Somasundaram @ Somu vs The State Rep. By the Deputy Commissioner of Police

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 403 OF 2010

SOMASUNDARAM @ SOMU ... APPELLANT(S)

VERSUS

THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE ... RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 827 OF 2013

CRIMINAL APPEAL NO. 828 OF 2013

CRIMINAL APPEAL NO. 1504 OF 2017

CRIMINAL APPEAL NO(s). 2006-2007 OF 2017 AND CRIMINAL APPEAL NO(s). 2008-2009 OF 2017

J U D G M E N T

K.M. JOSEPH, J.

1. Signature Not Verified Six appeals arise out of a common judgment rendered Digitally signed by ASHA SUNDRIYAL Date: 2020.06.03

by 17:39:42 IST Reason: the High Court confirming the conviction and

1 sentence of the appellants by the Trial Court. The

earliest of the aforesaid appeals, i.e., Criminal

Appeal No. 403 of 2010, is filed by the fourth accused.

Criminal Appeal No. 827 of 2013 and Criminal Appeal No.

828 of 2013 are filed by the third and the fifteenth

accused, respectively.

WHY THIS THREE-JUDGES BENCH?

2. The appeals filed by the third, fourth and

fifteenth accused came to be heard by a Bench of two

learned Judges. There was a cleavage of opinion among

the learned Judges. One learned Judge (Justice V.

Gopala Gowda), by his Judgment, proceeded to acquit the

accused while Justice Arun Mishra dismissed the

appeals. The Judgment rendered by the two learned

Judges is reported in Somasundaram alias Somu v. State

Represented by Deputy Commissioner of Police1. After the

judgment was rendered, it is that the other appeals

came to be filed by the other accused. They are as

follows:

1 (2016) 16 SCC 355

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

2017;

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

c. A7, A11, A14, A16 and A17 have together filed

Criminal

Appeal No. 2006 of 2017;

d. Though Criminal Appeal No.2007 of 2017 and Criminal

Appeal No. 2009 of 2017 were also filed, subsequent

to the hearing, applications have been filed

seeking to withdraw the aforesaid two appeals and

they are liable to be dismissed as withdrawn.

THE PROSECUTION CASE

3. On M.K. Balan (hereinafter referred to as ‘the

deceased’, for short), who was an Ex. M.L.A., was

reported to be missing by his son-PW1 after he went for

his morning walk on 30.12.2001. On the basis of the

complaint, law was set in motion. PW67-Inspector of

Police, took over the investigation on 12.01.2002 from

PW66. It was, in fact, PW66, who initially conducted

3 investigation. PW66 has spoken about information of the

absconding person being given to the Police Control

Room and to all Police Stations by wireless. He has

sent photograph of absconding person to be published in

the daily newspapers. Inquiry was conducted in

hospitals. He has examined a large number of witnesses.

It is, as noted, on 12.01.2002, further investigation

was taken over by PW67-Deputy Superintendent of CBCID.

The evidence of PW67 would show that from 13.01.2002,

the Officer has examined several witnesses. According

to the prosecution, the breakthrough came on the basis

of information, as per which, the A5 (fifth accused)

came to be arrested on 18.03.2002. On the very next

day, A6 came to be arrested. Still, within the space of

twenty-four hours, viz., on 20.03.2002, A7 came to be

arrested. 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 the

accused made confessional statements within the meaning

4 of Section 27 of the Indian Evidence Act, 1872

(hereinafter referred to as ‘the Evidence Act’, for

short) yielding information leading to recoveries. It

is the case of the prosecution that the deceased had

been abducted (though it is shown as kidnapped) on

30.01.2002, taken and kept in a factory premises which

belonged to PW34-Krishna Pandi with whom PW10 and PW11

had become partners. A 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 do away with

the deceased in case he did not yield to the demand. As

it transpired as the deceased did not yield, he was

murdered while he was kept captive in the first floor

of the vermicelli factory, which, as already noted, was

being operated by PW34. A3 was noted as leader of the

ADMK. A12, it was alleged, who was married to the A2,

was made to speak in the voice of an AIADMK leader

Shashikala to A3. In this, the A1 and A2 played a role.

It is, according to the prosecution, on being so

5 spurred by the command given by A12, apparently

mimicking the voice of the AIADMK leader, A3 acts. A9

contacted PW10 and PW11. It is alleged that PW10 and

PW11 were persuaded to search for houses. Not satisfied

with many of the houses shown to A3 and A9, they

finally found favour with the factory premises which is

located in Mudichur. It is the further case of the

prosecution that after he was murdered, the body of the

deceased came to be cremated at the Corporation

cremation ground on 01.01.2002 and, in order to

accomplish the same, PW33-an employee working in a

Government Hospital, was roped in by A3 to procure a

false death certificate. Accordingly, PW33, it was

alleged, approached PW32-a Medical Practitioner. The

Medical Practitioner gives a death certificate wherein

the name of a person is indicated in the certificate,

and allegedly residing at an address, which, the

Police, on investigation, found, was not the abode of

the person. In other words, the name of a non-existing

and a fictional person was used to concoct a death

6 certificate and, under the cover of the same, the body

of the deceased came to be cremated.

4. On the basis of the charge-sheet and after

complying with the formalities, the Trial Court framed

charges against the accused. The following are the

charges framed against the various accused as evident

from the Trial Court Judgment:

"The following charges were framed against the accused in this case: That during the month of November 2001, the 1st, 2nd and 3rd accused conspired together and discussed about the matter as to how the Ex.M.L.A. M.K. Balan could be kidnapped and extract money from him and it was decided to murder him in case if he refuses to pay any amount and that consequent upon such conspiracy on 30.12.01 early morning, he was kidnapped near MRC Nagar and he was illegally kept at T.K.P. Vermicelli factory at Mudichur and on account of committing him murder on 1.1.02 night at about 9:00 p.m., thereby a 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 such conspiracy, while the said Ex.M.L.A. M.K. Balan was walking in the morning on 30.12.01 near MRC Nagar, at the knife point he was kidnapped near Iyyapan temple at about 5.30 am by the

7 accused 4,7,10,11,14,15,16 and 17 in the Maruti van bearing Regn. No.: TN-A-7484 and at that time the 15th accused went in front of that van in a Hero Honda to show the route for them and lastly the said M.K. Balan was kept illegally at Vermicelli factory belonging to one Krishnapandi at Mudichur road, thereby the said accused have been charged under Section 365 IPC and for abetment of the said offence the accused 1,2,3,5,6,8,9 and 13 to 18 accused in going in a car bearing Regn. No.: TN-10-F-5555 have been charged under Section 365 read with Section 109 IPC.

Thirdly in order to fulfil the object of such conspiracy, in the said place on the said date the said M.K. Balan (Ex.M.L.A.) was tied with iron chain and rope in a cot and he was threatened to part with Rs.16 crores of Rupees or else to execute the document in respect of his properties in their favour, thereby the accused 1 to 11 and 14 to 18 have been charged under Section 387 IPC.

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

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

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

Seventhly, after committing the murder of the deceased M.K. Balan, the body was taken to the cremation ground and cremated in Perambur cremation ground by getting false death certificate as if one Rajamani Chettiar died due to heart ailment and that therefore by suppressing the real facts in order to screen the crime, accused 8,10,11 and 13 to 18 have been framed charge under section 201 IPC.”

9

5. The prosecution has sought to discharge its burden

by examining 67 witnesses. It has also produced and

proved a large number of documents (P1 to P86) and also

material objects (MO1 to MO39). Five witnesses were

examined by the accused. D1 to D8 were proved on their

behalf. The Trial Court, on appreciation of the

evidence, found merit in the case of the prosecution,

except in regard to the A12 and A18. Resultantly, the

Trial Court convicted the accused as follows:

(i) A1 and A2 were found guilty of the offences

under Sections 120B of The Indian Penal Code, 1860

(hereinafter referred to as ‘the IPC’, for short),

Section 365 read with Section 109 of the IPC,

Section 387 of the IPC, Section 302 read with

Section 109 of the IPC, Section 347 read with 109

of the IPC and under

Section 364 read with Section 109 of the IPC.

(ii) A3 is found to have acted upon the conspiracy

of A1 and A2. He was found guilty of the offences

under Section 365 read with Section 109 of the IPC,

10 Section 387 of the IPC, Section 302 of the IPC,

Section 347 of the IPC, Section 364 of the IPC and

Section 201 of the IPC. He was acquitted under

Section 120B of the IPC. (See paragraph 194 of the

Trial Court Judgment);

(iii) A4 was found guilty of the offences under

Section 365 of the IPC, Section 387 of the IPC,

Section 302 of the IPC, Section 347 of the IPC,

Section 364 of the IPC and Section 201 of the IPC.

He was acquitted under Section 120B of the IPC;

(iv) A5 was found guilty under Section 365 read with

Section 109 of the IPC, Section 387 of the IPC,

Section 302 read with Section 109 of the IPC,

Section 347 of the IPC, Section 364 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

Section 109 of the IPC, Section 387 of the IPC,

Section 302 of the IPC, Section 347 of the IPC,

11 Section 364 of the IPC and Section 201 of the IPC.

He stood acquitted under Section 120B of the IPC;

(vi) A7 was found guilty under Section 365 of the

IPC, Section 387 of the IPC, Section 302 of the

IPC, Section 347 of the 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

Section 109 of the IPC, Section 387 of the IPC,

Section 302 read with Section 109 of the IPC,

Section 347 of the IPC, Section 364 of the IPC and

Section 201 of the IPC and he stood acquitted 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, Section 302 of the IPC, Section 347

of the IPC, Section 364 of the IPC and Section 201

of the IPC and was acquitted under Section 120B of

the IPC;

(ix) A12 was acquitted of all the charges;

12

(x) A14, A15, A16 and A17 were convicted under

Section 365 of the IPC, Section 387 of the IPC,

Section 302 of the IPC, Section 347 of the IPC,

Section 364 of the IPC and Section 201 of the IPC

and the charge under Section 120B of the IPC was

found not proved against them and they stood

acquitted.

6. It is necessary to notice the details of the

findings against each of the accused (appellants):

“211. The accused 3,6 and 8 for having abetted the crime of conspiracy of the accused 1 and 2, on 30.12.01 at about 5:30 a.m. the former M.L.A. M.K. Balan was kidnapped and kept in a secret place at Vermicelli factory at Mudichur road, Tambaram, committed the offence under section 365 read with 109 IPC and for having made an attempt to extract money or property from the said M.K. Balan, former MLA, committed the offence under section 387 IPC and when it was not able to get the same, by committing the murder of the said M.K. Balan, committed the offence under section 302 IPC and before committing murder him, for having kept him in a secret place unlawfully and illegally, committed the offence under section 347 IPC and for having kidnapped him for the purpose of murdering him, committed the offence under section 364 13 IPC and after the murder of the said M.K. Balan, former M.L.A., the body was cremated at the crematorium at Erukkancherry, Perambur and with a view to screen the traces and giving false information, committed the offence under section 201 IPC and accordingly they are found guilty of the above said offences.

212. In order to fulfil the object of on 30.12.01 at about 5.30 a.m. the former M.L.A. M.K. Balan was kidnapped and kept in a secret place at Vermicelli factory at Mudichur road, Tambaram, committed the offence under section 365 read with 109 IPC and for having made an attempt to extract money or property from the said M.K. Balan, former MLA, committed the offence under section 387 IPC and when it was not able to get the same, by committing the murder of the said M.K. Balan, committed the offence under section 302 IPC and before committing murder him, for having kept him in a secret place unlawfully and illegally, committed the offence under section 347 IPC and for having kidnapped him for the purpose of murdering him, committed the offence under section 364 IPC conspiracy of the accused 1 and 2, the 4th accused has been charged for the above said offences.

213. The 5th accused is found guilty of the offences for having fulfilled the conspiracy of the accused 1 and 2 on 30.12.01 at about 5:30 a.m. the former M.L.A. M.K. Balan was kidnapped and kept in a secret place at Vermicelli factory at Mudichur road, Tambaram, committed the offence under section 365 read with 109

14 IPC and for having made an attempt to extract money or property from the said M.K. Balan, former MLA, committed the offence under section 387 IPC and when it was not able to get the same, by committing the murder of the said M.K. Balan, committed the offence under section 302 IPC and before committing murder him, for having kept him in a secret place unlawfully and illegally, committed the offence under section 347 IPC and for having kidnapped him for the purpose of murdering him, committed the offence under section 364 IPC and after the murder of the said M.K. Balan, former MLA, the body was cremated at the crematorium at Erukkancherry, Perambur and with a view to screen the traces and giving false information, committed the offence under section 201 IPC and accordingly he is found guilty of the above said offences.

214. The 7th, 10th, 11th and 14th accused were charged for the offences for having colluded with the accused 1 and 2 in fulfilling their conspiracy by stating that on 30.12.01 at about 5.30 a.m. the former M.L.A. M.K. Balan was kidnapped and kept in a secret place at Vermicelli factory at Mudichur road, Tambaram, committed the offence under section 365 read with 109 IPC and for having made an attempt to extract money or property from the said M.K. Balan, former MLA, committed the offence under section 387 IPC and when it was not able to get the same, by committing the murder of the said M.K. Balan, committed the offence under section 302 IPC and before committing murder him, for having kept him in a secret place

15 unlawfully and illegally, committed the offence under section 347 IPC and for having kidnapped him for the purpose of murdering him, committed the offence under section 364 IPC and after the murder of the said M.K. Balan, former M.L.A., the body was cremated at the crematorium at Erukkancherry, Perambur and with a view to screen the traces and giving false information, committed the offence under section 201 IPC and accordingly, they are found guilty of the above said offences as decided in this case.

215. It is stated as against the accused 9 and 13 that for fulfilling the object of conspiracy of the accused 1 and 2 on 30.12.1 at about 5.30 a.m. the former M.L.A. M.K. Balan was kidnapped and kept in a secret place at Vermicelli factory at Mudichur road, Tambaram, committed the offence under section 365 read with 109 IPC and for having made an attempt to extract money or property from the said M.K. Balan, former M.L.A., committed the offence under section 387 IPC and when it was not able to get the same, by committing the murder of the said M.K. Balan, committed the offence under section 302 IPC and before committing murder him, for having kept him in a secret place unlawfully and illegally, committed the offence under section 347 IPC and for having kidnapped him for the purpose of murdering him, committed the offence under section 364 IPC and accordingly they were found guilty of the above said offences.”

7. The sentencing is as follows:

16

“220. Further the accused 3, 6 and 8 are convicted for the offence under section 365 read with 109 IPC and sentenced to undergo 7 years RI and to pay fine of Rs. 5000/- each in default to undergo one year RI each; convicting them for the offence under section 387 IPC and sentencing them to undergo 7 years RI and to pay fine of Rs. 5000/- in default to undergo one year RI each and that convincing them for the offence under section 302 IPC and sentencing them to undergo life imprisonment and to pay fine of Rs. 50000/- each and convicting them for the offence under section 347 IPC and sentencing them to undergo three years RI each and to pay fine of Rs. 5000/- in default to undergo six months RI each; also convicting them for the offence under section 364 IPC and sentencing them to undergo 10 years RI and to pay fine of Rs. 5000/- in default to undergo two years RI each; convicting them for the offence under section 201 IPC and sentencing them to undergo 7 years RI and to pay fine of Rs. 10000/- in default to undergo one year RI each and that the total fine amount imposed on them each Rs. 80000/- (Rupees eighty thousand only) and that it is ordered that all the sentences imposed on these accused shall run concurrently.

221. The 4th accused is convicted for the offence under section 365 IPC and sentenced to undergo 7 years RI and to pay fine of Rs. 5000/- and in default to undergo one year RI and convicting him for the offence under section 387 IPC and sentenced to undergo 7 years RI and to pay

17 fine of Rs.5000/- in default to undergo one year RI; that convicting him for the offence under section 302 IPC and sentencing him to undergo life imprisonment and to pay fine of Rs.

50,000/- convicting him for the offence under section 347 IPC and sentencing him to undergo 3 years and to pay fine of Rs. 5000/- in default to undergo six months RI; convicting him to undergo 10 years RI and to pay fine of Rs. 5000/- in default to undergo 2 years RI and that it is ordered that all the sentences imposed on this accused shall run concurrently (total fine amount imposed on him is Rs. 70,000/- Rupees seventy thousand only).

222. The 5th accused is convicted for the offence under Section 365 read with 109 IPC and sentenced to undergo 7 years RI and to pay fine of Rs.5000/- in default to undergo one year RI; convicting him for the offence under section 387 IPC and sentencing him to undergo 7 years RI and to pay fine of Rs. 5000/- in default to undergo one year RI; convicting him for the offence under section 302 IPC read with 109 IPC and sentencing him to undergo life imprisonment and to pay fine of Rs.50,000/- convicting him for the offence under section 347 IPC and sentencing him to undergo 3 years RI and to pay fine of Rs. 5000/- in default to undergo six months RI and convicting him for the offence under section 364 IPC and sentencing him to undergo 10 years RI and to pay fine of Rs. 5000/- in default to undergo two years RI; convicting him for the offence under section 201 IPC and sentencing him to undergo 7 years RI and

18 to pay fine of Rs. 10,000/- in default to undergo one year RI and that total fine imposed on this accused is Rs. 80,000/- (Rupees eighty thousand only) and that all the sentences imposed on this accused shall run concurrently;

223. The 9th accused is convicted for the offence under section 365 read with 109 IPC and sentenced to undergo 7 years RI and to pay fine of Rs. 5000/- in default to undergo one year RI, convicting him for the offence under section 387 IPC and sentencing him to undergo 7 years RI and to pay fine of Rs.5000/- in default to undergo one year RI; convicting him for the offence under section 302 read with 109 IPC and sentencing him to undergo life imprisonment and to pay fine of Rs.

50,000/- and also convicting him for the offence under section 347 IPC and sentencing him to undergo 3 years RI and to pay fine of Rs. 5000/- in default to undergo six months RI; and also convicting the accused for the offence under section 364 IPC and sentencing him to undergo 10 years RI and to pay fine of Rs. 5000/- in default to undergo 2 years RI as decided. It is ordered that all the sentences imposed on him in this case shall run concurrently (total fine amount is Rs. Seventy thousand only).

224. Further the 13th accused is convicted for the offence under section 365 read with 109 IPC and sentenced to undergo 7 years RI and to pay fine of Rs. 5000/- in default to undergo one year RI; convicting the accused for the offence under section 302 read with 109 IPC and

19 sentencing him to undergo life imprisonment and to pay fine of Rs.

50000/- and also convicting him for the offence under section 347 IPC and sentencing him to undergo 3 years RI and to pay fine of Rs. 5000/- in default to undergo six months RI;

convicting him for the offence under section 364 IPC and sentencing him to undergo 10 years RI and to pay fine of Rs. 5000/- in default to undergo two years RI; convicting him for the offence under section 201 IPC and sentencing him to undergo 7 years RI and to pay fine of Rs. 10000/- in default to undergo one year RI as ordered. All the sentences imposed on him shall run concurrently. (Total fine amount imposed on this accused is Rs.

Seventy five only). It is further ordered that this 13th accused shall undergo the sentences imposed on him in respect of the case in S.C. No. 206/03 along with the sentences imposed on him in this case concurrently.

225. Further the accused 7,10,11,14,15,16 and 17 are convicted for the offence under section 365 IPC and sentenced to undergo seven years RI and to pay fine of Rs.5000/- in default to undergo one year RI each; convicting them for the offence under section 387 IPC and sentencing them to undergo 7 years RI and to pay fine of Rs. 5000/- in default to undergo one year RI each; convicting them for the offence under section 302 IPC and sentencing them to undergo life imprisonment and to pay fine of Rs.

