conspiracy (Section 120A ofIPC):

“16. … The gist of the offence of criminal conspiracy is inthe agreement to do an illegal act or an act which is not illegal byillegal means. When the agreement is to commit an offence, theagreement itself becomes the offence of criminal conspiracy.Where, however, the agreement is to do an illegal act which is notan offence or an act which is not illegal by illegal means, some actbesides the agreement is necessary. Therefore, the distinctionbetween the offence of abetment by conspiracy and the offenceof criminal conspiracy, so far as the agreement to commit anoffence is concerned, lies in this. For abetment by conspiracymere agreement is not enough. An act or illegal omission musttake place in pursuance of the conspiracy and in order to thedoing of the thing conspired for. But in the offence of criminalconspiracy the very agreement or plot is an act in itself and is thegist of the offence. Willes, J. observed in Mulcahy v. Queen[(1868) LR 3 HL 306 at 317]:

“When two agree to carry it into effect, the very plot is anact in itself, and the act of each of the parties, promise againstpromise, actus contra actum, capable of being enforced, if lawful,punishable if for criminal object or for the use of criminal means.”

Put very briefly, the distinction between the offence ofabetment under the second clause of Section 107 and that ofcriminal conspiracy under Section 120-A is this. In the formeroffence mere combination of persons or agreement betweenthem is not enough. An act or illegal omission must take place inpursuance of the conspiracy and in order to the doing of the thingconspired for; in the latter offence the mere agreement is enough,if the agreement is to commit an offence.”

(Emphasis supplied)

A45. Section 109 of the IPC provided for the punishment of abetmentif the act abetted is committed and where there is no express provisionmade for punishment. It provides that where no express provision ismade for the punishment of the abetment, the punishment will be thesame as is that which is provided for the offence. The Explanationprovides as follows:B

“An act or offence is said to be committed in consequenceof abetment when it is committed in consequence of the instigationor in pursuance of the conspiracy or with the aid which constitutesthe abetment.”

C46. Explanation II to Section 108 of the IPC makes it clear thatthe offence of abetment would be committed irrespective of whetherthe act abetted is committed or not or whether the effect which wouldconstitute the offence is caused or not. Illustrations(a) and (b) are clearthat the person who abets, as declared in law, cannot extricate himselffrom criminal liability for the offence of abetment on the ground that theDact which was abetted was not done or that the offence which wasactually abetted was not committed. Section 109 of the IPC contemplates,on the other hand, the situation that there is abetment and the act abettedis committed, and what is furthermore, it is committed as result of theabetment. Should these ingredients be present and if there is no expressEprovision under the IPC for the punishment of the act of such abetment,the person renders himself liable for being punished with the punishmentfor that offence which stands committed in consequence of the abetmentby the accused.

47. In order that the act or offence, be committed within theFmeaning of Section 109 of the IPC, in consequence of the abetment, itmust be as consequence of the instigation or in pursuance of theconspiracy or with the aid which constitutes the abetment. Explanationto Section 109 of the IPC must be read in conjunction with Section 107of the IPC which creates the offence of abetting. As far as instigatingany person to do an act, it is relatable to the first part of Section 107Gwhich declares that abetment is done when the person who abetsinstigates any person to do that thing.

48. As far as conspiracy within the meaning of Explanation toSection 109 of the IPC is concerned, it deals with secondly under Section107 of the IPC which speaks about engaging of person with one orHmore other person or persons in any conspiracy for the doing of that

thing provided an act or illegal omission takes place in pursuance of theconspiracy.

49. As far as the last part of the Explanation to Section 109 of theIPC is concerned, which speaks about an act or offence being committedin consequence of abetment being committed with the aid whichconstitutes abetment, it is relatable to thirdly under Section 107 of theIPC. Section 107 of the IPC under this head requires intentional aidingby the act or illegal omission. Instigation takes place in terms ofExplanation I to Section 107 of the IPC when (i) person by wilfulrepresentation; (ii) by wilful concealment of material fact which he isbound to disclose, voluntarily causes or procures or attempts to causesor procure thing to be done and he would be guilty of instigating thedoing of that thing. Explanation (2) to Section 107 declares that whoever,either prior to or at the time of the commission of the act, does anythingin order to facilitate the commission of that act and thereby facilitate itscommission, is said to aid the doing of that act. Thus, anything donewhich facilitates the commission of the criminal act and promotes thecommission of the act, would bring the person within the scope ofabetment.50. Explanation III to Section 108 also contemplates situationwhere the principal player meant to describe the person who actuallycommits the act which is abetted, would not be guilty of the offencesuch as child or lunatic but the abettor, would remain guilty of theoffence of abetment of that offence and if it attracts Section 109 of theIPC, would be punishable for that offence under the appropriate provision.Also, as we have noticed, under Explanation V to Section 108 of theIPC for the offence of abetment by conspiracy to be committed, theprincipal player, meaning person who commits the act which results inthe offence being committed (as in the case of murder by poisoning)need not be in league with the abettor. All that is required is that theabettor also engages in the conspiracy which must be understood asmeaning participate in the concert between two or more others even ifhe may not have seen or known, by face or otherwise, one or morepersons who are privy to the conspiracy. Thus, based on their involvementconstituting abetment, person or any number of persons without evenknowing the identity of all the principal participants to the conspiracy,can be prosecuted with the aid of Section 107 read with Section 108 ofthe IPC.

DEF

A51. In order to attract Section 109 of the IPC, the act abettedmust be committed in consequence of the abetment. Sections 115 and116 of the IPC deal with punishments for abetment of offences whenthe offence is not committed in consequence of the abetment and whereno express provision is made in the IPC for the punishment of suchabetment.B

52. In Arjun Singhv. State of Himachal Pradesh11, this Court heldas follows:

“11. … Law does not require instigation to be in particularform or that it should only be in words. The instigation may be byCconduct. Whether there was instigation or not is question to bedecided on the facts of each case. It is not necessary in law forthe prosecution to prove that the actual operative cause in themind of the person abetting was instigation and nothing else, solong as there was instigation and the offence has been committedor the offence would have been committed if the person committingDthe act had the same knowledge and intention as the abettor. Theinstigation must be with reference to the thing that was done andnot to the thing that was likely to have been done by the personwho is instigated. It is only if this condition is fulfilled that personcan be guilty of abetment by instigation.…”

(Emphasis supplied)

53. Thus, to sum-up, abetment, as defined is substantive offence.The punishment for it varies according to different circumstances. If theact which is abetted is done in pursuance to the abetment, the punishmentis graver, as can been seen from Section 109 of the IPC, as theFpunishment is for the offence which is committed based on the abetment.The offence of abetment is punishable even if the act which is abetted isnot committed. As noted, Sections 115 and 116 provide for punishmentin such cases. There are several other aspects relating to offencesincluding Section 114 of the IPC which provides cumulative punishmentfor the act abetted and also for the act done.G

54. At the heart of the offence of abetment, however, is thepresence of any of the three requirements in Section 107 of the IPC.The key and indispensable elements under the law to constitute abetmentis instigation, conspiracy or the intentional aiding by any act or illegalH11 AIR 2009 SC 1568

omission, the doing of the thing. The law does not permit the abettor toescape punishment for abetment even if the actual player who commitsthe offence is not criminally liable for the actual act which results in thecommission of an offence (See in this regard, the situation contemplatedin illustrations in Explanation III of Section 108 of the IPC). Equally,there need not be meeting of minds between all the persons involved ina conspiracy and it is sufficient if person is engaged in the conspiracyfollowing which the offence is committed (See Explanation V to Section108 of the IPC). This means that it is not even necessary that the personswho are engaged in the conspiracy, to even know the identity, leavealone physically meet the other players. There can be any number ofpersons depending on their guilty mind and acts or omissions which mayrender them liable.

55. In Noor Mohammad Mohd. Yusuf Mominv. State ofMaharashtra12, this Court had an occasion to deal with Sections 34, 107and 120B of the IPC and this is what this Court lay down:

“7. So far as Section 34 IPC is concerned, it embodies theprinciple of joint liability in the doing of criminal act, the essenceof that liability being the existence of common intention.Participation in the commission of the offence in furtherance ofthe common intention invites its application. Section 109 IPC onthe other hand may be attracted even if the abettor is not presentwhen the offence abetted is committed, provided that he hasinstigated the commission of the offence or has engaged with oneor more other persons in conspiracy to commit an offence andpursuant to that conspiracy some act or illegal omission takesplace or has intentionally aided the commission of an offence byan act or illegal omission.Turning to the charge under Section120-B IPC criminal conspiracy was made substantive offencein 1913 by the introduction of Chapter V-A in the Penal Code,1860. Criminal conspiracy postulates an agreement between twoor more persons to do, or cause to be done, an illegal act or an actwhich is not illegal, by illegal means. It differs from other offencesin that mere agreement is made an offence even if no step istaken to carry out that agreement. Though there is close associationof conspiracy with incitement and abetment the substantive offence

Aof criminal conspiracy is somewhat wider in amplitude thanabetment by conspiracy as contemplated by Section 107 IPC…...”

(Emphasis supplied)

THE APPROACH OF THE TWO LEARNED JUDGES

BTHE APPROACH OF JUSTICE V. GOPALA GOWDA

56. The learned Judge proceeds to find that PWs 10 and 11 areaccomplice witnesses. The two tests to test accomplice evidence arereferred to, viz., that the evidence must be credible and, secondly, theremust be corroboration of accomplice evidence. The learned Judge notedCthat PWs 10 and 11 have not been granted pardon by any court butfurther notes that the mere fact that pardon was not tendered, did notmake the accomplice cease to be an accomplice. It was further foundthat it was well-settled position of law that the evidence of twoaccomplices cannot be used to corroborate with each other as laid inR. v. Baskerville13. Support in this regard was sought from precedent inDIndia in the form of judgment of this Court in Mohd. Husain Umar KochraEtc.v. K.S. Dalipsinghji and another Etc.14 wherein this Court, interalia, laid down that corroboration must be from an independent source.One accomplice cannot corroborate another. This position was noted tobe reiterated in still later decision of this Court in Chonampara ChellapanEEtc.v. State of Kerala Etc.15. Corroboration must be in regard to materialparticulars or rather it must be in relation to the crime as well as identityof the accused. Noting that the accused before the Court were A3, A4and A15, it was found crucial that they were acquitted of the chargeunder Section 120B of the IPC. They were found convicted for theoffence under Section 302 of the IPC read with Section 109 of the IPCFand Section 365 of the IPC read with Section 109 of the IPC. Nothingon record was found to show the direct involvement of the accused inthe abducting of the deceased or his murder. The Ford Escort Car-MO12 recovered at the instance of PW10 did not trace back itsownership to A4. Thereafter, it is stated that the requirement ofGcorroboration from independent sources in material particulars, has notbeen met in the instant case and made it impossible for the accused tobe convicted under Sections 302 and 364 of the IPC. PWs 10 and 11were not witnesses to the abduction of the deceased. PW3, who

13 1916 (2) KB 65814 (1969) 3 SCC 429H15 (1979) 4 SCC 312

witnessed the abduction, it is stated, did not witness the accused at thesite of the abduction. Though, PW10 placed A3 and A4 in the meetingon 05.12.2001, significance of the same was lost in view of their acquittalunder Section 120B of the IPC. PWs 10 and 11 have not placed any ofthe three accused (A3, A4 and A15) at the site when the body of thedeceased was brought down in the factory. A3, according to the depositionof the accomplices, was found staying downstairs while PW11, whowent upstairs, actually saw the deceased tied to chains in the room wherehe was kept. PW11 only saw A5 at the site on the night of 30.12.2001carrying tiffin parcel. The death certificate of the deceased issued byPW32, which PW33 has stated was got at the instance of A3, wasfound, even if genuine, did not connect A3 in any way to the deceased.As far as A15 is concerned, MO1-Reebok Shoe, which was recovered,was brushed aside by noticing that the courts had failed to consider thatPW31-a worker in the factory, has stated that she could not rememberthe person who came to get it as there is lapse of more than two years.Therefore, PW31 cannot be used against A15. PWs 1 and 2 in theirtestimony (the son and driver, respectively, of the deceased) stated thatthe Reebok Shoes did not belong to the deceased. Evidence of PWs 10and 11 was not found reliable. Finding the accused not guilty under Section120B of the IPC, the learned Judge noted that it was the duty of the TrialCourt to establish the involvement of each of the accused personsindividually for each offence for which they have been charged.Reference was made to Section 107 of the IPC, and thereafter, to theJudgment of this Court in Kehar Singh and othersv. State (DelhiAdministration)16 that something more than mere conspiracy, viz., someact or illegal omission in pursuance of the conspiracy, is required to beestablished for abetment by conspiracy. Once charge under Section120B of the IPC fails, what was needed to convict the appellants wasthe happening of some overt act on the part of the appellants. The learnedJudge noted that there was no evidence except the testimony of PWs 10and 11 which linked the appellants to the crime. The charge under Section109 of the IPC could not be sustained.

THE APPROACH OF JUSTICE ARUN MISHRA

57. The learned Judge divided the circumstances into fifteencircumstances. They are as follows:

DEF

A(i)Prosecution case - Evidence of PWs. 10 and 11;

(ii)Prior relationship of accused;

(iii)Selection of premises where M.K. Balan was kept/andother arrangements;

(iv)Abduction of deceased M.K. Balan on 30.12.2001 in whiteomni van;

(v)Taking of M.K. Balan to factory premises/meeting dated30.12.2001 at the residence of A9;

(vi)Commission of offence under section 302 IPC;

(vii)Removal of dead body from factory premises;

(viii) Cremation of dead body;

(ix)Procurement of death certificate by A3;

(x)Confessions and recoveries from accused;

(xi)Commission of offence under section 387 IPC;

(xii)Effect of acquittal under section 120B IPC;

(xiii) Evidence of accomplices;

(xiv) Holding TIP/recording of statement under section 164ECrPC.;

(xv)Cell phones/cassettes/forensic evidence.

