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Saturday, October 1, 2016

Under Section 109 the abettor is liable to the same punishment which may be inflicted on the principal offender: (1) if the act of the latter is committed in consequence of the abetment, and (2) no express provision is made in IPC for punishment for such an abetment. This section lays down nothing more than that if IPC has not separately provided for the punishment of abetment as such then it is punishable with the punishment provided for the original offence. Law does not require instigation to be in a particular form or that it should only be in words. The instigation may be by conduct. Whether there was instigation or not is a question to be decided on the facts of each case. It is not necessary in law for the prosecution to prove that the actual operative cause in the mind of the person abetting was instigation and nothing else, so long as there was instigation and the offence has been committed or the offence would have been committed if the person committing the act had the same knowledge and intention as the abettor. The instigation must be with reference to the thing that was done and not to the thing that was likely to have been done by the person who is instigated. It is only if this condition is fulfilled that a person can be guilty of abetment by instigation. Further the act abetted should be committed in consequence of the abetment or in pursuance of the conspiracy as provided in the Explanation to Section 109. Under the Explanation an act or offence is said to be committed in pursuance of abetment if it is done in consequence of (a) instigation, (b) conspiracy, or (c) with the aid constituting abetment. Instigation may be in any form and the extent of the influence which the instigation produced in the mind of the accused would vary and depend upon facts of each case. The offence of conspiracy created under Section 120-A is bare agreement to commit an offence. It has been made punishable under Section 120-B. The offence of abetment created under the second clause of Section 107 requires that there must be something more than mere conspiracy. There must be some act or illegal omission in pursuance of that conspiracy. That would be evident by Section 107 (secondly), “engages … in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy”. The punishment for these two categories of crimes is also quite different. Section 109 IPC is concerned only with the punishment of abetment for which no express provision has been made in IPC. The charge under Section 109 should, therefore, be along with charge for murder which is the offence committed in consequence of abetment. An offence of criminal conspiracy is, on the other hand, an independent offence. It is made punishable under Section 120-B for which a charge under Section 109 is unnecessary and inappropriate. [See Kehar Singh v. State (Delhi Admn.) (1988) 3 SCC 609] Intentional aiding and active complicity is the gist of the offence of abetment.”; Cell phones/cassettes/forensic evidence 54. Evidence discloses that cell phone was given to A-2 by PW-7. Cassettes were recovered with suitcase MO3 from A-1 which is supported by PW-43 Accountant of Butts Paradise Hotel where suitcase was left and for stay money was paid by Venu. Forensic evidence is furnished by Kasi PW-63 and Dr. C.P. Singh PW-65. PW-63 has deposed that he had compared the documents MO31 and MO33 with the specimen handwritings and signature of Senthil Kumar and submitted his report Ex. P-55 dated 24.7.2002 by concluding that both the handwritings were of the same person. PW-65 had deposed that he had received four video cassettes and two audio cassettes which are marked as MOs.27 and 28. After analyzing he found both the voices to be same and marked the report as Ex. P-83. However, the High Court has not relied upon forensic evidence relating to cassettes and MOs. 31 and 33 and also regarding voice comparison, for the reason that the said articles were not kept in a sealed condition. We also ignore this evidence but ignoring this evidence also does not further the case of the appellants in any way as their guilt stands established by other overwhelming evidence.;In my opinion, in whose name car was registered is immaterial as its use in offence and recovery is material aspect. The registration of car is in name of Ranjit Kumar who paid money for its purchase is a matter inter se between PW-10 and Ranjit Kumar. PW-10 may have purchased the car in the name of Ranjit Kumar. However, the evidence clearly disclosed that the car was in possession of PW-10 and was given by him to accused. Total six cars were used in offence including Ford Escort car and one motorcycle. They were used by one or other accused persons at one or other time while committing offence thus which vehicle was used at particular time by which accused would not create any circumstance in favour of an accused person when it has been proved that various vehicles seized have been used in offence their recovery at the instance of accused persons cannot be ignored.; As per the case of prosecution the body of the deceased was fully burnt as such the recovery of certain remains which was made after several months from the cremation ground was of no utility. Remains would not have been at cremation ground after 2 ½ months when everyday bodies are cremated. Their seizure and the forensic science report regarding that are of no value.

                                 REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 403 OF 2010

SOMASUNDARAM @ SOMU                       ………… APPELLANT
                                     Vs.
STATE REP. BY DY. COMM. OF POLICE        ………… RESPONDENT
                                    WITH
                       Criminal Appeal No. 827 of 2013
                                      and
                        Criminal Appeal No. 828 of 2013