50000/- each and also convicting them for the offence under section 347 IPC and

20 sentencing them to undergo 3 years RI and to pay fine of Rs. 5000/- in default to undergo six months RI each; convicting them for the offence under section 364 IPC and sentencing them to undergo 10 years RI and to pay fine of Rs. 5000/- in default to undergo two years each; convicting them for the offence under section 201 IPC and sentencing them to undergo 7 years RI and to pay fine of Rs. 10,000/- in default to undergo one year RI each as decided. (The total fine amount being Rs. 80,000/- each) All the sentences imposed on these accused shall run concurrently as ordered.”

8. The High Court confirmed the judgment of the Trial

Court except 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 the respondent-State in all the appeals.

11. Learned Counsel for A3 would submit that the case

of the prosecution was based on the theory of

conspiracy. It is accordingly that the charge under

Section 120B was framed against the accused including

A3. The case of the prosecution in this regard was,

A12, who was married to A2, made phone calls to A3. A3

was told over phone by A12 allegedly in the voice of

21 Shashikala that A1 and A2 would meet A3 and he was

asked to do what they would ask him to do. There were

further calls. In fact, the conspiracy was, according

to the prosecution, hatched in the minds of A1 and A2.

A1 flaunted his proximity to M.K. Stalin (a political

leader) stating that he was about to marry his

daughter. A2 was in dire financial straits. He had

contracted an inter-religious marriage with A12. They

hit upon the idea of abducting the deceased and to

compel him to part with a 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 disbelieved

the case of the prosecution relating to criminal

conspiracy which culminated in the court acquitting A12

of the charge against her. The appellant also stood

acquitted under Section 120B of the IPC. The entire

edifice of the prosecution case was built on the

alleged criminal conspiracy which involved A12. Once

this edifice was knocked out by the acquittal of A12,

22 the superstructure sought to be built by the

prosecution must necessarily fall to the ground.

12. Next, it is pointed out that the prosecution case

is otherwise based on the testimony of PW10 and PW11.

He would point out that PW10 and PW11 were unreliable

witnesses. It is clear that PW10 and PW11 were

accomplices. They were untrustworthy witnesses. It is

pointed out that it is settled law that the court would

not act on the deposition 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 corroborative evidence forthcoming in this

case, it is submitted. As far as conviction employing

Section 109 of the IPC is concerned, learned Counsel

submitted that in order that Section 109 may apply

apart from mere conspiracy, some act or illegal

omission in pursuance of the so-called conspiracy is

indispensable. He would further submit that though V.

K. Shashikala was interrogated by PW67-Officer, she has

23 not been examined as a witness. There is no evidence

relating to what her voice is. 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 A3 which ultimately is what the prosecution

case is all about. There is no evidence of Shashikala

having made a public speech. Though A3 may be familiar

with her voice being a party functionary, it hardly

suffices as there is no evidence to conclude that A12

was familiar with her voice without which it is

incredible that she could mimic Shashikala.

13. He would further contend that in this case once the

prosecution case relating to conspiracy under Section

120B of the IPC failed, reliance placed on Section 109

of the IPC, which contemplates a conspiracy and

something more would have no legs to stand on. Leave

alone any illegal act or omission based on a

conspiracy, no conspiracy itself is proved. Therefore,

Section 109 of the IPC can have no play. Regarding the

recovery of Maruti Zen car at the instance of A3, it is

24 pointed out that A3 is not the owner of the car. PW10

and PW11 were active participants. They were not

tendered pardon under Section 306 of The Code of

Criminal Procedure, 1973 (hereinafter referred to as

‘the CrPC’ for short). He would further contend that

the evidence of PW3 does not establish 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 when he saw three persons pushing another person

into a Maruti Van. Evidence of PW1, who is the son of

the deceased, would show that the shoes allegedly

recovered as was worn by the deceased, did not belong

to his father. The case of abduction is not proved on

the basis of the evidence tendered by PW3. The Van,

which was recovered, has not been identified. The

Motorcycle, which was recovered, again was not

identified. The recovery was also not proved, he

contends. The prosecution has failed to prove that A3

brought the deceased to the factory. PW34, on whose

testimony prosecution has placed considerable reliance,

25 is also an accomplice. He drew our attention to the

judgment2 of Justice Arun Mishra in paragraph 115, which

reads as follows:

“115. With respect to charge of murder against A-3 and A-4 it is apparent that MO 31 is in the handwriting of A-1. It was read out by A-12 and heard by A-3 and was acted accordingly. Evidence of Sahul Hameed, PW 47 also proves recovery of chain with which M.K. Balan was tied and that of other articles. It is apparent that M.K. Balan was abducted. There was an attempt to extract money when it was not possible, he was murdered in factory premises. The appellants were charged for committing the murder by putting nylon rope around his neck and tightening it. Though there is no direct evidence with respect to that but it can be inferred in the circumstances that they committed the offence of murder also. Once they had abducted M.K. Balan it was for them to explain how they dealt with him. The dead body of M.K. Balan could not be found as it was cremated in the name of a fictitious person—Rajamani Chettiar. His post-mortem also could not be conducted but the evidence clearly indicates that the dead body of M.K. Balan was taken from the vermicelli factory. It gives an inference that the accused persons had murdered the victim. It is not necessary for recording a conviction that corpus delicti to be found. There is ample evidence leading to an inescapable 2 (2016) 16 SCC 355

26 conclusion that M.K. Balan was done to death by the appellants. His dead body was seen by the witnesses.”

14. He complains that this approach involves shifting

of the burden to be shouldered by the prosecution to

the accused. Since abduction itself has not been

proved, in order that the prosecution should succeed in

the matter of securing conviction under Section 302 of

the IPC, the prosecution ought to have proved the case

as set out by it. A chain was allegedly used to commit

murder of the deceased. A14 and A16 were in jail. The

chain and the nylon rope were recovered on the basis of

the statements given by them. He would point out that

however the said recoveries cannot be used against the

other accused. He reminds the court of the backdrop in

which the investigation proceeded following the missing

of a high-profile person, as the deceased was an Ex-

MLA. A Habeas Corpus Petition was filed in the Madras

High Court. There was much pressure. The matter engaged

the attention of the media also. This forced the

Investigating Officers to manufacture the version

27 indeed in order to cater to the general public. PW 21

and PW35 are Police Officers. They are alleged to have

identified some of the accused as loitering in a public

road after midnight on 01.01.2002, which was

immediately after the alleged commission of the crimes

including murder. But this cannot result in conviction

of A3. PW12 and PW19 are prosecution witnesses produced

to prove the case under Section 201 of the IPC, viz.,

destruction of the body of the deceased after the

commission of the crime, PW12 and PW19 worked at the

cremation ground. It is pointed out that as far as PW12

is concerned, he has turned hostile. It is pointed out,

in this regard, that the ashes were not recovered. The

bones of the deceased person were not recovered or sent

for scientific investigation.

15. He would submit that the body of the deceased

itself is not found or not produced, and therefore, the

case of the prosecution cannot be accepted. There is

evidence to show that for a person above 60 years, a

death certificate is not required for conducting

28 cremation. This is the submission made in the context

of evidence relied on by both the courts and also a

learned Single Judge of this Court to conclude that A3

was involved in procuring a false death certificate.

According to the prosecution, PW32-Doctor was

approached by PW33 at the instance of A3. It was

mentioned to the Doctor that another person had passed

away. Believing PW33, PW32-Doctor has deposed that he

gave a death certificate. According to PW19, the dead

body was cremated in the night 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 up a false case that a person, other than

deceased, involved in this case, had passed away and

securing a death certificate which paved the way for

cremation of the body of the deceased resulting in the

destruction of the evidence relating to the body of the

deceased].

29

16. Learned Counsel for the A3 pointed out that A3 must

be connected with the matter as sought to be done by

both courts which was not the case.

17. Regarding the recovery effected from A3, it is

pointed out that, MO12 is the Maruti Zen Car. He would

point out that the relevance of the recovery (apart

from the infirmity attached with the recovery) is not

established. MO28 are the audio cassettes. Regarding

the same, it is pointed out that it was incumbent upon

the prosecution to establish the content by providing

the transcript. The audio was supposed to contain

conversation of the deceased but it cannot be relied on

in the absence of a transcript. The relevancy of the

content has not been established. The voice of the

speaker has not been proved. Regarding MO12-Maruti Zen

Car, recovery at the instance of A3, it is contended

that the evidence would show that the owner of the said

car had given MO12 to A3 in November, 2001 and A3 has

given back the car in February, 2002. There is no

30 particular role which is attributed to the Maruti Zen

Car.

18. Regarding audio evidence, it is submitted that it

did not satisfy the requirements of Section 3 of the

Evidence Act. MO33 is a bit of paper on which, in the

alleged handwriting of A1, the message from A12 to A3

was written [it will be remembered that it is the case

of the prosecution that A12, imitating the voice of

Shashikala, had commanded A3, a party functionary, to

oblige A1 and A2 and this set in motion the chain of

events culminating in the gruesome murder of the

deceased]. It is the acquittal of A12 who allegedly

messaged to A3, which is the subject matter of MO33,

which is pressed before us to remove any importance it

may otherwise have had. Till 10.04.2002, the evidence

of PW67 would show that it was not sealed thus robbing

the material object of any legal efficacy it may have

otherwise had, it is contended. It is further contended

that the voice of the deceased, is not proved through

PW1. Learned Counsel would submit that if statement

31 under Section 27 is made and a person making it is

acquitted, such statement cannot be used against other

accused. Learned Counsel would contend that in the case

of a conviction employing Section 109 of the IPC, the

principal offender must be identified. He drew our

attention in regard to the judgment reported in Siri

Ram Batra and others v. Financial Commissioner, Delhi

and others3. He pointed out that Justice Arun Mishra,

has proceeded on the basis that a confession under

Section 164 of the CrPC is a substantive piece of

evidence, which, it is not. In this regard, our

attention is drawn to the judgments of this Court. In

George and others v. State of Kerala and another4, it

was held as follows:

“36. We may now turn to the evidence of PW 50, detailed earlier. From the judgment of the trial court we notice that the substantial parts of its comments, (quoted earlier) are based on his statement recorded under Section 164 CrPC and not his evidence in court. The said statement was treated as substantive

3 (2004) 12 SCC 52

4 (1998) 4 SCC 605

32 evidence; as would be evident from the following, amongst other observations made by the learned trial court:

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

In making the above and similar comments the trial court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under Section 164 CrPC cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him.” (Emphasis supplied)

19. Learned Counsel for A3 relied upon the following

decisions. In Baldev Singh v. State of Punjab5, this

Court noted that the High Court had fallen into error

in relying upon the statement of the witness under

Section 161 of the CrPC as well as on the FIR regarding

identification of the accused in a case where, in his

cross-examination in the court, he deposed that he

could not, due to darkness, identify the culprits. The 5 (1990) 4 SCC 692

33 court emphasised that the statement under Section 161

of the CrPC is not to be used for any purpose except to

contradict the witness in the manner provided in

Section 162 of the CrPC. Obviously, this judgment is

invoked against the court relying upon the evidence of

PW19.

20. In Ziyauddin Burhanuddin Bukhari v. Brijmohan

Ramdass Mehra and others6, is relied on to point out

that while taking record of speeches as documents under

Section 3 of the Evidence Act, the admissibility would

depend upon the following conditions being fulfilled:

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

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.

(c) The subject-matter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act.”

6 (1976) 2 SCC 17

34

21. He also pointed out that if the photograph of the

accused is shown to the witnesses and the witnesses

then depose about identifying the accused, it would

deprive the identification of any value it would have

otherwise. He relied on the judgement of this Court in

Vijayan v. State of Kerala7:

“8. Another circumstance sought to be established was through the evidence of PW 4, a young girl living a few yards away from the house of the deceased. According to her, she heard the sound of somebody running and when she turned, she saw accused Vijayan running away after crossing a water channel and wearing a blue pant and blue shirt. It is no doubt true that she identified accused Vijayan in the test identification parade but for the reasons already advanced while discussing the evidence of PWs 3 and 9, the identification of the accused in the test identification parade cannot be relied upon. The High Court unfortunately appears to have taken a view that the identification of the accused by PW 4 in the test identification parade should be relied upon. We are unable to agree with this conclusion particularly when it is apparent from the prosecution material that much before the holding of the test identification parade, the photograph of

7 (1999) 3 SCC 54

35 the accused Vijayan had been published in the newspaper and because of a certain sensation in the locality, it had a lot of publicity and there was sufficient opportunity for the witnesses being shown the accused person. In this view of the matter, in our considered opinion, the High Court erroneously interfered with the conclusion of the learned Sessions Judge in this regard and came to hold that the identification of Vijayan by PW 4 could be relied upon. We have examined the evidence of the said PW 4 in great detail and we are unable to subscribe to the view the High Court has taken on the evidence of the aforesaid witness. We also really fail to understand how a witness seeing an unknown man running away could be able to identify him at a later point of time. No special feature was also indicated by the witness. In our view, the evidence of PW 4 is totally unworthy of credit and, as such, cannot be relied upon for bringing home the charge.” (Emphasis supplied)

It was a 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 entitled to request the Court to draw an adverse

36 inference against the prosecution when the best

evidence has not been produced [See Mohanlal Shamji

Soni v. Union of India and another8. Clearly, the

accused was entitled to at least the benefit of doubt.

CRIMINAL APPEAL NO. 2006 OF 2017

23. The learned Counsel for A3 also adopted arguments

in Criminal Appeal No. 2006 of 2017 where he appeared

for A7, A11, A14, A16 and A17 about PW10 and PW11 and

other submissions.

CRIMINAL APPEAL NO. 403 OF 2010

APPEAL BY ACCUSED NO.4(A4)

24. The learned Counsel would submit that no value can

be given to the Test Identification Parade (TIP)

conducted insofar as A4 is concerned. He would point

out that PW10 and PW11 are proved to be familiar with

A4 by having seen him on a number of occasions prior to

the TIP. This would deprive the alleged identification

of any value it would have. MO6 is the Ford Escort Car,

8 1991 Supp (1) SCC 271

37 which is recovered from A4 on the basis of the

statement given under Section 27 of the Evidence Act.

The recovery is attacked by the learned Counsel on the

basis that it is planted evidence. He took us through

the deposition of PW25 to impugn the recovery.

According to PW67, he points out that car was parked

outside. He would complain that the courts have relied

on PW10 and PW11 as if they were reliable witnesses,

which they were not. He would also emphasise that being

accomplices, they should not only be reliable but their

evidence must stand the test of corroboration. He

points out that the prosecution has tried to build up

the case that the said witnesses had not approached the

Police out of fear for their lives and that of their

family members but he would point out that on a perusal

of their evidence, it would be clear that they were

involved with the matter right from the beginning and

nothing prevented them from approaching the law

enforcement authorities. Their evidence, therefore,

should not inspire the confidence of the court. He

38 would point out that PW10 and PW11 were in police

custody for about more than two months. They would have

bargained with the police and their testimony is

suspect. The TIP was held after 45 days on 24.05.2002.

He would point out contradiction between the testimony

of PW10 and PW11. In other words, he would point out

that leave alone corroboration from other evidence

available on record, there is no corroboration of

evidence of PW10 even from 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 A5 as in respect of A3. It is also contended

that PW67 was aware of the involvement 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

the appellant would address the following submissions.

He would submit that there are four circumstances used

39 against A6. It is first sought to be contended by the

prosecution that A6 was seen on 05.12.2001. Next, his

presence on 31.12.2001 at the factory, where the

deceased was allegedly done to death, is used against

him. Still further, the deposition of PW10 that he saw

him on 01.01.2002 and that he threatened PW10, are used

against him. He would also point out the contradiction

between PW10 and PW11, in this regard. MO8 is the white

colour Maruti Van recovered at 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

vehicle was used for abduction or transportation. He

would, in other words, question its very relevance to

secure conviction of his client. He would further point

out that PW24-Police Officer has in fact identified A8

as A6. In this regard, he drew our attention to

paragraph 147 of the Trial Court judgement. He further

submitted that PW12-the employee at the crematorium,

did not identify A6 though PW19 identified A6.

Identification by PW19 is unreliable as he did not

40 mention about physical features of A6. He would

complain that PW19 would have seen photographs in the

media, a complaint which is being echoed on behalf of

the other accused, also. Next, the circumstance used

against A6 is deposition of PW21 and PW35, Police Head

Constable and Constable, respectively. He would, in

fact, submit that even accepting their deposition, it

would prove nothing more than the fact A6 was there on

the public road on the midnight of 01.01.2002. It would

not connect A6 with the crime. He would further point

out that the deposition of PW35 would show that

contrary to the usual practice in the Beat Note, there

is nothing noted about A6 though he has deposed that

along with three others, A6 presence was noted. The

identification of A6 by the Police Officers is not

reliable, it is contended. It is pointed out that the

Police Officer would have visited the jail and also

been in the court premises where he would have seen A6.

Therefore, the identification of A6 by the Police

Officers loses all meaning.

41

27. He also relied on deposition of PW1 that the Reebok

Shoes did not belong to his father-the deceased. There

is no corroboration of the 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. PW10 and PW11, accomplices, were tutored by

the Police Officers considering the pressure on the

Investigating Officers consequent upon the fact that

the case attracted considerable publicity as a result

of the Habeas Corpus Petition being filed in the High

Court. He would submit that PW67-Investigating Officer,

after the arrest of A5 on 18.03.2002, was completely

aware of involvement of all the persons.

28. It is also the case of the appellant-A15 that no

reliance could be 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 one which was

worn by his father. It is also the contention that PW31

has not been able to identify the person who took away

allegedly the shoe from the factory.

42

29. Per contra, the learned Counsel appearing on behalf

of the State would begin by submitting that PW10 and

PW11 were not accomplices. Their evidence would,

therefore, not require corroboration. He tried to make

good this submission by pointing out that qua the

offence under Section 302 of the IPC, PW10 and PW11 had

no involvement and the mere fact that they were

familiar with the developments leading to the murder

and other acts of the accused, they could not be

treated as accomplices. He would point out, in fact,

that accused nos. 1 and 2, have been convicted under

Section 120B read with 302 of the IPC. He would draw

considerable support from the deposition of PW34. He

further submitted that A1 and A2 were the principal

conspirators. The other accused, who have been

convicted under Section 109 of the IPC, have aided and

connived, within the meaning of Section 109 of the IPC,

with A1 and A2. He would submit that the acquittal of

A12 would have no impact on the conviction of the

appellants. He would point out that this Court, in the

43 case of this nature, which is based on circumstantial

evidence, what is to be looked into is the cumulative

effect of all the circumstances put together. In regard

to any defect in charge, he drew our attention to

Section 460 of the CrPC and contended that there is no

incurable illegality involved in this case. He drew our

attention to the deposition of PW60. He referred us to

the recoveries which have led to relevant evidence

believed in by two courts, and what is more, a learned

Single Judge of this Court. He would further point out

to the deposition of PW19. He points out that both PW12

and PW19 had made statements under Section 164 of the

CrPC. Statement under Section 164 of the CrPC could be

used for the purpose of corroborating though it could

not be used as a substantive evidence by itself. He

also drew considerable support from deposition of PW32

read with PW33. The hand of A6 in the murder of a

public man is clearly made out, runs the argument. He

fairly does not dispute the contention of A6 in regard

to MOs 28 and 33. He assures the Court that the Court

44 can eschew the said items of evidence but he would

submit that even dehors the same, there is sufficient

material before the Court to confirm the conviction of

the appellants. Learned Counsel for A3, in reply, would

point out that in fact, even A1 and A2 have also been

convicted with the aid of Section 109 of the IPC. In

other words, it is his case that even A1 and A2 are not

the principal actors so that the other accused could be

convicted for abetting them. They were themselves

convicted on the basis that they abetted the crimes in

question. He further pointed out that PW10 and PW11

have been treated as accomplices by the High Court

contrary to what is sought to be espoused by the

learned Counsel for the State.

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

30. Section 120A of the IPC defines “criminal

conspiracy”, which reads as follows:

45

“120A. Definition of criminal conspiracy.— When two or more persons 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 agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation.—It is immaterial whether the illegal act is the

ultimate object of such agreement, or is merely incidental to that object.”