58. The learned Judge proceeded to discuss the evidence of PWs10 and 11 elaborately. Thereafter, the prior relationship between theFaccused came to be discussed. The circumstance relating to selectionof premises where the deceased was kept and other arrangements asalso “abduction of the deceased” was discussed. The learned Judgereferred to the deposition of PW1-son of the deceased. He also referredto evidence of PW3 and, at paragraph 20, it stated that PW3 has clearlystated that the former MLA was abducted at 05.30 A.M. [Actually PW3Ghas stated that person was put inside van by three persons]. Thereafter,motorcycle followed the said van. That his friend Selvam also camethere. PW13 has also stated that he has seen the deceased taking morningwalk at about 05.45 A.M. The learned Judge finds that it is apparent thatthe deceased in this case was abducted from M.R.C. Nagar. AfterHabduction, the evidence discloses meeting at the residence of A9. He

further finds that on 30.12.2001, PWs 10 and 11 have stated about A3stating that the abduction of the deceased has been made and moneyremains to be collected. Thereafter, the learned Judge discusses evidencerelating to taking of the deceased to the factory premises. In this regard,apart from PWs 10 and 11, the learned Judge refers to the evidence ofPW56 also. In regard to the commission of offence under Section 302of the IPC, it is found that abduction is proved and the deceased wasmurdered soon after abduction in two days and the body cremated underthe name of fictitious person. The learned Judge finds that in theaforesaid circumstances, it is for the accused person to satisfy the Courthow the abducted victim was dealt with by them. Undoubtedly, he notedthat there is no direct evidence with respect to the murder by puttingnylon rope around the neck and tightening it but it can be inferred, in thecircumstances, that they committed the offence of murder also. Thereis evidence which clearly indicated that the dead body of the deceasedwas taken from the factory. Thereafter, the Court discusses againevidence of PWs 10, 11, 21 and 35 in regard to the removal of the deadbody from the factory premises. Next, the learned Judge discusses theevidence relating to the cremation of the dead body. The evidencereferred to include PWs 19 and 36 apart from noting that PW12 hasresiled from part of his statement. Next, the learned Judge elaboratelydiscusses the evidence relating to the procuring of the death certificateby A3. The confessions and recoveries by the accused were nextdiscussed. The effect of acquittal under Section 120B of the IPC nextengaged the learned Judge. It was found that mere acquittal under Section120B of the IPC when the charge under Section 109 of the IPC wasfound established, was of no avail to them. Charges, which were framed,were specific. Ingredients of Section 109 of the IPC were there andhave been rightly found to be present by both the courts below. Section120B of the IPC was found established against accused A1 and A2 andother charges against the accused appellants. Sections 120B and 109 ofthe IPC were found to be distinct offences. He referred to the judgmentof this Court in Ranganayakiv. State by Inspector of Police17, which,inter alia, held that for an offence under Section 120B of the IPC, acharge under Section 109 of the IPC was unnecessary and inappropriate.The commission of offence under Section 109 of the IPC was foundestablished along with other offences. The acquittal under Section 120Bof the IPC was found not to adversely impinge upon the ingredients of

DEF

80SUPREME COURT REPORTS

ASection 109 of the IPC. The evidence of PWs 10 and 11, even taken asaccomplices, was found corroborated by overwhelming evidence onrecord on each and every aspect. Regarding holding of TI/Recording ofStatement under Section 164 of the CrPC, it was proved by PWs 60, 59,61, 32, 33, 62, 12 and 19. The last circumstance discussed was the cellphone/cassette/forensic evidence. Cassettes were recovered withBsuitcase-MO2 from A2 which was supported by PW43. Regarding thecontention that no value is to be attached to the recovery of the FordCar at the instance of A4 based on ownership, it was found that ownershipwas irrelevant. PW10 may have purchased the car in the name of ShriRanjit Kumar. The evidence disclosed that the car in the possession ofCPW10 was given by him to the accused. Total six cars were used in theoffence including the Ford Escort Car and one motorcycle. As regardsthe recovery of the remains from the cremation ground not being provedto be that of the deceased, it was found that as the case of the prosecution,the body was fully burnt, their seizure and forensic report was of novalue. This broadly is the basis for the learned Judge to uphold theDconviction.ACCOMPLICE EVIDENCE

59. Section 133 of the Evidence Act declares that an accompliceis competent witness and further that conviction based on theEuncorroborated testimony of an accomplice is not illegal only on accountof it being so. Section 133 reads as follows:

“133. Accomplice.- An accomplice shall be competentwitness against an accused person; and conviction is not illegalmerely because it proceeds upon the uncorroborated testimonyFof an accomplice.”

60. It is apposite to notice Section 114 of the Evidence Act,Illustration ‘b’, the Court may presume:

“(b) That an accomplice is unworthy of credit, unless he iscorroborated in material particulars.”G61. Thus, there appears to be contradiction between theseprovisions. The matter is no longer res integra. We may notice thefollowing statement of the law contained in an early judgment of thisCourt reported in Sarwan Singh Rattan Singhv. State of Punjab18:

H18 AIR 1957 (SC) 637

“7. It is hardly necessary to deal at length with the truelegal position in this matter. An accomplice is undoubtedly acompetent witness under the Indian Evidence Act. There can be,however, no doubt that the very fact that he has participated inthe commission of the offence introduces serious stain in hisevidence and courts are naturally reluctant to act on such taintedevidence unless it is corroborated in material particulars by otherindependent evidence.

It would not be right to expect that such independentcorroboration should cover the whole of the prosecution story oreven all the material particulars. If such view is adopted it wouldrender the evidence of the accomplice wholly superfluous. Onthe other hand, it would not be safe to act upon such evidencemerely because it is corroborated in minor particulars or incidentaldetails because, in such case, corroboration does not afford thenecessary assurance that the main story disclosed by the approvercan be reasonably and safely accepted as true.

But it must never be forgotten that before the court reachesthe stage of considering the question of corroboration and itsadequacy or otherwise, the first initial and essential question toconsider is whether even as an accomplice the approver is areliable witness. If the answer to this question is against theapprover then there is an end of the matter, and no question as towhether his evidence is corroborated or not falls to be considered.

In other words, the appreciation of an approver’s evidencehas to satisfy double test. His evidence must show that he is areliable witness and that is test which is common to all witnesses.If this test is satisfied the second test which still remains to beapplied is that the approver’s evidence must receive sufficientcorroboration. This test is special to the cases of weak or tainted”evidence like that of the approver.

(Emphasis supplied)

62. We may profitably also refer to the views expressed in HaroomHaji Abdullav. State of Maharashtra19:

A“8. The law as to accomplice evidence is well settled. TheEvidence Act in Section 133 provides that an accomplice is acompetent witness against an accused person and that convictionis not illegal merely because it proceeds upon the uncorroboratedtestimony of an accomplice. The effect of this provision is thatthe court trying an accused may legally convict him on the singleBevidence, of an accomplice. To this there is rider in Illustration(b) to Section 114 of the Act which provides that the Court maypresume that an accomplice is unworthy of credit unless he iscorroborated in material particulars. This cautionary provisionincorporates rule of prudence because an accomplice, whoCbetrays his associates, is not fair witness and it is possible thathe may, to please the prosecution, weave false details into thosewhich are true and his whole story appearing true, there may beno means at hand to sever the false from that which is true. It isfor this reason that courts, before they act on accomplice evidence,insist on corroboration in material respects as to the offence itselfDand also implicating in some satisfactory way, however small, eachaccused named by the accomplice. In this way the commission ofthe offence is confirmed by some competent evidence other thanthe single or unconfirmed testimony of the accomplice and theinclusion by the accomplice of an innocent person is defeated.EThis rule of caution or prudence has become so ingrained in theconsideration of accomplice evidence as to have almost thestanding of rule of law.”

(Emphasis supplied)

63. The dichotomy between the mandate of Section 133 andFillustration (b) to Section 114, of the Evidence Act has been explained asfollows in Sheshanna Bhumanna Yadavv. State of Maharashtra20:

“12. The law with regard to appreciation of approver’sevidence is based on the effect of Sections 133 and 114, illustration(b) of the Evidence Act, namely, that an accomplice is competentGto depose but as rule of caution it will be unsafe to convict uponhis testimony alone. The warning of the danger of convicting onuncorroborated evidence is therefore given when the evidence isthat of an accomplice. The primary meaning of accomplice is anyparty to the crime charged and someone who aids and abets the

H20 AIR (1970) SC 1330

commission of crime. The nature of corroboration is that it isconfirmatory evidence and it may consist of the evidence of secondwitness or of circumstances like the conduct of the person againstwhom it is required. Corroboration must connect or tend to connectthe accused with the crime. When it is said that the corroborativeevidence must implicate the accused in material particulars it meansthat it is not enough that piece of evidence tends to confirm thetruth of part of the testimony to be corroborated. That evidencemust confirm that part of the testimony which suggests that thecrime was committed by the accused. If witness says that theaccused and he stole the sheep and he put the skins in certainplace, the discovery of the skins in that place would not corroboratethe evidence of the witness as against the accused. But if theskins were found in the accused’s house, this would corroboratebecause it would tend to confirm the statement that the accusedhad some hand in the theft.”

(Emphasis supplied)

64. We may finally advert to recent pronouncement of this Courtin K. Hashimv. State of Tamil Nadu21:

“38. First, it is not necessary that there should beindependent confirmation of every material circumstance in thesense that the independent evidence in the case, apart from thetestimony of the complainant or the accomplice, should in itself besufficient to sustain conviction. As Lord Reading says:

“Indeed, if it were required that the accomplice should beconfirmed in every detail of the crime, his evidence would notbe essential to the case; it would be merely confirmatory ofother and independent testimony.” (Baskerville case [(1916)2 KB 658 : (1916-17) All ER Rep 38 (CA)] , All ER p. 42 B-C)

39. All that is required is that there must be some additionalevidence rendering it probable that the story of the accomplice(or complainant) is true and that it is reasonably safe to act uponit.

40. Secondly, the independent evidence must not only makeit safe to believe that the crime was committed but must in some21 (2005) 1 SCC 237

Away reasonably connect or tend to connect the accused with it byconfirming in some material parti.cular the testimony of theaccomplice or complainant that the accused committed the crime.This does not mean that the corroboration as to identification mustextend to all the circumstances necessary to identify the accusedwith the offence.Again, all that is necessary is that there shouldBbe independent evidence which will make it reasonably safe tobelieve the witness’s story that the accused was the one, or amongthose, who committed the offence. The reason for this part of therule is that:

“A man who has been guilty of crime himself willalways be able to relate the facts of the case, and if theconfirmation be only on the truth of that history, withoutidentifying the persons, that is really no corroboration at all….It would not at all tend to show that the party-accusedparticipated in it.”

41. Thirdly, the corroboration must come from independent sourcesand thus ordinarily the testimony of one accomplice would not besufficient to corroborate that of another. But of course thecircumstances may be such as to make it safe to dispense withthe necessity of corroboration and in those special circumstancesEa conviction so based would not be illegal. I say this because itwas contendedthat the mother in this case was not an independentsource.

42. Fourthly, the corroboration need not be direct evidence thatthe accused committed the crime. It is sufficient if it is merelycircumstantial evidence of his connection with the crime. Were itFotherwise, “many crimes which are usually committed betweenaccomplices in secret, such as incest, offences with females” (orunnatural offences) “could never be brought to justice”. (See M.O.Shamsudhin v. State of Kerala [(1995) 3 SCC 351 : 1995 SCC(Cri) 509].)”

(Emphasis supplied)

65. To summarize, by way of culling out the principles whichemerge on conspectus of the aforesaid decisions, we would hold asfollows:

The combined result of Sections 133 read with illustration(b) to Section 114 of Evidence Act is that the Courts have evolved,as rule of prudence, the requirement that it would be unsafe toconvict an accused solely based on uncorroborated testimony ofan accomplice. The corroboration must be in relation to the materialparticulars of the testimony of an accomplice. It is clear that anaccomplice would be familiar with the general outline of the crimeas he would be one who has participated in the same and therefore,indeed, be familiar with the matter in general terms. The connectinglink between particular accused and the crime, is wherecorroboration of the testimony of an accomplice would assumecrucial significance. The evidence of an accomplice must point tothe involvement of particular accused. It would, no doubt, besufficient, if his testimony in conjunction with other relevantevidence unmistakably makes out the case for convicting anaccused.

66. As laid down by this Court, every material circumstance againstthe accused need not be independently confirmed. Corroboration mustbe such that it renders the testimony of the approver believable in thefacts and circumstances of each case. The testimony of one accomplicecannot be, ordinarily, be supported by the testimony of another approver.We have used the word ‘ordinarily’ inspired by the statement of the lawin paragraph-4 in K. Hashim(supra) wherein in this Court, did contemplatespecial and extraordinary cases where the principle embedded in Section133 would literally apply. In other words, in the common run of cases,the rule of prudence which has evolved into principle of law is that anaccomplice, to be believed, he must be corroborated in material particularsof his testimony. The evidence which is used to corroborate anaccomplice need not be direct evidence and can be in the form ofcircumstantial evidence.

ACCOMPLICE AND APPROVER

67. An accomplice is in many cases, pardoned and he becomeswhat is known as an approver. An elaborate procedure for making aperson an approver, has been set out in Section 306 of the CrPC. Briefly,the person is proposed as an approver. The exercise is undertaken beforethe competent Magistrate. His evidence is recorded. He receives pardonin exchange for the undertaking that he will give an unvarnished versionof the events in which he is participant in the crime. He would expose

ABC

Ahimself to proceedings under Section 308 of the CrPC. Section 308contemplates that if such person has not complied with the condition onwhich the tender of pardon was given either by wilfully concealinganything essential or by giving false evidence, he can be put on trial forthe offence in respect to which the pardon was so tendered or for anyother offence of which he appears to be guilty in connection with theBsame matters. This is besides the liability to be proceeded against for theoffence of perjury. Sub-section (2) of Section 308 declares that anystatement which is given by the person accepting the tender of pardonand recorded under Section 164 and Section 306 can be used againsthim as evidence in the trial under Section 308(1) of the CrPC. AnCaccomplice or an approver are competent witnesses. An approver is anaccomplice, who has received pardon within the meaning of Section306. We would hold, that as between an accomplice and an approver,the latter would be more beholden to the version he has given havingregard to the adverse consequences which await him as spelt out inSection 308 of the CrPC. as explained by us. It is also settled principleDthat the competency of an accomplice is not impaired, though, he couldhave been tried jointly with the accused and instead of so being tried, hehas been made witness for the prosecution. See the judgment of thisCourt reported in Chandran and Othersv. State of Kerala22.

PURPORT AND VALUE OF SECTION 164 OF CRPCE

68. Section 164 of the CrPC enables the recording of the statementor confession before the Magistrate. Is such statement substantiveevidence? What is the purpose of recording the statement or confessionunder Section 164? What would be the position if the person giving thestatement resiles from the same completely when he is examined as aFwitness? These questions are not res integra. Ordinarily, the prosecutionwhich is conducted through the State and the police machinery wouldhave custody of the person. Though, Section 164 does provide forsafeguards to ensure that the statement or confession is voluntaryaffair it may turn out to be otherwise. We may advert to statements ofGlaw enunciated by this Court over time.

69. As to the importance of the evidence of the statement recordedunder Section 164 and as to whether it constitutes substantial evidence,

we may only to advert to the following judgment, i.e., in George andothersv. State of Kerala and another23:

“In making the above and similar comments the trial Court againignored fundamental rule of criminal jurisprudence that astatement of witness recorded under S. 164, Cr.P.C., cannot beused as substantive evidence and can be used only for the purposeof contradicting or corroborating him.”

70. What is the object of recording the statement, ordinarily ofwitnesses under Section 164 has been expounded by this Court in R.Shajiv. State of Kerala24:

“15. So far as the statement of witnesses recorded underSection 164 is concerned, the object is two fold; in the first place,to deter the witness from changing his stand by denying thecontents of his previously recorded statement, and secondly, totide over immunity from prosecution by the witness under Section164. proposition to the effect that if statement of witness isrecorded under Section 164, his evidence in Court should bediscarded, is not at all warranted. (Vide: Jogendra Nahak & Ors.V. State of Orissa & Ors., AIR 1999 SC 2565: (1999 AIR SCW2736); and Assistant Collector of Central Excise, Rajamundry v.Duncan Agro Industries Ltd. & Ors., AIR 2000 SC 2901) : (2000Air SCW 3150).

16. Section 157 of the Evidence Act makes it clear that astatement recorded under Section 164 Cr.P.C., can be relied uponfor the purpose of corroborating statements made by witnesses inthe Committal Court or even to contradict the same. As the defencehad no opportunity to cross-examine the witnesses whosestatements are recorded under Section 164 Cr.P.C., suchstatements cannot be treated as substantive evidence.”