                               J U D G M E N T

V. GOPALA GOWDA, J.

     The present appeals arise out  of  the  common  impugned  judgment  and
order dated 06.10.2007 in Criminal Appeal Nos. 698, 716 and 781 of 2004  and
Criminal Appeal No. 685 of 2005 passed by the High Court  of  Judicature  at
Madras, whereby  the  conviction  and  sentences  awarded  to  the  accused-
appellants by the Additional District and Sessions Judge, (Fast Track Court-
I),  Chennai  were  upheld  for  the  offences  punishable  under  different
sections of the Indian Penal Code, 1860 (hereinafter referred to as  “IPC”),
for the abduction and murder of one M.K. Balan (hereinafter referred  to  as
the “deceased”).
The following table outlines the conviction and sentences  awarded  to  each
of the accused by the Trial Court:
|               Senthil Kumar (A-1)                                       |
|Section 120-B IPC: Imprisonment for life and fine of Rs. 50,000/-        |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 1 year.                                                 |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|5,000/-, in default of payment, rigorous imprisonment for 1 year.        |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 6 months.                                               |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10  |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 2 years.                                                |
|Hariharan (A-2)                                                          |
|Section 120-B IPC: Imprisonment for life.                                |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 1 year.                                                 |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|5,000/-, in default of payment, rigorous imprisonment for 1 year.        |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 6 months.                                               |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10  |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 2 years.                                                |
|                                                                         |
|Poonga Nagar Manickam (A-3)                                              |
|                                                                         |
|Section 120-B IPC: Acquitted under Section 235(1) of Code of Criminal    |
|Procedure, 1973(hereinafter referred to as the “CrPC”).                  |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 1 year.                                                 |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|5,000/-, in default of payment, rigorous imprisonment for 1 year.        |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 6 months.                                               |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10  |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 2 years.                                                |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|10,000/-, in default of payment, rigorous imprisonment for 1 year.       |
|                                                                         |
|Somasundaram (A-4)                                                       |
|                                                                         |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC.               |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 1 year.                                                 |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|5,000/-, in default of payment, rigorous imprisonment for 1 year.        |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 6 months.                                               |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10  |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 2 years.                                                |
|                                                                         |
|                                                                         |
|Balamurugan (A-5)                                                        |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC.               |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 1 year.                                                 |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|5,000/-, in default of payment, rigorous imprisonment for 1 year.        |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 6 months.                                               |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10  |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 2 years.                                                |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|10,000/-, in default of payment, rigorous imprisonment for 1 year.       |
|                                                                         |
|Shankar Ganesh (A-6)                                                     |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC.               |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 1 year.                                                 |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|5,000/-, in default of payment, rigorous imprisonment for 1 year.        |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 6 months.                                               |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10  |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 2 years.                                                |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|10,000/-, in default of payment, rigorous imprisonment for 1 year.       |
|                                                                         |
|Irudhayaraj (A-7)                                                        |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC.               |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 1 year.                                                 |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|5,000/-, in default of payment, rigorous imprisonment for 1 year.        |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 6 months.                                               |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10  |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 2 years.                                                |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|10,000/-, in default of payment, rigorous imprisonment for 1 year.       |
|                                                                         |
|Jaibeam Anbu (A-8)                                                       |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC.               |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 1 year.                                                 |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|5,000/-, in default of payment, rigorous imprisonment for 1 year.        |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 6 months.                                               |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10  |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 2 years.                                                |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|10,000/-, in default of payment, rigorous imprisonment for 1 year.       |
|                                                                         |
|Udhayam Kumar (A-9)                                                      |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC.               |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 1 year.                                                 |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|5,000/-, in default of payment, rigorous imprisonment for 1 year.        |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 6 months.                                               |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10  |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 2 years.                                                |
|                                                                         |
|Leela Shankar (A-10)                                                     |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC.               |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 1 year.                                                 |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|5,000/-, in default of payment, rigorous imprisonment for 1 year.        |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 6 months.                                               |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10  |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 2 years.                                                |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|10,000/-, in default of payment, rigorous imprisonment for 1 year.       |
|                                                                         |
|Sampath (A-11)                                                           |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC.               |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 1 year.                                                 |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|5,000/-, in default of payment, rigorous imprisonment for 1 year.        |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 6 months.                                               |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10  |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 2 years.                                                |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|10,000/-, in default of payment, rigorous imprisonment for 1 year.       |
|                                                                         |
|                                                                         |
|Romita Mary (A-12)                                                       |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC.               |
|                                                                         |
|Swamikannu (A-13)                                                        |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC.               |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 1 year.                                                 |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 6 months.                                               |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10  |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 2 years.                                                |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|10,000/-, in default of payment, rigorous imprisonment for 1 year.       |
|                                                                         |
|Sori Ramesh (A-14)                                                       |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC.               |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 1 year.                                                 |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|5,000/-, in default of payment, rigorous imprisonment for 1 year.        |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 6 months.                                               |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10  |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 2 years.                                                |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|10,000/-, in default of payment, rigorous imprisonment for 1 year.       |
|                                                                         |
|Bomb Selvam (A-15)                                                       |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC.               |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 1 year.                                                 |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|5,000/-, in default of payment, rigorous imprisonment for 1 year.        |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 6 months.                                               |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10  |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 2 years.                                                |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|10,000/-, in default of payment, rigorous imprisonment for 1 year.       |
|                                                                         |
|Jagadeesan (A-16)                                                        |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC.               |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 1 year.                                                 |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|5,000/-, in default of payment, rigorous imprisonment for 1 year.        |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 6 months.                                               |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10  |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 2 years.                                                |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|10,000/-, in default of payment, rigorous imprisonment for 1 year.       |
|                                                                         |
|Gunasekar (A-17)                                                         |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC.               |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 1 year.                                                 |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|5,000/-, in default of payment, rigorous imprisonment for 1 year.        |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3   |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 6 months.                                               |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10  |
|years and fine of Rs. 5,000/-, in default of payment, rigorous           |
|imprisonment for 2 years.                                                |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs.       |
|10,000/-, in default of payment, rigorous imprisonment for 1 year.       |
|                                                                         |
|Naraimudi Ganesan (A-18)                                                 |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC.               |

The aforesaid sentences imposed upon each one of the  accused  persons  were
ordered to run concurrently.

Out of all the accused persons who were tried by the  Sessions  Court,  only
three, i.e., Manickam @ Poonga Nagar Manickam (hereinafter  referred  to  as
“A-3”), Somasundaram (hereinafter referred to  as  “A-4”)  and  Bomb  Selvam
(hereinafter referred to as “A-15”) are in appeal before us.  Since  we  are
only required to examine the correctness of the conviction and sentences  as
against these three accused persons, we shall restrict to  the  appreciation
of facts and evidence relevant to these  three  accused  persons  only.  The
facts of the incident leading up to the case,  the  arrest  of  the  accused
persons followed by their trial and conviction are stated as under:

     The case of the prosecution is that on 30.12.2001, at about 5:30  a.m.,
the deceased went for morning walk, but did not return home.  As  a  result,
his son, B. Manimaran (PW-1)  lodged  a  missing  person  complaint  at  the
Pattinapakkam Police Station at 11.00 a.m. The same was registered as  Crime
No. 986 of  2001.  PW-66,  the  Inspector  started  the  investigation.  The
statements of various witnesses were  recorded.  The  breakthrough  came  on
21.02.2002, when the Investigating Officer came to know of  the  involvement
of Balamurugan (A-5) in the case through an informant. A-5 was  arrested  on
18.03.2002 by PW-67, who also recorded his statement, produced as Ex.  P-43.
On the basis of the statement of A-5, the FIR was altered and  the  offences
under Sections 120B read with Sections 364, 365, 302 and  201  of  IPC  were
added to the same.  Subsequently, the  rest  of  the  accused  persons  were
arrested on the basis of the statements of the witnesses. A-3  was  arrested
on 25.03.2002 and his statement was recorded, which is produced  as  Ex.  P-
20. On the basis of the evidence of A-3, M.O.  12-  Maruti  Zen  Car,  under
mahazar Ex. P-6 was recovered on the same day. On 01.04.2002,  A-3  and  A-1
were remanded to police custody as per the order of  the  Magistrate  for  a
period of ten days. A-4 was arrested on  09.04.2002  from  Chrompet  Railway
Station. His statement was recorded as Ex.P-34 in the presence of  PW-9.  On
the basis of the disclosure made in the statement, M.O.-6, Ford  Escort  Car
bearing  Registration  No.  TN-10-F-5555  was  recovered,  which  has   been
produced as Ex. P-19. A-15 was arrested on 25.04.2002 from near  the  Egmore
Railway Station, from where he was taken to the office of the CBCID. On  the
basis of the disclosure made in the statement of A-15, a ‘Tiruvalluvar  Hero
Honda 6475’, marked as M.O.-10 and a black coloured Reebok shoe,  marked  as
M.O.- 1, kept inside the side box of that motor cycle were recovered.

5. On 14.06.2002, the final report under Section 173(2) of  CrPC  was  filed
in PRC No. 55 of 2002 before the  XXIII  Metropolitan  Magistrate,  Chennai,
against  A-1  to  A-17  and  one  unknown  person.   Pursuant   to   further
investigation  and  apprehension  of  A-18,  final  report  was   filed   on
10.01.2003  under  Section  120-B  read  with  Sections   364,   365,   419,
437,387,302,402 and 201 of IPC.
6. During the course of the trial, the prosecution examined  67  Prosecution
Witnesses to establish the guilt of the accused persons.

7. The Trial  Court,  after  examining  the  evidence  produced  on  record,
convicted and sentenced A-1 to A-11 and A-13 to A-17, as  specified  in  the
table referred to supra.  A-12 and A-18 were acquitted of all  charges.  The
accused persons preferred appeals against their  conviction  and  the  State
preferred an appeal against the acquittal of A-12 and A-18 before  the  High
Court. The High  Court,  after  consideration  of  the  evidence  placed  on
record, upheld the order of conviction and sentence passed  by  the  learned
Sessions Judge against all the accused, except A-10. A-10 was  acquitted  of
all the charges by the High  Court.  The  appeals  filed  were  accordingly,
dismissed. The High Court, in the impugned judgment and order relied on  the
testimony of PW-1, the son of the deceased, who spoke about  the  fact  that
his father went on his usual  morning  walk  but  did  not  return  and  the
testimony of PW-13, who saw the deceased walking.  The  next  crucial  link,
according to the High Court is provided from the evidence of Venugopal  (PW-
10) and Newton (PW-11), who saw some of the accused  bringing  the  deceased
into the vermicelli  manufacturing  factory  premises  at  Mudichur  on  the
morning of 30.12.2001. Both PW-10 and PW-11 also deposed  as  to  the  prior
arrangements  made  by  them  on  the  direction  of  the  accused  persons,
including the  arrangement  of  the  premises  of  the  vermicelli  factory,
vehicles and food. PW-11 also deposed  that  he  saw  four  of  the  accused
persons carrying the dead body of the deceased. PW-32, the  Doctor,  deposed
that at the instance of A-3, he had issued a  death  certificate  to  PW-33,
which was needed to cremate the body of the deceased. He  also  stated  that
he had done so without actually seeing the body of the deceased  as  he  had
known PW-33 for a long time and trusted him. Both the Trial  Court  and  the
High Court treated PW-10 and PW-11 as accomplices,  keeping  in  view  their
role in the entire incident. The High Court then  went  on  to  examine  the
case law with regard to the reliability of the evidence of  the  accomplice.
On this aspect, the High Court held as under:
“An accomplice is undoubtedly a competent witness under the Indian  Evidence
Act. There can be, however,  no  doubt  that  the  very  fact  that  he  has
participated in the commission of the offence introduces a serious stain  in
his evidence and Courts are naturally  reluctant  to  act  on  such  tainted
evidence  unless  it  is  corroborated  in  material  particulars  by  other
independent evidence.
It would not be right to expect that such independent  corroboration  should
cover  the  whole  of  the  prosecution  story  on  even  all  the  material
particulars. If such a view is adopted, it would render the evidence of  the
accomplice wholly superfluous……
……the appreciation of an approver’s evidence has to satisfy a  double  test.
His evidence must show that he is a reliable witness  and  that  is  a  test
which is common to all witnesses. If this test is satisfied the second  test
which still remains to be applied  is  that  the  approver’s  evidence  must
receive sufficient corroboration.”


The High Court accordingly, came to the conclusion that the evidence of  PW-
10 and PW-11 was reliable and could be considered while examining the  guilt
of the appellants. It was held as under:
“PW-10 and PW-11 are accomplices and they were present at all  stages  along
with the accused and aided them in very many ways, we  have  analysed  their
evidence with great care and caution. It is true that both of them  had  not
informed the occurrence to anybody and were not to be seen for more  than  a
period of months. For their conduct they have given acceptable  explanation.
Both the witnesses have spoken that as they came to that  A-3  and  A-9  had
indulged in an act of serious offence, they were threatened by  the  accused
that if they reveal what had happened, they and their family  members  would
be  in  danger.  Afraiding  such  danger,  they  had  hided  themselves  and
therefore, they had not disclosed to anyone, only fearing not only to  their
lives but also to their family members……”