31. Section 141 of the IPC falls under Chapter VIII,

viz., offences against the public tranquillity. Section

141 defines unlawful assembly as assembly of five or

more persons, the common object of the persons being

any one of the five mentioned thereunder. It includes

the common object to commit any mischief or criminal

trespass or other offence. Section 142 of the IPC

declares that if a person, being aware of facts which

render an assembly an unlawful assembly, either

46 initially joins it or continues in it is a member of

such unlawful assembly.

32. Section 149 of the IPC declares the Principle of

Vicarious Criminal Liability. Upon an offence being

committed by any member of an unlawful assembly in

prosecution of the common object, every person, who at

the time of the offence being committed is a member of

such assembly is guilty of such offence. Equally, in

the second part of Section 149, the Law Giver has

provided that upon an offence being committed by any

member of the unlawful assembly which was such that

members of that assembly, viz., the unlawful assembly,

knew to be likely to be committed in prosecution of

that object, every member of the assembly, though he

may not have committed the offence, is rendered guilty

of the offence.

33. In Nanak Chand v. State of Punjab9, the Court had

to deal with a contention on behalf of the prosecution

that Section 149 of the IPC did not create any offence

at all and hence a separate charge, was not obligatory. 9 AIR 1955 SC 274

47 This Court, therefore, found it necessary to decide a

question whether Section 149 of the IPC creates a

specific offence. The Court held, inter alia, as

follows:

“6. … Under this section a person, who is a member of an unlawful assembly is made guilty of the offence committed by another member of the same assembly, in the circumstances mentioned in the section, although he had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly. Without the provisions of this section a member of an unlawful assembly could not have been made liable for the offence committed not by him but by another member of that assembly. Therefore when the accused are acquitted of riot and the charge for being members of an unlawful assembly fails, there can be no conviction of any one of them for an offence which he had not himself committed. …”

34. The Court, thereafter, went on to notice the

distinction between Sections 34 and 149 of the IPC.

Dealing with the argument that Section 149 of the IPC

cannot be understood as creating an offence because it

48 did not itself provide for the punishment, this Court

held as follows:

“7. … There is a clear distinction between the provisions of Sections 34 and 149 of the Indian Penal Code and the two sections are not to be confused. The principal element in Section 34 of the Indian Penal Code is the common intention to commit a crime. In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime. In such a situation Section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone. There is no question of common intention in Section 149 of the Indian Penal Code. An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and other members of the unlawful assembly to commit that offence provided the conditions laid down in the section are fulfilled. Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be committed in prosecution of the common object, every member of the unlawful assembly would be guilty of that offence, although there may have been no common intention and no participation by the other members in the actual commission of

49 that offence. In Barendra Kumar Ghosh v. Emperor [(1925) ILR LII Cal 197] Lord Sumner dealt with the argument that if Section 34 of the Indian Penal Code bore the meaning adopted by the Calcutta High Court, then Sections 114 and 149 of that Code would be otiose. In the opinion of Lord Sumner, however, Section 149 is certainly not otiose, for in any case it created a specific offence. It postulated an assembly of five or more persons having a common object, as named in Section 141 of the Indian Penal Code and then the commission of an offence by one member of it in prosecution of that object and he referred to Queen v. Sabid Ali [(1873) XX Weekly Reporter (Cr), p 5]. He pointed out that there was a difference between object and intention, for although the object may be common, the intentions of the several members of the unlawful assembly may differ and indeed may be similar only in respect that they are all unlawful, while the element of participation in action, which is the leading feature of Section 34, was replaced in Section 149 by membership of the assembly at the time of the committing of the offence. It was argued, however, that these observations of Lord Sumner were obiter dicta. Assuming though not conceding that may be so, the observations of a Judge of such eminence must carry weight particularly if the observations are in keeping with the provisions of the Indian Penal Code. It is, however, to be remembered that the observations of Lord Sumner did directly arise on the argument made before the Privy Council, the Privy Council reviewing

50 as a whole the provisions of Sections 34, 114 and 149 I.P.C.” (Emphasis supplied)

35. Further, this Court proceeded to hold that a person

charged with an offence under Section 149 of the IPC

cannot be convicted of the substantive offence without

there being a specific charge framed as required under

Section 233 of the CrPC, 1898. This Court held as

follows:

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

36. Section 107 falls in Chapter V of the IPC. It reads

as follows:

“107. Abetment of a thing.—A person abets the doing of a thing, who— (First) — Instigates any person to do that thing; or

51 (Secondly) —Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) — Intentionally aids, by any act or illegal omission, the doing of that thing.

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

Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation II.—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”

37. Section 108 of the IPC provides that a person abets

an offence who abets either the commission of an

52 offence or the commission of an act which would be an

offence if committed by a person capable by law of

committing an offence with the same intention or

knowledge as that of the abettor. The first Explanation

provides that abetment of an illegal omission of an act

may amount to an offence although the abettor may not

himself be bound to do that act. Explanation (2)

declares that it is not necessary to constitute

abetment that the act abetted should be committed or

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 the illustration(b) and it reads as

follows:

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

53 ‘A’ is guilty of instigating ‘B’ to commit murder.”

39. Explanation (3) declares that it is not necessary

that the person abetted should be capable by law of

committing an offence or that he should have the same

guilty intention or knowledge as that of the abettor or

any guilty intention or knowledge. The first

illustration is as follows:

“(a) ‘A’, with a guilty intention, abets a child or a lunatic to commit an act which would be an offence, if committed by a person capable by law of committing an offence, and having the same intention as ‘A’. Here ‘A’, whether the act be committed or not, is guilty of abetting an offence.”

40. Another illustration(d) is as follows:

“(d) ‘A’, intending to cause a 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’ takes the property out of Z’s possession, in good faith, believing it to be A’s property. ‘B’, acting under this misconception, does not take dishonestly,

54 and therefore does not commit theft. But ‘A’ is guilty of abetting theft, and is liable to the same punishment as if ‘B’ had committed theft.”

41. Thus, Explanation (3) constitutes an exception to

the main provisions of Section 108 of the IPC.

42. Abetment of an offence being an offence, the

abetment of such abetment is also an offence under

Explanation IV. Explanation V makes it clear that it is

not necessary to the commission of offence of abetment

by conspiracy that the abettor should concert the

offence with the person who commits and it is

sufficient if he engages in the conspiracy in pursuance

of which the offence is committed. The illustration

under Explanation V is as follows:

“’A’ concerts with ‘B’ a plan for poisoning ‘Z’. ‘A’ was to under the agreement administer the poison. ‘B’ then explains the plan to ‘C’ without taking the name of ‘A’. ‘C’ agrees to procure the poison and deliver it to ‘B’ for it being used in the manner explained. ‘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’ was murdered, ‘C’ has committed an offence

55 of abetment who is guilty for punishment for murder.” (Emphasis supplied)

43. Thus, abetment of a thing is defined in Section 107

of IPC and the concept of “abettor” is explained in

Section 108 of the IPC. Sections 107 and 108 of the IPC

must be read together to glean the intention of the Law

Giver. So read, abetment can happen in three situations

(a) It may happen when a person instigates another

person to do the thing which is abetted; (b) Secondly,

abetment takes place if a person engages with one or

more other person or persons in any conspiracy for

doing of that thing, if an act or illegal omission

takes place in pursuance of that conspiracy, and in

order to the doing of that thing. Finally, there is

abetment when a person intentionally aids, by an act or

omission, the doing of that act. At this juncture, we

may have to take a deeper look at the concept of

abetment by engaging in a conspiracy resulting in

abetment and conspiracy as provided in Section 120A of

the IPC.

56

44. In Pramatha Nath Talukdar v. Saroj Ranjan Sarkar10,

this Court spoke about the distinction between the

offence of abetment by conspiracy and the offence of

criminal conspiracy (Section 120A of IPC):

“16. … The gist of the offence of criminal conspiracy is in the agreement to do an illegal act or an act which is not illegal by illegal means. When the agreement is to commit an offence, the agreement itself becomes the offence of criminal conspiracy. Where, however, the agreement is to do an illegal act which is not an offence or an act which is not illegal by illegal means, some act besides the agreement is necessary. Therefore, the distinction between the offence of abetment by conspiracy and the offence of criminal conspiracy, so far as the agreement to commit an offence is concerned, lies in this. For abetment by conspiracy mere agreement is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for. But in the offence of criminal conspiracy the very agreement or plot is an act in itself and is the gist of the offence. Willes, J. observed in Mulcahy v. Queen [(1868) LR 3 HL 306 at 317]:

10 AIR 1962 SC 876

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

Put very briefly, the distinction between the offence of abetment under the second clause of Section 107 and that of criminal conspiracy under Section 120-A is this. In the former offence a mere combination of persons or agreement between them is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for;

in the latter offence the mere agreement is enough, if the agreement is to commit an offence.” (Emphasis supplied)

45. Section 109 of the IPC provided for the punishment

of abetment if the act abetted is committed and where

there is no express provision made for punishment. It

provides that where no express provision is made for

the punishment of the abetment, the punishment will be

58 the same as is that which is provided for the offence.

The Explanation provides as follows:

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

46. Explanation II to Section 108 of the IPC makes it

clear that the offence of abetment would be committed

irrespective of whether the act abetted is committed or

not or whether the effect which would constitute the

offence is caused or not. Illustrations(a) and (b) are

clear that the person who abets, as declared in law,

cannot extricate himself from criminal liability for

the offence of abetment on the ground that the act

which was abetted was not done or that the offence

which was actually abetted was not committed. Section

109 of the IPC contemplates, on the other hand, the

situation that there is abetment and the act abetted is

committed, and what is furthermore, it is committed as

a result of the abetment. Should these ingredients be

59 present and if there is no express provision under the

IPC for the punishment of the act of such abetment, the

person renders himself liable for being punished with

the punishment for that offence which stands committed

in consequence of the abetment by the accused.

47. In order that the act or offence, be committed

within the meaning of Section 109 of the IPC, in

consequence of the abetment, it must be as a

consequence of the instigation or in pursuance of the

conspiracy or with the aid which constitutes the

abetment. Explanation to Section 109 of the IPC must be

read in conjunction with Section 107 of the IPC which

creates the offence of abetting. As far as instigating

any person to do an act, it is relatable to the first

part of Section 107 which declares that abetment is

done when the person who abets instigates any person to

do that thing.

48. As far as conspiracy within the meaning of

Explanation to Section 109 of the IPC is concerned, it

deals with secondly under Section 107 of the IPC which

60 speaks about engaging of a person with one or more

other person or persons in any conspiracy for the doing

of that thing provided an act or illegal omission takes

place in pursuance of the conspiracy.

49. As far as the last part of the Explanation to

Section 109 of the IPC is concerned, which speaks about

an act or offence being committed in consequence of

abetment being committed with the aid which constitutes

abetment, it is relatable to thirdly under Section 107

of the IPC. Section 107 of the IPC under this head

requires intentional aiding by the act or illegal

omission. Instigation takes place in terms of

Explanation I to Section 107 of the IPC when

(i) a person by wilful representation; (ii) by wilful

concealment of a material fact which he is bound to

disclose, voluntarily causes or procures or attempts to

causes or procure a thing to be done and he would be

guilty of instigating the doing of that thing.

Explanation (2) to Section 107 declares that whoever,

either prior to or at the time of the commission of the

61 act, does anything in order to facilitate the

commission of that act and thereby facilitate its

commission, is said to aid the doing of that act. Thus,

anything done which facilitates the commission of the

criminal act and promotes the commission of the act,

would bring the person within the scope of abetment.

50. Explanation III to Section 108 also contemplates a

situation where the principal player meant to describe

the person who actually commits the act which is

abetted, would not be guilty of the offence such as a

child or a lunatic but the abettor, would remain guilty

of the offence of abetment of that offence and if it

attracts Section 109 of the IPC, would be punishable

for that offence under the appropriate provision. Also,

as we have noticed, under Explanation V to Section 108

of the IPC for the offence of abetment by conspiracy to

be committed, the principal player, meaning a person

who commits the act which results in the offence being

committed (as in the case of murder by poisoning) need

not be in league with the abettor. All that is required

62 is that the abettor also engages in the conspiracy

which must be understood as meaning participate in the

concert between two or more others even if he may not

have seen or known, by face or otherwise, one or more

persons who are privy to the conspiracy. Thus, based on

their involvement constituting abetment, a person or

any number of persons without even knowing the identity

of all the principal participants to the conspiracy,

can be prosecuted with the aid of Section 107 read with

Section 108 of the IPC.

51. In order to attract Section 109 of the IPC, the act

abetted must be committed in consequence of the

abetment. Sections 115 and 116 of the IPC deal with

punishments for abetment of offences when the offence

is not committed in consequence of the abetment and

where no express provision is made in the IPC for the

punishment of such abetment.

52. In Arjun Singh v. State of Himachal Pradesh11, this

Court held as follows:

11 AIR 2009 SC 1568

63 “11. … Law does not require instigation to be in a particular form or that it should only be in words. The instigation may be by conduct. Whether there was instigation or not is a question to be decided on the facts of each case.

It is not necessary in law for the prosecution to prove that the actual operative cause in the mind of the person abetting was instigation and nothing else, so long as there was instigation and the offence has been committed or the offence would have been committed if the person committing the act had the same knowledge and intention as the abettor. The instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. It is only if this condition is fulfilled that a person can be guilty of abetment by instigation. …”

(Emphasis supplied)

53. Thus, to sum-up, abetment, as defined is a

substantive offence. The punishment for it varies

according to different circumstances. If the act which

is abetted is done in pursuance to the abetment, the

punishment is graver, as can been seen from Section 109

of the IPC, as the punishment is for the offence which

is committed based on the abetment. The offence of

64 abetment is punishable even if the act which is abetted

is not committed. As noted, Sections 115 and 116

provide for punishment in such cases. There are several

other aspects relating to offences including Section

114 of the IPC which provides cumulative punishment for

the act abetted and also for the act done.

54. At the heart of the offence of abetment, however,

is the presence of any of the three requirements in

Section 107 of the IPC. The key and indispensable

elements under the law to constitute abetment is

instigation, conspiracy or the intentional aiding by

any act or illegal omission, the doing of the thing.

The law does not permit the abettor to escape

punishment for abetment even if the actual player who

commits the offence is not criminally liable for the

actual act which results in the commission of an

offence (See in this regard, the situation contemplated

in illustrations in Explanation III of Section 108 of

the IPC). Equally, there need not be meeting of minds

between all the persons involved in a conspiracy and it

65 is sufficient if a person is engaged in the conspiracy

following which the offence is committed (See

Explanation V to Section 108 of the IPC). This means

that it is not even necessary that the persons who are

engaged in the conspiracy, to even know the identity,

leave alone physically meet the other players. There

can be any number of persons depending on their guilty

mind and acts or omissions which may render them

liable.

55. In Noor Mohammad Mohd. Yusuf Momin v. State of

Maharashtra12, this Court had an occasion to deal with

Sections 34, 107 and 120B of the IPC and this is what

this Court lay down:

“7. So far as Section 34 IPC is concerned, it embodies the principle of joint liability in the doing of a criminal act, the essence of that liability being the existence of a common intention. Participation in the commission of the offence in furtherance of the common intention invites its application. Section 109 IPC on the other hand may be attracted even if the abettor is not present when

12 (1970) 1 SCC 696

66 the offence abetted is committed, provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by an act or illegal omission. Turning to the charge under Section 120-B IPC criminal conspiracy was made a substantive offence in 1913 by the introduction of Chapter V-A in the Penal Code, 1860. Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be done, an illegal act or an act which is not illegal, by illegal means. It differs from other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement. Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated by Section 107 IPC…...” (Emphasis supplied)

THE APPROACH OF THE TWO LEARNED JUDGES

THE APPROACH OF JUSTICE V. GOPALA GOWDA

67

56. The learned Judge proceeds to find that PWs 10 and

11 are accomplice witnesses. The two tests to test

accomplice evidence are referred to, viz., that the

evidence must be credible and, secondly, there must be

corroboration of accomplice evidence. The learned Judge

noted that PWs 10 and 11 have not been granted pardon

by any court but further notes that the mere fact that

pardon was not tendered, did not make the accomplice

cease to be an accomplice. It was further found that it

was a well-settled position of law that the evidence of

two accomplices cannot be used to corroborate with each

other as laid in R.V. Baskerville13. Support in this

regard was sought from precedent in India in the form

of judgment of this Court in Mohd. Husain Umar Kochra

Etc. v. K.S. Dalipsinghji and another Etc.14 wherein

this Court, inter alia, laid down that corroboration

must be from an independent source. One accomplice

cannot corroborate another. This position was noted to

be reiterated in a still later decision of this Court

13 1916 (2) KB 658

14 (1969) 3 SCC 429

68 in Chonampara Chellapan Etc. v. State of Kerala Etc.15.

Corroboration must be in regard to material particulars

or rather it must be in relation to the crime as well

as identity of the accused. Noting that the accused

before the Court were A3, A4 and A15, it was found

crucial that they were acquitted of the charge under

Section 120B of the IPC. They were found convicted for

the offence under Section 302 of the IPC read with

Section 109 of the IPC and Section 365 of the IPC read

with Section 109 of the IPC. Nothing on record was

found to show the direct involvement of the accused in

the abducting of the deceased or his murder. The Ford

Escort Car-MO12 recovered at the instance of PW10 did

not trace back its ownership to A4. Thereafter, it is

stated that the requirement of corroboration from

independent sources in material particulars, has not

been met in the instant case and made it impossible for

the accused to be convicted under Sections 302 and 364

of the IPC. PWs 10 and 11 were not witnesses to the

abduction of the deceased. PW3, who witnessed the 15 (1979) 4 SCC 312

69 abduction, it is stated, did not witness the accused at

the site of the abduction. Though, PW10 placed A3 and

A4 in the meeting on 05.12.2001, significance of the

same was lost in view of their acquittal under Section

120B of the IPC. PWs 10 and 11 have not placed any of

the three accused (A3, A4 and A15) at the site when the

body of the deceased was brought down in the factory.

A3, according to the deposition of the accomplices, was

found staying downstairs while PW11, who went upstairs,

actually saw the deceased tied to chains in the room

where he was kept. PW11 only saw A5 at the site on the

night of 30.12.2001 carrying a tiffin parcel. The death

certificate of the deceased issued by PW32, which PW33

has stated was got at the instance of A3, was found,

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 that PW31-a worker in

the factory, has stated that she could not remember the

person who came to get it as there is lapse of more

70 than two years. Therefore, PW31 cannot be used against

A15. PWs 1 and 2 in their testimony (the son and

driver, respectively, of the deceased) stated that the

Reebok Shoes did not belong to the deceased. Evidence

of PWs 10 and 11 was not found reliable. Finding the

accused not guilty under Section 120B of the IPC, the

learned Judge noted that it was the duty of the Trial

Court to establish the involvement of each of the

accused persons individually for each offence for which

they have been charged. Reference was made to Section

107 of the IPC, and thereafter, to the Judgment of this

Court in Kehar Singh and others v. State (Delhi

Administration)16 that something more than a mere

conspiracy, viz., some act or illegal omission in

pursuance of the conspiracy, is required to be

established for abetment by conspiracy. Once a charge

under Section 120B of the IPC fails, what was needed to

convict the appellants was the happening of some overt

act on the part of the appellants. The learned Judge

noted that there was no evidence except the testimony 16 (1988) 3 SCC 609

71 of PWs 10 and 11 which linked the appellants to the

crime. The charge under Section 109 of the IPC could

not be sustained.

THE APPROACH OF JUSTICE ARUN MISHRA

57. The learned Judge divided the circumstances into

fifteen circumstances. They are as follows:

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

11;

(ii) Prior relationship of accused;

(iii) Selection of premises where M.K. Balan was

kept/and other arrangements;

(iv) Abduction of deceased M.K. Balan on

30.12.2001 in white omni van;

(v) Taking of M.K. Balan to factory

premises/meeting dated 30.12.2001 at the

residence of A9;

(vi) Commission of offence under section 302

IPC;

72 (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 164 CrPC.;

(xv) Cell phones/cassettes/forensic evidence.