71. Thus, in case where witness, in his statement under Section164 of the CrPC, makes culpability of the accused beyond doubt butwhen he is put on the witness stand in the trial, he does completesomersault, as the statement under Section 164 is not substantial evidencethen what would be the position? The substantive evidence is the evidencerendered in the Court. Should there be no other evidence against the

23 AIR 1998 SC 137624 AIR 2013 SC 651

Aaccused, it would be impermissible to convict the accused on the basisof the statement under Section 164.CONTOURS OF JURISDICTION IN APPEAL BY SPECIALLEAVE

72. Before we embark upon consideration of the contentions,Bwe think it is necessary to remind ourselves of the contours of this Court’sjurisdiction in an appeal generated by Special Leave under Article 136of the Constitution of India. This question, far from being res integra, isthe subject matter of large number of decisions of this Court. Wewould only advert to one out of many decisions, rendered by one of usC(K.M. Joseph, J.), in Jagjit Singhv. State of Punjab25. Therein, the Courtnoted the principles laid down by this Court in Dalbir Kaurv. State ofPunjab26 wherein this Court culled out the principles in paragraph-8 asfollows:

“8. Thus the principles governing interference by this CourtDin criminal appeal by special leave may be summarised as follows:“(1) that this Court would not interfere with the concurrentfinding of fact based on pure appreciation of evidence even if itwere to take different view on the evidence;

(2) that the Court will not normally enter into aEreappraisement or review of the evidence, unless the assessmentof the High Court is vitiated by an error of law or procedure or isbased on error of record, misreading of evidence or is inconsistentwith the evidence, for instance, where the ocular evidence is totallyinconsistent with the medical evidence and so on;

F(3) that the Court would not enter into credibility of theevidence with view to substitute its own opinion for that of theHigh Court;

(4) that the Court would interfere where the High Courthas arrived at finding of fact in disregard of judicial process,Gprinciples of natural justice or fair hearing or has acted in violationof mandatory provision of law or procedure resulting in seriousprejudice or injustice to the accused;

(5) this Court might also interfere where on the provedfacts wrong inferences of law have been drawn or where theconclusions of the High Court are manifestly perverse and basedon no evidence.”

It is very difficult to lay down rule of universal application,but the principles mentioned above and those adumbrated in theauthorities of this Court cited supra provide sufficient guidelinesfor this Court to decide criminal appeals by special leave. Thus ina criminal appeal by special leave, this Court at the hearingexamines the evidence and the judgment of the High Court withthe limited purpose of determining whether or not the High Courthas followed the principles enunciated above. Where the Courtfinds that the High Court has committed no violation of the variousprinciples laid down by this Court and has made correct approachand has not ignored or overlooked striking features in the evidencewhich demolish the prosecution case, the findings of fact arrivedat by the High Court on an appreciation of the evidence in thecircumstances of the case would not be disturbed.”

LOOK AT THE OFFENCES INVOLVED

73. Section 201 of the IPC, inter alia, is as follows:

“201. Causing disappearance of evidence of offence, or givingfalse information to screen offender.—Whoever, knowing orhaving reason to believe that an offence has been committed,causes any evidence of the commission of that offence todisappear, with the intention of screening the offend-er from legalpunishment, or with that intention gives any infor-mation respectingthe offence which he knows or believes to be false.”

74. Section 347 of the IPC reads as follows:

“347. Wrongful confinement to extort property, or constrain toillegal act.—Whoever wrongfully confines any person for thepurpose of extorting from the person confined, or from any personinterested in the person confined, any property or valuable securityor of constraining the person confined or any person interested insuch person to do anything illegal or to give any information whichmay facilitate the commission of an offence, shall be punishedwith imprisonment of either description for term which mayextend to three years, and shall also be liable to fine.”

A75. Section 364 of the IPC, inter alia, deals with abducting inorder to murder. It reads as follows:

“364. Kidnapping or abducting in order to murder.—Whoeverkidnaps or abducts any person in order that such person may bemurdered or may be so disposed of as to be put in danger of beingBmurdered, shall be punished with imprisonment for life or rigorousimprisonment for term which may extend to ten years, and shallalso be liable to fine.”

76. The offence of abduction is described in Section 362 of theIPC and it reads as follows:C

“Abduction.- Whoever by force compels, or by any deceitful meansinduces, any person to go from any place, is said to abduct thatperson.”

It is to be distinguished from kidnapping which is of two kinds asstated in Section 359 of the IPC, viz., kidnapping from India and kidnappingDfrom lawful guardianship. Both kidnapping and abducting, are referredto in Sections 364 and 365 of the IPC.

77. Section 365 of the IPC reads as follows:

“365. Kidnapping or abducting with intent secretly and wrongfullyto confine person.—Whoever kidnaps or abducts any person withEintent to cause that person to be secretly and wrongfully confined,shall be punished with imprisonment of either description for aterm which may extend to seven years, and shall also be liable tofine.”

78. Section 302 of the IPC, no doubt, deals with the offence ofFmurder. Lastly, Section 387 of the IPC is heightened, more seriousform of offence of extortion and it reads as follows:

“387. Putting person in fear of death or of grievous hurt, in orderto commit extortion.—Whoever, in order to the committing ofextortion, puts or attempts to put any person in fear of death or ofGgrievous hurt to that person or to any other, shall be punished withimprisonment of either description for term which may extendto seven years, and shall also be liable to fine.”

79. It is clear that kidnapping differs from abduction. Kidnappingis of two kinds. Kidnapping from India involves taking person againstH

his consent or consent of legally authorised person out of India (Section360). Kidnapping from lawful custody is occasioned if male below 16years or female below 18 years or person of unsound mind is taken outof custody of lawful guardian without his consent (Section 361).Abduction, as defined in Section 362 of the IPC, occurs when by forceor deceitful means, person is induced to go from any place. In thiscase, under Sections 364 and 365, though, it could be kidnapping andabduction, what is involved is abduction.

80. Section 364 of the IPC, more graver than Section 365 of theIPC, occurs when abduction, inter alia,is done with the intention tocommit murder or that he is so disposed of so as to put the abductedperson in danger of being murdered. Section 365 of the IPC is attractedwhen the abduction takes place to cause the abducted person to besecretly and wrongfully confined.

81. It is true that in given case, person may be abducted to besecretly and wrongfully confined and also to commit murder. Such asituation may attract both Sections 364 and 365 of the IPC.

82. As with any other offence, there could be the actual offender,who abducts. Any other person could be roped in with the aid of Section120A of the IPC or Section 109 of the IPC (abetting). Also, principle ofvicarious liability, under Section 34 of the IPC or charge under Section149 of the IPC, if proved, could visit another with criminal liability.

ABDUCTION, THE EVIDENCE

83. PW1 is the son of the deceased. He has deposed, inter alia,as follows:

His father is an MLA of Saidapet Constituency. He isDirector of Mahilapur Hindu Saswatha Nidhi Limited for periodof ten years. He used to go walking in the morning as he wassuffering from diabetes. He used to leave the house at 05.30 A.M.in the morning for walking in MRC Nagar near Ayyapan Templeand return home at about 07.30 A.M.. He also used to go forwalking in the morning along with one Ramesh residing near theirhouse. On 30.12.2001, his father went for walking at about 05.30A.M.. Normally, his father used to wear t-shirt, black track pantand black shoes. The shoes were of one Reebok company. Hedid not return home on 30.12.2001. He went in search of his father.He contacted his friends. Then, he went and lodged complaint

marked as Exhibit PSEI. In cross-examination, PW1 deposed thathe did not state that his father used to walk by using the Reebokshoes. The shirt and the pant were not shown to him by the CrimeBranch who investigated him. The Police asked him to removecertain averments made by him in his complaint. The complaint,after removal of the averments, is PSE1. He went, at 08.00 P.M.,to the Anna Nagar Police Station. They have told him that thefather was in Tirumangalam Police Station. Then, he went toTirumangalam Police. He was told that he was not there. Hespeaks about learning that his father was kept in the Police Stationand, sensing danger, he filed Habeas Corpus Petition. In thecomplaint, he has averred that when his father went for walking,he was illegally detained by the Police for procuring certainstatements from him. He has read the Nakeeran Journal of05.03.2002. He says that he has stated that the arrest of the A3and A5 was mere eyewash. On 30.12.2001, when his father wentfor walking only his mother had seen him. The shoes worn by hisfather was bought from the Mount Road Vasant Complex ReebokCompany. Then he says that the size of shoes was told by him tothe Police (CBCID) and then, they showed the shoes to him.PW1 told that the shoes did not belong to his father. Thereupon,permission was sought and granted to declare PW10 as hostileand he was cross-examined. On 30.12.2001, his father had gonefor walking and had not returned till today. He has not contactedthem through letter or phone. He has not challenged the dismissalof Habeas Corpus petition. The age of his father is disclosed as52 years on 30.12.2001. His father did not fight with any privateperson and only fought with political adversaries. To the question,whether the Police had given him any audio cassette containingthe voice of his father and played it before his mother and brother,he answers in the affirmative. He says there was no disputebetween his father and A3 and other accused. In answer to thequestion, whether the persons of ADMK had any grudge againsthis father for changing his party to DMK, he said, yes, there wereserious disputes regarding this. He still believed that his fatherwas alive. The prosecution conducted re-examination of PW1.He states that when the CBCID examined him on 06.04.2002, hehas not stated that the voice in the audio cassette was of hisfather. Suggestion that he was purposefully deposing in favour ofthe accused, was denied.

84. PW2-Ramesh deposes that he is car driver by profession.He knew the deceased. He used to go to the house at 08.45 A.M. or09.00 A.M.. He speaks about taking the deceased to the company ofwhich he was the Director. He speaks about coming at about 09.00A.M. on 30[th] and the wife of the deceased informed him that her husbandhas not returned home after he had gone for walking. He says, to hisknowledge, he did not know about the fact that deceased went for walkingon that day. After 29.12.2001, he has not seen the deceased.85. PW3 is another key witness produced by the prosecution toprove the aspect of abduction. He is native of Sri Lanka. He came toChennai in 1991. In 2001, he used to practice wrestling. He would doskipping and running along with others at MRC Nagar. His wrestlingmaster is Selvaraj. On 30.12.2001, at about 05.30 A.M., as usual, hestarted to run. At that time, at distance of about 75 meters, he sawthree persons forcing person to get into van. Thereafter, all of themwent in the same van. It was an Omni Van. motorcycle followed thatvan. Thereafter, his friend Selvam came there. He told this to him. Hetold Selvaraj Master. Selvaraj Master told him “why should we botherabout others.”He has stood by his statement in the cross-examination.He, no doubt, inter alia says that in December, the sunrise will be lateand that 05.30 A.M. will be dark. He saw the incident at distance of 75meters as there was street light. No doubt, he says that during Policeinvestigation, he did not mention about the glow of street light. He didnot lodge any complaint in the Police Station about the incident.

86. The next witness, who is produced to prove abduction, isPW13. He states as follows:

His brother is working in the Police Department. From1999, he has diabetes. He goes for walk at MRC Nagar everyday at morning 05.30 A.M.. On 30.12.2001, at 05.45 A.M. inthe morning, when he was walking in the MRC Nagar, KasturiEstate, the deceased came opposite to him. He was wearingbright shoes, sandal colour t-shirt and dark pant. He crossedhim. He is shown MO14-photograph and he identified thedeceased. In cross-examination, he says that he saw in thenewspaper that the deceased was not found but he did not seethe TV.

It is, no doubt, true that Justice Arun Mishra has foundthat it becomes apparent that PW13 clearly stated that the

former MLA Balan-the deceased was taking morning walk.The learned Judge concluded that it is apparent that M.K.Balan had been abducted. PW3 has not stated that it was thedeceased who was abducted. He has not stated that threepersons, who pushed the deceased into the van were fromamongst the accused in the case.

87. However, reading the evidence of PWs 1, 2, 3 and 13, thefollowing is established. The deceased used to go for morning walk. Hewas indeed sighted by PW13 who also used to go for morning walk.PW3 has indeed witnessed person being pushed into Maruti Omni VanCby three persons and the Van going away followed by the motorcycle.

88. These facts are established. The evidence of PW10 and PW11is to be seen next in this regard. PW10 has, inter alia, stated that firstand second accused were there at the house of A9 on 30.12.2001. Bothof them told A3 that they have brought the MLA [M.K. BalanD(deceased)] and only money had to be collected from him. PW11 hasstated that on 30.12.2001, he saw three cars at the factory led by TataSumo (recovered at the instance of A9), Ford Escort Car (recoveredat the instance of A4) and finally came the Zen Car (recovered at theinstance of A3). Four persons identified as A4, A11, A16 and A17 broughtEthe deceased out of the Ford Car. This takes place within hours ofabduction on the same day. PW11 also speaks of three persons comingout of the Zen Car. PW10 also says that on 31.12.2001, he found thatthe deceased was tied-up with chain and his eyes were covered with acloth and he had been made to sit on green steel cot provided by themalready. He was wearing black pant and sandal colour t-shirt. He hasFdeposed that it was A5, A6, A7, A8, A10, A11 and A14, who were present.Still further, he says that A3 threatened him that he would kill him and hisfamily members if he discloses anything about the matter. He furtherstated that “we had kidnapped ex-MLA Balan itself, you are nothingto me”. Unless PW10 and PW11, PW3 and PW13 are disbelieved, theconclusion is inevitable that the deceased was indeed abducted. TheGtrial court finds that no one else was kidnapped on the same day. TheTrial Court finds that A3, A4 to A8, A10, A11 and A14 to A17 kidnappedthe deceased (A10 stands acquitted by the High Court).

THE CIRCUMSTANCES RELATING TO OBTAINING OFFALSE DEATH CERTIFICATE

89. PW32-a Medical Practitioner has proved Exhibit-P27-DeathCertificate. He has deposed that PW33-Kamaraj, who was working inthe Government General Hospital, Chennai and acquainted with him forfifteen years, came to him. He deposed that PW33 told that one personknown to him, viz., Rajamani Chettiar was 61 years and poor, died on01.01.2002 at 06.00 P.M. due to cardiac arrest. There was no body tocremate him and he alone had to do all the work for him. He wanteddeath certificate. Then, PW32 told PW33 that he would go to see him(apparently, the deceased). PW33 told him, he very well knows PW32for the past fifteen years, would he lie to him and that no one else waswith him (deceased) and PW33 has to do everything and he did not havetime. Believing what he stated to be true, PW32 says that he issuedP27-death certificate without seeing the dead body. No doubt, PW32has deposed in cross-examination that PW33 came to his house andstated that his younger paternal uncle working as watchman in thecompany had passed away. He has given the certificate on 02.01.2002.Though, it is not written that it was issued on 02.01.2002, and in P27, itwas shown that it was issued on 01.01.2002.

90. PW33 states, inter alia, as follows:

He knew A3 for the last five years. He corroboratesstatement of PW32 that they were known to each other for fifteenyears. On 01.01.2002, he was lying sick in his house. OneSamikannu-A13 came and told him that he was called by A3. Hewas taken by Samikannu to the house of A3. A3 told him that onewatchman died in Kollathur. PW33 was asked whether vehiclecould be arranged. He tried in vain. He was given Rs.50/- by A3on noting that he had reached the next day by auto. A3 told himthat one Rajamani Chettiar expired and asked him to get acertificate. PW33 told about PW32 being known to him for thelast fifteen years. He went to his place by auto. PW32 was thereand he told him that watchman in Kollathur Company had died.PW32 believed PW33 and gave it in writing in letterhead. Hegave it to A3. He identifies P27 as the certificate. He also identifiesA3 and A13 (Samikannu). He states that the certificate is dated01.01.2002 as he had asked so. He says that he is giving thedeposition like this because he will lose his job if he does not doso. He did not identify A13 to the Police or the Magistrate in theTI Parade. He also says, inter alia, that it is false to say that

96SUPREME COURT REPORTS

Aaccused-Samipannu did not call him or take him to A3. He alsosays it is not correct to state that he is giving false deposition inthe fear of losing his job. We see no reason to take differentview. The irresistible inference would be as follows:

A3 engaged A13, and at the behest of A3, certificate isBissued by PW32-medical practitioner certifying that one RajamaniChettiar had passed away on 01.01.2002.

