TaxTMI 
TaxTMI 
2020 (6) TMI 806
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.... 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 Police (2016) 16 SCC 355. After the judgment was rendered, it is that the other appeals came to be filed by the other Accused. They are as follows: a. A5 and A8 have filed Criminal Appeal Nos. 2008 of 2017; b. A6 has filed Criminal Appeal No. 1504 of 2017; 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applications have been filed seeking to withdraw the aforesaid two appeals and they are liable to be dismissed as withdrawn.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&#....
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.... role. It is, according to the prosecution, on being so 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 certificate and, under the cover of the same, the body of the deceased came to be cremated. 4. O....
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.... 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 Indian Penal Code read with 109 Indian Penal Code. Fifthly in order to fulfil the object of the said conspiracy and consequent upon the said occurrence on 1.1.02 night at about 9:00 p.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 Indian Penal Code. Likewise the Accused 1, 2, 5, 9, 12 and 13 were charged Under Section 302 read with Section 109 Indian Penal Code 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....
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....nal Code; (iv) A5 was found guilty Under Section 365 read with Section 109 of the Indian Penal Code, Section 387 of the Indian Penal Code, Section 302 read with Section 109 of the Indian Penal Code, Section 347 of the Indian Penal Code, Section 364 of the Indian Penal Code and Section 201 of the Indian Penal Code. He was, however, acquitted Under Section 120B of the Indian Penal Code. (v) A6 was found guilty Under Section 365 read with Section 109 of the Indian Penal Code, Section 387 of the Indian Penal Code, Section 302 of the Indian Penal Code, Section 347 of the Indian Penal Code, Section 364 of the Indian Penal Code and Section 201 of the Indian Penal Code. He stood acquitted Under Section 120B of the Indian Penal Code; (vi) A7 was found guilty Under Section 365 of the Indian Penal Code, Section 387 of the Indian Penal Code, Section 302 of the Indian Penal Code, Section 347 of the Indian Penal Code, Section 364 of the Indian Penal Code and Section 201 of the Indian Penal Code. He stood acquitted Under Section 120B of the Indian Penal Code; (vii) A8 was found guilty Under Section 365 read with Section 109 of the Indian Penal Code, Section 387....
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.... 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 Indian Penal Code 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 Indian Penal Code 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 Indian Penal Code and before committing murder him, for having kept him in a secret place unlawfully and illegally, committed the offence Under Section 347 Indian Penal Code and for having kidnapped him for the purpose of murdering him, committed the offence Under Section 364 Indian Penal Code 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 Ve....
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.... 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 Indian Penal Code 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 Indian Penal Code 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 Indian Penal Code and before committing murder him, for having kept him in a secret place unlawfully and illegally, committed the offence Under Section 347 Indian Penal Code and for having kidnapped him for the purpose of murdering him, committed the offence Under Section 364 Indian Penal Code and accordingly they were found guilty of the above said offences. 7. The sentencing is as follows: 220. Further the Accused 3, 6 and 8 are convicted for the offence Under Section 365 read with 109 Indian Penal Code and sentenced to undergo 7 years RI and to pay fine of Rs. 5000/- each in default to undergo one year RI e....
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.... of Rs. 5000/- in default to undergo one year RI; convicting him for the offence Under Section 302 Indian Penal Code read with 109 Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs. 50,000/- convicting him for the offence Under Section 347 Indian Penal Code 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 Indian Penal Code 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 Indian Penal Code and sentencing him to undergo 7 years RI and 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 Indian Penal Code 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 Indian Penal Code an....
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....ay fine of Rs. 5000/- in default to undergo one year RI each; convicting them for the offence Under Section 302 Indian Penal Code 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 Indian Penal Code and 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 Indian Penal Code 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 Indian Penal Code 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 ....
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....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 Indian Penal Code failed, reliance placed on Section 109 of the Indian Penal Code, 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 Indian Penal Code can have no play. Regarding the recovery of Maruti Zen car at the instance of A3, it is pointed out that A3 is not the owner of the car. PW10 and PW11 were active participants. They were not tender....
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....at 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 Indian Penal Code, 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 indeed in order to cater to the general public. PW 21 and PW35 are Police Officers. They are alleged to have identified som....
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....dio 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 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....
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....s-examination in the court, he deposed that he could not, due to darkness, identify the culprits. The court emphasised that the statement Under Section 161 of the Code of Criminal Procedure is not to be used for any purpose except to contradict the witness in the manner provided in Section 162 of the Code of Criminal Procedure. Obviously, this judgment is invoked against the court relying upon the evidence of PW19. 20. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Ors. (1976) 2 SCC 17, 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. ....
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....t that the Accused are entitled to request the Court to draw an adverse inference against the prosecution when the best evidence has not been produced [See Mohanlal Shamji Soni v. Union of India and Anr. 1991 Supp (1) SCC 271. 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, 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 i....
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....s 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 judgment. 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 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. ....