58. The learned Judge proceeded to discuss the evidence

of PWs 10 and 11 elaborately. Thereafter, the prior

relationship between the accused came to be discussed.

The circumstance relating to selection of premises

where the deceased was kept and other arrangements as

also “abduction of the deceased” was discussed. The

73 learned Judge referred to the deposition of PW1-son of

the deceased. He also referred to evidence of PW3 and,

at paragraph 20, it stated that PW3 has clearly stated

that the former MLA was abducted at 05.30 A.M..

[Actually PW3 has stated that a person was put inside a

van by three persons]. Thereafter, motorcycle followed

the said van. That his friend Selvam also came there.

PW13 has also stated that he has seen the deceased

taking morning walk at about 05.45 A.M.. The learned

Judge finds that it is apparent that the deceased in

this case was abducted from M.R.C. Nagar. After

abduction, the evidence discloses meeting at the

residence of A9. He further finds that on 30.12.2001,

PWs 10 and 11 have stated about A3 stating that the

abduction of the deceased has been made and money

remains to be collected. Thereafter, the learned Judge

discusses evidence relating 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 of

PW56 also. In regard to the commission of offence under

74 Section 302 of the IPC, it is found that abduction is

proved and the deceased was murdered soon after

abduction in two days and the body cremated under the

name of a fictitious person. The learned Judge finds

that in the aforesaid circumstances, it is for the

accused person to satisfy the Court how the abducted

victim was dealt with by them. Undoubtedly, he noted

that there is no direct evidence with respect to the

murder by putting nylon rope around the neck and

tightening it but it can be inferred, in the

circumstances, that they committed the offence of

murder also. There is evidence which clearly indicated

that the dead body of the deceased was taken from the

factory. Thereafter, the Court discusses again evidence

of PWs 10, 11, 21 and 35 in regard to the removal of

the dead body from the factory premises. Next, the

learned Judge discusses the evidence relating to the

cremation of the dead body. The evidence referred to

include PWs19 and 36 apart from noting that PW12 has

resiled from part of his statement. Next, the learned

75 Judge elaborately discusses the evidence relating to

the procuring of the death certificate by A3. The

confessions and recoveries by the accused were next

discussed. The effect of acquittal under Section 120B

of the IPC next engaged the learned Judge. It was found

that mere acquittal under Section 120B of the IPC when

the charge under Section 109 of the IPC was found

established, was of no avail to them. Charges, which

were framed, were specific. Ingredients of Section 109

of the IPC were there and have been rightly found to be

present by both the courts below. Section 120B of the

IPC was found established against accused A1 and A2 and

other charges against the accused appellants. Sections

120B and 109 of the IPC were found to be distinct

offences. He referred to the judgment of this Court in

Ranganayaki v. State by Inspector of Police17, which,

inter alia, held that for an offence under Section 120B

of the IPC, a charge under Section 109 of the IPC was

unnecessary and inappropriate. The commission of

offence under Section 109 of the IPC was found 17 (2004) 12 SCC 521

76 established along with other offences. The acquittal

under Section 120B of the IPC was found not to

adversely impinge upon the ingredients of Section 109

of the IPC. The evidence of PWs 10 and 11, even taken

as accomplices, was found corroborated by overwhelming

evidence on record on each and every aspect. Regarding

holding of TI/Recording of Statement 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

cell phone/cassette/forensic evidence. Cassettes were

recovered with suitcase-MO2 from A2 which was supported

by PW43. Regarding the contention that no value is to

be attached to the recovery of the Ford Car at the

instance of A4 based on ownership, it was found that

ownership was irrelevant. PW10 may have purchased the

car in the name of Shri Ranjit Kumar. The evidence

disclosed that the car in the possession of PW10 was

given by him to the accused. Total six cars were used

in the offence including the Ford Escort Car and one

motorcycle. As regards the recovery of the remains from

77 the cremation ground not being proved to 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 no value. This broadly is

the basis for the learned Judge to uphold the

conviction.

ACCOMPLICE EVIDENCE

59. Section 133 of the Evidence Act declares that an

accomplice is a competent witness and further that a

conviction based on the uncorroborated testimony of an

accomplice is not illegal only on account of it being

so. Section 133 reads as follows:

“133. Accomplice.- An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”

60. It is apposite to notice Section 114 of the

Evidence Act, Illustration ‘b’, the Court may presume:

78

“(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars.”

61. Thus, there appears to be a contradiction between

these provisions. The matter is no longer res integra.

We may notice the following statement of the law

contained in an early judgment of this Court reported

in Sarwan Singh Rattan Singh v. State of Punjab18:

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

It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not 18 AIR 1957 (SC) 637

79 afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true.

But it must never be forgotten that before the court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered.

In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. 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 Haroom Haji Abdulla v. State of Maharashtra19:

“8. The law as to accomplice evidence is well settled. The Evidence Act in 19 AIR (1968) SC 832

80 Section 133 provides that an accomplice is a competent witness against an accused person and that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The effect of this provision is that the court trying an accused may legally convict him on the single evidence, of an accomplice. To this there is a rider in Illustration (b) to Section 114 of the Act which provides that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. This cautionary provision incorporates a rule of prudence because an accomplice, who betrays his associates, is not a fair witness and it is possible that he may, to please the prosecution, weave false details into those which are true and his whole story appearing true, there may be no means at hand to sever the false from that which is true. It is for this reason that courts, before they act on accomplice evidence, insist on corroboration in material respects as to the offence itself and also implicating in some satisfactory way, however small, each accused named by the accomplice. In this way the commission of the offence is confirmed by some competent evidence other than the single or unconfirmed testimony of the accomplice and the inclusion by the accomplice of an innocent person is defeated. This rule of caution or prudence has become so ingrained in the consideration of accomplice evidence as to have almost the standing of a rule of law.”

(Emphasis supplied)

81

63. The dichotomy between the mandate of Section 133

and illustration (b) to Section 114, of the Evidence

Act has been explained as follows in Sheshanna Bhumanna

Yadav v. State of Maharashtra20:

“12. The law with regard to appreciation of approver's evidence is based on the effect of Sections 133 and 114, illustration (b) of the Evidence Act, namely, that an accomplice is competent to depose but as a rule of caution it will be unsafe to convict upon his testimony alone. The warning of the danger of convicting on uncorroborated evidence is therefore given when the evidence is that of an accomplice. The primary meaning of accomplice is any party to the crime charged and someone who aids and abets the commission of crime. The nature of corroboration is that it is confirmatory evidence and it may consist of the evidence of second witness or of circumstances like the conduct of the person against whom it is required.

Corroboration must connect or tend to connect the accused with the crime. When it is said that the corroborative evidence must implicate the accused in material particulars it means that it is not enough that a piece of evidence tends to confirm 20 AIR (1970) SC 1330

82 the truth of a part of the testimony to be corroborated. That evidence must confirm that part of the testimony which suggests that the crime was committed by the accused. If a witness says that the accused and he stole the sheep and he put the skins in a certain place, the discovery of the skins in that place would not corroborate the evidence of the witness as against the accused. But if the skins were found in the accused's house, this would corroborate because it would tend to confirm the statement that the accused had some hand in the theft.” (Emphasis supplied)

64. We may finally advert to a recent pronouncement of

this Court in K. Hashim v. State of Tamil Nadu21:

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

“Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case; it would be merely confirmatory of other and independent testimony.” (Baskerville case [(1916)

21 (2005) 1 SCC 237

83 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 additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it.

40. Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material parti.cular the testimony of the accomplice or complainant that the accused committed the crime. This does not mean that the corroboration as to identification must extend to all the circumstances necessary to identify the accused with the offence.

Again, all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness's story that the accused was the one, or among those, who committed the offence. The reason for this part of the rule is that:

“A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all…. It would not

84 at all tend to show that the party-

accused participated in it.”

41. Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal. I say this because it was contended that the mother in this case was not an independent source.

42. Fourthly, the corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime. Were it otherwise, “many crimes which are usually committed between accomplices in secret, such as incest, offences with females” (or unnatural 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

which emerge on a conspectus of the aforesaid

decisions, we would hold as follows:

85

The combined result of Sections 133 read with

illustration (b) to Section 114 of Evidence Act is

that the Courts have evolved, as a rule of

prudence, the requirement that it would be unsafe

to convict an accused solely based on

uncorroborated testimony of an accomplice. The

corroboration must be in relation to the material

particulars of the testimony of an accomplice. It

is clear that an accomplice would be familiar with

the general outline of the crime as he would be one

who has participated in the same and therefore,

indeed, be familiar with the matter in general

terms. The connecting link between a particular

accused and the crime, is where corroboration of

the testimony of an accomplice would assume crucial

significance. The evidence of an accomplice must

point to the involvement of a particular accused.

It would, no doubt, be sufficient, if his testimony

in conjunction with other relevant evidence

86 unmistakably makes out the case for convicting an

accused.

66. As laid down by this Court, every material

circumstance against the accused need not be

independently confirmed. Corroboration must be such

that it renders the testimony of the approver

believable in the facts and circumstances of each case.

The testimony of one accomplice cannot be, ordinarily,

be supported by the testimony of another approver. We

have used the word ‘ordinarily’ inspired by the

statement of the law in paragraph-4 in K. Hashim

(supra) wherein in this Court, did contemplate special

and extraordinary cases where the principle embedded in

Section 133 would literally apply. In other words, in

the common run of cases, the rule of prudence which has

evolved into a principle of law is that an accomplice,

to be believed, he must be corroborated in material

particulars of his testimony. The evidence which is

used to corroborate an accomplice need not be a direct

87 evidence and can be in the form of circumstantial

evidence.

ACCOMPLICE AND APPROVER

67. An accomplice is in many cases, pardoned and he

becomes what is known as an approver. An elaborate

procedure for making a person an approver, has been set

out in Section 306 of the CrPC. Briefly, the person is

proposed as an approver. The exercise is undertaken

before the competent Magistrate. His evidence is

recorded. He receives pardon in exchange for the

undertaking that he will give an unvarnished version of

the events in which he is a participant in the crime.

He would expose himself to proceedings under Section

308 of the CrPC. Section 308 contemplates that if such

person has not complied with the condition on which the

tender of pardon was given either by wilfully

concealing anything essential or by giving false

evidence, he can be put on trial for the offence in

respect to which the pardon was so tendered or for any

88 other offence of which he appears to be a guilty in

connection with the same matters. This is besides the

liability to be proceeded against for the offence of

perjury. Sub-section (2) of Section 308 declares that

any statement which is given by the person accepting

the tender of pardon and recorded under Section 164 and

Section 306 can be used against him as evidence in the

trial under Section 308(1) of the CrPC. An accomplice

or an approver are competent witnesses. An approver is

an accomplice, who has received pardon within the

meaning of Section 306. We would hold, that as between

an accomplice and an approver, the latter would be more

beholden to the version he has given having regard to

the adverse consequences which await him as spelt out

in Section 308 of the CrPC. as explained by us. It is

also settled principle that the competency of an

accomplice is not impaired, though, he could have been

tried jointly with the accused and instead of so being

tried, he has been made a witness for the prosecution.

89 See the judgment of this Court reported in Chandran and

Others v. State of Kerala22.

PURPORT AND VALUE OF SECTION 164 OF CRPC

68. Section 164 of the CrPC enables the recording of

the statement or confession before the Magistrate.

Is such statement substantive evidence? What is the

purpose of recording the statement or confession under

Section 164? What would be the position if the person

giving the statement resiles from the same completely

when he is examined as a witness? These questions are

not res integra. Ordinarily, the prosecution which is

conducted through the State and the police machinery

would have custody of the person. Though, Section 164

does provide for safeguards to ensure that the

statement or a confession is a voluntary affair it may

turn out to be otherwise. We may advert to statements

of law enunciated by this Court over time.

22 (2011) 5 SCC 161

90

69. As to the importance of the evidence of the

statement recorded under Section 164 and as to whether

it constitutes substantial evidence, we may only to

advert to the following judgment, i.e., in George and

others v. State of Kerala and another23:

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

70. What is the object of recording the statement,

ordinarily of witnesses under Section 164 has been

expounded by this Court in R. Shaji v. State of

Kerala24:

“15. So far as the statement of witnesses recorded under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from

23 AIR 1998 SC 1376

24 AIR 2013 SC 651

91 prosecution by the witness under Section

164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in Court should be discarded, is not at all warranted.

(Vide: Jogendra Nahak & Ors. V. State of Orissa & Ors., AIR 1999 SC 2565: (1999 AIR SCW 2736); and Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. & Ors., AIR 2000 SC 2901) : (2000 Air SCW 3150).

16. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C., can be relied upon for the purpose of corroborating statements made by witnesses in the Committal Court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence.”

71. Thus, in a case where a witness, in his statement

under Section 164 of the CrPC, makes culpability of the

accused beyond doubt but when he is put on the witness

stand in the trial, he does a complete somersault, as

the statement under Section 164 is not substantial

evidence then what would be the position? The

substantive evidence is the evidence rendered in the

Court. Should there be no other evidence against the

92 accused, it would be impermissible to convict the

accused on the basis of the statement under Section

164.

CONTOURS OF JURISDICTION IN APPEAL BY SPECIAL LEAVE

72. Before we embark upon a consideration of the

contentions, we think it is necessary to remind

ourselves of the contours of this Court’s jurisdiction

in an appeal generated by Special Leave under Article

136 of the Constitution of India. This question, far

from being res integra, is the subject matter of a

large number of decisions of this Court. We would only

advert to one out of many decisions, rendered by one of

us (K.M. Joseph, J.), in Jagjit Singh v. State of

Punjab25. Therein, the Court noted the principles laid

down by this Court in Dalbir Kaur v. State of Punjab26

wherein this Court culled out the principles in

paragraph-8 as follows:

25 (2018) 10 SCC 593

26 (1976) 4 SCC 158

93 “8. Thus the principles governing interference by this Court in a criminal appeal by special leave may be summarised as follows:

“(1) that this Court would not interfere with the concurrent finding of fact based on pure appreciation of evidence even if it were to take a different view on the evidence;

(2) that the Court will not normally enter into a reappraisement or review of the evidence, unless the assessment of the High Court is vitiated by an error of law or procedure or is based on error of record, misreading of evidence or is inconsistent with the evidence, for instance, where the ocular evidence is totally inconsistent with the medical evidence and so on;

(3) that the Court would not enter into credibility of the evidence with a view to substitute its own opinion for that of the High Court;

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

(5) this Court might also interfere where on the proved facts wrong inferences of law have been drawn or where the conclusions of the High Court

94 are manifestly perverse and based on no evidence.”

It is very difficult to lay down a rule of universal application, but the principles mentioned above and those adumbrated in the authorities of this Court cited supra provide sufficient guidelines for this Court to decide criminal appeals by special leave. Thus in a criminal appeal by special leave, this Court at the hearing examines the evidence and the judgment of the High Court with the limited purpose of determining whether or not the High Court has followed the principles enunciated above. Where the Court finds that the High Court has committed no violation of the various principles laid down by this Court and has made a correct approach and has not ignored or overlooked striking features in the evidence which demolish the prosecution case, the findings of fact arrived at by the High Court on an appreciation of the evidence in the circumstances of the case would not be disturbed.”

A LOOK AT THE OFFENCES INVOLVED

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

“201. Causing disappearance of evidence of offence, or giving false information to screen offender.—Whoever, knowing or having reason to believe that an offence

95 has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the 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 to illegal act.— Whoever wrongfully confines any person for the purpose of extorting from the person confined, or from any person interested in the person confined, any property or valuable security or of constraining the person confined or any person interested in such person to do anything illegal or to give any information which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.”

75. Section 364 of the IPC, inter alia, deals with

abducting in order to murder. It reads as follows:

“364. Kidnapping or abducting in order to murder.—Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be

96 punished with 1[imprisonment for life] or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”

76. The offence of abduction is described in

Section 362 of the IPC and it reads as follows:

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

It is to be distinguished from kidnapping which is

of two kinds as stated in Section 359 of the IPC, viz.,

kidnapping from India and kidnapping from lawful

guardianship. Both kidnapping and abducting, are

referred to 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 wrongfully to confine person. —Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to

97 seven years, and shall also be liable to fine.”

78. Section 302 of the IPC, no doubt, deals with the

offence of murder. Lastly, Section 387 of the IPC is a

heightened, a more serious form of offence of extortion

and it reads as follows:

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

79. It is clear that kidnapping differs from

abduction. Kidnapping is of two kinds. Kidnapping from

India involves taking a person against his consent or

consent of legally authorised person out of India

(Section 360). Kidnapping from lawful custody is

occasioned if a male below 16 years or female below 18

years or person of unsound mind is taken out of custody

of lawful guardian without his consent (Section 361).

98 Abduction, as defined in Section 362 of the IPC, occurs

when by force or deceitful means, a person is induced

to go from any place. In this case, under Sections 364

and 365, though, it could be kidnapping and abduction,

what is involved is abduction.

80. Section 364 of the IPC, more graver than Section

365 of the IPC, occurs when abduction, inter alia, is

done with the intention to commit murder or that he is

so disposed of so as to put the abducted person in

danger of being murdered. Section 365 of the IPC is

attracted when the abduction takes place to cause the

abducted person to be secretly and wrongfully confined.

81. It is true that in a given case, a person may be

abducted to be secretly and wrongfully confined and

also to commit murder. Such a situation 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 Section 120A of the IPC or

99 Section 109 of the IPC (abetting). Also, principle of

vicarious liability, under Section 34 of the IPC or a

charge under Section 149 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 is Director of Mahilapur Hindu

Saswatha Nidhi Limited for a period of ten

years. He used to go walking in the morning as

he was suffering from diabetes. He used to

leave the house at 05.30 A.M. in the morning

for walking in MRC Nagar near Ayyapan Temple

and return home at about 07.30 A.M.. He also

used to go for walking in the morning along

with one Ramesh residing near their house. On

30.12.2001, his father went for walking at

about 05.30 A.M.. Normally, his father used to

100 wear t-shirt, black track pant and black shoes.

The shoes were of one Reebok company. He did

not return home on 30.12.2001. He went in

search of his father. He contacted his friends.

Then, he went and lodged a complaint marked as

Exhibit PSEI. In cross-examination, PW1 deposed

that he did not state that his father used to

walk by using the Reebok shoes. The shirt and

the pant were not shown to him by the Crime

Branch who investigated him. The Police asked

him to remove certain 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 the father was in Tirumangalam

Police Station. Then, he went to Tirumangalam

Police. He was told that he was not there. He

speaks about learning that his father was kept

in the Police Station and, sensing danger, he

filed a Habeas Corpus Petition. In the

101 complaint, he has averred that when his father

went for walking, he was illegally detained by

the Police for procuring certain statements

from him. He has read the Nakeeran Journal of

05.03.2002. He says that he has stated that the

arrest of the A3 and A5 was mere eyewash. On

30.12.2001, when his father went for walking

only his mother had seen him. The shoes worn by

his father was bought from the Mount Road

Vasant Complex Reebok Company. Then he says

that the size of shoes was told by him to the

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 hostile and he

was cross-examined. On 30.12.2001, his father

had gone for walking and had not returned till

today. He has not contacted them through letter

or phone. He has not challenged the dismissal

of Habeas Corpus petition. The age of his

102 father is disclosed as 52 years on 30.12.2001.

His father did not fight with any private

person and only fought with political

adversaries. To the question, whether the

Police had given him any audio cassette

containing the voice of his father and played

it before his mother and brother, he answers in

the affirmative. He says there was no dispute

between his father and A3 and other accused. In

answer to the question, whether the persons of

ADMK had any grudge against his father for

changing his party to DMK, he said, yes, there

were serious disputes regarding this. He still

believed that his father was alive. The

prosecution conducted re-examination of PW1. He

states that when the CBCID examined him on

06.04.2002, he has not stated that the voice in

the audio cassette was of his father.