8. The High Court held that the case of the prosecution,  as  sought  to  be
proved by the evidence of PW-10 and PW-11, is  that  PW-10  was  a  business
associate of A-9. A-9 informed PW-10 that A-3 would get him in a post  in  a
political party if he completed a task that was assigned to him.  A-9  asked
PW-10 to help him finish  the  same.  At  the  request  of  A-9,  PW-10  had
arranged the vermicelli manufacturing factory premises  belonging  to  PW-34
for a week. Further, A-9 informed A-3 of the place that had been  chosen  to
carry out the task. PW-10, A-3 and A-9 then visited the  places  to  inspect
the suitability of the premises. After the same had been  approved  by  A-3,
PW-10 at the request of A-3, arranged  a  Maruti  van,  table,  chair,  cot,
bedpan etc. and kept the  same  in  the  said  premises  of  the  vermicelli
manufacturing factory. PW-10 and PW-11 also made arrangements for  procuring
cash as and when A-3 and A-9 needed them.  PW-10  and  PW-11  also  arranged
rooms at Hotel Henkala, Tambaram for A-9. PW-10 also heard the driver of  A-
3 asking him for a chain to tie  the  deceased.  A-3  also  asked  PW-10  to
provide food for those who are staying in the vermicelli  factory  premises.
PW-10 and PW-11 also saw four of the accused persons bringing down the  body
of the deceased, which was loaded in the van and taken out of the place. PW-
10 was also informed by A-13 that the body of the deceased  had  been  burnt
in the Erukancheri cremation ground.  PW-10  then  left  for  Bangalore  and
stayed there till he was informed by his wife on  18.03.2002  that  A-5  was
arrested by CBCID police in connection with the murder of the deceased.
9. The High Court further observed that PW-10 has  implicated  A-1  to  A-11
and A-14. He also identified A-4, A-5, A-6,  A-7,  A-8,  A-11  and  A-15  on
three occasions as spoken to by PW-60,  the  Magistrate  who  conducted  the
identification parade. On the issue of delay in test identification  parade,
the High Court held that:
“In a complicated investigation like this, where there was no clue  for  the
involvement of any of the accused till A-5 was arrested on  18.03.2002,  the
delay in holding the test identification parade, if at  all  from  the  last
arrest of A-16, i.e., on 22.05.2002 would not in our view  render  the  same
inconsequence and consequently it would not affect the test  on  the  ground
of delay.”

10. The High Court placed reliance on the decision  of  this  Court  in  the
case of Daya Singh v. State of Haryana[1]  for  the  same.  The  High  Court
further held that the common object for the  offence  was  to  collect  some
money from the deceased, and in case the money did not come through,  to  do
away with the deceased. The High Court  held  that  to  achieve  the  common
object, they had conspired together.
11. Further, on the contention that the body  which  was  cremated  was  not
identified by anybody, the High Court held that the man who was abducted  on
the morning of 30.12.2001, was kept in the vermicelli  factory  premises  by
the accused persons, and was murdered there. His body was  cremated  in  the
Perambur crematorium. It was held that the  circumstances  adequately  point
to the same.
12. The High  Court,  therefore,  held  that  the  conviction  and  sentence
imposed by the Trial Court in respect of all the accused persons  is  liable
to be confirmed as the same does not suffer from any infirmity in law.
13. The correctness of the impugned judgment and order passed  by  the  High
Court  is   under   challenge   in   these   appeals   by   three   of   the
accused–appellants, i.e. A-3, A-4 and A-15 in support  of  which  they  have
urged various facts and legal contentions before this Court.
14. The rival legal contentions urged on behalf of the accused  persons  and
the prosecution are stated hereunder:
Contentions urged on behalf of the accused-appellants:
Mr. Siddharth Luthra, learned senior counsel appearing on behalf of  A-4  in
Criminal Appeal No. 403  of  2010,  contends  that  the  conviction  of  the
appellant is wholly erroneous and is liable to be set aside.

The learned senior counsel contends that the recovery of the Ford Car (M.O.-
6) was not done in accordance with law, and  thus,  the  same  is  vitiated.
According to the statement given by A-4 to the Police [Ex. P-  34],  he  had
stated as under:

“If I am taken, I will identify the house,  in  Chrompet,  wherein  we  were
staying and the Muddichur Vermicelli Factory, wherein we had  detained  M.K.
Balan and the cars which were used by us for the kidnapping of Balan.”

The Ford Car in question, M.O-6 was recovered from the  house  of  PW-10  on
09.04.2002. In the evidence of PW-10, he had deposed that he  had  purchased
M.O.6 Ford Car for Rs.3,60,000/-. He had bought the same from  one  Advocate
Duraipandi. He further stated that M.O.6 was not registered in his name.  It
was registered in the name of one Ranjit Kumar. The learned  senior  counsel
contends that in the absence of the proof of ownership of the  vehicle,  the
only evidence of the use of the vehicle on 30.12.2001 is  the  testimony  of
PW-10, and the same cannot be used against A-4.
The learned senior counsel further contends that since the accused  A-4  has
been acquitted of the charge under Section 120-B of IPC, Section 10  of  the
Indian Evidence Act, 1872 (hereinafter referred to as  the  “Evidence  Act”)
has no application either. Section 10 of the Evidence Act reads as under:
“10. Things said or done by  conspirator  in  reference  to  common  design.
Where there is reasonable round to believe that two  or  more  persons  have
conspired together to commit an offence or  an  actionable  wrong,  anything
said, done or written by any one of  such  persons  in  reference  to  their
common intention, after the time when such intention was  first  entertained
by any one of them, is a relevant  fact  as  against  each  of  the  persons
believed to be so conspiring,  as  well  for  the  purpose  of  proving  the
existence of the conspiracy as for the purpose  of  showing  that  any  such
person was a party to it.”
The learned senior counsel places reliance on the decision of this Court  in
the case of State v. Nalini[2], wherein the  scope  of  Section  10  of  the
Evidence Act was discussed as under:
 “The first condition which is almost the opening lock of that provision  is
the existence of "reasonable ground to believe" that the  conspirators  have
conspired together. This condition will be  satisfied  even  when  there  is
some  prima  facie  evidence  to  show  that  there  was  such  a   criminal
conspiracy.  If  the  aforesaid  preliminary  condition  is  fulfilled  then
anything said by  one  of  the  conspirators  becomes  substantive  evidence
against the other, provided that should have been a statement "in  reference
to their  common  intention".  Under  the  corresponding  provision  in  the
English Law the expression used is "in furtherance of  the  common  object".
No doubt, the words "in reference to their common intention" are wider  than
the words used in English Law……
…………We cannot overlook that the basic principle which underlies  in  Section
10 of the Evidence Act is the theory of  agency.  Every  conspirator  is  an
agent of his associate  in  carrying  out  the  object  of  the  conspiracy.
Section 10, which is an exception to the general rule, while permitting  the
statement made by one  conspirator  to  be  admissible  as  against  another
conspirator restricts it to the statement made during the  period  when  the
agency subsisted. Once it is shown that a person became snapped out  of  the
conspiracy, any statement made subsequent thereto cannot be used as  against
the other conspirators under Section 10.”

