2020 (6) TMI 806 - SC - Indian Laws

Abduction - illegal confinememt - murder and cremation in fictitious name - Discharge of burden of prove - effect of acquittal of the Appellants under Section 120B - 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 - HELD THAT - The fact that the Appellants have been acquitted Under Section 120B will not extricate them from criminal liability for their acts which would constitute substantive offences Under Sections 302 347 and 387 of the Indian Penal Code. 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 relating to murder in a case where the body stood cremated - there are 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. 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. 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 Indian Penal Code. 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. 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 Indian Penal Code. 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. 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 - it is found 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 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. Appeal disposed off.

Summary

Issues Involved:
1. Conviction and sentencing by the Trial Court and High Court.
2. Cleavage of opinion among judges in the earlier bench.
3. Prosecution case and evidence.
4. Charges framed against the accused.
5. Evidence and findings against each accused.
6. Sentencing and confirmation by the High Court.
7. Arguments by the defense.
8. Accomplice evidence.
9. Section 164 of the Code of Criminal Procedure.
10. Jurisdiction of the Supreme Court under Article 136.
11. Analysis of various charges under the Indian Penal Code.
12. Acquittal of certain accused and its impact.
13. Application of Section 106 of the Evidence Act.
14. Withdrawal of certain appeals.

Detailed Analysis:

1. Conviction and Sentencing by the Trial Court and High Court:
The Trial Court convicted and sentenced the accused based on the prosecution's evidence. The High Court confirmed the Trial Court's judgment except for A10, who was acquitted.

2. Cleavage of Opinion Among Judges in the Earlier Bench:
The appeals were initially heard by a two-judge bench, resulting in a split opinion. One judge acquitted the accused, while the other upheld the conviction. This led to the matter being referred to a three-judge bench.

3. Prosecution Case and Evidence:
The prosecution case was based on the abduction and murder of the deceased, an ex-MLA, and the subsequent disposal of his body. The evidence included witness testimonies, confessional statements, and recoveries of material objects.

4. Charges Framed Against the Accused:
The charges included conspiracy (Section 120B IPC), abduction (Section 365 IPC), extortion (Section 387 IPC), murder (Section 302 IPC), wrongful confinement (Section 347 IPC), and causing the disappearance of evidence (Section 201 IPC).

5. Evidence and Findings Against Each Accused:
- A3: Involved in organizing the crime, procuring a false death certificate, and other activities leading to the murder.
- A4: Present during the abduction and involved in the illegal confinement and subsequent murder.
- A5: Assisted in various stages, including the abduction and disposal of the body.
- A6, A7, A8, A11, A14, A15, A16, A17: Involved in different stages of the crime, including abduction, confinement, and disposal of the body. Their involvement was corroborated by witness testimonies and recoveries.

6. Sentencing and Confirmation by the High Court:
The High Court confirmed the sentences imposed by the Trial Court, except for A10, who was acquitted.

7. Arguments by the Defense:
The defense argued that the prosecution's case was based on unreliable accomplice evidence, lack of direct evidence, and the impact of the acquittal of A12 on the charges against other accused.

8. Accomplice Evidence:
The court reiterated the principles regarding accomplice evidence, emphasizing the need for corroboration in material particulars. The evidence of PWs 10 and 11, though accomplices, was found credible and sufficiently corroborated.

9. Section 164 of the Code of Criminal Procedure:
Statements recorded under Section 164 CrPC are not substantive evidence but can be used for corroboration or contradiction. The court discussed the object and limitations of such statements.

10. Jurisdiction of the Supreme Court under Article 136:
The court outlined the limited scope of interference in appeals by special leave, emphasizing that it would not reappraise evidence unless there were significant legal errors or perversity in the findings.

11. Analysis of Various Charges Under the Indian Penal Code:
- Section 120B IPC (Conspiracy): The acquittal of A12 did not impact the conviction of other accused under substantive charges.
- Section 302 IPC (Murder): The court upheld the conviction based on the chain of circumstantial evidence and the presumption of murder following abduction.
- Section 365 IPC (Abduction): The involvement of the accused in the abduction was established through credible evidence.
- Section 387 IPC (Extortion): The threat to the deceased to part with money was proved.
- Section 347 IPC (Wrongful Confinement): The illegal confinement of the deceased was established.
- Section 201 IPC (Causing Disappearance of Evidence): The disposal of the body and the procurement of a false death certificate were proved.

12. Acquittal of Certain Accused and Its Impact:
The acquittal of A12 and the acquittal under Section 120B IPC did not affect the conviction of other accused under substantive charges. The court distinguished between conspiracy and abetment, emphasizing the independent criminal liability of the accused.

13. Application of Section 106 of the Evidence Act:
The court applied Section 106, holding that the burden of explaining the fate of the abducted person lies with the abductors. The failure to provide a satisfactory explanation led to the presumption of murder.

14. Withdrawal of Certain Appeals:
Applications for withdrawal of Criminal Appeal No. 2007/2017 and Criminal Appeal No. 2009/2017 were allowed, and those appeals were dismissed as withdrawn.

Conclusion:
The Supreme Court dismissed the appeals, upholding the convictions and sentences of the accused. The court found the evidence credible and sufficient to establish the guilt of the accused beyond a reasonable doubt. The bail bonds of the appellants who were released on bail were canceled, and they were directed to surrender to serve their sentences.