Suggestion that he was purposefully deposing in

favour of the accused, was denied.

103

1. PW2-Ramesh deposes that he is a car driver by

profession. He knew the deceased. He used to go to the

house at 08.45 A.M. or 09.00 A.M.. He speaks about

taking the deceased to the company of which he was the

Director. He speaks about coming at about 09.00 A.M. on

30th and the wife of the deceased informed him that her

husband has not returned home after he had gone for

walking. He says, to his knowledge, he did not know

about the fact that deceased went for walking on that

day. After 29.12.2001, he has not seen the deceased.

2. PW3 is another key witness produced by the

prosecution to prove the aspect of abduction. He is a

native of Sri Lanka. He came to Chennai in 1991. In

2001, he used to practice wrestling. He would do

skipping and running along with others at MRC Nagar.

His wrestling master is Selvaraj. On 30.12.2001, at

about 05.30 A.M., as usual, he started to run. At that

time, at a distance of about 75 meters, he saw three

persons forcing a person to get into a van. Thereafter,

all of them went in the same van. It was an Omni Van. A

104 motorcycle followed that van. Thereafter, his friend

Selvam came there. He told this to him. He told

Selvaraj Master. Selvaraj Master told him “why should

we bother about others.” He has stood by his statement

in the cross-examination. He, no doubt, inter alia says

that in December, the sunrise will be late and that

05.30 A.M. will be dark. He saw the incident at a

distance of 75 meters as there was street light. No

doubt, he says that during Police investigation, he did

not mention about the glow of street light. He did not

lodge any complaint in the Police Station about the

incident.

3. The next witness, who is produced to prove

abduction, is PW13. He states as follows:

His brother is working in the Police

Department. From 1999, he has diabetes. He goes

for walk at MRC Nagar every day at morning

05.30 A.M.. On 30.12.2001, at 05.45 A.M. in the

morning, when he was walking in the MRC Nagar,

Kasturi Estate, the deceased came opposite to

105 him. He was wearing bright shoes, sandal colour

t-shirt and dark pant. He crossed him. He is

shown MO14-photograph and he identified the

deceased. In cross-examination, he says that he

saw in the newspaper that the deceased was not

found but he did not see the TV.

It is, no doubt, true that Justice Arun

Mishra has found that 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 the deceased who was

abducted. He has not stated that three persons,

who pushed the deceased into the van were from

amongst the accused in the case.

4. However, reading the evidence of PWs 1, 2, 3 and

13, the following is established. The deceased used to

go for morning walk. He was indeed sighted by PW13 who

also used to go for morning walk. PW3 has indeed

106 witnessed a person being pushed into Maruti Omni Van by

three persons and the Van going away followed by the

motorcycle.

5. These facts are established. The evidence of PW10

and PW11 is to be seen next in this regard. PW10 has,

inter alia, stated that first and second accused were

there at the house of A9 on 30.12.2001. Both of them

told A3 that they have brought the MLA [M.K. Balan

(deceased)] and only money had to be collected from

him. PW11 has stated that on 30.12.2001, he saw three

cars at the factory led by a Tata Sumo (recovered at

the instance of A9), a 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, A11, A16 and A17 brought the deceased

out of the Ford Car. This takes place within hours of

abduction on the same day. PW11 also speaks of three

persons coming out of the Zen Car. PW10 also says that

on 31.12.2001, he found that the deceased was tied-up

with chain and his eyes were covered with a cloth and

107 he had been made to sit on a green steel cot provided

by them already. He was wearing black pant and sandal

colour t-shirt. He has deposed 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 his family members if he discloses anything about

the matter. He further stated that “we had kidnapped

ex-MLA Balan itself, you are nothing to me”. Unless

PW10 and PW11, PW3 and PW13 are disbelieved, the

conclusion is inevitable that the deceased was indeed

abducted. The trial court finds that no one else was

kidnapped on the same day. The Trial Court finds that

A3, A4 to A8, A10, A11 and A14 to A17 kidnapped the

deceased (A10 stands acquitted by the High Court).

THE CIRCUMSTANCES RELATING TO OBTAINING OF FALSE DEATH CERTIFICATE

6. PW32-a Medical Practitioner has proved Exhibit-

P27-Death Certificate. He has deposed that PW33-

Kamaraj, who was working in the Government General

Hospital, Chennai and acquainted with him for fifteen

108 years, came to him. He deposed that PW33 told that one

person known to him, viz., Rajamani Chettiar was 61

years and poor, died on 01.01.2002 at 06.00 P.M. due to

cardiac arrest. There was no body to cremate him and he

alone 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 was with him

(deceased) and PW33 has to do everything and he did not

have time. Believing what he stated to be true, PW32

says that he issued P27-death certificate without

seeing the dead body. No doubt, PW32 has deposed in

cross-examination that PW33 came to his house and

stated that his younger paternal uncle working as a

watchman in the company 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,

it was shown that it was issued on 01.01.2002.

7. PW33 states, inter alia, as follows:

109

He knew A3 for the last five years. He

corroborates statement of PW32 that they were

known to each other for fifteen years. On

01.01.2002, he was lying sick in his house. One

Samikannu-A13 came and told him that he was

called by A3. He was taken by Samikannu to the

house of A3. A3 told him that one watchman died

in Kollathur. PW33 was asked whether a vehicle

could be arranged. He tried in vain. He was

given Rs.50/- by A3 on noting that he had

reached the next day by auto. A3 told him that

one Rajamani Chettiar expired and asked him to

get a certificate. PW33 told about PW32 being

known to him for the last fifteen years. He

went to his place by auto. PW32 was there and

he told him that a watchman in Kollathur

Company had died. PW32 believed PW33 and gave

it in writing in a letterhead. He gave it to

A3. He identifies P27 as the certificate. He

also identifies A3 and A13 (Samikannu). He

110 states that the certificate is dated 01.01.2002

as he had asked so. He says that he is giving

the deposition like this because he will lose

his job if he does not do so. He did not

identify A13 to the Police or the Magistrate in

the TI Parade. He also says, inter alia, that

it is false to say that accused-Samipannu did

not call him or take him to A3. He also says it

is not correct to state that he is giving false

deposition in the fear of losing his job. We

see no reason to take a different view. The

irresistible inference would be as follows:

A3 engaged A13, and at the behest of

A3, a certificate is issued by PW32-

medical practitioner certifying that one

Rajamani Chettiar had passed away on

01.01.2002.

8. Now, the next question to be decided would be

whether such a person as Rajamani Chettiar had indeed

passed away and whether he was residing at the place

111 reported? PW38 has deposed that no person, as shown in

the Certificate, died. Then, PW36-Office Assistant In-

Charge also supported the prosecution version. It is to

be noted that going by the evidence of PW32 and PW33,

A3 wanted such a certificate. The evidence of PW19 does

support the prosecution case though he may not have

identified the ‘8’ persons who came. The Trial Court,

noted that he had identified them in the Test

Identification Parade. It is clear as daylight that the

person cremated on 01.01.2002 by PW19 and PW12 late in

night was the deceased under a fake name though.

THE EVIDENCE RELATING TO VEHICLES USED

THE VEHICLES RECOVERED

9. The evidence relating to vehicles used is as

follows:

i. M09 is van bearing No. TNA 7484. A5 made a

statement to the Police. PW30 has spoken about

the vehicle being given to A9 and PW44 is a

witness to the seizure. It is the vehicle which

is used in the abduction of the deceased.

112 ii. The next vehicle is TN02P343. This is

marked though PW10 as MO8 and is another Van.

PW10 states that on 24.12.2001, A9 told him

that A3 wanted a Maruti Van. He speaks about

complaining about not receiving rent for the

Ford Escort-MO6 and non-return of Motorcycle-

MO10. He further says that A9 called later and

said that he had arranged for vehicle of

Kennedy and brother-in-law of PW30, Jayprakash

(MO9) and sent it to A3. PW24-Sub-Inspector

deposes to witnessing confessional statement of

A6 leading to the recovery 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 MO8 on

24.12.2001. PW10 called him on cell-phone and

asked for Van for two days. It was given to

him. It was returned back in two days. Apart

from the fact that PW24 identifies A8 as A6,

the connection with the offences is not clear.

113 No doubt, PW37 was declared hostile and cross-

examined by the State.

iii. A3 gave P20 statement leading to the

recovery of MO12-Maruti Zen having No. TN9-Z-

99. PW16 has been examined to establish that

MO12 was given by him to A3 in November, 2001

and it was returned back only in February,

2002. This is the vehicle which is used on

30.03.2001, the crucial day, along with two

other vehicles. The Trial Court has also, no

doubt, relied on the evidence of PWs 10 and 11.

iv. A9 gave P37 statement. PW41 is a witness.

Pursuant to the same, MO7-Maruti Omni Van,

having golden colour and bearing No. TN22B8853,

was recovered. PW18 is acquainted with A9 since

childhood. He has deposed to giving MO7-golden

colour Maruti Omni van to A9 four times. He has

deposed that the last time he gave was on

01.01.2002 and it was not returned on the same

day, as was the case on the earlier occasions,

114 but was returned only on 02.01.2002. It is this

van which has been used to take the body of the

deceased away after the murder at the factory

building. The evidence of PW11 and, more

appropriately PW35-Police Constable, clinches

the issue as to its use.

v. The statement of A9 has also led to the

recovery of a Tata Sumo and it stood marked as

MO13. The number of the vehicle is TN04D9657.

PW15 is the Dealer in cars, inter alia. He has

deposed that he knew A9 for 30 years. He

further deposed that A9 went to him for buying

the Tata Sumo and gave advance of Rs.15,000/-

in September, 2001 and sold his Maruti Zen and

took the Sumo. Later, he came, he left the Tata

Sumo saying that it was not auspicious and took

away the car. The Tata Sumo makes its

appearance along with the Ford Escort on

30.12.2001. The link is undeniable.

115 vi. A4 has given statement leading to the

recovery of the Ford Escort White Car having

No. TN-10F-5555. It was marked as MO6. It was

entrusted to A3 through A9 by PW10 for the car.

On the basis of statement given by A4, the said

car came to be recovered. We notice that

Justice Arun Mishra has correctly rejected the

contention that since the car stood registered

in the name of another person, and therefore,

it could not be relied upon. It is to be

noticed that the connection of the car with the

crime is that the deceased is brought to the

factory in the Ford Escort car, according to

evidence (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 the deceased

and kept in the side pocket of the motorcycle,

were recovered).

116 The shoe was marked as MO1. More about the

motorcycle, will be discussed later on.

This shoe has been marked as MO1. There is the

evidence of Pw48. More about this vehicle will

follow in discussion relating to A15.

WHAT THE ACCOMPLICES SAID

10. We think it is appropriate that we should consider

the evidence of PWs 10 and 11. We have already set out

the principles which govern the appreciation of

evidence of accomplices. Proceeding on the basis that

PWs 10 and 11 are accomplices (though the Counsel for

the State has a case that PWs 10 and 11 cannot be

considered as accomplices insofar as it related to

offence under Section 302 of the IPC), we notice the

following.

11. PW10 was examined on 30.10.2003. We are referring

to the date of his deposition only to bear in mind that

this is not a case where the witness is examined after

117 a long gap from the date of crime as the murder is

alleged to have taken place on 01.01.2002.

12. Let us examine what he has stated. He was doing

rice business in Tambaram from 1984 to 1995. From 1995,

he ran a business under the name and style of Valluvar

Travels from 1985 with Uday Kumar (the ninth accused),

his friend. In 1998, he started a wine shop in which

PW11 was also a partner. It was in 1999, the ninth

accused informed that Krishna Pandi-PW34 was running a

vermicelli company in Mudichur. He was facing a loss.

PWs 10 and 11 invested in the venture of Krishna Pandi.

There is reference to the relationship between PW10 and

the ninth accused turning sour. PW10 purchased a Ford

Escort car though in the name of one Ranjit Singh with

whom he had business connections. The registration

number of the car was TN-10F-5555. He speaks about his

reconciliation with Uday Kumar. In 2001, Uday Kumar

approached him and told him that he was to join ADMK

with the help of the A3 for which he had to do certain

works. For the same, he needed some houses. A search

118 was mounted for an appropriate house. The third accused

comes upon the scene. PWs 10 and 11, along with Uday

Kumar-A9 and A3, finally, finalise the vermicelli

factory at Mudichur Road. He identified the third

accused. Instructions were given by the third accused

for a screen to be put up on the windows of the factory

building. As ninth accused 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 ninth

accused and bedpan were kept in the factory by PW10, A9

and PW11. Screen for the windows was put. Third accused

told PW34 to give a weeks’ 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 the ninth accused. There is reference to what

happened on 05.12.2001. On the said day, he was called

by the ninth accused to come over to the residence 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

119 persons and the ninth accused that the deceased had to

be brought and some money to be collected from him.

PW10 identifies A4, A6 and A11 as persons who were

present at the residence of A3 and who followed them in

another car. There is reference to the involvement of

A1, A2 and A12. PW10 has identified A5 as the person

who came along with A3, A9 and A1 by his Ford Escort

car. A1 was shown and he was talked about as a VIP, a

very big VIP. PWs 10 and 11 were to get food for him

and to do other works. PW10 has spoken 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 OF PW10 - THE SALIENT ELEMENTS

13. On the said date, at 08.30 a.m., A9 called him

over phone to his house. PW10 called PW11. A boy

working in his office, dropped him in residence in his

motorcycle and went back. A5 was asked to drop him at

the factory by a bike which was at the residence of A9.

On reaching factory, he received a phone call from A9

120 asking him whether he had got the key. He further asked

to handover the cell-phone to PW34-Krishna Pandi. After

the conversation, PW34-Krishna Pandi agreed to handover

the key. He handed over the key to A3 who came by auto.

The key came to be handed over to A5. A3 thereafter sat

as a pillion rider with PW10 and went to the house of

A9. PW10 followed A3 to the upstairs portion. Therein,

A1 and A2 were there. They told A3 that they had

brought the Ex. MLA (deceased) and only the money had

to be collected from him. There is reference to Hotel

Henkala where room was booked for A1. On the same day,

at 05.00 p.m., the Ford Escort car was left in his

office by the driver of A3.

31.12.2001 – THE IMPORTANT FEATURES

14. Udai Kumar-A9 calls PW10 at 08.30 a.m. He was

asked to come to Hotel Henkala. He went there. After

some time, A3 came. A3 told A9 that he needed a Maruti

van. Apparently, A9 went outside and brought sandal

colour Maruti van. A3 took PW10, A9 and A1 in that

121 Maruti van and went to the factory. A9 alone got down

and was standing there. One person came from upstairs

and took him (PW10) and A1 upstairs. There were about

five or six persons. The deceased was tied up with the

chair and his eyes were also closed with cloth. He had

been made 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 shoes were lying in

the room somewhere far away from the steel cot. A1

asked 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. A3 approached

PW10 and A9 to get the things. PW10 speaks about the A9

getting Philips two-in-one tape recorder from his house

and two recorded cassettes from A2. Also, two empty

cassettes were purchased from a shop. One person came

from upstairs and A3 told him to remove the cloth tied

around the eyes of the deceased. PW10 speaks about

feeling frightened. A3 came to him and told him that he

suspected only PW10 and his suspicion was that he would

122 tell to somebody. A3, it is deposed, threatened PW10

that if he disclosed anything about the matter, he

would actually kill him and his family members. A3

further stated that “we have kidnapped Ex. MLA Balan

itself, you are nothing to me”. He speaks about being

very much frightened. Around 07.30 p.m., on 30.12.2001,

A9 called over phone and asked him to stay in the

hotel.

01.01.2002

15. He went at 10.30 a.m. to the hotel after coming

back from the hotel in the morning from the hotel to

his house. After some time, A3 came there. A3 asked A9

for an ambulance. PW10 and A9 went in search for an

ambulance. Not finding one, and on being told so, A3

told A9 to arrange for one Maruti van and to fix an

Alumax light as fixed in an ambulance. There is

reference to driver Vigi of A3 pointing out that shops

were closed as it was a holiday (being the New Year

Day). By 08.00 p.m., a Maruti van was taken away by two

123 persons from the ninth accused. PW10 identifies these

persons as sixth accused and accused-Sampath (A11).

PW10 speaks with PW11 about the ambulance being

required and arranging up of a vehicle like ambulance.

PW10 deposed that 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.. The gate was

closed. A6 was standing near the gate. He saw them and

made them go from there. A golden colour Maruti van was

standing there. Because they were scared, they came by

walk. A5 went in a motorbike to the company. The

motorbike went inside and it was standing in the light.

Four persons came from upstairs carrying the body of

the deceased, two holding his legs and two his hands.

PW10 refers to the deceased wearing black colour pant

and sandal colour t-shirt. Body was kept on a slab like

place. There was no movement in the body. The body was

loaded in the van and it started very fast. A5 went on

the motor bike. This, in short, is the account by PW10

about what he saw and what he knows about the incident.

124 PW10 identifies A5, A6, A7, A8, A10, A11 and A14 as the

persons whom he saw near the deceased when he was tied-

up on the first floor of the factory (this is

apparently on 31.12.2001). He also identified the four

persons who carried the body of the deceased as A6, A7,

A8 and A11.

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

On 30.12.2001 he did not go to the Vermicilli

factory [this is a point which is also pressed by

counsel for the appellant for the reason that in

his chief examination he had said that he had gone

to the factory on 30.12.2001]. However, it is

pertinent to note that in cross examination itself

PW10 has stated that on 30th at about 8.30 am he

went to get the key, from there he went back at

9.30 am. He did not go thereafter [which makes it

clear that that PW10 indeed did go on 30th] as

deposed by him in his cross examination. He, no

doubt, says that till he was there a person called

M.K. Balan was not brought there. He further says

125 in his cross examination that he had given a cheque

for the room rent for the hotel from which he has

vacated on 02.01.2002. He states that he did not

tell anyone outside about the matter, he had

mentioned the police for the first time what he has

seen on 01.05.2002. It was due to fear he did not

say. He further says that after seeing the Police,

his fear had gone. He further states that he

denies having met Nakkeran Gopal and discussed with

him. He no doubt says that if it is asked whether

he is accurately aware of the incident that had

happened in the factory from 31.12.2001, he did not

know. About 15-20 days before 5.12.2001 he had

seen A3. He saw A4 for the first time on 5.12.2001

at the house of the 3rd accused. He says after

hearing A3 telling the persons available there that

the Ex. MLA M.K. Balan had to be brought and some

money had to be collected from him, it did not

strike that it could be a violent act. He further

says in cross that all the accused were not to

126 known him earlier. He denies having identified A10

and A14 after they were identified by the Police to

him. He says that he had finally shown his house

also. His house was also shown to them as he could

get commission. There is toilet facility in the

Vermicilli factory. (In the re-examination he

states that toilet is in the ground floor. The

significance of this aspect is that a bedpack was

also used when the deceased was kept in the first

floor) He further states that he did not ask

Krishan Pandi (PW34) how long it is to let out and

what is the monthly rent and what is the advance

amount and what is the commission for the same, he

also did not tell him. He does not know how many

workers were working in the factory, he could not

approximately also. He does not have the details

about men and women who are working in the factory.

He was standing at a distance of 50ft. away from

the place of occurrence (apparently on 01.01.2002).

He next says that if it is asked that why it was

127 not informed to PW34 about the incident witnessed

by him when this incident took place, he was not a

partner in the factory but then he says that he

received the interest amount for the amount given

to PW34.

17. It is time to look what PW11, the other accomplice

has deposed. This is for the reason also that there is

an argument that PW10 and PW 11, the two accomplices do

not even corroborate each other.