 The learned senior counsel contends that since A-4 has  been  acquitted  of
the charge of conspiracy, no statement made by any witness or accused  which
seeks to prescribe any sort of common intention can be used against A-4.

 The  learned  senior  counsel  further  contends  that  the  only  relevant
testimonies as far as  A-4  is  concerned  are  that  of  Manimaran  (PW-1),
Sudhakar (PW-3), Venugopal (PW-10),  Newton  (PW-11),  Krishnapandi  (PW-34)
and the Investigating Officer (PW-67). PW-3, who is one of the  eyewitnesses
to the kidnapping of the deceased, deposed in his evidence as under:
“……On 30.12.2001, at about 5.30 A.M. as usual I  started  to  run.  By  that
time, I heard a sound. I saw that 3 persons were forcing  a  person  to  get
into a van at a distance of about 75 metres. Thereafter, all  of  them  went
in the same van. It’s  an  Omni  Van.  A  motor  cycle  followed  that  van.
Thereafter, my friend Selvam  came  there.  I  told  this  to  him.  I  told
Selvaraj Master. Selvaraj  Master  told  me  “Why  should  we  bother  about
others”……”

 The learned senior counsel further contends that PW-3 thus, neither  names,
nor identifies nor prescribes any specific role to A-4 in kidnapping of  the
deceased on 30.12.2001.  The learned senior counsel  further  contends  that
according to the evidence of PW-3, the deceased was  kidnapped  in  an  Omni
Van, which was followed by a  motorcycle.   However,  even  if  the  alleged
confession of A-4 is taken to be true, what was recovered at  his  direction
was a Ford Escort Car (M.O.6).

The learned senior counsel further  contends  that  during  the  trial,  the
prosecution has not arrayed PW-10 and PW-11 as accused, nor have  they  been
made approver in the case. Thus, the testimonies of PW-10 and  PW-11  cannot
be relied upon in absence of corroboration from independent sources, as  the
same are in the nature of accomplice evidence in terms  of  Section  133  of
the Evidence  Act.  The  learned  senior  counsel  places  reliance  on  the
decision of this Court in the case of Rameshwar v. State of Haryana[3]:
“……The rule, which according to the cases has hardened into one of  law,  is
not that corroboration is essential before there can  be  a  conviction  but
that the necessity of corroboration, as a matter of prudence,  except  where
the circumstances make it safe to dispense with it, must be present  to  the
mind of the judge, and in jury cases, must find place in the charge,  before
a conviction without, corroboration can, be sustained……”
The learned senior counsel further places reliance on the three judge  bench
decision of this Court  in  the  case  of  Bhiva  Dolu  Patil  v.  State  of
Maharashtra[4]:
“……the provisions of s. 133 of the Evidence Act which reads:-
S. 133 "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".
It cannot be doubted that under that section a conviction  based  merely  on
the uncorroborated testimony of  an  accomplice  may  not  be  illegal,  the
courts nevertheless cannot lose sight of the rule of prudence  and  practice
which in the words of Martin B in Res.  v.  Boyes  (1861)  9  CCC.  32  "has
become so hallowed as to be deserving of respect" and in the words  of  Lord
Abinger "it deserves to have all the reverence of the  law".  This  rule  of
guidance is to be found in illustration (b) to s. 114 of the Evidence  which
is as follows :-
"The court may presume that an accomplice is unworthy of  credit  unless  he
is corroborated in material particulars"………”

 The learned senior counsel contends that PW-10 and PW-11 were witnesses  to
the entire conspiracy and does not prescribe  any  role  to  A-4  after  the
meeting on 05.12.2001 at the  house  of  A-9.  Nor  does  he  prescribe  any
specific role to A-4 for the kidnapping of the deceased on  30.12.2001.  The
learned senior counsel further places reliance on the cross  examination  of
PW-10 which reads as under:
“When I and Newton had gone to the house of the 3rd  accused  Manickam,  3rd
accused Manickam said to the persons available  there  that  the  Ex  M.L.A.
Balan has to be brought and that some money has to be  collected  from  him.
After hearing this it was not struck to me that it could  be  violence  act.
After Manickam said as such I and the witness Newton came out of the  house.
I do not know what they had spoken and decided thereafter. Thereafter I  did
not see the accused Somasundaram………”
                             (emphasis laid by this Court)

The learned senior counsel contends that PW-10 does not  place  A-4  on  the
spot at the vermicelli factory at any  of  the  days  from  30.12.2001  till
01.01.2002. Further, in his cross examination he  admits  the  fact  of  not
having seen A-4 after 05.12.2001. According to PW-10, A-4 was not  even  one
of the four persons who  carried  the  body  of  the  deceased  out  of  the
premises of the vermicelli factory.