91. Now, the next question to be decided would be whether sucha person as Rajamani Chettiar had indeed passed away and whether hewas residing at the place reported? PW38 has deposed that no person,Cas shown in the Certificate, died. Then, PW36-Office Assistant In-Chargealso supported the prosecution version. It is to be noted that going by theevidence of PW32 and PW33, A3 wanted such certificate. The evidenceof PW19 does support the prosecution case though he may not haveidentified the ‘8’ persons who came. The Trial Court, noted that he hadidentified them in the Test Identification Parade. It is clear as daylightDthat the person cremated on 01.01.2002 by PW19 and PW12 late innight was the deceased under fake name though.

THE EVIDENCE RELATING TO VEHICLES USED

THE VEHICLES RECOVERED

E92. The evidence relating to vehicles used is as follows:

i.M09 is van bearing No. TNA 7484. A5 made statementto the Police. PW30 has spoken about the vehicle beinggiven to A9 and PW44 is witness to the seizure. It is thevehicle which is used in the abduction of the deceased.

ii.The next vehicle is TN02P343. This is marked though PW10as MO8 and is another Van. PW10 states that on 24.12.2001,A9 told him that A3 wanted Maruti Van. He speaks aboutcomplaining about not receiving rent for the Ford Escort-MO6 and non-return of Motorcycle-MO10. He further saysGthat A9 called later and said that he had arranged for vehicleof Kennedy and brother-in-law of PW30, Jayprakash(MO9) and sent it to A3. PW24-Sub-Inspector deposes towitnessing confessional statement of A6 leading to therecovery of MO8, the Van bearing No. TN-22-BO-343.But he stated “I can identify A6 who also identifies A8”.

Pw37 IS John Keneddy who has deposed about buy MO8on 24.12.2001. PW10 called him on cell-phone and askedfor Van for two days. It was given to him. It was returnedback in two days. Apart from the fact that PW24 identifiesA8 as A6, the connection with the offences is not clear. Nodoubt, PW37 was declared hostile and cross-examined bythe State.

iii.A3 gave P20 statement leading to the recovery of MO12-Maruti Zen having No. TN9-Z-99. PW16 has beenexamined to establish that MO12 was given by him to A3in November, 2001 and it was returned back only inFebruary, 2002. This is the vehicle which is used on30.03.2001, the crucial day, along with two other vehicles.The Trial Court has also, no doubt, relied on the evidenceof PWs 10 and 11.

iv.A9 gave P37 statement. PW41 is witness. Pursuant tothe same, MO7-Maruti Omni Van, having golden colourand bearing No. TN22B8853, was recovered. PW18 isacquainted with A9 since childhood. He has deposed togiving MO7-golden colour Maruti Omni van to A9 fourtimes. He has deposed that the last time he gave was on01.01.2002 and it was not returned on the same day, aswas the case on the earlier occasions, but was returnedonly on 02.01.2002. It is this van which has been used totake the body of the deceased away after the murder atthe factory building. The evidence of PW11 and, moreappropriately PW35-Police Constable, clinches the issueas to its use.

v.The statement of A9 has also led to the recovery of TataSumo and it stood marked as MO13. The number of thevehicle is TN04D9657. PW15 is the Dealer in cars, interalia. He has deposed that he knew A9 for 30 years. Hefurther deposed that A9 went to him for buying the TataSumo and gave advance of Rs.15,000/- in September, 2001and sold his Maruti Zen and took the Sumo. Later, he came,he left the Tata Sumo saying that it was not auspicious andtook away the car. The Tata Sumo makes its appearancealong with the Ford Escort on 30.12.2001. The link isundeniable.

98SUPREME COURT REPORTS

Avi.A4 has given statement leading to the recovery of the FordEscort White Car having No. TN-10F-5555. It was markedas MO6. It was entrusted to A3 through A9 by PW10 forthe car. On the basis of statement given by A4, the said carcame to be recovered. We notice that Justice Arun Mishrahas correctly rejected the contention that since the car stoodBregistered in the name of another person, and therefore, itcould not be relied upon. It is to be noticed that theconnection of the car with the crime is that the deceased isbrought to the factory in the Ford Escort car, according toevidence (PW10).

vii.A15 has given P51-statement pursuant to which MO10-Hero Honda Motorcycle and the black colour Reebok shoe(the shoe which the prosecution alleges was worn by thedeceased and kept in the side pocket of the motorcycle,were recovered). The shoe was marked as MO1. Moreabout the motorcycle, will be discussed later on.

This shoe has been marked as MO1. There is the evidenceof Pw48. More about this vehicle will follow in discussionrelating to A15.

WHAT THE ACCOMPLICES SAIDE

93. We think it is appropriate that we should consider the evidenceof PWs 10 and 11. We have already set out the principles which governthe appreciation of evidence of accomplices. Proceeding on the basisthat PWs 10 and 11 are accomplices (though the Counsel for the Statehas case that PWs 10 and 11 cannot be considered as accomplicesFinsofar as it related to offence under Section 302 of the IPC), we noticethe following.

94. PW10 was examined on 30.10.2003. We are referring to thedate of his deposition only to bear in mind that this is not case wherethe witness is examined after long gap from the date of crime as theGmurder is alleged to have taken place on 01.01.2002.

95. Let us examine what he has stated. He was doing rice businessin Tambaram from 1984 to 1995. From 1995, he ran business underthe name and style of Valluvar Travels from 1985 with Uday Kumar(the ninth accused), his friend. In 1998, he started wine shop in whichHPW11 was also partner. It was in 1999, the ninth accused informed

that Krishna Pandi-PW34 was running vermicelli company in Mudichur.He was facing loss. PWs 10 and 11 invested in the venture of KrishnaPandi. There is reference to the relationship between PW10 and theninth accused turning sour. PW10 purchased Ford Escort car thoughin the name of one Ranjit Singh with whom he had business connections.The registration number of the car was TN-10F-5555. He speaks abouthis reconciliation with Uday Kumar. In 2001, Uday Kumar approachedhim and told him that he was to join ADMK with the help of the A3 forwhich he had to do certain works. For the same, he needed some houses.A search was mounted for an appropriate house. The third accusedcomes upon the scene. PWs 10 and 11, along with Uday Kumar-A9 andA3, finally, finalise the vermicelli factory at Mudichur Road. He identifiedthe third accused. Instructions were given by the third accused for ascreen to be put up on the windows of the factory building. As ninthaccused asked for two cots, PW10 asked for two cots from one Guru,his friend. Chairs from the house of PW10, fan from the house of ninthaccused and bedpan were kept in the factory by PW10, A9 and PW11.Screen for the windows was put. Third accused told PW34 to give aweeks’ leave for the company. Believing that he would get rent, PW10,upon being asked for his Ford Escort car, sent the car to the house of theninth accused. There is reference to what happened on 05.12.2001. Onthe said day, he was called by the ninth accused to come over to theresidence of the third accused. There were two or three other persons.PWs 10 and 11 followed the ninth accused who went inside the house.Third accused was telling the persons and the ninth accused that thedeceased had to be brought and some money to be collected from him.PW10 identifies A4, A6 and A11 as persons who were present at theresidence of A3 and who followed them in another car. There is referenceto the involvement of A1, A2 and A12. PW10 has identified A5 as theperson who came along with A3, A9 and A1 by his Ford Escort car. A1was shown and he was talked about as VIP, very big VIP. PWs 10and 11 were to get food for him and to do other works. PW10 hasspoken about Rs.1,10,000/- being given, as requested by Uday Kumar-A9, as money needed by A3. Money was handed over to A2.

WHAT TRANSPIRED ON 30.12.2001 AS PER VERSION OFPW10 - THE SALIENT ELEMENTS

96. On the said date, at 08.30 a.m., A9 called him over phone tohis house. PW10 called PW11. boy working in his office, dropped him

ABC

DEF

Ain residence in his motorcycle and went back. A5 was asked to drop himat the factory by bike which was at the residence of A9. On reachingfactory, he received phone call from A9 asking him whether he hadgot the key. He further asked to handover the cell-phone to PW34-Krishna Pandi. After the conversation, PW34-Krishna Pandi agreed tohandover the key. He handed over the key to A3 who came by auto.BThe key came to be handed over to A5. A3 thereafter sat as pillionrider with PW10 and went to the house of A9. PW10 followed A3 to theupstairs portion. Therein, A1 and A2 were there. They told A3 that theyhad brought the Ex. MLA (deceased) and only the money had to becollected from him. There is reference to Hotel Henkala where roomCwas booked for A1. On the same day, at 05.00 p.m., the Ford Escort carwas left in his office by the driver of A3.

31.12.2001 – THE IMPORTANT FEATURES

97. Udai Kumar-A9 calls PW10 at 08.30 a.m. He was asked tocome to Hotel Henkala. He went there. After some time, A3 came. A3Dtold A9 that he needed Maruti van. Apparently, A9 went outside andbrought sandal colour Maruti van. A3 took PW10, A9 and A1 in thatMaruti van and went to the factory. A9 alone got down and was standingthere. One person came from upstairs and took him (PW10) and A1upstairs. There were about five or six persons. The deceased was tiedEup with the chair and his eyes were also closed with cloth. He had beenmade to sit on the green steel cot which was provided by them already.He was wearing black pant and sandal colour t-shirt. Navy blue shoeswere lying in the room somewhere far away from the steel cot. A1asked A9 to go to his house to get the recorded cassettes (two in number)and two empty cassettes from A2. This is besides the tape recorder. A3Fapproached PW10 and A9 to get the things. PW10 speaks about the A9getting Philips two-in-one tape recorder from his house and two recordedcassettes from A2. Also, two empty cassettes were purchased from ashop. One person came from upstairs and A3 told him to remove thecloth tied around the eyes of the deceased. PW10 speaks about feelingGfrightened. A3 came to him and told him that he suspected only PW10and his suspicion was that he would tell to somebody. A3, it is deposed,threatened PW10 that if he disclosed anything about the matter, he wouldactually kill him and his family members. A3 further stated that “wehave kidnapped Ex. MLA Balan itself, you are nothing to me”. Hespeaks about being very much frightened. Around 07.30 p.m., onH30.12.2001, A9 called over phone and asked him to stay in the hotel.

01.01.2002

98. He went at 10.30 a.m. to the hotel after coming back from thehotel in the morning from the hotel to his house. After some time, A3came there. A3 asked A9 for an ambulance. PW10 and A9 went insearch for an ambulance. Not finding one, and on being told so, A3 toldA9 to arrange for one Maruti van and to fix an Alumax light as fixed inan ambulance. There is reference to driver Vigi of A3 pointing out thatshops were closed as it was holiday (being the New Year Day). By08.00 p.m., Maruti van was taken away by two persons from the ninthaccused. PW10 identifies these persons as sixth accused and accused-Sampath (A11). PW10 speaks with PW11 about the ambulance beingrequired and arranging up of vehicle like ambulance. PW10 deposedthat both of them suspected that something was going on in the company.They started at 08.45 p.m. and reached Mudichur by 09.00 a.m.. Thegate was closed. A6 was standing near the gate. He saw them andmade them go from there. golden colour Maruti van was standingthere. Because they were scared, they came by walk. A5 went in amotorbike to the company. The motorbike went inside and it was standingin the light. Four persons came from upstairs carrying the body of thedeceased, two holding his legs and two his hands. PW10 refers to thedeceased wearing black colour pant and sandal colour t-shirt. Body waskept on slab like place. There was no movement in the body. The bodywas loaded in the van and it started very fast. A5 went on the motorbike. This, in short, is the account by PW10 about what he saw andwhat he knows about the incident. PW10 identifies A5, A6, A7, A8, A10,A11 and A14 as the persons whom he saw near the deceased when hewas tied-up on the first floor of the factory (this is apparently on31.12.2001). He also identified the four persons who carried the body ofthe deceased as A6, A7, A8 and A11.

99. PW10 has this to say in his cross examination:

On 30.12.2001 he did not go to the Vermicilli factory [this isa point which is also pressed by counsel for the appellant for thereason that in his chief examination he had said that he had goneto the factory on 30.12.2001]. However, it is pertinent to notethat in cross examination itself PW10 has stated that on 30[th] atabout 8.30 am he went to get the key, from there he went back at9.30 am. He did not go thereafter [which makes it clear that thatPW10 indeed did go on 30[th]] as deposed by him in his cross

Aexamination. He, no doubt, says that till he was there personcalled M.K. Balan was not brought there. He further says in hiscross examination that he had given cheque for the room rentfor the hotel from which he has vacated on 02.01.2002. He statesthat he did not tell anyone outside about the matter, he hadmentioned the police for the first time what he has seen onB01.05.2002. It was due to fear he did not say. He further saysthat after seeing the Police, his fear had gone. He further statesthat he denies having met Nakkeran Gopal and discussed withhim. He no doubt says that if it is asked whether he is accuratelyaware of the incident that had happened in the factory fromC31.12.2001, he did not know. About 15-20 days before 5.12.2001he had seen A3. He saw A4 for the first time on 5.12.2001 at thehouse of the 3[rd] accused. He says after hearing A3 telling thepersons available there that the Ex. MLA M.K. Balan had to bebrought and some money had to be collected from him, it did notstrike that it could be violent act. He further says in cross thatDall the accused were not to known him earlier. He denies havingidentified A10 and A14 after they were identified by the Police tohim. He says that he had finally shown his house also. His housewas also shown to them as he could get commission. There istoilet facility in the Vermicilli factory. (In the re-examination heEstates that toilet is in the ground floor. The significance of thisaspect is that bedpack was also used when the deceased waskept in the first floor) He further states that he did not ask KrishanPandi (PW34) how long it is to let out and what is the monthlyrent and what is the advance amount and what is the commissionfor the same, he also did not tell him. He does not know howFmany workers were working in the factory, he could notapproximately also. He does not have the details about men andwomen who are working in the factory. He was standing at adistance of 50ft. away from the place of occurrence (apparentlyon 01.01.2002). He next says that if it is asked that why it was notGinformed to PW34 about the incident witnessed by him when thisincident took place, he was not partner in the factory but thenhe says that he received the interest amount for the amount givento PW34.

100. It is time to look what PW11, the other accomplice hasHdeposed. This is for the reason also that there is an argument that PW10and PW 11, the two accomplices do not even corroborate each other.