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.... Appellants. He would point out that this Court, in the case of this nature, which is based on circumstantial evidence, what is to be looked into is the cumulative effect of all the circumstances put together. In regard to any defect in charge, he drew our attention to Section 460 of the Code of Criminal Procedure 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 Code of Criminal Procedure. Statement Under Section 164 of the Code of Criminal Procedure 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 Cour....
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....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 Punjab AIR 1955 SC 274, the Court had to deal with a contention on behalf of the prosecution that Section 149 of the Indian Penal Code did not create any offence at all and hence a separate charge, was not obligatory. This Court, therefore, found it necessary to decide a question whether Section 149 of the Indian Penal Code 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 ....
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....n 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 Su....
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....ce 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. 'A' is guilty of instigating 'B' to commit murder. 39. Explanation (3) declares that it is not necessary that the person abetted should be c....
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.... 43. Thus, abetment of a thing is defined in Section 107 of Indian Penal Code and the concept of "abettor" is explained in Section 108 of the Indian Penal Code. Sections 107 and 108 of the Indian Penal Code 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 Indian Penal Code. 44. In Pramatha Nath Talukdar v. Saroj Ranjan Sarkar AIR 1962 SC 876, this Court spoke about the distinction between the offence of abetment by conspiracy and the offence of criminal conspiracy (Section 120A of Indian Penal C....
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....the Indian Penal Code 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 Indian Penal Code 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 present and if there is no express provision under the Indian Penal Code 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 Indian Penal Code, in consequence of the abetment, it must be as a consequence of ....
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....the Indian Penal Code, would be punishable for that offence under the appropriate provision. Also, as we have noticed, under Explanation V to Section 108 of the Indian Penal Code 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 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 Indian Penal Code. 51. In order to attract Section 109 of the Indian Penal Code, the act abetted must be committed in consequence of the abetment. Sections 115 and 116 of the Indian Penal Code deal with punishments for abetment of offences when th....
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.... in illustrations in Explanation III of Section 108 of the Indian Penal Code). Equally, there need not be meeting of minds between all the persons involved in a conspiracy and it is sufficient if a person is engaged in the conspiracy following which the offence is committed (See Explanation V to Section 108 of the Indian Penal Code). 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 Maharashtra (1970) 1 SCC 696, this Court had an occasion to deal with Sections 34, 107 and 120B of the Indian Penal Code and this is what this Court lay down: 7. So far as Section 34 Indian Penal Code 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 Indian Penal Code on the oth....
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.... 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 Indian Penal Code. They were found convicted for the offence Under Section 302 of the Indian Penal Code read with Section 109 of the Indian Penal Code and Section 365 of the Indian Penal Code read with Section 109 of the Indian Penal Code. 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 Indian Penal Code. PWs 10 and 11 were not witnesses to the abduction of the deceased. PW3, who witnessed the 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 v....
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....onship 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 Indian Penal Code; (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 Indian Penal Code; (xii) Effect of acquittal Under Section 120B Indian Penal Code; (xiii) Evidence of accomplices; (xiv) Holding TIP/recording of statement Under Section 164 Code of Criminal Procedure.; (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 th....
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....d the learned Judge. It was found that mere acquittal Under Section 120B of the Indian Penal Code when the charge Under Section 109 of the Indian Penal Code was found established, was of no avail to them. Charges, which were framed, were specific. Ingredients of Section 109 of the Indian Penal Code were there and have been rightly found to be present by both the courts below. Section 120B of the Indian Penal Code was found established against Accused A1 and A2 and other charges against the Accused Appellants. Sections 120B and 109 of the Indian Penal Code were found to be distinct offences. He referred to the judgment of this Court in Ranganayaki v. State by Inspector of Police (2004) 12 SCC 521, which, inter alia, held that for an offence Under Section 120B of the Indian Penal Code, a charge Under Section 109 of the Indian Penal Code was unnecessary and inappropriate. The commission of offence Under Section 109 of the Indian Penal Code was found established along with other offences. The acquittal Under Section 120B of the Indian Penal Code was found not to adversely impinge upon the ingredients of Section 109 of the Indian Penal Code. The evidence of PWs 10 and 11, even taken as ....
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....ssion 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 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 co....
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....70) SC 1330: 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 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 ....
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....oration 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].) 65. To summarize, by way of culling out the principles which emerge on a conspectus of the aforesaid decisions, we would hold as follows: 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 pr....
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....rocedure. 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 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 Code of Criminal Procedure. 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 Code of Criminal Procedure. as explained by us. It is also settled principle that the competenc....
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....and Ors. AIR 1999 SC 2565: (1999 AIR SCW 2736); and Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. and 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 Code of Criminal Procedure, 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 Code of Criminal Procedure, such statements cannot be treated as substantive evidence. 71. Thus, in a case where a witness, in his statement Under Section 164 of the Code of Criminal Procedure, 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 Accused, it would be impermissible to convict the Accused on the basis of the statement Under Section 1....