18. He identifies A9 as the person with whom PW10 was

doing sand quarry business. He states about PW9 and PW

10 conversing with each other at the Polling Booth, A9

telling PW10 that he is going to join the ADMK and

about A3, he is going to arrange for a position for

him. He speaks about the need for some houses, the

hunt for houses and various houses being shown and the

involvement of A3 in this matter. He speaks about

investment which A9 persuaded him and PW10 to make in

the factory run by PW34. A3 told A9 that the factory

128 is the correct place. He is able to identify A3 and

identifies him. The Ford Escort car was obtained from

PW10 on rental basis by A9 and given to A3. On

05.12.2001, A9 informed him and PW10 that A3 has asked

them to go to his house. Three persons were present at

the residence of A3. He identifies them as A4, A6 and

A7. He further states that A3 told A9 that the

deceased had to give money and the same had to be

collected by bringing him. He speaks about A3 going

before them in the Ford Escort Car. He speaks about

A12. He identifies A5 as the person who assisted A1

Senthil Kr. On 30.12.2001, at round 8.30 A.M., PW10

called him and asked him to go to the house of A9. He

went there and saw that PW10 was not there. A9 took him

in Tata Sumo and they were waiting at Mudichur Road

Junction. After half an hour, the Ford Escort car came

and A3 came out of the car and was talking to A9. A9

told him to take A3 by an auto and go to the factory.

PW 10 and A5 was there at the factory. A3 saw him and

asked A5 whether the company is ready? Then he took

129 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 open the gate of the company. The Tata

Sumo came first, followed by Ford Escort and Maruti

Zen. Four persons got down from Ford car. Those four

persons brought the deceased by closing his eyes, mouth

and tying his hands and took him to the first floor.

The deceased was wearing black colour pant, sandalwood

colour t-Shirt and shoes. Three persons came out of

the Zen. A9 came to him and asked him whether he knew

that he is N.K. Balan (deceased) and he also threatened

him that if he discloses the same to anybody A3 will

kill him and his family members. He identified the

four persons who brought the deceased in the Ford

Escort car as A4, A11, A16 and A17. He speaks about

further details, like three more persons coming with

the tiffin parcels and that he could identify them,

viz., A6, A15 and A7. He went to his house. The same

day after PW10 called him over phone and asked him to

go Hotel Henkala. In Room No.207, he saw A9, PW10 and

130 A1. He stayed with A1 during that night. The next

day, viz., on 31.12.2001 at 6.00 A.M., he went from the

Hotel where he stayed in the night on 30.12.2001. He

speaks about buying lunch for 10 persons in the

factory. By 12 noon he was asked to buy lunch for 10

persons, BP tablet and headache tablet and hand them

over to A5 in the factory. He bought them the same and

went home (on 1.1.2001), he was called at 10.00 am by

A9 and to get tiffin and he got the lunch for them in

the afternoon. A5 told him that there is no need for

getting dinner in the night and they are going to start

from there and asked him to convey the same to A9.

After 8.00 pm in the night PW 10 called him over phone

and asked him to come to Hotel Henkala… He went there

and PW10 told that they need not to get lunch and PW10

told him that A3 and A9 asked to arrange for a van and

for that he had replied that he cannot do and A9

arranged one van. PW10 told him that something is

going and he is not aware of the same. Then PW10 told

him that let us go and see in the factory. Both of

131 them went to the company by the motorcycle. Two

persons were near the gate. Both of them told them

that they have no work there and they can go from

there. Then PW12 left the bike adjacent to the company

and when PW10 crossed the company gate they saw A5

going into the factory. At that time four persons came

from upstairs of the factory carrying N.K. Balan who

was wearing the black colour pant and T-shirt

sandalwood colour and they left him on the floor. They

tied up the deceased with a dhoti brought 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 is TN-04-B-9657

(MO13). PW11 speaks about him and PW10 being scared and

they went back home. PW10 told him that he was called

by A3 and told him that if this matter is leaked out

anywhere, he will kill him and his family. This, in

substance is, what PW11 has spoken in his chief

132 examination. No doubt, in cross he states inter alia

as follows:

He has TV in his house. He did not know of

news that deceased was missing was announced on TV.

He has seen that in the paper. He did not see the

deceased on 30.12.2001 at 10.30 A.M. in the upstairs

of the vermicelli company. He has seen the deceased

but he did not have any contact with him. PW10 had

left (MO6)-CAR in the travels for rent. The house

being selected and arrangements in the factory at

Mudichur Road were known to him, A9, A3, PW34 and

Venugopal PW 10 and the arrangement at the factory

was known to PW10 and PW11 alone. He speaks about

the cot being purchased from Nirmala industries on

Shanmugham Road. He, A9 and PW10 has purchased the

same. Three cots were purchased. The cot is of

green colour and he could identify it. He reiterates

that on 5.12.2001 he had been to the house of A3.

The identification marks of the three persons seen

in the home of A3 and age was mentioned during

133 police investigators. He mentions A4, A11 and A17 as

among the four. He also says another person came. He

says he did not remember. In the identification

parade he did not say that he 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 identification parade. He had only given

the tiffin and meals to the accused in the factory.

He does not know whether on the 1st deceased was

upstairs. He says that we went from there after

9.00 P.M. on the 1st. PW34 did not give the interest

to him in January. Till date he has not given the

interest to him. He knew the accused already. He

saw A3 only on 05.12.2001 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 the identification 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 incorrect that he did not mention about the

134 accused Guna either during the police investigation

or before the judicial magistrate. He knows A16

having seen him in the factory. He does not

remember whether he was also of the four persons. He

does not remember two persons who told PW10 and him

at the factory that they do not have any work. He

denied having seen the Nakkeeeran Magazine. He

studied up to Plus 2. He denies as incorrect that

he and PW10 were not asked by anyone to get a house

for them. A9 is a member in the Puratchi Bharatem

Party at state level. He is not a member of ADMK.

A9 has own car. He says it is correct to state that

there is no need of A9 to either believe him or PW10

to do the work. During the police investigation the

identification, colour, height etc. of the deceased

was not asked from him and he had also not stated

about the same. When a person stands outside the

gate of the factory, the incident taking place there

could be seen. During the night there was no light

outside the factory. The police did not take him to

135 show the factory. They did not show him the van

TN22-B-8853 and asked him to identify. They did not

show MO6 also and examine him. Photographs of the

deceased was not shown. The Tata Sumo, Maruti van

car was not shown.

PW34, AN INDEPENDENT WITNESS?

19. It is next necessary to have a look at the

testimony of PW34. PW 34 is none other than the owner

of the factory and as per the prosecution case PW10 and

PW11 came to invest in the business of PW34 when he was

undergoing financial problems. He states, inter alia,

as follows:

In 1999, he approaches A9 owing to some

problems. He accepted PW10 and PW11 as partners.

He has the entire responsibility of the company.

PW10 and PW11 used to come occasionally and go. On

29.11.2001 at 6.00 P.M. PW10 and PW11 asked for

company premises to conduct a meeting. He refused.

They insisted. He locked the articles of the

136 company in a room and handed over room in the

upstairs and went away. They asked him not to come

till the meeting was over. On December 5 they told

him the meeting was not over. When looked inside

the office they saw cot, dining table, chair,

pedestal fan. On 10th, PW10 and PW11 brought a

person and introduced him as Poonga Nagar Manickam-

A3 and told them that he was a big shot. (It is

true that PW10 places the meeting with PW34 as

having taken place earlier.) He was a 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 a person by name

Balamurugan-A5 and told him that a meeting was

called and asked him (PW34) to vacate the company.

When he told that they have kept semai for drying

and ladies are working and it will go waste, they

told the meeting is set and asked him to contact A9

who said he would compensate the loss for the

semai. PW34 sent the employees and announced leave.

137 At 05.00 P.M., he came to the company for

collecting wet semiya with company employees

Chandru, Venu, Driver Karuppia. At that time, PW11

and A5 were standing downstairs. They loaded the

semiya in the van and PW11 and A5 helped them to

gather it. They took the semiya and went away. He

speaks about taking the semiya to Ezhichur and

dried the semiya and sent it to the market. The

employees were asked to come early and on

01.01.2002, the company was on holiday. He called

PW10 on the 1st and he told him to call on the next

day. He came to the company on the 2nd at 11.00

A.M.. His employees Rathnam, Chamundeswan were

there with doors open and lights burning but the

outside gate locked. He immediately went to the

public booth and called PW10 but got PW11. When he

saw the lock, it was merely wound by chain but not

locked. They went upstairs and saw cigarettes, two

case beer bottle and two shoes. The cot was

damaged and there was a bedpan. PW34 poured the

138 urine inside it outside. At 12 to 12.30 P.M., a

Maruti Van came and a person came out and asked for

articles lying there. He went upstairs and took

away a cardboard box, shoes kept in a car and asked

if there were anything left behind. He took the

articles that were kept near the wood storing place

in the company kept in a plastic sack. He again

came at 02.00 P.M. and asked that he has been sent

to clean the place. The employee PW34

Chamundeswari admonished him saying that he has

spoilt a place where women are working and sent him

back saying that they will 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 has not seen the deceased and he did not know

him. On 30.12.2001, at 08.30 A.M., he went to the

139 company office. He did not give the key to anyone.

A5 did not allow us to go upstairs and he did not

go upstairs. He says that disappearance of the

deceased had come as news in papers and TV also.

PW10 requested the company premises for meeting and

he has told that it will interfere in the business

and refused him the place for holding the meeting

to which PW10 insisted again. In the records there

was nothing to show that PW10 and PW 11

were shareholders.

YET ANOTHER INDEPENDENT WITNESS PW31

20. In context would be the deposition of a worker of

PW34, Samundeswari examined as PW31. She says, inter

alia, as follows:

PW34 is the proprietor of the company. PW10

and PW11 became partners during 1999 and 16 persons

are working. She was the supervisor. She speaks

about attendance being maintained. The company was

closed for a period of one week from 29.11.2001

140 treating as leave. Then they came to the company

on 6th December. They were informed that there were

no meeting convened. On 30th December she did not

go for duty as it was Sunday. On 31 st December, they

were asked by PW34 to go to Ezhichur to dry up the

vermicelli and to pack the same and on the 1st

January the company was on leave. On 2nd January,

PW 31, Nagarathinam and PW34 went and saw the

company. The main gate was found locked. While

returning after making a phone call, the owner

found that the gate was not locked and only chain

along with was put. When they went upstairs, the

cot was found smashed and the lights were burning

and the bottles and the bits of cigarette were

found in an ugly scene and about 11.30 A.M. one

person came upstairs saying that he has come to

take a thing from there and he has taken Rebook

shoe marked as MOI and for the second time, the

same person came in a car and taken away something

in a gunny bag. At the same time at about 02.30

141 P.M., one person came in a motorcycle and asked

whether it is cleaned and at that time she told him

as to why you are making the place ugly where the

ladies are working. She states further that on 18th

March, one person was brought by the police to the

company and enquired from her and at that time on

seeing that person, told the police that she only

shouted him and that if it is asked her whether she

could identify the said person she could say that

as it is a lapse of more than 2 years, she could

not remember that person. Regarding the cot she

says that cot is in green colour and if she is

asked to identify she could say that she could not

remember. The company owner PW34 declared holiday

on the suggestion of PW10. During police

interrogation she did not say that there was a

bedpan. Her husband Vijay Kumar had acted as

partner, she deposes with PW10. Her husband had

died of heart attack. She had seen the shoe when it

was taken away.

142 THE MATERIALS AGAINT THE ACCUSED WHO ARE APPELLANTS

THE MATERIALS AGAINST A3

21. On the basis of his(A3) arrest on 25.3.2002, he

gave a confession statement, which has been recorded in

the presence of PW26. His statement led to the

discovery of Maruti Zen Car bearing No.TN-02-EZ-99.

PW16 has also supported prosecution version and it is

from him 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 returned to

PW16 only during February, 2002. The relevant aspect of

the Maruti car is as follows:

PW11 has deposed that on 30.12.2001 at the

factory premises, A9 called him over phone and told

him to open the gate. Then, he deposes about a Tata

Sumo car coming first, followed by Ford Escort Car

and a Maruti zen car. The eyes and mouth of the

143 deceased was closed. His hands were tied. The

deceased was taken to the first floor. PW11 has

identified the four persons who brought the

deceased in the position we have described a little

earlier. They are A4, A11, A16 and A17. A5 went in

the zen car which left the company. He had given

further statement on 05.04.2002 wherein he stated

that if taken to his office, he will surrender the

cassette, and bit paper given by A1 from the near

side of his wife’s photograph which are marked as

MO28 and MO33.

22. The next circumstance appearing against the third

accused which corroborates the testimony of PW10 and

PW11, is the circumstance relating to the creation of a

false death certificate of the deceased. In our view,

the prosecution has, indeed, succeeded in proving the

following:

At the instance of A3, PW32 (medical

practitioner) who was known to PW33 was persuaded

144 to issue a false certificate. The certificate was

got issued in the name of a fictional person which

is proved by the evidence of PW38 who has deposed

that no such person (Rajamani Chettiar) who has

been certified to have died by PW32 lived in the

residence as reported. PW36-Office Assistant In-

Charge of the Burial Ground has deposed that on

02.01.2002, PW19 told him after he (PW36) left,

(apparently on the previous day) a body came and

the Doctor’s Certificate would be given on that

day. The Certificate is P27. The certificate was,

apparently, produced in view of what was requested

by PW19, a licence in the cremation ground, PW12

has become hostile but even PW12 has deposed about

a person being cremated, on 01.01.2002, in the

night and his role along with PW19 in it. The

certificate was procured at the instance of A3. It

was meant to facilitate the cremation of the dead

body on the date of the death. Going by the

testimony of PW1, the deceased was around 52

145 years. We say this because an attempt is made to

contend that for a person above 60 years, no

certificate is insisted upon to cremate as deposed

by PW6. It may be that the age is shown as above

60. The circumstance of A3 creating the document

for which purpose A13 was an emissary (A13 has not

filed any appeal), goes a long way to strengthen

the prosecution case. We see no reason at all not

to conclude that the body which was cremated

through PW19 and PW12 on 01.01.2002 was that of

the deceased. Not only would the cremation and

that too under a false name attract the offence

under Section 201 of IPC, which deals with the

destruction of evidence of committing of offence

but it is an important chain in the list of

circumstances which unerringly points to the role

of A3 and others in the crime of murder also. The

circumstance is a vital corroborative link which

establishes the case of not only murder but

relates back to the abduction. This is for the

146 reason that it will be absurd to believe that the

deceased went with the accused voluntarily and

willingly, particularly, when the evidence of PW13

and PW3 are also borne in mind. We stand reminded

that abduction takes place either when there is

force or deceit in causing a person to move from a

place under Section 362 of the IPC. PW10 has

spoken of seeing the deceased tied and blindfolded

in the upstairs portion.

23. This is a case where the accused have not only

carried out a grave crime of murder but they have also

attempted to efface the most important evidence

relating to the same, viz., the corpus delicti. We

reject also the contention that the non-production of

the body is fatal to the prosecution case. The evidence

of PW32, PW33 and PW36 (the Officer of the Corporation

before whom the certificate was produced) and PW38

assumes critical significance. The hand of A3 from the

beginning, i.e., from the selection of the factory,

147 arranging of vehicles, confinement and cremation, is

crystal clear and his role in the murder is

established. It is in this context that evidence of

PW10 and PW11 falls to be appreciated. The evidence of

PW34 clearly confirms clinchingly the role of A3 and

sufficiently corroborates PW10 and PW11. We would

arrive at the conclusion even excluding MO28 and MO33

as agreed to by the Counsel for the State.

ACCUSED NO. 4 (A4)

24. A4 was arrested on 09.04.2002. He made a

confessional statement-P34 witnessed by PW39. It led to

the recovery of Ford Escort White Car TN1075554. PW10

deposed that he bought the same car though 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 the said Ford car. A9 asked for two or three

months. PW10 believing that he 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

148 by PW10 thereafter by deposing that on 05.12.2001, A3

went out in the said car which had been given by him

for rent. He also identified A4 as one among the three

persons who followed them on that day. Thereafter, the

said car makes its appearance when he speaks about A3

telling A9 to 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 the same car.

Again around 07.00 P.M., A3, A9 and A1 came along with

one more person by the same car. That other person is

none other than A5. Thereafter, he says, on 30.12.2001,

at 05.00 P.M., the driver of A3 had left the car in his

office. In his cross-examination, PW10 has deposed that

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.

25. Passing on to PW11 in connection with the vehicle,

PW11 has noted the Ford Escort car on 30.12.2001 as the

car from which four persons got down and those persons

brought the deceased by closing his eyes and mouth and

149 hands being tied and took him to the first floor. He

has marked the Ford Escort Car as MO6. It is this car

which stands recovered on the basis of the statement

given by A4. This is a case based essentially on

circumstantial evidence. The statement made by A4 led

to the discovery of the car in the circumstances which

have already been explained in the evidence of PW10 and

the presence of A4, not only on 05.12.2001 but also on

30.12.2001, has crucial relevance in particular the

presence on 30.12.2001. A4 was present along with three

others and they emerged out of the very same car, viz.,

the Ford Escort car, in which, apparently, the deceased

was brought. The condition of the deceased, viz., his

eyes and mouth being closed and hands being tied and

being taken to the first floor, are matters of moment

in connecting A4 with the gory episode having its

origin in the abduction of the deceased, his illegal

confinement and culminating in his murder and

cremation.

150 ACCUSED NO. 5 (A5)

26. PW10 refers to him, in his deposition, as coming

along with A3, A9 and A1 around 07.00 P.M. by the Ford

Escort Car. He has been identified by PW10. This is on

05.12.2001. A3 introduced him to A5 and though they

(PW10 and PW11), provided food to Senthil Kumar-A1, it

was to be served only by A5. His involvement is further

spoken about by PW10 as having occurred on 30.12.2001.

On the said day, PW10 speaks about going to the

residence of A9 on being called by him. A9 asked for

the keys of the factory. A9 asked A5 to drop him in the

factory on a bike. PW10 and A5 went to the factory.

There is further reference to the key being handed over

by PW34 to PW10. The key was handed over by PW10 to A3

who came in the auto. PW10 deposed about the key being

given to A5. On the fateful day, on 01.01.2002, when

the murder took place, PW10 has named A5 as going in a

motorcycle to the company. It went inside and was

standing in the light. A cloth bag was there in the

151 bike. The body of the deceased was brought from

upstairs by four persons. PW10 then deposes that a

cloth was taken from the bag brought by A5 and tied

around the body of the deceased like doing for a dead

body. A5 is cited by PW10 as going in his motorcycle.

27. PW11 has also spoken about A3 telling them about

the person. He identified him. He also says that A3

told that A1 is a VIP and only A5 will do everything

for him and that they should not do anything

(apparently directly). He notices presence of A5 along

with PW10 on 30.12.2001 at the factory. A3 asked A5

whether the company is ready. A3 and A5 told that they

were going to the house of A9 and went from there. He

speaks about A5 going by the Zen car on 30.12.2001.

Thereafter, about half-an-hour later, the Tata Sumo car

came. In the same, A5 and three more persons came with

the tiffin parcel. These persons have been identified

as 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

152 no need for getting dinner in the night. PW11 has also

seen A5 going into the company. He also speaks about

dhoti brought by A5 used to tie-up the deceased and A5

leaving on a motorcycle. A5, who was arrested on

18.03.2002[the first arrestee in this case], has, in

fact, given statement under which he has identified the

Maruti Omni Van MO9 bearing No. TN-A-7484, the place

(factory) as also the cremation ground. The Maruti Omni

Van-MO9 is the Van which was used for abduction of the

deceased. PW3 has spoken about a person being pushed

into a Maruti Van. The facts discovered based on

statement by A5 are very significant, and hence, most

relevant, not only in revealing his involvement but

unravelling the entire prosecution case. A statement

under Section 27 of the Evidence Act is not only about

the thing as such which 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 a Revenue Inspector and witness to the

153 statement of A5 and identification by A5, helps

establishing his clear link and sufficiently

corroborates PW10 and PW11. Lastly, PW34 has spoken

about the presence of A5 on 30.12.01 and identified

him.