101. He identifies A9 as the person with whom PW10 was doingsand quarry business. He states about PW9 and PW 10 conversing witheach other at the Polling Booth, A9 telling PW10 that he is going to jointhe ADMK and about A3, he is going to arrange for position for him.He speaks about the need for some houses, the hunt for houses andvarious houses being shown and the involvement of A3 in this matter.He speaks about investment which A9 persuaded him and PW10 tomake in the factory run by PW34. A3 told A9 that the factory is thecorrect place. He is able to identify A3 and identifies him. The FordEscort car was obtained from PW10 on rental basis by A9 and given toA3. On 05.12.2001, A9 informed him and PW10 that A3 has askedthem to go to his house. Three persons were present at the residence ofA3. He identifies them as A4, A6 and A7. He further states that A3 toldA9 that the deceased had to give money and the same had to be collectedby bringing him. He speaks about A3 going before them in the FordEscort Car. He speaks about A12. He identifies A5 as the person whoassisted A1 Senthil Kr. On 30.12.2001, at round 8.30 A.M., PW10 calledhim and asked him to go to the house of A9. He went there and saw thatPW10 was not there. A9 took him in Tata Sumo and they were waitingat Mudichur Road Junction. After half an hour, the Ford Escort carcame and A3 came out of the car and was talking to A9. A9 told him totake A3 by an auto and go to the factory. PW 10 and A5 was there atthe factory. A3 saw him and asked A5 whether the company is ready?Then he took the company key from PW10 and gave the same to A5.After about half an hour, A9 called him over phone and told him to openthe gate of the company. The Tata Sumo came first, followed by FordEscort and Maruti Zen. Four persons got down from Ford car. Thosefour persons brought the deceased by closing his eyes, mouth and tyinghis hands and took him to the first floor. The deceased was wearingblack colour pant, sandalwood colour t-Shirt and shoes. Three personscame out of the Zen. A9 came to him and asked him whether he knewthat he is N.K. Balan (deceased) and he also threatened him that if hediscloses the same to anybody A3 will kill him and his family members.He identified the four persons who brought the deceased in the FordEscort car as A4, A11, A16 and A17. He speaks about further details,like three more persons coming with the tiffin parcels and that he couldidentify them, viz., A6, A15 and A7. He went to his house. The sameday after PW10 called him over phone and asked him to go Hotel Henkala.In Room No.207, he saw A9, PW10 and A1. He stayed with A1 during

Athat night. The next day, viz., on 31.12.2001 at 6.00 A.M., he went fromthe Hotel where he stayed in the night on 30.12.2001. He speaks aboutbuying lunch for 10 persons in the factory. By 12 noon he was asked tobuy lunch for 10 persons, BP tablet and headache tablet and hand themover to A5 in the factory. He bought them the same and went home (on1.1.2001), he was called at 10.00 am by A9 and to get tiffin and he gotBthe lunch for them in the afternoon. A5 told him that there is no need forgetting dinner in the night and they are going to start from there andasked him to convey the same to A9. After 8.00 pm in the night PW 10called him over phone and asked him to come to Hotel Henkala… Hewent there and PW10 told that they need not to get lunch and PW10 toldChim that A3 and A9 asked to arrange for van and for that he hadreplied that he cannot do and A9 arranged one van. PW10 told him thatsomething is going and he is not aware of the same. Then PW10 toldhim that let us go and see in the factory. Both of them went to thecompany by the motorcycle. Two persons were near the gate. Both ofthem told them that they have no work there and they can go fromDthere. Then PW12 left the bike adjacent to the company and when PW10crossed the company gate they saw A5 going into the factory. At thattime four persons came from upstairs of the factory carrying N.K. Balanwho was wearing the black colour pant and T-shirt sandalwood colourand they left him on the floor. They tied up the deceased with dhotiEbrought by A5 and carried him to the van and the van started from there.A5 went by motorbike. The van registration number is TN 22-B-8853(MO7). The Ford Escort number stated by him is TN 10-F 5555 (MO6).Maruti van number is TN 02-Z-99 (MO12) and Tata Sumo number isTN-04-B-9657 (MO13). PW11 speaks about him and PW10 beingscared and they went back home. PW10 told him that he was called byFA3 and told him that if this matter is leaked out anywhere, he will kill himand his family. This, in substance is, what PW11 has spoken in his chiefexamination. No doubt, in cross he states inter alia as follows:

He has TV in his house. He did not know of news that deceasedwas missing was announced on TV. He has seen that in the paper. HeGdid not see the deceased on 30.12.2001 at 10.30 A.M. in the upstairs ofthe vermicelli company. He has seen the deceased but he did not haveany contact with him. PW10 had left (MO6)-CAR in the travels forrent. The house being selected and arrangements in the factory atMudichur Road were known to him, A9, A3, PW34 and Venugopal PWH10 and the arrangement at the factory was known to PW10 and PW11alone. He speaks about the cot being purchased from Nirmala industrieson Shanmugham Road. He, A9 and PW10 has purchased the same.Three cots were purchased. The cot is of green colour and he couldidentify it. He reiterates that on 5.12.2001 he had been to the house ofA3. The identification marks of the three persons seen in the home ofA3 and age was mentioned during police investigators. He mentions A4,A11 and A17 as among the four. He also says another person came. Hesays he did not remember. In the identification parade he did not say thathe did not tell him that he has seen three persons in the house of A3-Manickam. He has identified nine persons at the time of identificationparade. He had only given the tiffin and meals to the accused in thefactory. He does not know whether on the 1[st] deceased was upstairs.He says that we went from there after 9.00 P.M. on the 1[st]. PW34 didnot give the interest to him in January. Till date he has not given theinterest to him. He knew the accused already. He saw A3 only on05.12.2001 for the first time. Thereafter he had seen him on the 30[th].He did not see him thereafter. A3 was not identified by him during theidentification parade. Police did not call him to identify any of the accused.He also did not go. He did not identify (MOI). He denies it as incorrectthat he did not mention about the accused Guna either during the policeinvestigation or before the judicial magistrate. He knows A16 havingseen him in the factory. He does not remember whether he was also ofthe four persons. He does not remember two persons who told PW10and him at the factory that they do not have any work. He denied havingseen the Nakkeeeran Magazine. He studied up to Plus 2. He denies asincorrect that he and PW10 were not asked by anyone to get housefor them. A9 is member in the Puratchi Bharatem Party at state level.He is not member of ADMK. A9 has own car. He says it is correct tostate that there is no need of A9 to either believe him or PW10 to do thework. During the police investigation the identification, colour, heightetc. of the deceased was not asked from him and he had also not statedabout the same. When person stands outside the gate of the factory,the incident taking place there could be seen. During the night there wasno light outside the factory. The police did not take him to show thefactory. They did not show him the van TN22-B-8853 and asked him toidentify. They did not show MO6 also and examine him. Photographs ofthe deceased was not shown. The Tata Sumo, Maruti van car was notshown.

APW34, AN INDEPENDENT WITNESS?

102. It is next necessary to have look at the testimony of PW34.PW 34 is none other than the owner of the factory and as per theprosecution case PW10 and PW11 came to invest in the business ofPW34 when he was undergoing financial problems. He states, interalia, as follows:

In 1999, he approaches A9 owing to some problems. Heaccepted PW10 and PW11 as partners. He has the entireresponsibility of the company. PW10 and PW11 used to comeoccasionally and go. On 29.11.2001 at 6.00 P.M. PW10 and PW11asked for company premises to conduct meeting. He refused.They insisted. He locked the articles of the company in roomand handed over room in the upstairs and went away. They askedhim not to come till the meeting was over. On December 5 theytold him the meeting was not over. When looked inside the officethey saw cot, dining table, chair, pedestal fan. On 10[th,] PW10 andPW11 brought person and introduced him as Poonga NagarManickam-A3 and told them that he was big shot. (It is truethat PW10 places the meeting with PW34 as having taken placeearlier.) He was Secretary at the same time for two Districts.He was organising meeting and went immediately. On 30.12.2001,at 08.30 A.M., PW 10 brought person by name Balamurugan-A5 and told him that meeting was called and asked him (PW34)to vacate the company. When he told that they have kept semaifor drying and ladies are working and it will go waste, they toldthe meeting is set and asked him to contact A9 who said he wouldcompensate the loss for the semai. PW34 sent the employeesand announced leave. At 05.00 P.M., he came to the company forcollecting wet semiya with company employees Chandru, Venu,Driver Karuppia. At that time, PW11 and A5 were standingdownstairs. They loaded the semiya in the van and PW11 and A5helped them to gather it. They took the semiya and went away.He speaks about taking the semiya to Ezhichur and dried thesemiya and sent it to the market. The employees were asked tocome early and on 01.01.2002, the company was on holiday. Hecalled PW10 on the 1[st] and he told him to call on the next day. Hecame to the company on the 2[nd] at 11.00 A.M.. His employeesRathnam, Chamundeswan were there with doors open and lights

burning but the outside gate locked. He immediately went to thepublic booth and called PW10 but got PW11. When he saw thelock, it was merely wound by chain but not locked. They wentupstairs and saw cigarettes, two case beer bottle and two shoes.The cot was damaged and there was bedpan. PW34 pouredthe urine inside it outside. At 12 to 12.30 P.M., Maruti Vancame and person came out and asked for articles lying there.He went upstairs and took away cardboard box, shoes kept in acar and asked if there were anything left behind. He took thearticles that were kept near the wood storing place in the companykept in plastic sack. He again came at 02.00 P.M. and askedthat he has been sent to clean the place. The employee PW34Chamundeswari admonished him saying that he has spoilt placewhere women are working and sent him back saying that theywill clean it themselves. He identifies the shoes as MO1 series.He identified A3, A9, and A5.

In cross examination, inter alia, he states as follows:

He saw A3 on December 10, 12. He further says he hasnot seen the deceased and he did not know him. On 30.12.2001,at 08.30 A.M., he went to the company office. He did not give thekey to anyone. A5 did not allow us to go upstairs and he did not goupstairs. He says that disappearance of the deceased had comeas news in papers and TV also. PW10 requested the companypremises for meeting and he has told that it will interfere in thebusiness and refused him the place for holding the meeting towhich PW10 insisted again. In the records there was nothing toshow that PW10 and PW 11 were shareholders.YET ANOTHER INDEPENDENT WITNESS PW31

103. In context would be the deposition of worker of PW34,Samundeswari examined as PW31. She says, inter alia,as follows:

PW34 is the proprietor of the company. PW10 and PW11became partners during 1999 and 16 persons are working. Shewas the supervisor. She speaks about attendance beingmaintained. The company was closed for period of one weekfrom 29.11.2001 treating as leave. Then they came to the companyon 6[th] December. They were informed that there were no meetingconvened. On 30[th] December she did not go for duty as it was

ASunday. On 31[st] December, they were asked by PW34 to go toEzhichur to dry up the vermicelli and to pack the same and on the1[st] January the company was on leave. On 2[nd] January, PW 31,Nagarathinam and PW34 went and saw the company. The maingate was found locked. While returning after making phonecall, the owner found that the gate was not locked and only chainBalong with was put. When they went upstairs, the cot was foundsmashed and the lights were burning and the bottles and the bitsof cigarette were found in an ugly scene and about 11.30 A.M.one person came upstairs saying that he has come to take thingfrom there and he has taken Rebook shoe marked as MOI andCfor the second time, the same person came in car and takenaway something in gunny bag. At the same time at about 02.30P.M., one person came in motorcycle and asked whether it iscleaned and at that time she told him as to why you are makingthe place ugly where the ladies are working. She states furtherthat on 18[th] March, one person was brought by the police to theDcompany and enquired from her and at that time on seeing thatperson, told the police that she only shouted him and that if it isasked her whether she could identify the said person she couldsay that as it is lapse of more than 2 years, she could notremember that person. Regarding the cot she says that cot is inEgreen colour and if she is asked to identify she could say that shecould not remember. The company owner PW34 declared holidayon the suggestion of PW10. During police interrogation she didnot say that there was bedpan. Her husband Vijay Kumar hadacted as partner, she deposes with PW10. Her husband had diedof heart attack. She had seen the shoe when it was taken away.FTHE MATERIALS AGAINT THE ACCUSED WHO AREAPPELLANTS THE MATERIALS AGAINST A3

104. On the basis of his(A3) arrest on 25.3.2002, he gave aconfession statement, which has been recorded in the presence of PW26.GHis statement led to the discovery of Maruti Zen Car bearing No.TN-02-EZ-99. PW16 has also supported prosecution version and it is fromhim ultimately the vehicle came to be seized. P20 is the admissible portion.PW16 has identified A3. The Maruti car which has been marked MO12,according to PW16, was taken in November, 2001 by A3 and returnedto PW16 only during February, 2002. The relevant aspect of the MarutiHcar is as follows:

PW11 has deposed that on 30.12.2001 at the factorypremises, A9 called him over phone and told him to open the gate.Then, he deposes about Tata Sumo car coming first, followedby Ford Escort Car and Maruti zen car. The eyes and mouth ofthe deceased was closed. His hands were tied. The deceasedwas taken to the first floor. PW11 has identified the four personswho brought the deceased in the position we have described alittle earlier. They are A4, A11, A16 and A17. A5 went in the zencar which left the company. He had given further statement on05.04.2002 wherein he stated that if taken to his office, he willsurrender the cassette, and bit paper given by A1 from the nearside of his wife’s photograph which are marked as MO28 andMO33.105. The next circumstance appearing against the third accusedwhich corroborates the testimony of PW10 and PW11, is thecircumstance relating to the creation of false death certificate of thedeceased. In our view, the prosecution has, indeed, succeeded in provingthe following:

At the instance of A3, PW32 (medical practitioner) whowas known to PW33 was persuaded to issue false certificate.The certificate was got issued in the name of fictional personwhich is proved by the evidence of PW38 who has deposed thatno such person (Rajamani Chettiar) who has been certified tohave died by PW32 lived in the residence as reported. PW36-Office Assistant In-Charge of the Burial Ground has deposedthat on 02.01.2002, PW19 told him after he (PW36) left,(apparently on the previous day) body came and the Doctor’sCertificate would be given on that day. The Certificate is P27.The certificate was, apparently, produced in view of what wasrequested by PW19, licence in the cremation ground, PW12has become hostile but even PW12 has deposed about personbeing cremated, on 01.01.2002, in the night and his role along withPW19 in it. The certificate was procured at the instance of A3. Itwas meant to facilitate the cremation of the dead body on thedate of the death. Going by the testimony of PW1, the deceasedwas around 52 years. We say this because an attempt is made tocontend that for person above 60 years, no certificate is insistedupon to cremate as deposed by PW6. It may be that the age is

ABCD

Ashown as above 60. The circumstance of A3 creating the documentfor which purpose A13 was an emissary (A13 has not filed anyappeal), goes long way to strengthen the prosecution case. Wesee no reason at all not to conclude that the body which wascremated through PW19 and PW12 on 01.01.2002 was that ofthe deceased. Not only would the cremation and that too under aBfalse name attract the offence under Section 201 of IPC, whichdeals with the destruction of evidence of committing of offencebut it is an important chain in the list of circumstances whichunerringly points to the role of A3 and others in the crime of murderalso. The circumstance is vital corroborative link whichCestablishes the case of not only murder but relates back to theabduction. This is for the reason that it will be absurd to believethat the deceased went with the accused voluntarily and willingly,particularly, when the evidence of PW13 and PW3 are also bornein mind. We stand reminded that abduction takes place either whenthere is force or deceit in causing person to move from placeDunder Section 362 of the IPC. PW10 has spoken of seeing thedeceased tied and blindfolded in the upstairs portion.

106. This is case where the accused have not only carried out agrave crime of murder but they have also attempted to efface the mostimportant evidence relating to the same, viz., the corpus delicti. WeEreject also the contention that the non-production of the body is fatal tothe prosecution case. The evidence of PW32, PW33 and PW36 (theOfficer of the Corporation before whom the certificate was produced)and PW38 assumes critical significance. The hand of A3 from thebeginning, i.e., from the selection of the factory, arranging of vehicles,Fconfinement and cremation, is crystal clear and his role in the murder isestablished. It is in this context that evidence of PW10 and PW11 fallsto be appreciated. The evidence of PW34 clearly confirms clinchinglythe role of A3 and sufficiently corroborates PW10 and PW11. We wouldarrive at the conclusion even excluding MO28 and MO33 as agreed toby the Counsel for the State.G

ACCUSED NO. 4 (A4)

107. A4 was arrested on 09.04.2002. He made confessionalstatement-P34 witnessed by PW39. It led to the recovery of Ford EscortWhite Car TN1075554. PW10 deposed that he bought the same carHthough in the name of one Ranjit Singh. He further deposes that by the

end of November, 2001, A9 called him over phone and asked him for thesaid Ford car. A9 asked for two or three months. PW10 believing thathe will pay the rent, sent the car to the house of A9. The driver of A3-Viji came and took that car. The use of the said car is mentioned byPW10 thereafter by deposing that on 05.12.2001, A3 went out in thesaid car which had been given by him for rent. He also identified A4 asone among the three persons who followed them on that day. Thereafter,the said car makes its appearance when he speaks about A3 telling A9to be at the Woodlands Hotel and going along with A1 and A2 in the car.He again speaks about A3 coming alone to the Woodlands Hotel by thesame car. Again around 07.00 P.M., A3, A9 and A1 came along withone more person by the same car. That other person is none other thanA5. Thereafter, he says, on 30.12.2001, at 05.00 P.M., the driver of A3had left the car in his office. In his cross-examination, PW10 has deposedthat he bought the car for Rs.3,60,000/- from one Advocate Durai Pandi.He, no doubt, admits that it is not in his name.