 The learned senior counsel further contends that since A-3 to A-11  and  A-
13 to A-17 have been acquitted by the Trial Court of the offence  punishable
under Section 120-B of IPC, the conviction under Section 107 of  IPC  cannot
be sustained. Reliance has been placed on the decision of this Court in  the
case of Pramatha Nath Talukdar v. Saroj Ranjan  Sarkar[5],  wherein  it  was
held as under:
“Furthermore,  it  appears  to  me  that  though  the  expression  "criminal
conspiracy" occurs in para. 5 of the complaint, the  facts  alleged  in  the
petition of  complaint  essentially  disclose  an  offence  of  abetment  by
conspiracy. This brings  us  to  the  distinction  between  the  offence  of
criminal conspiracy as defined in s. 120A and the  offence  of  abetment  by
conspiracy as defined in s. 107 of  the  Indian  Penal  Code.  Section  120A
which defines the offence of criminal conspiracy and s. 120B which  punishes
the offence are in Ch. VA of the Indian Penal Code. This Chapter  introduced
into the criminal law of  India  a  new  offence,  namely,  the  offence  of
criminal conspiracy. It was introduced by the criminal  Law  Amendment  Act,
1913 (VIII of 1913). Before that, the sections  of  the  Indian  Penal  Code
which directly dealt with the subject of conspiracy were these contained  in
Ch. V and s. 121 (Ch. VI) of the Code. The present  case  is  not  concerned
with the kind of conspiracy referred to in s. 121A. The point before  us  is
the distinction between the offence of abetment as defined in  s.  107  (Ch.
V) and the offence of criminal conspiracy as defined in s.  120A  (Ch.  VA).
Under s. 107, second clause, a person  abets  the  doing  of  a  thing,  who
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 an order to the doing of that thing.  Therefore,  in
order to constitute the offence of abetment by conspiracy, there must  first
be a combining together of two or more persons in the conspiracy;  secondly,
an act or illegal omission must take place in pursuance of that  conspiracy,
and in order to the doing of that  thing.  It  is  not  necessary  that  the
abettor should concert the offence with the person who  commits  it.  It  is
sufficient if he engages  in  the  conspiracy  in  pursuance  of  which  the
offence is committed. It is worthy of note  that  a  mere  conspiracy  or  a
combination of persons for the doing of  a  thing  does  not  amount  to  an
abetment. Something more is necessary, namely, an act  or  illegal  omission
must take place in pursuance of the conspiracy and in order to the doing  of
the thing for which the conspiracy was made. Before the introduction of  Ch.
VA conspiracy, except in cases provided by Sections 121A, 311, 400, 401  and
402 of the Indian Penal Code, was a mere species of abetment  where  an  act
or an illegal omission took place  in  pursuance  of  that  conspiracy,  and
amounted to a distinct  offence.  Chapter  VA,  however,  introduced  a  new
offence defined by s. 120A. That offence is called the offence  of  criminal
conspiracy and consists in a mere agreement by two or more persons to do  or
cause to be done an illegal act or an act which is not  illegal  by  illegal
means; there is a proviso to  the  section  which  says  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.  The  position,  therefore
comes to this. The gist of the offence of  criminal  conspiracy  is  in  the
agreement to do an illegal act or an act which is  not  illegal  by  illegal
means. When the agreement is to commit  an  offence,  the  agreement  itself
becomes the offence of criminal conspiracy. Where,  however,  the  agreement
is to do an illegal act which is not an offence  or  an  act  which  is  not
illegal by illegal means, some  act  besides  the  agreement  is  necessary.
Therefore, the distinction between the offence  of  abetment  by  conspiracy
and the offence of criminal conspiracy, so far as the  agreement  to  commit
an offence is concerned, lies in  this.  For  abetment  by  conspiracy  mere
agreement is not enough. An act or  illegal  omission  must  take  place  in
pursuance of the  conspiracy  and  in  order  to  the  doing  of  the  thing
conspired for. But in the offence of criminal conspiracy the very  agreement
or plot is an act in itself and is the gist of the offence.”
                   (emphasis laid by this Court)

The learned senior counsel submits that the language of the charge  is  that
of abetment for fulfilling the conspiracy against the  accused  persons.  As
the charge under Section 120-B of IPC has not been proved,  Section  107  of
IPC cannot be attracted in this case as the distinction between the  offence
of abetment by conspiracy and offence of criminal conspiracy is that in  the
former, a mere agreement among persons is not enough.

Mr. Basant R., the  learned  senior  counsel  appearing  on  behalf  of  A-3
submits that A-3 has been acquitted of the offence under  Section  120-B  of
IPC. The learned senior counsel further submits that A-3 was  never  charged
with the offences under Sections 34 and 149 of  IPC.  He  was  only  charged
with the offence under Section 109 of IPC,  which  by  itself  was  a  vague
charge, making it impossible to defend. The learned senior counsel  contends
that the inclusion of the charge under Section 109  of  IPC  would  indicate
that A-3 was in fact not involved in the actual murder of the  deceased.  It
is further contended that once the charge under Section 120B  of  IPC  fails
to be established, the prosecution has to show the  exact  manner  in  which
the abetment of an offence was done  by  A-3.  The  learned  senior  counsel
contends that this did not happen in the instant case.

The learned senior counsel further contends that as far  as  the  charge  of
offence under Section 302 of IPC  is  concerned,  even  that  has  not  been
proved by the prosecution satisfactorily. At the outset, the learned  senior
counsel contests the factum of the death  of  the  deceased  itself.  It  is
contended that no prosecution witness has identified the dead body that  was
burnt on the night of 01.01.2002.  No  DNA  tests  have  been  conducted  to
conclusively verify the identity of the body that  was  allegedly  burnt  on
01.01.2002. It is submitted that the reliance placed by the courts below  on
the evidence of PW-32 and PW-33 is  also  misplaced.  PW-33  stated  in  his
testimony that A-3 had told him to  procure  a  death  certificate  for  one
Rajamani Chettiar who had died. PW-33 then asked PW-32,  a  doctor  he  knew
for the last fifteen years to issue the same. There is nothing  to  actually
connect A-3 to the death certificate except the spoken word of PW-33. It  is
contended that it was  in  fact  PW-32  and  PW-33  who  created  the  false
evidence, and are now conveniently pinning it squarely on A-3.  The  learned
senior counsel further contends that the specific role of A-3 in the  murder
of the deceased has not been proven, which makes  it  erroneous  in  law  to
convict him of the offence under Section 302 read with Section 109 of IPC.

The learned senior counsel further contends that the testimony of PW-10  and
PW-11 should not be relied upon, as their evidence is  not  corroborated  by
other material evidence. The learned senior counsel  further  contends  that
the fact that PW-10 and PW-11 have not been termed as ‘accomplices’  by  the
courts below and their evidence has no bearing on the reliability to  record
the finding of guilt. The fact that the term ‘accomplice’ has not been  used
to describe them is irrelevant, as if the evidence on record points to  them
being accomplices, then PW-10  and  PW-11  are  in  fact,  accomplices.  The
learned senior counsel further submits that  the  term  accomplice  has  not
been defined in any statute. He places reliance on  the  definition  of  the
term ‘accomplice’ in Black’s Law Dictionary, in which it  has  been  defined
as under:
“One who is in some way concerned or associated in commission  of  crime,  a
partaker of guilt, one who aids or assists, or is an accessory.”