A6, A7, A8 and A11

28. What is the evidence, as regards, these accused/

appellants before us? Taking the evidence of the

accomplices, PW10 has this to say about them – He says

that along with A4, A6 and A11 were present on

05.12.2001 as two out of the three persons present in

the residence of A3. He speaks about A3 telling the

persons and A9 that Balan had to be brought and some

money to be collected from him. He also speaks about

the three persons as A4, A6 and A11, following him,

PW11, A9 in another car. He further speaks about their

involvement when he deposed that on 01.01.2002, A9

asked PW10 to wait at the hotel and he came with a

golden colour Maruti van. By 8 P.M. that Maruti van was

154 taken by two persons from A9. Those two persons have

been identified as A6 and A11. Presence of A6 and his

involvement is further deposed by PW10 when he states

that the 6th accused was standing near the gate of the

factory later on 01.01.2002. PW10 and PW11 were asked

to go away. He speaks about PW10 and PW11 being scared

after the threat by A6. He further identifies A6, A7

and A11 as among the persons who were present near the

deceased when he was tied up in the first floor of the

factory. He also identified A6, A7, A8 and A11 as the

persons who carried the dead body of the deceased. They

go in the van with the body. At this juncture, it is

apposite to notice PW18 deposing that he is the owner

of van bearing No. TN 22-8853. He has deposed to giving

the van to A9 on earlier occasions. More importantly,

he has deposed to it being taken by A9 on 01.01.2002 at

about 10 A.M. and it being returned only on 2.01.2002

and its seizure by the police on 30.03.2002.

29. Turning to PW11, the other accomplice, this is what

he has deposed about the involvement of the accused in

155 question. PW11, for whatever it is worth in law, has

also identified A6 and A11 as two out of the three

persons who were in conversation at the residence of A3

on 05.12.2001. He has also spoken about A3 telling A9

that the deceased had to give some money and it has to

be collected by bringing him. He also speaks about A6

and A11, inter alia, following them in another car. He

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 as among the persons as two

out of the three persons who came with A5 in the Tata

Sumo car which came again on 30.12.2001.

30. Now let us look at the other evidence available,

pointing to the involvement of the aforesaid accused.

PW21 is a Head constable (Police). He has deposed to be

on night duty on 01.01.2002. He speaks about being

given beat tickets along with PW35. He speaks about a

Maruti Omni van standing in the middle of the road. He

and PW35 went to the van. He asked the occupants what

they were doing at that hour. They told that they were

156 celebrating the new year with drinks. Though, on become

suspicious, they searched the van from inside but there

was nothing suspicious inside it. They continued with

their duty. He has proved P10 beat ticket. He has also

identified the accused as A6, A7 and A11. He also

spoken about the identification done by him before the

Magistrate by way of TIP. He has proved P11 - the duty

book.

31. PW35 is the constable referred to by PW21. He also

speaks about being on duty on 01.01.2002. He speaks

about going with PW21 to Melpatti, Ponnappa Street from

24:00 hours (PW19 speaks about the cremation from being

at Melpatti, Ponnapa Mudali Street). He speaks about

finding of Maruti vehicle bearing no. TN-22-B8853 in

Melpatti New Street. He speaks about interacting with

the four persons. The vehicle was standing near

Perambur cemetery and the sodium lamp was burning. He

has proved P28 as his duty book. PW10 is also his beat

book. He has also identified A6, A7, A8 and A11 as the

persons who were present. He has also identified the

157 van which he saw as MO7. He has spoken about the

identification done in the TIP.

32. It is relevant to remember that PW10 has identified

A6, A7, A8 and A11 as the persons who carried the dead

body of the deceased on 01.01.2002. It is also to be

borne in mind that PW10 and PW11 have spoken about

their body being loaded in a golden colour Maruti van

which has also been identified by PW10 as MO7 and

bearing the very same registration no. TN 22-B-8853. It

is corroborated by the evidence of PW35 (Police

Constable). The evidence clinchingly points to A6, A7,

A8 and A11 being involved apparently at the behest of

A3 and carrying dead body of the deceased on the

fateful day in the van and their presence near the

place where the deceased came to be cremated. To

overlook the testimony of PW10 and PW11 in a case based

on circumstantial evidence, being about matters which

could not possibly, have been witnessed by any other

witnesses other than the accomplices will be asking for

the impossible except perhaps concocted evidence.

158

33. A6 was arrested on 19.03.2002. He gave P16 which is

the admissible portion of his confession statement

within the meaning of Section 27 of the Evidence Act.

He identified the Maruti omni van bearing no. TN-0343

which was parked in front of the house of PW37 and

seized under P17. The Maruti van itself has been marked

as MO8 but we would exclude the same from consideration

for reasons which we have discussed.

34. A7 was arrested on 20.03.2002. He gave the

admissible portion of confession statement which is

P38. PW42 is a Village Administrative officer who has

witnessed the statement. On the basis of the statement,

the green colour steel cot was seized. It is marked as

MO11. It was produced and seized under P38 which is

also witnessed by PW42. PW34 and PW31 have also spoken

about the cot apart from PW10. The evidence of PW10

shows that when he went upstairs, he found that the

deceased whose eyes were closed was tied with a chain

and he was asked to sit in a green colour steel cot. He

159 has been identified by PW21 and PW35 police officers as

one of the four, present near the spot of cremation.

35. A8 was arrested on 22.03.2002. He gave a confession

statement in the presence of PW23 and another witness,

P14 is the admissible portion. PW35 police constable

has identified him as one of the four found in MO7 van

on 01.012002 near the cremation ground.

36. We have noticed that PW11 has identified A11 as one

of the persons who brought the deceased in the Ford car

to the factory. It is to be remembered that PW11 has

identified the accused in the Identification Parade

conducted by the Judicial Magistrate. That apart, after

arrest, he gave P53-Statement. He has produced the

Philips Stereo Cassette Recorder which was recovered

under P54-Mahazar marked as MO2. To lend assurance to

this circumstance, PW46, working in the Revenue

Department, has been examined. The tape-recorder was

hidden in the house of A11.

37. Moreover, PW21 and PW35, Police Constables, have

deposed to seeing A11 near the graveyard on

160 01/02.01.2002. They were standing near MO7. MO7 is the

Van in which the deceased was taken from the factory

after the murder. It is the Golden Colour Maruti Van

bearing No. TN228853. PW11 has, in his deposition,

given the same number in his evidence as the number of

the Van in which the body of the deceased was taken

away from the factory. Therefore, presence of A11, as

noted by PW11, from 30.12.2001 till after the murder

and near the site of the cremation, as noted by

independent witnesses-PW21 and PW35, lend sufficient

assurance to the prosecution case against him. PW10 has

also deposed to identifying A11 as one of the three

persons who were present at the residence of A3 on

05.12.2001. It is on that day A3 said that the deceased

had to be brought and some money had to be collected

from him.

38. It must be remembered that the evidence in this

case establishes that the deceased was indeed cremated

under the name of a fictitious person mentioned in the

death certificate issued by PW32 (the medical

161 practitioner). It is also clear that such certificate

is procured by A3 through PW33. It is clear that A6,

A7, A8 and A11 were clearly involved.

A14

39. With regard to A14, his involvement in the matter

emerges as one of the persons who stood in the upstairs

of the building with the deceased when the deceased was

in the state of illegal confinement. This, no doubt, is

based on the testimony of PW10. No doubt, as far as A14

is concerned, there is no recovery. It is true that

there is no direct evidence that the accused abducted

or murdered the victim. The case, as already noticed,

hinges on circumstantial evidence. We do notice that

A10 has been acquitted by the High Court. A10 himself

was also named by PW10 as present along with A14 at the

time of the illegal confinement. The High Court has, in

paragraph 33, assigned cogent reasons for acquitting

A10, including, inter alia, that PW11 though had

identified A10 in the Test Identification Parade, could

162 not identify him in the Court. The evidence against A14

has been believed in by both the Courts.

A15

40. A15 is the sole appellant in Criminal Appeal No.

828 of 2013.

41. PW3, the witness to prove the abduction has spoken

about a motor cycle following the Omni van. He earlier

deposes that he saw three persons were forcing a person

to get into the van. A15 gave a statement to the police

in the presence of PW44 and another (Mutthu Rekku). 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 front of a compound

of a house at Gandhiji Street, Bharathi Nagar and also

the shoe. PW67 has spoken about recovery of the motor

cycle under P51 Mahazer. The motor cycle is MO10 while

the shoe is MO1. Justice Arun Mishra confirmed his

conviction even after eschewing MO1 shoes. [PW1 the son

163 of the deceased deposed that the shoes showed by the

CBCID did not belong to his father]. As regards the

motorcycle, PW10 has deposed that A9 wanted an

ambassador car and a motor cycle. PW10 got the

motorcycle from his friend Akbar which is fashion

vehicle and navy blue in colour and gave it to A9. PW10

asked for return of the motorcycle. He marks the

motorcycle as MO10.

42. As noticed, A15 has stated that he got the

motorcycle from one Akbar. PW48 is the said Akbar. His

name is shown as Shaheed Akbar. In his deposition, he

has stated that he was having a fashion motor 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 take his vehicle

often. Last year, during November, 2001, the said Venu

(PW10) apparently, had taken his vehicle and did not

return it. The RC book related with the vehicle is with

the financier. He has produced and marked as P58

164 photocopy of the RC of the said motor vehicle. He

deposes that motor bike seen by him which belongs to

him. He further says that the registration number of

the vehicle which he saw, was not in the said motor

bike. It is that motor bike which is marked as MO10. No

doubt, in the cross, he says that he does not know the

wheel base and weight of the bike, inter alia. He has

neither issued any notice to PW10 nor had he filed any

complaint. He says that he has neither repaid any loan

nor received any notice from any financier. MO10 was

marked by PW10 and under the statement under Section 27

the vehicle which is seized actually, has the

registration no. TN-8-6785 whereas the vehicle which

PW48 from whom PW10 took the vehicle for giving it to

A3 as requested by A9, bears no. TN-04-J-1878. The

evidence of PW48 makes it clear that it is the same

vehicle and he does, no doubt, say that the

registration number of the vehicle was not in the said

motorcycle. This means that the vehicle marked as MO10

is, indeed, the vehicle belonging to PW48. He makes it

165 over to PW10. As requested by A9, PW10 handed it over

to A9. It would appear that the registration number, as

was originally seen on the motorcycle, has been

changed. It is the motorcycle which was apparently seen

by PW3 and used at the time of abducting the deceased.

The vehicle has been recovered at the instance of A15.

Even ignoring the shoe which is recovered on the basis

of the statement, we would think that the evidence

sufficiently implicates A15.

A16

43. PW11 has deposed that they were amongst the four

persons who 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 persevered with the names of

other three. But he does speak of his presence at the

factory. Regarding A16, he was taken into custody, and

on questioning in the presence of PW47 and another

witness, he gave a confessional statement. He stated

that if he is taken, he would produce the black bag,

166 cell phone and knife from the house at Villivakkam. P56

is marked as the admissible portion. On being so taken

to the place at No.110/57, Nehru Nagar, Villivakkam, he

identified a Panasonic Cell Phone, sim card with

charger, one black colour carry bag, nine feet long

yellow colour nylon rope and two chains. This is

besides knife and three locks. Therefore, it cannot be

said that there was no corroboration for the role of

A16. It is quite clear that A16 was amongst the accused

who brought the deceased. His role in the abduction

becomes clear. It is also clear that the deceased is

not only not alive but was undoubtedly done away by way

of murder. Having abducted the deceased, it is clear

that the role of A16, as assessed by the Trial Court

and further accepted by the High Court, does not

require interference.

Accused No.17 (A17)

167

44. A17 is again another accused who was one of the

four persons identified by PW11 who brought the

deceased on 30.12.2001 to the factory. In this case, he

was arrested on 01.07.2002. The principle that

abduction followed by murder raises a presumption that

the abductor was instrumental in murder was rightly

invoked by the Trial Court.

AQUITTAL OF A12, THE INVOKING OF SECTION 109 OF THE IPC EVEN AGAINST A1 AND A2 – THE ACQUITTAL OF A3 TO A18 UNDER SECTION 120B OF THE IPC

45. In this regard, it is necessary to have a closer

look at the prosecution case. The case of the

prosecution, in substance, is as follows:

The first and second accused were close

associates. The twelfth accused is the wife of

the second accused. The third accused belongs

to ADMK party. The other accused except the

twelfth accused, were all the henchmen of the

third accused. During the month of November

2001, at the instance of the first accused, the

168 twelfth accused had spoken to the third accused

over phone posing herself as Sasikala (a leader

of the ADMK party). The twelfth accused told

the third accused that she had entrusted a work

to the first accused for which the third

accused was to help him on the same day

evening. A1 to A3 conspired and planned as to

how to kidnap the deceased and to take money

from him. As per their plan on 30.12.2001, the

deceased came to be kidnapped (it must be

abducted). He was taken to the factory owned by

PW34, illegally detained; was tied with the

rope and iron chain in a cot. They threatened

him to give Rs. 16 crores and the deceased

refused to give the same. He was asked to tell

what is his property, and thereafter on

01.01.2002, the twelfth accused, spoke over

phone in the voice of Sasikala to the third

accused saying that if it is possible to get

the money or else finish the matter and to meet

169 her with the first accused and the rest of the

matter would be informed by the first accused

himself and accordingly what was stated by him

was recorded in a tape recorder. 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 a vehicle and cremated the body for

which purpose a false death certificate was

brought from PW32.

THE ACQUITTAL OF A12 (Accused No.12)

46. It must be remembered that A12 came to be charged

under Sections 419, 420 and 387 IPC read with 109 of

the IPC. There is also a charge under Section 120B of

the IPC against her, as already noticed by us. The

Trial Court discusses the case against A-12 in the

following manner inter alia:

170

It is found that the twelfth accused was

an Anglo-Indian lady. On a perusal of P65 which

is the confessional statement given by her

under Section 164 of The Code of Criminal

Procedure, 1973 (hereinafter referred to as

‘the CrPC’, for short), the Court found that

anyone would come to the conclusion that she

was living as per the Indian culture. She is a

mother of twins and growing them well. The

second accused is her husband. The second

accused, as per P65 statement, was suffering a

loss and facing financial problems. The second

accused fell into the cunning trap of first

accused. The second accused forced the twelfth

accused to fall into the cunning trap of the

first accused. The first and twelfth accused

got married out of their love affair. The

marriage took place at a temple as per Hindu

Rites and Customs. Initially, when first

accused asked twelfth accused to talk like

171 Sasikala, she refused. Then the twelfth accused

did not talk over phone thereafter. The first

accused pushed the second accused into his

cunning trap and on account of that the twelfth

accused was convinced by the second accused and

she has talked over cell phone to the third

accused as if Sasikala talked to him. There was

a threat by the first accused to the twelfth

accused. A2 forced his wife to act and to fall

into the cunning trap. The Trial Court further

goes on to state that normally in foreign

countries, it would be commonly seen that while

the husband is committing mistakes and

misdeeds, the wife would leave her husband and

choose anyone as her husband of her choice as

that of changing clothes every day. The Trial

Court further finds that it is not the State in

our country. When the husband is doing any

wrong deeds, the wife would mend her husband in

some way or the other and when the wife is

172 trying to mend her husband and she is forced to

do the same by her husband, she would do it as

what her husband is asking her to do so and she

thinks that her husband is as God and thereby

she is committing such mistakes. The Trial

Court goes on to hold that the twelfth accused

that if she told anything about her husband, he

would be taken by the Police. As a result of

that she had been suffering and on account of

the fact that she followed the 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 do anything to attract

the offence under Section 34 with the intention

or motive and that she did not feel that she

had done anything wrong and she was doing

anything only as to what was stated by her

husband and then she has been arrayed as A12.

The Court goes on to find that she cannot be

held guilty under the fourth charge which is

173 framed under Sections 419, 420 and 387 read

with Section 109 of the IPC. However, the Court

proceeds to find accused Nos. 1 and 2 had

committed offences under Sections 419 and 420

of the IPC.

47. A12 was not labouring under any disability. We may

have our reservation about exonerating A12 on the

reasoning that as it was perceived to be a part of the

duty of the wife in the Indian culture to obey her

husband even when the demand of the husband is to

commit a criminal act. We notice, however, that not

only A12 was acquitted by the Trial Court but the

appeal by the State against her acquittal has been

dismissed by the High Court. The State has also not

challenged her acquittal before this Court. No doubt

A12 would be criminally liable for only those acts done

with the requisite mens rea. Hence, we say no more.

48. What is, however, important is that it is not a

case where the Court has not believed the version of

174 the prosecution that the twelfth accused did make the

calls posing herself as Sasikala.

49. It is true that arguments have been addressed that

there is no evidence to show that A12 knew the voice of

Sasikala and contention is seen raised in Section 313

CrPC Statement of A3 that A3 knew the voice of

Sasikala. The prosecution would have to prove the

negative if it is called upon to prove that A3 did not

know the voice of Sasikala. Though it is the duty of

the prosecution to prove the case, it may not extend to

holding that a matter which could be proved by the

defence as something within his knowledge, the accused

can sit tight. Further, the case of the prosecution

must, at any rate, be judged with reference to the

actions of A3 and the other accused who are described

as his henchmen. The wealth of evidence, extending even

to A3, ‘procuring’ a totally false death certificate,

is formidable. It should be noted that the first charge

was essentially framed that A1 to A3 had conspired. A1

and A2 have accepted the verdict and we are not called

175 upon to judge the correctness of their conviction under

Section 120B. It may be true that, though, there is a

charge against all the accused under Section 120B of

the IPC, except A1 and A2, all the other accused stand

acquitted under Section 120B of the IPC.

50. The question would, therefore, arise as to what is

the effect of acquittal of the appellants before us

under Section 120B. We are primarily concerned with

their conviction under Section 302 besides Sections

387, 365 read with Section 109 of the IPC and Sections

364 and 201 of the IPC. The fact that the appellants

have been acquitted under Section 120B will not, in our

view, extricate them from criminal liability for their

acts which would constitute substantive offences under

Sections 302, 347 and 387 of the IPC.

A DEEPER GLANCE AT THE CHARGES; THE EFFECT OF ACQUITTAL OF A12

51. The first charge is to the effect that A1, A2 and

A3 conspired in November, 2001 to kidnap the deceased

176 and to extract money. It was further agreed to murder

him in case he refuses to pay money. Based on the said

conspiracy, on 30.12.2001 early morning, he was

kidnaped, detained at the factory and murdered on

01.01.2002. Thereby a charge under Section 120B of the

IPC was framed against A1 to A18. The second charge is

about actual kidnapping (it must be understood as

abducting). The abduction is alleged to be done by A4,

A7, A10, A11, A14, A15, A16 and A17 in a Maruti Van

bearing Registration No. TNA7484. A15 went in a Hero

Honda Motorcycle to show the route. The deceased was

kept at the factory belonging to PW34. The aforesaid

accused were charged under Section 365 of the IPC. For

abetment of the said offences, A1 to A3, A5, A6, A8, A9

and A13 to A18 were charged under Section 365 of the

IPC read with Section 109 of the IPC for going in a car

bearing No. TN10F5555. All the accused, except A12 and

A13, were charged under Section 387 for tying the

deceased with iron chain and rope in a cot and he was

threatened to part with Rs. 16 crores or else execute

177 the documents in regard to his properties. The fourth

charge is to the effect that in order to fulfil such

conspiracy, and in pursuance to the same, at the

instance and the instigation of A1 and A2, A12 spoke to

A3 in the voice of Sashikala uttering the words, if

possible, to get the amount or else close him and come

along with A1 and meet her-A12. Charges were

accordingly framed against A12 under Section 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 by

tying a rope around the neck and tightening it.

Likewise, A1, A2, A5, A9, A12 and A13 were charged

under Section 302 of the IPC read with Section 109 of

the IPC for abetment of murder. There is a charge under

Sections 347 and 364 of the IPC for kidnapping against

A3 to A11 and A13 to A18 and A1, A2 and A12 were

charged, with the aid of Section 109 of the IPC, under

178 Sections 347 and 364 of the IPC. Charge was also framed

against A8, A10, A11 and A13 to A18 under Section 201

of the IPC for cremation of the body and getting the

false certificate as if one Rajamani Chettiar had died

due to heart ailment.