108. Passing on to PW11 in connection with the vehicle, PW11has noted the Ford Escort car on 30.12.2001 as the car from which fourpersons got down and those persons brought the deceased by closing hiseyes and mouth and hands being tied and took him to the first floor. Hehas marked the Ford Escort Car as MO6. It is this car which standsrecovered on the basis of the statement given by A4. This is casebased essentially on circumstantial evidence. The statement made byA4 led to the discovery of the car in the circumstances which havealready been explained in the evidence of PW10 and the presence ofA4, not only on 05.12.2001 but also on 30.12.2001, has crucial relevancein particular the presence on 30.12.2001. A4 was present along withthree others and they emerged out of the very same car, viz., the FordEscort car, in which, apparently, the deceased was brought. The conditionof the deceased, viz., his eyes and mouth being closed and hands beingtied and being taken to the first floor, are matters of moment in connectingA4 with the gory episode having its origin in the abduction of thedeceased, his illegal confinement and culminating in his murder andcremation.

ACCUSED NO. 5 (A5)

109. PW10 refers to him, in his deposition, as coming along withA3, A9 and A1 around 07.00 P.M. by the Ford Escort Car. He has beenidentified by PW10. This is on 05.12.2001. A3 introduced him to A5 and

Athough they (PW10 and PW11), provided food to Senthil Kumar-A1, itwas to be served only by A5. His involvement is further spoken about byPW10 as having occurred on 30.12.2001. On the said day, PW10 speaksabout going to the residence of A9 on being called by him. A9 asked forthe keys of the factory. A9 asked A5 to drop him in the factory on abike. PW10 and A5 went to the factory. There is further reference toBthe key being handed over by PW34 to PW10. The key was handedover by PW10 to A3 who came in the auto. PW10 deposed about thekey being given to A5. On the fateful day, on 01.01.2002, when themurder took place, PW10 has named A5 as going in motorcycle to thecompany. It went inside and was standing in the light. cloth bag wasCthere in the bike. The body of the deceased was brought from upstairsby four persons. PW10 then deposes that cloth was taken from thebag brought by A5 and tied around the body of the deceased like doingfor dead body. A5 is cited by PW10 as going in his motorcycle.

110. PW11 has also spoken about A3 telling them about the person.

DHe identified him. He also says that A3 told that A1 is VIP and only A5will do everything for him and that they should not do anything (apparentlydirectly). He notices presence of A5 along with PW10 on 30.12.2001 atthe factory. A3 asked A5 whether the company is ready. A3 and A5 toldthat they were going to the house of A9 and went from there. He speaksabout A5 going by the Zen car on 30.12.2001. Thereafter, about half-an-Ehour later, the Tata Sumo car came. In the same, A5 and three morepersons came with the tiffin parcel. These persons have been identifiedas A6, A15 and A7. On 31.12.2001, by 12 Noon, on being asked by A9,he purchases lunch and medicine and handed over to A5. On 01.01.2002,A5 told PW11 that there was no need for getting dinner in the night.FPW11 has also seen A5 going into the company. He also speaks aboutdhoti brought by A5 used to tie-up the deceased and A5 leaving on amotorcycle. A5, who was arrested on 18.03.2002[the first arrestee inthis case], has, in fact, given statement under which he has identified theMaruti Omni Van MO9 bearing No. TN-A-7484, the place (factory) as

also the cremation ground. The Maruti Omni Van-MO9 is the Van whichGwas used for abduction of the deceased. PW3 has spoken about personbeing pushed into Maruti Van. The facts discovered based on statementby A5 are very significant, and hence, most relevant, not only in revealinghis involvement but unravelling the entire prosecution case. statementunder Section 27 of the Evidence Act is not only about the thing as suchHwhich is discovered consequent upon the statement but the knowledge

attributable to the person who makes the statement about the matter,discovered, based on the statement. The evidence of PW44 who was aRevenue Inspector and witness to the statement of A5 and identificationby A5, helps establishing his clear link and sufficiently corroborates PW10and PW11. Lastly, PW34 has spoken about the presence of A5 on30.12.01 and identified him.

A6, A7, A8 and A11

111. What is the evidence, as regards, these accused/ appellantsbefore us? Taking the evidence of the accomplices, PW10 has this tosay about them – He says that along with A4, A6 and A11 were presenton 05.12.2001 as two out of the three persons present in the residenceof A3. He speaks about A3 telling the persons and A9 that Balan had tobe brought and some money to be collected from him. He also speaksabout the three persons as A4, A6 and A11, following him, PW11, A9 inanother car. He further speaks about their involvement when he deposedthat on 01.01.2002, A9 asked PW10 to wait at the hotel and he camewith golden colour Maruti van. By 8 P.M. that Maruti van was takenby two persons from A9. Those two persons have been identified as A6and A11. Presence of A6 and his involvement is further deposed byPW10 when he states that the 6[th] accused was standing near the gate ofthe factory later on 01.01.2002. PW10 and PW11 were asked to goaway. He speaks about PW10 and PW11 being scared after the threatby A6. He further identifies A6, A7 and A11 as among the persons whowere present near the deceased when he was tied up in the first floor ofthe factory. He also identified A6, A7, A8 and A11 as the persons whocarried the dead body of the deceased. They go in the van with thebody. At this juncture, it is apposite to notice PW18 deposing that he isthe owner of van bearing No. TN 22-8853. He has deposed to giving thevan to A9 on earlier occasions. More importantly, he has deposed to itbeing taken by A9 on 01.01.2002 at about 10 A.M. and it being returnedonly on 2.01.2002 and its seizure by the police on 30.03.2002.112. Turning to PW11, the other accomplice, this is what he hasdeposed about the involvement of the accused in question. PW11, forwhatever it is worth in law, has also identified A6 and A11 as two out ofthe three persons who were in conversation at the residence of A3 on05.12.2001. He has also spoken about A3 telling A9 that the deceasedhad to give some money and it has to be collected by bringing him. Healso speaks about A6 and A11, inter alia, following them in another car.

AHe has identified A11 as one among the four persons who brought M.K.Balan in the Ford car on 30.12.2001. He also identified A6 and A7 asamong the persons as two out of the three persons who came with A5 inthe Tata Sumo car which came again on 30.12.2001.

113. Now let us look at the other evidence available, pointing toBthe involvement of the aforesaid accused. PW21 is Head constable(Police). He has deposed to be on night duty on 01.01.2002. He speaksabout being given beat tickets along with PW35. He speaks about aMaruti Omni van standing in the middle of the road. He and PW35 wentto the van. He asked the occupants what they were doing at that hour.They told that they were celebrating the new year with drinks. Though,Con become suspicious, they searched the van from inside but there wasnothing suspicious inside it. They continued with their duty. He has provedP10 beat ticket. He has also identified the accused as A6, A7 and A11.He also spoken about the identification done by him before the Magistrateby way of TIP. He has proved P11 - the duty book.D

114. PW35 is the constable referred to by PW21. He also speaksabout being on duty on 01.01.2002. He speaks about going with PW21to Melpatti, Ponnappa Street from 24:00 hours (PW19 speaks about thecremation from being at Melpatti, Ponnapa Mudali Street). He speaksabout finding of Maruti vehicle bearing no. TN-22-B8853 in MelpattiENew Street. He speaks about interacting with the four persons. Thevehicle was standing near Perambur cemetery and the sodium lampwas burning. He has proved P28 as his duty book. PW10 is also his beatbook. He has also identified A6, A7, A8 and A11 as the persons whowere present. He has also identified the van which he saw as MO7. Hehas spoken about the identification done in the TIP.F

115. It is relevant to remember that PW10 has identified A6, A7,A8 and A11 as the persons who carried the dead body of the deceasedon 01.01.2002. It is also to be borne in mind that PW10 and PW11 havespoken about their body being loaded in golden colour Maruti vanwhich has also been identified by PW10 as MO7 and bearing the veryGsame registration no. TN 22-B-8853. It is corroborated by the evidenceof PW35 (Police Constable). The evidence clinchingly points to A6, A7,A8 and A11 being involved apparently at the behest of A3 and carryingdead body of the deceased on the fateful day in the van and their presencenear the place where the deceased came to be cremated. To overlookHthe testimony of PW10 and PW11 in case based on circumstantial

evidence, being about matters which could not possibly, have beenwitnessed by any other witnesses other than the accomplices will beasking for the impossible except perhaps concocted evidence.

116. A6 was arrested on 19.03.2002. He gave P16 which is theadmissible portion of his confession statement within the meaning ofSection 27 of the Evidence Act. He identified the Maruti omni van bearingno. TN-0343 which was parked in front of the house of PW37 andseized under P17. The Maruti van itself has been marked as MO8 butwe would exclude the same from consideration for reasons which wehave discussed.

117. A7 was arrested on 20.03.2002. He gave the admissible portionof confession statement which is P38. PW42 is Village Administrativeofficer who has witnessed the statement. On the basis of the statement,the green colour steel cot was seized. It is marked as MO11. It wasproduced and seized under P38 which is also witnessed by PW42. PW34and PW31 have also spoken about the cot apart from PW10. The evidenceof PW10 shows that when he went upstairs, he found that the deceasedwhose eyes were closed was tied with chain and he was asked to sitin green colour steel cot. He has been identified by PW21 and PW35police officers as one of the four, present near the spot of cremation.

118. A8 was arrested on 22.03.2002. He gave confessionstatement in the presence of PW23 and another witness, P14 is theadmissible portion. PW35 police constable has identified him as one ofthe four found in MO7 van on 01.012002 near the cremation ground.

119. We have noticed that PW11 has identified A11 as one of thepersons who brought the deceased in the Ford car to the factory. It is tobe remembered that PW11 has identified the accused in the IdentificationParade conducted by the Judicial Magistrate. That apart, after arrest,he gave P53-Statement. He has produced the Philips Stereo CassetteRecorder which was recovered under P54-Mahazar marked as MO2.To lend assurance to this circumstance, PW46, working in the RevenueDepartment, has been examined. The tape-recorder was hidden in thehouse of A11.

120. Moreover, PW21 and PW35, Police Constables, have deposedto seeing A11 near the graveyard on 01/02.01.2002. They were standingnear MO7. MO7 is the Van in which the deceased was taken from thefactory after the murder. It is the Golden Colour Maruti Van bearing No.

ATN228853. PW11 has, in his deposition, given the same number in hisevidence as the number of the Van in which the body of the deceasedwas taken away from the factory. Therefore, presence of A11, as notedby PW11, from 30.12.2001 till after the murder and near the site of thecremation, as noted by independent witnesses-PW21 and PW35, lendsufficient assurance to the prosecution case against him. PW10 has alsoBdeposed to identifying A11 as one of the three persons who were presentat the residence of A3 on 05.12.2001. It is on that day A3 said that thedeceased had to be brought and some money had to be collected fromhim.

121. It must be remembered that the evidence in this caseCestablishes that the deceased was indeed cremated under the name of afictitious person mentioned in the death certificate issued by PW32 (themedical practitioner). It is also clear that such certificate is procured byA3 through PW33. It is clear that A6, A7, A8 and A11 were clearlyinvolved.DA14

122. With regard to A14, his involvement in the matter emergesas one of the persons who stood in the upstairs of the building with thedeceased when the deceased was in the state of illegal confinement.This, no doubt, is based on the testimony of PW10. No doubt, as far asEA14 is concerned, there is no recovery. It is true that there is no directevidence that the accused abducted or murdered the victim. The case,as already noticed, hinges on circumstantial evidence. We do notice thatA10 has been acquitted by the High Court. A10 himself was also namedby PW10 as present along with A14 at the time of the illegal confinement.FThe High Court has, in paragraph 33, assigned cogent reasons foracquitting A10, including, inter alia, that PW11 though had identifiedA10 in the Test Identification Parade, could not identify him in the Court.The evidence against A14 has been believed in by both the Courts.A15G123. A15 is the sole appellant in Criminal Appeal No. 828 of 2013.

124. PW3, the witness to prove the abduction has spoken about amotor cycle following the Omni van. He earlier deposes that he sawthree persons were forcing person to get into the van. A15 gave astatement to the police in the presence of PW44 and another (MutthuHRekku). The admissible portion of the statement is P50. As per PW44,

he stated that he will provide the fashion Hero Honda bearing No. TN-05-C-6475. PW44 says that he identified the motorcycle parked in frontof compound of house at Gandhiji Street, Bharathi Nagar and alsothe shoe. PW67 has spoken about recovery of the motor cycle underP51 Mahazer. The motor cycle is MO10 while the shoe is MO1. JusticeArun Mishra confirmed his conviction even after eschewing MO1 shoes.[PW1 the son of the deceased deposed that the shoes showed by theCBCID did not belong to his father]. As regards the motorcycle, PW10has deposed that A9 wanted an ambassador car and motor cycle.PW10 got the motorcycle from his friend Akbar which is fashion vehicleand navy blue in colour and gave it to A9. PW10 asked for return of themotorcycle. He marks the motorcycle as MO10.

125. As noticed, A15 has stated that he got the motorcycle fromone Akbar. PW48 is the said Akbar. His name is shown as ShaheedAkbar. In his deposition, he has stated that he was having fashionmotor bike Hero Honda but he states that he purchased through financier.He further states that the Registration No. TN-04-J-1878 blue colour.He further states that PW10 was known to him well. He used to takehis vehicle often. Last year, during November, 2001, the said Venu (PW10)apparently, had taken his vehicle and did not return it. The RC bookrelated with the vehicle is with the financier. He has produced andmarked as P58 photocopy of the RC of the said motor vehicle. He deposesthat motor bike seen by him which belongs to him. He further says thatthe registration number of the vehicle which he saw, was not in the saidmotor bike. It is that motor bike which is marked as MO10. No doubt, inthe cross, he says that he does not know the wheel base and weight ofthe bike, inter alia. He has neither issued any notice to PW10 nor hadhe filed any complaint. He says that he has neither repaid any loan norreceived any notice from any financier. MO10 was marked by PW10and under the statement under Section 27 the vehicle which is seizedactually, has the registration no. TN-8-6785 whereas the vehicle whichPW48 from whom PW10 took the vehicle for giving it to A3 as requestedby A9, bears no. TN-04-J-1878. The evidence of PW48 makes it clearthat it is the same vehicle and he does, no doubt, say that the registrationnumber of the vehicle was not in the said motorcycle. This means thatthe vehicle marked as MO10 is, indeed, the vehicle belonging to PW48.He makes it over to PW10. As requested by A9, PW10 handed it overto A9. It would appear that the registration number, as was originallyseen on the motorcycle, has been changed. It is the motorcycle which

Awas apparently seen by PW3 and used at the time of abducting thedeceased. The vehicle has been recovered at the instance of A15. Evenignoring the shoe which is recovered on the basis of the statement, wewould think that the evidence sufficiently implicates A15.

126. PW11 has deposed that they were amongst the four personswho brought the deceased in the Ford car on the 30.12.2001. Moreover,no doubt, in cross, he is unable to remember A16 which he perseveredwith the names of other three. But he does speak of his presence at thefactory. Regarding A16, he was taken into custody, and on questioningCin the presence of PW47 and another witness, he gave confessionalstatement. He stated that if he is taken, he would produce the black bag,cell phone and knife from the house at Villivakkam. P56 is marked asthe admissible portion. On being so taken to the place at No.110/57,Nehru Nagar, Villivakkam, he identified Panasonic Cell Phone, simcard with charger, one black colour carry bag, nine feet long yellowDcolour nylon rope and two chains. This is besides knife and three locks.Therefore, it cannot be said that there was no corroboration for the roleof A16. It is quite clear that A16 was amongst the accused who broughtthe deceased. His role in the abduction becomes clear. It is also clearthat the deceased is not only not alive but was undoubtedly done awayEby way of murder. Having abducted the deceased, it is clear that therole of A16, as assessed by the Trial Court and further accepted by theHigh Court, does not require interference.