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....eal 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 Indian Penal Code, 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 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 Indian Penal C....
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....ts 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). Abduction, as defined in Section 362 of the Indian Penal Code, 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 Indian Penal Code, more graver than Section 365 of the Indian Penal Code, 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....
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....ly 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 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....
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....t 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 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. 87. 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 witnessed a person being pushed into Maruti Omni Van by three persons and the Van going away followed by the motorcycle. 88....
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....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. 90. PW33 states, inter alia, as follows: 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 year....
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....her 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. 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, h....
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....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 Indian Penal Code), we notice the following. 94. 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 a long gap from the date of crime as the murder is alleged to have taken place on 01.01.2002. 95. 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....
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.... the residence of A9. On reaching factory, he received a phone call from A9 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 97. 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 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 upstai....
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....nt 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. 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. 99. 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 ....
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....the factory but then he says that he received the interest amount for the amount given to PW34. 100. 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. 101. 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 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 dec....
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....he 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 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 ....
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....ur 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 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? 102. It is next necessary to have a look at the testimony of PW34. PW 34 is none other than the owner of the factor....
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....maged and there was a bedpan. PW34 poured the 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 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 ....
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....ed as partner, she deposes with PW10. Her husband had died of heart attack. She had seen the shoe when it was taken away. THE MATERIALS AGAINT THE ACCUSED WHO ARE APPELLANTS THE MATERIALS AGAINST A3 104. 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 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 d....
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.... 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 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 Indian Penal Code. PW10 has spoken of seeing the deceased tied and blindfolded in the upstairs portion. 106. 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.,....
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....d 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. ACCUSED NO. 5 (A5) 109. 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....
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.... makes the statement about the matter, discovered, based on the statement. The evidence of PW44 who was a Revenue Inspector and witness to the 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 111. 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 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 whe....
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....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 van which he saw as MO7. He has spoken about the identification done in the TIP. 115. It is relevant to remember that PW10 has identified A6, A7, A8 and A11 as the persons who carried the dead body of the 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, A....
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....n the house of A11. 120. Moreover, PW21 and PW35, Police Constables, have deposed to seeing A11 near the graveyard on 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. 121. 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 practitioner). It is also clear that such certificate is procu....
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....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 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....
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....al in murder was rightly invoked by the Trial Court. AQUITTAL OF A12, THE INVOKING OF SECTION 109 OF THE INDIAN PENAL CODE EVEN AGAINST A1 AND A2 - THE ACQUITTAL OF A3 TO A18 UNDER SECTION 120B OF THE INDIAN PENAL CODE 128. 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 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, illeg....
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....sed 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 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 ....
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.... 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 Indian Penal Code, except A1 and A2, all the other Accused stand acquitted Under Section 120B of the Indian Penal Code. 133. 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 Indian Penal Code and Sections 364 and 201 of the Indian Penal Code. 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 Indian Penal Code. A DEEPER GLANCE AT THE CHARGES; THE EFFECT OF ACQUITTAL OF A12 134. The first charge is to the effect that A1, A2 and A3 conspired in November, 2001 to kidnap the deceased 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, det....
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....s that the effect of the acquittal of the Appellants Under Section 120B of the Indian Penal Code would be that their conviction Under Section 302 of the Indian Penal Code and other offences cannot be sustained. As we have noted, the charge Under Section 120B of the Indian Penal Code is based on the conspiracy hatched between A1 to A3. No doubt, the charges laid against A1 to A18 Under Section 120B of the Indian Penal Code, is essentially based on the conspiracy between A1 to A3. It is to be noted, however, the charge Under Section 302 of the Indian Penal Code 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 Indian Penal Code read with Section 109 of the Indian Penal Code. 136. We agree that for a charge Under Section 109 of the Indian Penal Code, a minimum of two persons are required. There can be any number of Accused charged with the aid of Section 109 of the Indian Penal Code. 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 l....
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....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 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 Indian Penal Code. 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 Indian Penal Code. 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 t....
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....ber A6 though he has identified him in the Test Identification Parade before the Magistrate cannot lead to the obliteration of the evidence 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 dealt with it....
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....n 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 Indian Penal Code 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 Indian Penal Code. 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 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 Indian Penal Code. 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 d....
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....e 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 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 w....
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....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. 146. 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. 147. 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. 148. 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. I....
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.... with the illegal confinement of the deceased. 153. A4, A7, A11, A14, A15, A16 and A17 are persons who have been found guilty Under Section 365 of the Indian Penal Code. A3, A5, A6 and A8 stand convicted Under Section 365 of the Indian Penal Code with the aid of Section 109 of Indian Penal Code. All of them have also been convicted Under Section 364 of the Indian Penal Code. 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 Indian Penal Code 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 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. Ho....
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....een 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 Indian Penal Code, abduction has been defined, inter alia, as compelling a person to go from any 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 su....