52. There is the argument addressed before us that the

effect of the acquittal of the appellants under Section

120B of the IPC would be that their conviction under

Section 302 of the IPC and other offences cannot be

sustained. As we have noted, the charge under Section

120B of the IPC is based on the conspiracy hatched

between A1 to A3. No doubt, the charges laid against A1

to A18 under Section 120B of the IPC, is essentially

based on the conspiracy between A1 to A3. It is to be

noted, 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 and A13, who were charged

under Section 302 of the IPC read with Section 109 of

the IPC.

179

53. We agree that for a charge under Section 109 of the

IPC, a minimum of two persons are required. There can

be any number of accused charged with the aid of

Section 109 of the IPC. In order that there is

abetment, it is indispensable also that there is a

person who abets another. To take an example, a person

shoots with his gun on being intentionally aided or

instigated in doing so by another. The latter would be

guilty under Section 109 of the IPC along with the

person who actually carried out the murder by shooting.

Thus, there is a principal player and the abettor. The

principal player would be guilty for the acts or

omissions which amount to offences under the law. The

abettor though does not trigger the gun, if we may use

the expression, “is the moving force behind it and

becomes liable as such”.

54. In this case, the Trial Court has proceeded to find

the appellants (except A5) guilty of the fifth charge

under Section 302 IPC whereas the A1 and A2 have been

found guilty of the charge of conspiracy under Section

180 120B of the IPC. In other words, the idea to commit the

offences came into being in the minds of A1 and A2. The

other players have been roped in on the basis of their

acts which was in tune with the conspiracy hatched by

A1 and A2. The acquittal of A12, who has been charged

under Section 120B of the IPC and also for offences

under Sections 419, 420 and 387 of the IPC read with

Section 109 of the IPC would not detract from the

criminality of the acts committed by the other accused

and, in the facts of this case, we would think that

there is no illegality involved in convicting the

appellants in the manner done under Section 302 of the

IPC. The Trial Court has found that the plan was the

brainchild essentially of A1 and A2

55. . We have noticed that the trial Court has

essentially proceeded on the basis that the appellants

were except A5, charged under Section 302 under the 5th

charge were guilty of the said charge (See paragraph-

167 for the discussion). We have referred to the

paragraphs in the judgment of the trial court wherein

181 the trial court has found A3, A4, A6, A7, A8, A9, A10,

A11, A14, A15, A16 and A17 guilty under section 302

IPC. It must be noticed that it is without invoking

Section 109 of the IPC. However, it so happened, that

in the initial portion of the judgment of the trial

Court it is mentioned that Section 109 was also invoked

along with Section 302 which is inconsistent with the

actual charge which was adverted to and findings by the

trial Court. It is on this basis apparently that the

High Court and this Court also proceeded in the matter.

This inconsistency must, in our view, be resolved by

holding that the finding is to be understood as one in

terms of the 5th charge as discussed from paragraph 167

onwards of the judgment of the trial Court. We would

proceed to hold further that if it is so understood

then the criticism levelled that even A1 and A2 are

convicted with the aid of Section 109 and there would

be no principal player would not hold good. We must

appreciate that the first charge is that a conspiracy

was woven between accused No.1, 2 and 3 within the

182 meaning of Section 120B. It has not been found

acceptable to the trial Court and only A1 and A2 are

found guilty under Section 120B of the IPC. The

acquittal of A12 as we have noticed, would not deflect

from the factum of the conspiracy between A1 and A2. So

also, the acquittal of A3 in this regard. We have also

touched upon the provisions of explanation 5 to the

Section 108 of the IPC. We further notice that A1 and

A2 have been convicted under Section 302 read with

Section 109. It is to be noticed that accused 1 and 2

have been held guilty under Section 120B. It is

necessary to notice Section 120B.

“120B. Punishment of criminal conspiracy. — (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable

183 as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.” (Emphasis supplied)

56. This means that since accused 1 and 2 are held

guilty under Section 120B of the IPC to commit the

murder of the deceased, they are to be punished as if

they have abetted the said offence. The judgment of

the trial Court is to be understood in the said vein.

It is true that abetment by conspiracy is only one form

of abetment. There can be alternate charges. There can

be abetment by instigation and intentional acting even

when there is no conspiracy and, therefore, no abetment

by conspiracy. The fifth charge against A1, A2, A5, A9,

A12 and A13 would be in the form of an alternate

charge. We say this as A5 (Appellant before us) in

Criminal Appeal No. 2008 of 2017 is charged and found

guilty of murder under Section 302 of the IPC read with

Section 109 of the IPC. The role of A5, particularly,

having regard to the statement under Section 27 of the

Evidence Act, leading to recovery of the Van, the

184 discovery of the site of the factory and the cremation

ground besides other evidence, cannot be ignored. We

have no hesitation in repelling the contention of the

appellants on this ground. It is clear that their

acquittal under Section 120B of the IPC will not impact

their conviction under the other provisions.

CERTAIN CONTENTIONS OF A6

57. PW21 and PW35 have identified A6 in the Test

Identification Parade. The contention that there would

be possibility of these witnesses being seen before the

Parade does not appeal to us. The presence of the Omni

Van and A6 besides 3 others on the very date on which

murder was committed and near the site of cremation and

the fact of cremation of the body being done, is

certainly a very important circumstance and not to be

ignored as contended. The fact that PW19 has not found

it possible to remember A6 though he has identified him

in the Test Identification Parade before the Magistrate

cannot lead to the obliteration of the evidence

185 relating to the cremation on 01.01.2002 and about 8

persons coming there. The fact that PW 19 has stated

that the person identified in MO14 photograph was the

person cremated is not liable to be brushed aside. We

should also not be oblivious to the principle that in a

case of this nature, the total effect of the

circumstances, must be borne in mind. It must be safe

to believe the accomplice evidence based on other

materials available. We find the evidence of PW10 and

PW11 credible and the presence 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 in

carrying the dead body in the van which is later

identified by the police officer at a spot near the

cremation ground is certainly a vital circumstance

which cannot be brushed aside. The role of A6 in the

illegal confinement appears to be established. No

doubt there is recovery of MO8 which is attacked on the

score that PW 24 “has identified A8 as A6”. We have

186 dealt with it elsewhere and shall not be detained by

it.

ABDUCTION, ILLEGAL CONFINEMENT, MURDER AND CREMATION IN FICTITIOUS NAME

58. It is clear that the deceased was abducted on

30.12.2001. It is also established that he was

confined illegally at the upstairs portion of the

factory at Moudihur owned by PW34. It is clear from

the evidence that it was the body of the deceased which

was cremated and a fictitious name was used and a

certificate issued at the instance of A3(P27) which

circumstance is clinching in establishing the

prosecution case. As far as the murder is concerned,

there is no direct evidence. There is no direct

evidence that deceased is murdered by strangulating

him. However, it is equally true that on the basis of

recovery made at the instance of A16 a nylon rope and

chain was recovered which undoubtedly strengthens the

prosecution case. There cannot be medical evidence

187 relating to murder in a case where the body stood

cremated. We have no hesitation in ignoring the

evidence relating to recovery of certain parts of the

body of the deceased but that is not sufficient for the

accused to persuade us to throw out the prosecution

case. A carefully thought out criminal plan has led to

the cruel snuffing out of precious life. The players

thought it through meticulously by destroying the

corpus delicti by cremation.

59. The abduction followed by murder in appropriate

cases can enable a court to presume that the abductor

is the murderer. Now the principle is that after

abduction, the abductor would be in a position to

explain what happened to his victim and if he failed to

do so, it is only natural and logical that an

irresistible inference may be drawn that he has done

away with the hapless victim. Section 106 of the

Evidence Act would come to the assistance of the

prosecution. In this regard it is necessary to look at

188 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 order that such person may be murdered or may be so disposed of as to be put in danger of being murdered” he commits the offence punishable under the section. So the important task of the prosecution was to demonstrate that abduction of Mahesh was for murdering him. Even if the murder did not take place, the offence would be complete if the abduction was completed with the said objective. Conversely, if there was no such objective when the abduction was perpetrated, but later the abductors murdered the victim, Section 364 IPC would not be attracted, though in such a case the court may have to consider whether the offence of culpable homicide (amounting to or not amounting to murder) was committed.”

In this case the trial Court has convicted the

appellants under Section 364 IPC. This is apart from

also convicting them either under Section 365 or under

Section 365 read with Section 109 as already discussed.

This Court in a later judgment reported in AIR 2001

SC 1436 Sucha Singh v. State of Punjab turned down the

request of the appellant to reconsider the ratio laid 27 (2000) 8 SCC 382

189 down in State of W.B. V. Mir Mohd. Omar (supra). In

the said case, the conviction appears to have been only

under Section 302 though read with Section 34 of the

IPC. It is pertinent to note what this Court held

speaking through Justice K.T. Thomas:

“19. We pointed out that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference.

20. We have seriously bestowed our consideration on the arguments addressed by the learned Senior Counsel. We only reiterate the legal principle adumbrated in State of W.B. v. Mir Mohd.

Omar [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516] that when more persons than one have abducted the victim, who is later murdered, it is within the legal province of the court to justifiably draw a presumption depending on the

190 factual situation, that all the abductors are responsible for the murder. Section 34 IPC could be invoked for the aid to that end, unless any particular abductor satisfies the court with his explanation as to what else he did with the victim subsequently, i.e., whether he left his associates en route or whether he dissuaded others from doing the extreme act etc. etc.

21. We are mindful of what is frequently happening during these days. Persons are kidnapped in the sight of others and are forcibly taken out of the sight of all others and later the kidnapped are killed. If a legal principle is to be laid down that for the murder of such kidnapped there should necessarily be independent evidence apart from the circumstances enumerated above, we would be providing a safe jurisprudence for protecting such criminal activities. India cannot now afford to lay down any such legal principle insulating the marauders of their activities of killing kidnapped innocents outside the ken of others.”

60. We would think that the aforesaid principle would

also apply to those persons who illegally confine the

person who stands abducted even if there is no evidence

191 that they have themselves carried out the abduction.

Section 387 is heightened form of extortion in which

the victim is put in the fear of death or grievous

hurt. Section 347 involves wrongful confinement of a

person for the purpose of committing extortion. The

appellants have been convicted under Sections 347 and

387 of the IPC. This is not an inexorable rule but to

be applied based on the factual matrix presented before

the court. Where abduction is followed by illegal

confinement and still later by death, the inference

becomes overwhelming that the victim died at the hands

of those who abducted/confined him. Nobody has a case

that the deceased died a natural death. In State of

W.B. (supra) therein, the Court, inter alia, held as

follows:

“34. When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him. Such inference

192 can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody.

35. During arguments we put a question to learned Senior Counsel for the respondents based on a hypothetical illustration. If a boy is kidnapped from the lawful custody of his guardian in the sight of his people and the kidnappers disappeared with the prey, what would be the normal inference if the mangled dead body of the boy is recovered within a couple of hours from elsewhere. The query was made whether upon proof of the above facts an inference could be drawn that the kidnappers would have killed the boy.

Learned Senior Counsel finally conceded that in such a case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise.

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

37. The section is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his

193 special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.”

61. The deceased was brought in a Ford Escort car.

He was brought by A4, A11, A16 and A17. It is to be

remembered that the case of the prosecution is that

except A12, A4 to A18 were the henchmen of A3. We have

referred to the evidence against A6, A11 and A16.

There are material other than the deposition of PW11.

We hold that the accomplices are credible witnesses

when the whole circumstances are borne in mind. Their

evidence may not be immaculate in character. By their

very nature, that is being accomplices, any such claim

would be incongruous. But the test is whether it is

safe to convict the accused believing such witnesses.

We are of the view that as regards the crime and the

accused, their testimony brings home the truth, as

regards accused who are appellants before us. There is

no motive attributed to PW10 and PW11 to falsely

194 implicate. The presumption of murder was rightly

drawn.

62. The role of A15 is clear who was not only been

referred to in the accomplice evidence but corroborates

his link in the abduction with the recovery of

motorcycle at his instance. It has rightfully earned

him conviction under Section 365 IPC. There were two

cars apart from the Ford Escort on 30.12.2001 at the

site of the illegal confinement. From the Maruti Zen,

three persons emerged as witnessed by PW11. It is true

that PW11 has not identified them. That apart there was

also a Tata Sumo, PW11 no doubt identified A5 and A7

apart from A15 as the persons who came back on

30.12.2001 with tiffin after leaving the factory.

63. The trial Court has convicted A4, A11, A15, A16

and A17 under Section 365 which in our view is

unassailable in regard to these accused who are also

appellants before us. We do not see any error in the

court drawing the presumption that they are also guilty

of murdering the deceased.

195

64. PW3, it must be remembered has spoken of three

men pushing another into a van on 30.12.2001. The van

moved and it was followed by a motorcycle. It must be

remembered that A15 gave a statement leading to the

recovery of a motorcycle. The evidence is relied by

the two courts and we see no reason to take a different

view.

65. As far as A3, A5, A6 and A8 are concerned, they

stand convicted under Section 365 read with Section

109. Abetting is to be understood in the context of

their acting on the conspiracy which stood proved

against A1 and A2. No doubt, abetting also takes place

when there is instigation or intentional aiding. The

role of A3 looms large. It is clear that he organised

the whole thing and it commenced with the search for an

appropriate house where the victim could be confined

after the abduction. His role along with his men in

carrying out the crime culminating in the cremation

under fictitious name of the abducted person is clear.

196 Not only there is evidence of PW10 and PW11 but other

evidence which includes PW32, PW33, PW36 and PW8.

66. As far as A7 and A14 are concerned, they have also

been convicted under Section 365 and also under Section

364. The involvement of A7 is clear. He makes his

maiden

appearance in the accomplice evidence as early as on

05.12.2001. PW10 has witnessed him standing along with

certain other accused by the side of the deceased who

was then clearly in the state of illegal confinement.

He further establishes his complicity by bringing down

the body of the deceased on 01.01.2002 along with three

others. His role is also corroborated by the testimony

of PW21 and PW35, Police officers.

67. A7 and A14 we would think ought to have been

convicted under Section 365 read with Section 109 of

the IPC. We notice that A3, A5, A6 and A8 stood

convicted under Section 365 read with Section 109. We

notice however that the charge as against A7 and A14

was under Section 365. We further notice the charge as

197 against A14 is concerned is also under Section 365 read

with Section 109 of the IPC. As already noticed all the

appellants have been convicted also under Section 364

of IPC.

68. In this connection as regards the lack of a charge

or defect in a charge is concerned, it is one which is

essentially intertwined with the question of prejudice

to the accused. See in this regard the judgment of

this Court in Willie (William) Slaney v. State of

Madhya Pradesh AIR 1956 SC 116. We do not think that

prejudice is caused in this regard in the facts.

69. It must be noticed that the evidence in this case

no doubt through the mouth of PW10 and PW11 who alone

have witnessed what truly 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 time tied up

on the first floor. We notice indeed that A10 has been

acquitted by 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 have also been convicted

198 in connection with the illegal confinement of the

deceased.

70. A4, A7, A11, A14, A15, A16 and A17 are persons who

have been found guilty under Section 365 of the IPC.

A3, A5, A6 and A8 stand convicted under Section 365 of

the IPC with the aid of Section 109 of IPC. All of

them have also been convicted under Section 364 of the

IPC. In this regard there is a dichotomy involved.

The law attaches criminality to the act or omission by

a person. Another person may become liable as an

abettor, a person who has conspired and thus liable

under Section 120B, a person who has shared a common

object and thus become vicariously liable and if there

be 5 or more persons under Section 141 read with

Section 149 or if the principle of vicarious liability

embedded in Section 34 of the IPC is attracted. In

other words, for a conviction under Section 364 actual

abduction is necessary. A person could no doubt be

liable under Section 364 read with Section 34 or under

Section 364 read with Section 149 or under Section 364

199 read with Section 109 or if he is found guilty under

Section 120B. In this case there is no scope for

either 120B or 149. However just as they have been

found guilty under Section 365 we would support the

conviction under Section 364 in the same manner namely

the abduction within the meaning of Section 364. The

abduction is alleged to have been taken place on

30.12.2001. Be it remembered, that essence of abduction

is forced movement, inter alia, from any place. The

offence would be committed by any one who effects such

abduction at any or all points of the route. We have

already noticed that in a given case, an abduction may

attract both sections 364 and 365. The distinguishing

feature between the two kinds of abduction, is the

difference in the intent with which the abduction,

inter alia (as Sections 364 and 365 also deal with

kidnapping), is carried out. But so far as the

intention attracts both provisions in a given case,

conviction under both sections is not impermissible.

However, when some of the appellants are convicted

200 under Section 365 simpliciter and others are convicted

under Section 365 read with Section 109, then the

position of those accused/ appellants in regard to

conviction under Section 364 must also be the same.

However, this difference in our approach in the matter

of conviction under Section 364, cannot advance the

case of the appellants, as abduction whether it is with

the aid of Section 109 or which is under Section 364

simpliciter, enables the Court to raise the presumption

of murder, in the absence of any explanation offered

within the meaning of Section 106 of the Evidence Act.

In other words, while we would find A4, A11, A15, A16

and A17 guilty under Section 364 which is already found

by the courts below, we would support the conviction

under Section 364 of other appellants on the basis that

they have been actively aided the abduction. In other

words they would be guilty 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 PW10

that when he saw the deceased in a clear state of

201 wrongful confinement, as he was found tied on the first

floor of the factory, A5, A6, A7, A8, A11 and A14 were

present. They have also been convicted under Sections

347 and 387 of the IPC. Also, in fact, we have already

noted that on 30.12.2001, PW11 has deposed about three

cars out of which the deceased 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 emerging out

of the car along with the deceased but it is quite

clear that there were more persons than A4, A11, A16

and A17 who were involved in the abduction. In this

regard it is profitable to remember that PW3 has

witnessed three persons pushing another into a Maruti

Van early in the morning on 30.12.2001. No doubt there

is also a man on the Motorcycle. Within hours when he

is brought to the factory building, he comes out of a

Ford Escort. There were two other cars which

accompanied it. We must bear in mind that under

Section 362 of the IPC, abduction has been defined,

inter alia, as compelling a person to go from any

202 place. It, no doubt, also includes, such movement

procured by deceitful means. To make it more clear, if

we see the plot unravelling, viz., the abduction, the

illegal confinement, the death of the deceased and his

subsequent cremation, 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 and A14

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 and there is

essentially the evidence of PW10, as aforesaid. The

same is position about A17, whose involvement has been

referred to by PW11, the other accomplice. We, however,

find that that the accomplice witnesses, who have been

relied upon by two courts, are to be treated as

credible witnesses and, even in the absence of

corroborative evidence, in the facts and circumstances

of this case, we see no reason to disturb that

conviction. If that is so, even in the absence of any

203 direct evidence relating to murder, the presumption of

murder, being committed by the appellants before us,

would apply. In fact, the courts below have drawn a

presumption about murder being committed. This is a

presumption which cannot be said to be drawn without

any basis. Having regard to the facts and circumstances

before us, we are of the view that it cannot be

contended that no case is made out against the

appellants.

71. Applications for withdrawal of Criminal Appeal

No.2007/2017 and Criminal Appeal No.2009 of 2017 are

allowed. Criminal Appeals 2007 of 2017 and 2009 of

2017 are dismissed as withdrawn. Rest of the Criminal

Appeals are dismissed. The bail bonds of the

appellants who have been released on bail under orders

of this Court shall stand cancelled and they shall

surrender within three weeks to serve their sentences.

………………………………………………………J. [ROHINTON FALI NARIMAN]

204 ………………………………………………………J. [K.M. JOSEPH]

………………………………………………………J. [V. RAMASUBRAMANIAN] NEW DELHI;

JUNE 03, 2020.

205