Accused No.17 (A17)

127. A17 is again another accused who was one of the four personsFidentified by PW11 who brought the deceased on 30.12.2001 to thefactory. In this case, he was arrested on 01.07.2002. The principle thatabduction followed by murder raises presumption that the abductorwas instrumental in murder was rightly invoked by the Trial Court.

AQUITTAL OF A12, THE INVOKING OF SECTION 109 OFGTHE IPC EVEN AGAINST A1 AND A2 – THE ACQUITTAL OF A3TO A18 UNDER SECTION 120B OF THE IPC

128. In this regard, it is necessary to have closer look at theprosecution case. The case of the prosecution, in substance, is as follows:

The first and second accused were close associates. Thetwelfth accused is the wife of the second accused. The thirdaccused belongs to ADMK party. The other accused except thetwelfth accused, were all the henchmen of the third accused.During the month of November 2001, at the instance of the firstaccused, the twelfth accused had spoken to the third accusedover phone posing herself as Sasikala (a leader of the ADMKparty). The twelfth accused told the third accused that she hadentrusted work to the first accused for which the third accusedwas to help him on the same day evening. A1 to A3 conspired andplanned as to how to kidnap the deceased and to take moneyfrom him. As per their plan on 30.12.2001, the deceased came tobe kidnapped (it must be abducted). He was taken to the factoryowned by PW34, illegally detained; was tied with the rope andiron chain in cot. They threatened him to give Rs. 16 crores andthe deceased refused to give the same. He was asked to tell whatis his property, and thereafter on 01.01.2002, the twelfth accused,spoke over phone in the voice of Sasikala to the third accusedsaying that if it is possible to get the money or else finish thematter and to meet her with the first accused and the rest of thematter would be informed by the first accused himself andaccordingly what was stated by him was recorded in taperecorder. The accused on the same day evening at about 09 P.M.,by strangulation, murdered the deceased and to screen the crime,the accused had taken the body in vehicle and cremated thebody for which purpose false death certificate was brought fromPW32.

THE ACQUITTAL OF A12 (Accused No.12)

129. It must be remembered that A12 came to be charged underSections 419, 420 and 387 IPC read with 109 of the IPC. There is alsoa charge under Section 120B of the IPC against her, as already noticedby us. The Trial Court discusses the case against A-12 in the followingmanner inter alia:

It is found that the twelfth accused was an Anglo-Indianlady. On perusal of P65 which is the confessional statementgiven by her under Section 164 of The Code of Criminal Procedure,1973 (hereinafter referred to as ‘the CrPC’, for short), the Courtfound that anyone would come to the conclusion that she was

living as per the Indian culture. She is mother of twins andgrowing them well. The second accused is her husband. Thesecond accused, as per P65 statement, was suffering loss andfacing financial problems. The second accused fell into the cunningtrap of first accused. The second accused forced the twelfthaccused to fall into the cunning trap of the first accused. The firstand twelfth accused got married out of their love affair. Themarriage took place at temple as per Hindu Rites and Customs.Initially, when first accused asked twelfth accused to talk likeSasikala, she refused. Then the twelfth accused did not talk overphone thereafter. The first accused pushed the second accusedinto his cunning trap and on account of that the twelfth accusedwas convinced by the second accused and she has talked overcell phone to the third accused as if Sasikala talked to him. Therewas threat by the first accused to the twelfth accused. A2 forcedhis wife to act and to fall into the cunning trap. The Trial Courtfurther goes on to state that normally in foreign countries, it wouldbe commonly seen that while the husband is committing mistakesand misdeeds, the wife would leave her husband and chooseanyone as her husband of her choice as that of changing clothesevery day. The Trial Court further finds that it is not the State inour country. When the husband is doing any wrong deeds, thewife would mend her husband in some way or the other and whenthe wife is trying to mend her husband and she is forced to do thesame by her husband, she would do it as what her husband isasking her to do so and she thinks that her husband is as God andthereby she is committing such mistakes. The Trial Court goes onto hold that the twelfth accused that if she told anything about herhusband, he would be taken by the Police. As result of that shehad been suffering and on account of the fact that she followedthe Tamil culture, she did not whisper anything about her husband.It is clearly seen that the Court goes on to hold that A12 did not doanything to attract the offence under Section 34 with the intentionor motive and that she did not feel that she had done anythingwrong and she was doing anything only as to what was stated byher husband and then she has been arrayed as A12. The Courtgoes on to find that she cannot be held guilty under the fourthcharge which is framed under Sections 419, 420 and 387 readwith Section 109 of the IPC. However, the Court proceeds to find

accused Nos. 1 and 2 had committed offences under Sections419 and 420 of the IPC.

130. A12 was not labouring under any disability. We may haveour reservation about exonerating A12 on the reasoning that as it wasperceived to be part of the duty of the wife in the Indian culture toobey her husband even when the demand of the husband is to commit acriminal act. We notice, however, that not only A12 was acquitted by theTrial Court but the appeal by the State against her acquittal has beendismissed by the High Court. The State has also not challenged heracquittal before this Court. No doubt A12 would be criminally liable foronly those acts done with the requisite mens rea. Hence, we say nomore.

131. What is, however, important is that it is not case where theCourt has not believed the version of the prosecution that the twelfthaccused did make the calls posing herself as Sasikala.

132. It is true that arguments have been addressed that there isno evidence to show that A12 knew the voice of Sasikala and contentionis seen raised in Section 313 CrPC Statement of A3 that A3 knew thevoice of Sasikala. The prosecution would have to prove the negative if itis called upon to prove that A3 did not know the voice of Sasikala. Thoughit is the duty of the prosecution to prove the case, it may not extend toholding that matter which could be proved by the defence as somethingwithin his knowledge, the accused can sit tight. Further, the case of theprosecution must, at any rate, be judged with reference to the actions ofA3 and the other accused who are described as his henchmen. Thewealth of evidence, extending even to A3, ‘procuring’ totally falsedeath certificate, is formidable. It should be noted that the first chargewas essentially framed that A1 to A3 had conspired. A1 and A2 haveaccepted the verdict and we are not called upon to judge the correctnessof their conviction under Section 120B. It may be true that, though, thereis charge against all the accused under Section 120B of the IPC, exceptA1 and A2, all the other accused stand acquitted under Section 120B ofthe IPC.

133. The question would, therefore, arise as to what is the effectof acquittal of the appellants before us under Section 120B. We areprimarily concerned with their conviction under Section 302 besidesSections 387, 365 read with Section 109 of the IPC and Sections 364and 201 of the IPC. The fact that the appellants have been acquitted

Aunder Section 120B will not, in our view, extricate them from criminalliability for their acts which would constitute substantive offences underSections 302, 347 and 387 of the IPC.

DEEPER GLANCE AT THE CHARGES; THE EFFECT OFACQUITTAL OF A12

134. The first charge is to the effect that A1, A2 and A3 conspiredin November, 2001 to kidnap the deceased and to extract money. It wasfurther agreed to murder him in case he refuses to pay money. Based onthe said conspiracy, on 30.12.2001 early morning, he was kidnaped,detained at the factory and murdered on 01.01.2002. Thereby chargeCunder Section 120B of the IPC was framed against A1 to A18. Thesecond charge is about actual kidnapping (it must be understood asabducting). The abduction is alleged to be done by A4, A7, A10, A11,A14, A15, A16 and A17 in Maruti Van bearing Registration No.TNA7484. A15 went in Hero Honda Motorcycle to show the route.The deceased was kept at the factory belonging to PW34. The aforesaidDaccused were charged under Section 365 of the IPC. For abetment ofthe said offences, A1 to A3, A5, A6, A8, A9 and A13 to A18 werecharged under Section 365 of the IPC read with Section 109 of the IPCfor going in car bearing No. TN10F5555. All the accused, except A12and A13, were charged under Section 387 for tying the deceased withEiron chain and rope in cot and he was threatened to part with Rs. 16crores or else execute the documents in regard to his properties. Thefourth charge is to the effect that in order to fulfil such conspiracy, andin pursuance to the same, at the instance and the instigation of A1 andA2, A12 spoke to A3 in the voice of Sashikala uttering the words, ifpossible, to get the amount or else close him and come along with A1Fand meet her-A12. Charges were accordingly framed against A12 underSection 419, 420 and 387 of the IPC read with Section 109 of the IPC.The fifth charge was in order to fulfil the object of the said conspiracy,consequent upon the said occurrence, on 01.01.2002, A3, A4, A6 to A8,A10, A11 and A14 to A18 committed the murder of the deceased byGtying rope around the neck and tightening it. Likewise, A1, A2, A5, A9,A12 and A13 were charged under Section 302 of the IPC read withSection 109 of the IPC for abetment of murder. There is charge underSections 347 and 364 of the IPC for kidnapping against A3 to A11 andA13 to A18 and A1, A2 and A12 were charged, with the aid of Section109 of the IPC, under Sections 347 and 364 of the IPC. Charge wasH

also framed against A8, A10, A11 and A13 to A18 under Section 201 ofthe IPC for cremation of the body and getting the false certificate as ifone Rajamani Chettiar had died due to heart ailment.

135. There is the argument addressed before us that the effect ofthe acquittal of the appellants under Section 120B of the IPC would bethat their conviction under Section 302 of the IPC and other offencescannot be sustained. As we have noted, the charge under Section 120Bof the IPC is based on the conspiracy hatched between A1 to A3. Nodoubt, the charges laid against A1 to A18 under Section 120B of theIPC, is essentially based on the conspiracy between A1 to A3. It is to benoted, however, the charge under Section 302 of the IPC is against A3,A4, A6 to A8, A10, A11 and A14 to A18. It was A1, A2, A5, A9, A12 andA13, who were charged under Section 302 of the IPC read with Section109 of the IPC.136. We agree that for charge under Section 109 of the IPC, aminimum of two persons are required. There can be any number ofaccused charged with the aid of Section 109 of the IPC. In order thatthere is abetment, it is indispensable also that there is person whoabets another. To take an example, person shoots with his gun onbeing intentionally aided or instigated in doing so by another. The latterwould be guilty under Section 109 of the IPC along with the person whoactually carried out the murder by shooting. Thus, there is principalplayer and the abettor. The principal player would be guilty for the actsor omissions which amount to offences under the law. The abettor thoughdoes not trigger the gun, if we may use the expression, “is the movingforce behind it and becomes liable as such”.

137. In this case, the Trial Court has proceeded to find theappellants (except A5) guilty of the fifth charge under Section 302 IPCwhereas the A1 and A2 have been found guilty of the charge ofconspiracy under Section 120B of the IPC. In other words, the idea tocommit the offences came into being in the minds of A1 and A2. Theother players have been roped in on the basis of their acts which was intune with the conspiracy hatched by A1 and A2. The acquittal of A12,who has been charged under Section 120B of the IPC and also foroffences under Sections 419, 420 and 387 of the IPC read with Section109 of the IPC would not detract from the criminality of the actscommitted by the other accused and, in the facts of this case, we wouldthink that there is no illegality involved in convicting the appellants in the

Amanner done under Section 302 of the IPC. The Trial Court has foundthat the plan was the brainchild essentially of A1 and A2

138. We have noticed that the trial Court has essentially proceededon the basis that the appellants were except A5, charged under Section302 under the 5[th] charge were guilty of the said charge (See paragraph-B167 for the discussion). We have referred to the paragraphs in thejudgment of the trial court wherein the trial court has found A3, A4, A6,A7, A8, A9, A10, A11, A14, A15, A16 and A17 guilty under section 302IPC. It must be noticed that it is without invoking Section 109 of theIPC. However, it so happened, that in the initial portion of the judgmentof the trial Court it is mentioned that Section 109 was also invoked alongCwith Section 302 which is inconsistent with the actual charge which wasadverted to and findings by the trial Court. It is on this basis apparentlythat the High Court and this Court also proceeded in the matter. Thisinconsistency must, in our view, be resolved by holding that the finding isto be understood as one in terms of the 5thcharge as discussed fromDparagraph 167 onwards of the judgment of the trial Court.We wouldproceed to hold further that if it is so understood then the criticism levelledthat even A1 and A2 are convicted with the aid of Section 109 and therewould be no principal player would not hold good. We must appreciatethat the first charge is that conspiracy was woven between accusedNo.1, 2 and 3 within the meaning of Section 120B. It has not been foundEacceptable to the trial Court and only A1 and A2 are found guilty underSection 120B of the IPC. The acquittal of A12 as we have noticed,would not deflect from the factum of the conspiracy between A1 andA2. So also, the acquittal of A3 in this regard. We have also touchedupon the provisions of explanation 5 to the Section 108 of the IPC. WeFfurther notice that A1 and A2 have been convicted under Section 302read with Section 109. It is to be noticed that accused 1 and 2 have beenheld guilty under Section 120B. It is necessary to notice Section 120B.

“120B. Punishment of criminal conspiracy. —

(1)Whoever is party to criminal conspiracy to commit anGoffence punishable with death,

2[imprisonment for life] or rigorous imprisonment for term oftwo years or upwards, shall, where no express provision is madein this Code for the punishment of such conspiracy, be punishedin the same manner as if he had abetted such offence.

(2)Whoever is party to criminal conspiracy other than criminalconspiracy to commit an offence punishable as aforesaid shall bepunished with imprisonment of either description for term notexceeding six months, or with fine or with both.”

(Emphasis supplied)

139. This means that since accused 1 and 2 are held guilty underSection 120B of the IPC to commit the murder of the deceased, theyare to be punished as if they have abetted the said offence. The judgmentof the trial Court is to be understood in the said vein. It is true thatabetment by conspiracy is only one form of abetment. There can bealternate charges. There can be abetment by instigation and intentionalacting even when there is no conspiracy and, therefore, no abetment byconspiracy. The fifth charge against A1, A2, A5, A9, A12 and A13 wouldbe in the form of an alternate charge. We say this as A5 (Appellantbefore us) in Criminal Appeal No. 2008 of 2017 is charged and foundguilty of murder under Section 302 of the IPC read with Section 109 ofthe IPC. The role of A5, particularly, having regard to the statementunder Section 27 of the Evidence Act, leading to recovery of the Van,the discovery of the site of the factory and the cremation ground besidesother evidence, cannot be ignored. We have no hesitation in repellingthe contention of the appellants on this ground. It is clear that their acquittalunder Section 120B of the IPC will not impact their conviction under theother provisions.