Ramanatha Aiyar’s Law Dictionary defines ‘accomplice’ as:
“There is some authority for using the  word  ‘accomplice’  to  include  all
principals and all accessories, but the preferred usage is  to  include  all
principals and accessories before  the  fact,  but  to  exclude  accessories
after the fact. If this limitation is adopted, the  word  ‘accomplice’  will
embrace all perpetrators, abettors and inciters.
The term in it fullness includes in its meaning all persons, who  have  been
concerned in the commission of a crime, all  participles  criminis,  whether
they are considered in strict legal property as principals in the  first  or
second degree or merely as accessories before or after the fact.”

The learned senior counsel submits that the burden upon the accused to  show
that someone  is  an  accomplice  is  only  to  the  extent  that  the  term
accomplice is commonly understood. The burden on the accused is not to  show
the guilt of the witness beyond reasonable doubt.

The learned senior counsel contends that it becomes clear from a perusal  of
the testimony of PW-10 and PW-11 (extracted in  the  earlier  part  of  this
judgment) that they were actively involved in the preparation of the  crime.
The learned senior counsel further contends that the testimony also  clearly
shows that both the PWs had full knowledge of the  purpose  for  which  they
were making the preliminary preparations, i.e., for  the  abduction  of  the
deceased and keeping him in the premises  of  the  vermicelli  factory.  The
learned senior counsel further submits  that  PW-10  and  PW-11  can  by  no
stretch of imagination be said to be approvers,  as  no  court  has  granted
them pardon and made them as approvers.

On the question of the role prescribed  by  PW-10  and  PW-11  to  A-3,  the
learned senior counsel submits that there  is  no  evidence  which  suggests
that A-3 came in contact with the deceased while he was  at  the  vermicelli
factory premises. PW-10 had deposed as under:
“On 30.12.2001 at 8:30 A.M., Udaykumar called me over my cell  phone.  Asked
me to come to Henkala Hotel. I  also  went  there.  After  sometime  Accused
Manickam came by Uno car. After coming to the room, he asked Udaykumar  that
he need a Maruti Van. Manickam took myself, Udaykumar  and  Senthilkumar  in
that Maruti Van and went to the vermicelli  factory  at  Mudichur.  When  we
went to the company, Manickam alone got down and  was  standing  there.  One
person came down from upstairs and took me  and  Senthilkumar  to  upstairs.
There were about 5 or 6 persons. Ex. M.L.A. Balan was  tied  up  with  chain
and his eyes were also closed with a cloth and he had been made  to  sit  on
the green steel cot which was provided by us already………”

Further, PW-10 identifies four accused who brought down  the  dead  body  of
the deceased and A-3 is not one of these four accused.
The learned senior counsel contends that even if the evidence of  PW-10  and
PW-11 are accepted in toto, it does not at all suggest that A-3 was  present
in the vermicelli factory, which is the alleged  scene  of  crime  when  the
death occurred. Hence, the charge of the  offence  under  Section  302  read
with Section 109 IPC cannot be sustained against A-3 at all.

Mr. P.V. Yogeswaran,  the  learned  counsel  appearing  on  behalf  of  A-15
contends that there is nothing in the evidence to  directly  implicate  A-15
except M.O.1, the Reebok shoes produced by the prosecution on  record  which
allegedly belonged to the deceased. PW-1 however, in  his  testimony  stated
that M.O.1 showed to him in court, did not belong to his father.  PW-2,  the
driver of the deceased has also denied that  those  shoes  belonged  to  the
deceased. The learned counsel further submits that the  testimony  of  PW-10
and PW-11 cannot be relied upon, as the proper procedure as  required  under
Section 164 of CrPC has not been  followed  by  the  Court  while  recording
their evidence.

Contentions urged on behalf of the prosecution:
On the other hand, Mr.  Yogesh  Kanna,  the  learned  counsel  appearing  on
behalf of the State of Tamil Nadu contends that there  is  no  infirmity  in
the impugned judgment and order passed by  the  High  Court,  upholding  the
conviction and sentence passed against the accused-appellants by  the  Trial
Court, and the same need not be interfered with by this  Court  in  exercise
of its jurisdiction under Article 136 of the Constitution of India.

The learned counsel places reliance on the evidence  of  Venugopal  (PW-10).
PW-10, in his deposition mentions the scouting for locations that had  taken
place, to carry out the most suitable location  where  the  crime  could  be
carried out. He deposed as under:
“In the second week of November, 2001, this  Accused  Udayakumar  called  me
over telephone and came to my office. At that time he asked me  whether  the
houses are ready. I replied him that I  have  made  them  ready.  Next  day,
Udaykumar called me once again and asked me and Newton to be in the  office.
He also told me that Poonga Nagar Manickam  of  Perambur  is  coming  to  my
office. Around 2 P.M. on that day Udaykumar and Poonga Nagar  Manickam  came
to my office. I and Newton were present in our  office.  Myself  and  Newton
took Poonga Nagar Manickam and Udaykumar for  the  purpose  of  showing  the
houses. First we went from Tambaram to  Camp  Road  and  in  a  considerable
distance from there to Mahalakshmi Nagar and showed my friend Mr.  Choudry’s
house. Besides that, we showed 4 or 5 houses in that place.  At  last,  they
saw my house also. Then Manickam told  Udaykumar  that  he  don’t  like  the
houses shown by us including my house. Then, Udaykumar  asked  to  show  the
Vermicelli factory in Mudhichur Road. Myself and Newton  took  Poonga  Nagar
Manickam and Udayakumar and showed the Vermicelli factory in Mudichur  Road.
Witness Krishnapandi was also there. Manickam saw the factory. After  seeing
the factory, Manickam told Udayakumar that this place is the  correct  place
for the work to be done by us.”

