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TMI Blog2020 (6) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 irresisti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 120B Indian Penal Code 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 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 Indian Penal Code 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 Indian Penal Code. Thirdly in order to fulfil the object of such conspiracy, in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 Indian Penal Code, Section 387 of the Indian Penal Code, Section 302 read with Section 109 of the Indian Penal Code, Section 347 read with 109 of the Indian Penal Code and Under Section 364 read with Section 109 of the Indian Penal Code. (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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 and the charge Under Section 120B of the Indian Penal Code 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 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 India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ematorium at Erukkancherry, Perambur and with a view to screen the traces and giving false information, committed the offence Under Section 201 Indian Penal Code 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 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 and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Indian Penal Code 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 Indian Penal Code and sentenced to undergo 7 years RI and to pay fine of Rs. 5000/- in default to undergo one year RI; that convicting him for the offence Under Section 302 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 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 the Accused for the offence Under Section 302 read with 109 Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs. 50000/- and also 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; 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. 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 concurren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Indian Penal Code. 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, 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 conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought the deceased to the factory. PW34, on whose testimony prosecution has placed considerable reliance, is also an accomplice. He drew our attention to the judgment (2016) 16 SCC 355 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson above 60 years, a death certificate is not required for conducting 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]. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not. In this regard, our attention is drawn to the judgments of this Court. In George and Ors. v. State of Kerala and Anr. (1998) 4 SCC 605, 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 Code of Criminal Procedure and not his evidence in court. The said statement was treated as substantive 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 Code of Criminal Procedure) 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 Code of Criminal Procedure cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him. 19. Learned Counsel for A3 relied upon the following decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volvement 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. 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 Indian Penal Code, 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 Indian Penal Code. 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y.-- 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 Indian Penal Code 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 Indian Penal Code declares that if a person, being aware of facts which render an assembly an unlawful assembly, either initially joins it or continues in it is a member of such unlawful assembly. 32. Section 149 of the Indian Penal Code declares the Principle o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that offence. In Barendra Kumar Ghosh v. Emperor [(1925) ILR LII Cal 197] Lord Sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abets the doing of a thing, who-- (First) -- Instigates any person to do that thing; or (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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Indian Penal Code. 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, ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 45. Section 109 of the Indian Penal Code 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 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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Penal Code. Section 107 of the Indian Penal Code 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 Indian Penal Code 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 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 abetme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntive 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 Indian Penal Code, as the punishment is for the offence which is committed based on the abetment. The offence of 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 Indian Penal Code 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 Indian Penal Code. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... USTICE V. GOPALA GOWDA 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. Baskerville 1916 (2) KB 658. 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 Anr. Etc. (1969) 3 SCC 429 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 in Chonampara Chellapan Etc. v. State of Kerala Etc. (1979) 4 SCC 312. Corroboration must be in regard to material particula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. Finding the Accused not guilty Under Section 120B of the Indian Penal Code, 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 Indian Penal Code, and thereafter, to the judgment of this Court in Kehar Singh and Ors. v. State (Delhi Administration) (1988) 3 SCC 609 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 Indian Penal Code 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 of PWs 10 and 11 which linked the Appellants to the crime. The charge Under Section 109 of the Indian Penal Code 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titious 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 PWs 19 and 36 apart from noting that PW12 has resiled from part of his statement. Next, the learned 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 Indian Penal Code next engaged the learned Judge. It was found that mere acquittal Under Section 120B of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onviction 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: (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 Punjab AIR 1957 (SC) 637: 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssociates, 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. 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 Maharashtra AIR (1970) SC 1330: 12. The law with regard to appreciation of approver's evidence is based on the effect of Sections 133 and 114, illustrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 particular 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciple 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 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 Code of Criminal Procedure. 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 Code of Criminal Procedure. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts the trial Court again ignored a fundamental Rule of criminal jurisprudence that a statement of a witness recorded Under Section 164, Code of Criminal Procedure, 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 Kerala AIR 2013 SC 651: 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 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 and Ors. v. State of Orissa 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 Evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nship. Both kidnapping and abducting, are referred to in Sections 364 and 365 of the Indian Penal Code. 77. Section 365 of the Indian Penal Code 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 seven years, and shall also be liable to fine. 78. Section 302 of the Indian Penal Code, no doubt, deals with the offence of murder. Lastly, Section 387 of the Indian Penal Code 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 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same van. It was an Omni Van. A 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. 86. 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 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 news ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 89. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em 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 92. 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. 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 abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 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). 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 93. 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 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 bea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed 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 96. 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 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 upsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance 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 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. 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 Polli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled him over phone and asked him to go Hotel Henkala. In Room No. 207, he saw A9, PW10 and A1. He stayed with A1 during 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 them went to the company by the motorcycle. Two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 30th. 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 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 hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emiya 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 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 emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking 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. 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 veh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his 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 Indian Penal Code, 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 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought the car for Rs. 3,60,000/- from one Advocate Durai Pandi. He, no doubt, admits that it is not in his name. 108. Passing on to PW11 in connection with the vehicle, 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 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 orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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. 114. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice constable has identified him as one of the four found in MO7 van on 01.01.2002 near the cremation ground. 119. 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. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice Arun Mishra confirmed his conviction even after eschewing MO1 shoes. [PW1 the son 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. 125. 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 photocopy of the RC of the said motor vehicle. He deposes that motor bike seen by him which belongs to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceased. 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) 127. 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning 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 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 so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution 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 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 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad with Section 109 of the Indian Penal Code for abetment of murder. There is a charge Under Sections 347 and 364 of the Indian Penal Code 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 Indian Penal Code, Under Sections 347 and 364 of the Indian Penal Code. Charge was also framed against A8, A10, A11 and A13 to A18 Under Section 201 of the Indian Penal Code for cremation of the body and getting the false certificate as if one Rajamani Chettiar had died due to heart ailment. 135. There is the argument addressed before us 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd A3, A4, A6, A7, A8, A9, A10, A11, A14, A15, A16 and A17 guilty Under Section 302 Indian Penal Code. It must be noticed that it is without invoking Section 109 of the Indian Penal Code. 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 meaning of Section 120B. It has not been found acceptable to the trial Court and only A1 and A2 are found guilty Under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under the other provisions. CERTAIN CONTENTIONS OF A6 140. 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 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary to look at what this Court has laid down. In State of W.B. v. Mir Mohamad Omar (2000) 8 SCC 382 this Court held as follows: 13. Section 364 Indian Penal Code 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 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to those persons who illegally confine the person who stands abducted even if there is no evidence 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no motive attributed to PW10 and PW11 to falsely implicate. The presumption of murder was rightly drawn. 145. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 152. 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 in connection 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and A14 are concerned, there is the evidence of PW10 that when he saw the deceased in a clear state of 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 Indian Penal Code. 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 Indian Penal Code, abduction has been defined, inter alia, as compelling a person to go from any place. It, no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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