CERTAIN CONTENTIONS OF A6

140. PW21 and PW35 have identified A6 in the Test IdentificationParade. The contention that there would be possibility of these witnessesbeing seen before the Parade does not appeal to us. The presence of theOmni Van and A6 besides 3 others on the very date on which murderwas committed and near the site of cremation and the fact of cremationof the body being done, is certainly very important circumstance andnot to be ignored as contended. The fact that PW19 has not found itpossible to remember A6 though he has identified him in the TestIdentification Parade before the Magistrate cannot lead to the obliterationof the evidence relating to the cremation on 01.01.2002 and about 8persons coming there. The fact that PW 19 has stated that the personidentified in MO14 photograph was the person cremated is not liable tobe brushed aside. We should also not be oblivious to the principle that in

Aa case of this nature, the total effect of the circumstances, must beborne in mind. It must be safe to believe the accomplice evidence basedon other materials available. We find the evidence of PW10 and PW11credible and the presence and role attributable to A6 cannot be brushedaside. The presence of A6 spoken to by the accomplices on 05.12.2001,30.12.2001 and, particularly, on 01.01.2002 on which last day in carryingBthe dead body in the van which is later identified by the police officer ata spot near the cremation ground is certainly vital circumstance whichcannot be brushed aside. The role of A6 in the illegal confinement appearsto be established. No doubt there is recovery of MO8 which is attackedon the score that PW 24 “has identified A8 as A6”. We have dealt withCit elsewhere and shall not be detained by it.ABDUCTION, ILLEGAL CONFINEMENT, MURDER ANDCREMATION IN FICTITIOUS NAME141. It is clear that the deceased was abducted on 30.12.2001. Itis also established that he was confined illegally at the upstairs portion ofDthe factory at Moudihur owned by PW34. It is clear from the evidencethat it was the body of the deceased which was cremated and fictitiousname was used and certificate issued at the instance of A3(P27) whichcircumstance is clinching in establishing the prosecution case. As far asthe murder is concerned, there is no direct evidence. There is no directEevidence that deceased is murdered by strangulating him. However, it isequally true that on the basis of recovery made at the instance of A16 anylon rope and chain was recovered which undoubtedly strengthens theprosecution case. There cannot be medical evidence relating to murderin case where the body stood cremated. We have no hesitation inignoring the evidence relating to recovery of certain parts of the body ofFthe deceased but that is not sufficient for the accused to persuade us tothrow out the prosecution case. carefully thought out criminal plan hasled to the cruel snuffing out of precious life. The players thought it throughmeticulously by destroying the corpus delicti by cremation.

142. The abduction followed by murder in appropriate cases canGenable court to presume that the abductor is the murderer. Now theprinciple is that after abduction, the abductor would be in position toexplain what happened to his victim and if he failed to do so, it is onlynatural and logical that an irresistible inference may be drawn that hehas done away with the hapless victim. Section 106 of the Evidence ActHwould come to the assistance of the prosecution. In this regard it is

necessary to look at what this Court has laid down. In State of W.B.v.Mir Mohamad Omar27 this Court held as follows:

“13. Section 364 IPC says, whoever abducts any person “in orderthat such person may be murdered or may be so disposed of as tobe put in danger of being murdered” he commits the offencepunishable under the section. So the important task of theprosecution was to demonstrate that abduction of Mahesh wasfor murdering him. Even if the murder did not take place, theoffence would be complete if the abduction was completed withthe said objective. Conversely, if there was no such objective whenthe abduction was perpetrated, but later the abductors murderedthe victim, Section 364 IPC would not be attracted, though insuch case the court may have to consider whether the offenceof culpable homicide (amounting to or not amounting to murder)was committed.”

In this case the trial Court has convicted the appellants underSection 364 IPC. This is apart from also convicting them either underSection 365 or under Section 365 read with Section 109 as alreadydiscussed.

This Court in later judgment reported in AIR 2001 SC 1436Sucha Singh v. State of Punjabturned down the request of the appellantto reconsider the ratio laid down in State of W.B. V. Mir Mohd. Omar(supra). In the said case, the conviction appears to have been only underSection 302 though read with Section 34 of the IPC. It is pertinent tonote what this Court held speaking through Justice K.T. Thomas:

“19. We pointed out that Section 106 of the Evidence Act is notintended to relieve the prosecution of its burden to prove the guiltof the accused beyond reasonable doubt, but the section wouldapply to cases where the prosecution has succeeded in provingfacts for which reasonable inference can be drawn regardingthe existence of certain other facts, unless the accused by virtueof special knowledge regarding such facts failed to offer anyexplanation which might drive the court to draw differentinference.

A20. We have seriously bestowed our consideration on the argumentsaddressed by the learned Senior Counsel. We only reiterate thelegal principle adumbrated in State of W.B. v. Mir Mohd. Omar[(2000) 8 SCC 382 : 2000 SCC (Cri) 1516] that when more personsthan one have abducted the victim, who is later murdered, it iswithin the legal province of the court to justifiably draw aBpresumption depending on the factual situation, that all theabductors are responsible for the murder. Section 34 IPC couldbe invoked for the aid to that end, unless any particular abductorsatisfies the court with his explanation as to what else he did withthe victim subsequently, i.e., whether he left his associates enCroute or whether he dissuaded others from doing the extreme actetc. etc.

21. We are mindful of what is frequently happening during thesedays. Persons are kidnapped in the sight of others and are forciblytaken out of the sight of all others and later the kidnapped areDkilled. If legal principle is to be laid down that for the murder ofsuch kidnapped there should necessarily be independent evidenceapart from the circumstances enumerated above, we would beproviding safe jurisprudence for protecting such criminalactivities. India cannot now afford to lay down any such legalprinciple insulating the marauders of their activities of killingEkidnapped innocents outside the ken of others.”

143. We would think that the aforesaid principle would also applyto those persons who illegally confine the person who stands abductedeven if there is no evidence that they have themselves carried out theabduction. Section 387 is heightened form of extortion in which the victimFis put in the fear of death or grievous hurt. Section 347 involves wrongfulconfinement of person for the purpose of committing extortion. Theappellants have been convicted under Sections 347 and 387 of the IPC.This is not an inexorable rule but to be applied based on the factualmatrix presented before the court. Where abduction is followed by illegalGconfinement and still later by death, the inference becomes overwhelmingthat the victim died at the hands of those who abducted/confined him.Nobody has case that the deceased died natural death. In State ofW.B.(supra) therein, the Court, inter alia, held as follows:

“34. When it is proved to the satisfaction of the Court thatHMahesh was abducted by the accused and they took him out of

that area, the accused alone knew what happened to him until hewas with them. If he was found murdered within short timeafter the abduction the permitted reasoning process would enablethe Court to draw the presumption that the accused have murderedhim. Such inference can be disrupted if the accused would tell theCourt what else happened to Mahesh at least until he was in theircustody.

35. During arguments we put question to learned SeniorCounsel for the respondents based on hypothetical illustration.If boy is kidnapped from the lawful custody of his guardian inthe sight of his people and the kidnappers disappeared with theprey, what would be the normal inference if the mangled deadbody of the boy is recovered within couple of hours fromelsewhere. The query was made whether upon proof of the abovefacts an inference could be drawn that the kidnappers would havekilled the boy. Learned Senior Counsel finally conceded that insuch case the inference is reasonably certain that the boy waskilled by the kidnappers unless they explain otherwise.

36. In this context we may profitably utilise the legal principleembodied in Section 106 of the Evidence Act which reads asfollows: “When any fact is especially within the knowledge ofany person, the burden of proving that fact is upon him.

37. The section is not intended to relieve the prosecution ofits burden to prove the guilt of the accused beyond reasonabledoubt. But the section would apply to cases where the prosecutionhas succeeded in proving facts from which reasonable inferencecan be drawn regarding the existence of certain other facts, unlessthe accused by virtue of his special knowledge regarding suchfacts, failed to offer any explanation which might drive the courtto draw different inference.”

144. The deceased was brought in Ford Escort car. He wasbrought by A4, A11, A16 and A17. It is to be remembered that the caseof the prosecution is that except A12, A4 to A18 were the henchmen ofA3. We have referred to the evidence against A6, A11 and A16. Thereare material other than the deposition of PW11. We hold that theaccomplices are credible witnesses when the whole circumstances areborne in mind. Their evidence may not be immaculate in character. By

Atheir very nature, that is being accomplices, any such claim would beincongruous. But the test is whether it is safe to convict the accusedbelieving such witnesses. We are of the view that as regards the crimeand the accused, their testimony brings home the truth, as regards accusedwho are appellants before us. There is no motive attributed to PW10and PW11 to falsely implicate. The presumption of murder was rightlyBdrawn.

145. The role of A15 is clear who was not only been referred to inthe accomplice evidence but corroborates his link in the abduction withthe recovery of motorcycle at his instance. It has rightfully earned himconviction under Section 365 IPC. There were two cars apart from theCFord Escort on 30.12.2001 at the site of the illegal confinement. Fromthe Maruti Zen, three persons emerged as witnessed by PW11. It is truethat PW11 has not identified them. That apart there was also TataSumo, PW11 no doubt identified A5 and A7 apart from A15 as the personswho came back on 30.12.2001 with tiffin after leaving the factory.

146. The trial Court has convicted A4, A11, A15, A16 and A17under Section 365 which in our view is unassailable in regard to theseaccused who are also appellants before us. We do not see any error inthe court drawing the presumption that they are also guilty of murderingthe deceased.

147. PW3, it must be remembered has spoken of three menpushing another into van on 30.12.2001. The van moved and it wasfollowed by motorcycle. It must be remembered that A15 gave astatement leading to the recovery of motorcycle. The evidence is reliedby the two courts and we see no reason to take different view.F

148. As far as A3, A5, A6 and A8 are concerned, they standconvicted under Section 365 read with Section 109. Abetting is to beunderstood in the context of their acting on the conspiracy which stoodproved against A1 and A2. No doubt, abetting also takes place whenthere is instigation or intentional aiding. The role of A3 looms large. It isGclear that he organised the whole thing and it commenced with the searchfor an appropriate house where the victim could be confined after theabduction. His role along with his men in carrying out the crime culminatingin the cremation under fictitious name of the abducted person is clear.Not only there is evidence of PW10 and PW11 but other evidence whichincludes PW32, PW33, PW36 and PW8.H149. As far as A7 and A14 are concerned, they have also beenconvicted under Section 365 and also under Section 364. The involvementof A7 is clear. He makes his maiden appearance in the accompliceevidence as early as on 05.12.2001. PW10 has witnessed him standingalong with certain other accused by the side of the deceased who wasthen clearly in the state of illegal confinement. He further establisheshis complicity by bringing down the body of the deceased on 01.01.2002along with three others. His role is also corroborated by the testimonyof PW21 and PW35, Police officers.

150. A7 and A14 we would think ought to have been convictedunder Section 365 read with Section 109 of the IPC. We notice that A3,A5, A6 and A8 stood convicted under Section 365 read with Section109. We notice however that the charge as against A7 and A14 wasunder Section 365. We further notice the charge as against A14 isconcerned is also under Section 365 read with Section 109 of the IPC.As already noticed all the appellants have been convicted also underSection 364 of IPC.

151. In this connection as regards the lack of charge or defectin charge is concerned, it is one which is essentially intertwined withthe question of prejudice to the accused. See in this regard the judgmentof this Court in Willie (William) Slaney v. State of Madhya PradeshAIR1956 SC 116. We do not think that prejudice is caused in this regard inthe facts.

152. It must be noticed that the evidence in this case no doubtthrough the mouth of PW10 and PW11 who alone have witnessed whattruly happened would establish that on 31.12.2001, PW10 saw A5, A6,A7, A8, A11 and A14 when he saw the deceased who was at that timetied up on the first floor. We notice indeed that A10 has been acquittedby the High Court, for which reason, stands given by the High Court.Thus A5, A6, A7, A8, A11 and A14 are persons who can be and havealso been convicted in connection with the illegal confinement of thedeceased.

153. A4, A7, A11, A14, A15, A16 and A17 are persons who havebeen found guilty under Section 365 of the IPC. A3, A5, A6 and A8stand convicted under Section 365 of the IPC with the aid of Section109 of IPC. All of them have also been convicted under Section 364 ofthe IPC. In this regard there is dichotomy involved. The law attaches

Acriminality to the act or omission by person. Another person maybecome liable as an abettor, person who has conspired and thus liableunder Section 120B, person who has shared common object andthus become vicariously liable and if there be 5 or more persons underSection 141 read with Section 149 or if the principle of vicarious liabilityembedded in Section 34 of the IPC is attracted. In other words, for aBconviction under Section 364 actual abduction is necessary. personcould no doubt be liable under Section 364 read with Section 34 or underSection 364 read with Section 149 or under Section 364 read with Section109 or if he is found guilty under Section 120B. In this case there is noscope for either 120B or 149. However just as they have been foundCguilty under Section 365 we would support the conviction under Section364 in the same manner namely the abduction within the meaning ofSection 364. The abduction is alleged to have been taken place on30.12.2001. Be it remembered, that essence of abduction is forcedmovement, inter alia, from any place. The offence would be committedby any one who effects such abduction at any or all points of the route.DWe have already noticed that in given case, an abduction may attractboth sections 364 and 365. The distinguishing feature between the twokinds of abduction, is the difference in the intent with which the abduction,inter alia (as Sections 364 and 365 also deal with kidnapping), is carriedout. But so far as the intention attracts both provisions in given case,Econviction under both sections is not impermissible. However, when someof the appellants are convicted under Section 365 simpliciter and othersare convicted under Section 365 read with Section 109, then the positionof those accused/ appellants in regard to conviction under Section 364must also be the same. However, this difference in our approach in thematter of conviction under Section 364, cannot advance the case of theFappellants, as abduction whether it is with the aid of Section 109 orwhich is under Section 364 simpliciter, enables the Court to raise thepresumption of murder, in the absence of any explanation offered withinthe meaning of Section 106 of the Evidence Act. In other words, whilewe would find A4, A11, A15, A16 and A17 guilty under Section 364Gwhich is already found by the courts below, we would support theconviction under Section 364 of other appellants on the basis that theyhave been actively aided the abduction. In other words they would beguilty under Section 364 read with Section 109 IPC. Also as far as A5,A6, A7, A8, A11 and A14 are concerned, there is the evidence of PW10that when he saw the deceased in clear state of wrongful confinement,Has he was found tied on the first floor of the factory, A5, A6, A7, A8, A11and A14 were present. They have also been convicted under Sections347 and 387 of the IPC. Also, in fact, we have already noted that on30.12.2001, PW11 has deposed about three cars out of which thedeceased emerged out of one of them, viz., the Ford Escort. A4, A11,A16 and A17 have been referred in the evidence of PW 11 as emergingout of the car along with the deceased but it is quite clear that therewere more persons than A4, A11, A16 and A17 who were involved inthe abduction. In this regard it is profitable to remember that PW3 haswitnessed three persons pushing another into Maruti Van early in themorning on 30.12.2001. No doubt there is also man on the Motorcycle.Within hours when he is brought to the factory building, he comes out ofa Ford Escort. There were two other cars which accompanied it. Wemust bear in mind that under Section 362 of the IPC, abduction has beendefined, inter alia, as compelling person to go from any place. It, nodoubt, also includes, such movement procured by deceitful means. Tomake it more clear, if we see the plot unravelling, viz., the abduction, theillegal confinement, the death of the deceased and his subsequentcremation, the role of A3, A5, A6, A7, A8 and A14 in aiding the abduction,appears to be made out. It is also clear that A5, A6, A7, A8, A11 andA14 were involved in the wrongful confinement of the deceased. We,no doubt, noticed that as far as A14 is concerned, there is no recovery,as such, effected from him under Section 27 of the Evidence Act andthere is essentially the evidence of PW10, as aforesaid. The same isposition about A17, whose involvement has been referred to by PW11,the other accomplice. We, however, find that that the accomplicewitnesses, who have been relied upon by two courts, are to be treatedas credible witnesses and, even in the absence of corroborative evidence,in the facts and circumstances of this case, we see no reason to disturbthat conviction. If that is so, even in the absence of any direct evidencerelating to murder, the presumption of murder, being committed by theappellants before us, would apply. In fact, the courts below have drawna presumption about murder being committed. This is presumptionwhich cannot be said to be drawn without any basis. Having regard tothe facts and circumstances before us, we are of the view that it cannotbe contended that no case is made out against the appellants.

71. Applications for withdrawal of Criminal Appeal No.2007/2017and Criminal Appeal No.2009 of 2017 are allowed. Criminal Appeals2007 of 2017 and 2009 of 2017 are dismissed as withdrawn. Rest of the

DEF

ACriminal Appeals are dismissed. The bail bonds of the appellants whohave been released on bail under orders of this Court shall stand cancelledand they shall surrender within three weeks to serve their sentences.

Devika Gujral

Appeals disposed of.