38. The learned counsel further contends  that  apart  from  explaining  the
meetings between the accused persons to hatch the conspiracy to  abduct  the
deceased, PW-10 has also spoken about the Maruti Van that was used to  carry
the dead body of the deceased after the crime had been committed. PW-10  has
deposed as follows:
“On 30.12.2001 at 8:30 A.M., Udaykumar called me over my cell  phone.  Asked
me to come to Henkala Hotel. I  also  went  there.  After  sometime  Accused
Manickam came by Uno Car. After coming to room, he asked Udayakumar that  he
needed a Maruti Van. He went outside and brought one  sandal  colour  Maruti
Van. Manickam took myself, Udayakumar and Senthilkumar in  that  Maruti  Van
and went to the  vermicelli  factory  at  Mudichur.  When  we  went  to  the
company, Manickam alone got down and was standing  there.  One  person  came
down from upstairs and took me and  Senthilkumar  to  upstairs.  There  were
about 5-6 persons. Even Ex MLA M.K. Balan was tied up  with  chain  and  his
eyes were also closed with a cloth and he had been made to sit on the  green
steel cot which was provided by us already. He was wearing  black  pant  and
sandal colour T-shirt……”

     The learned counsel further submits that PW-10 in  fact  also  saw  the
accused carrying the body of the deceased  out  of  the  vermicelli  factory
premises. The relevant portion of his evidence is extracted hereunder:
“On 1.1.2002 morning, I came back to my  house.  By  10:30  a.m.  Udayakumar
called up over phone and asked me to come to  Henkala  Hotel.  I  also  went
there. After sometime Manickam came  there.  Manickam  asked  Udayakumar  to
provide an ambulance to him. Udayalumar took me with him  and  went  to  2,3
places in search  of  an  ambulance.  He  could  not  find  ambulance.  Then
Manickam told him that if ambulance is not there it does not matter, but  to
arrange one Maruti Van and  fix  one  Lumax  light  as  fixed  in  ambulance
vehicle. By that time, Manickam’s driver  Viji  came  there……After  sometime
Manickam  called  Udayakumar  over  phone.  Then  Udayakumar  told  me  that
Manickam asked me to arrange for a Maruti Van. Udayakumar asked me  to  wait
there and went out and came back with a Maruti Car. That Maruti  Van  is  of
gold colour……I came to a tea shop with Newton by  his  motor  cycle.  Newton
told me that lunch was not supplied  in  the  afternoon  to  the  Vermicelli
factory and they have told over phone that they do not need dinner  also.  I
also told Newton about their requirement of ambulance. Also I told him  that
they  are  arranging  for  a  vehicle  like  ambulance.  I  told  him  about
Udayakumar sending the Maruti van by 8.00 P.M. and also  about  my  fear  on
seeing all these. Newton was also very much scared.  Both  of  us  suspected
that something is going on in the company. Then, both of us  started  around
8:45 P.M. from Tambaram and reached the Mudichur company by 9.00 P.M.  There
the gate in the ground floor was closed……The Golden colour Maruti sent  from
Henkala  Hotel  was  standing  there……Then  4  persons  came  from  upstairs
carrying on Mr. M.K. Balan’s body. Among that four persons, 2  persons  were
holding his legs and the other 2 persons were holding  his  hands.  By  that
time also M.K. Balan was wearing black colour  pant,  and  sandal  colour  T
shirt. After coming from the upper steps, there is a slab like  place.  They
kept the body there. They took a cloth from the bag brought  by  Balamurugan
and tied around M.K. Balan’s body, like doing  a  dead  body.  There  is  no
movement in the body.”

The learned counsel  thus,  submits  that  PW-10  has  explicitly  mentioned
seeing the dead body of the deceased by some of the accused,  and  has  also
spoken  about  the  Maruti  Van  which  was  recovered  from  the   accused-
appellants. His testimony is crucial in placing  the  accused-appellants  at
the scene of the  crime,  and  their  involvement  in  the  same.  It  thus,
establishes their guilt beyond reasonable doubt.

The learned counsel further places reliance on the testimony of Newton  (PW-
11). PW-11 has also spoken about making the preparations on the  instruction
of Poonga Nagar Manickam, A-3. Significantly,  PW-11  also  mentions  seeing
the dead body of the  deceased being carried  down  the  vermicelli  factory
premises. The relevant portion of his evidence is extracted as under:

“……As per that, both of us went to  the  vermicelli  company  by  the  motor
cycle. By that time, 2 persons were near the gate. Then both  of  them  told
us that we do not have any work there and we can go from there. Then I  left
the bike adjacent to the company  and  when  I  and  Venugopal  crossed  the
company gate, we saw Balamurgan going into the vermicelli factory.  At  that
time, 4 persons came from upstairs of the vermicelli factory, carrying  M.K.
Balan, who was wearing Black colour pant and T  shirt  (sandal  colour)  and
they left him on the floor. They tied up M.K. Balan with the  dhoti  brought
by Balamurugan and carried him to the van and the van started from  there……I
and Venugopal were scared and came back to home.  PW-10  Venugopal  told  me
that he was called by Poonga Nagar Manickam and told by  him  that  if  this
matter is leaked out anywhere he will kill him and his family.”

The learned counsel further places  reliance  on  the  testimony  of  PW-33,
Kamaraj, who had procured the death certificate, which was shown as that  of
the deceased in order to cremate him. PW-33 stated that he had procured  the
death certificate at the instance  of  A-3.  The  relevant  portion  of  his
evidence is extracted hereunder:
“……At that time Sami told me that Manickam asked me to come by 6 am  in  the
morning. Next day I went to Manickam’s house by 6 am and  when  he  enquired
about my conveyance and I told him that I had come by Auto and  he  gave  me
Rs 50/- for expenses. Further he told that watchman working  in  a  Kolathur
company had died; and one Rajamani Chettiar expired and asked me  to  get  a
certificate. I immediately told about PW-32, Dr. Anbarasu known  to  me  for
the past 15 years; and went to his place by auto. The Doctor  was  there.  I
told him that a watchman in a Kolathur Company had died. He believed me  and
gave it in writing in a letterhead. I gave it to Manickam  in  Perambur  and
came back to my house……”

The learned counsel further relies on the evidence of Dr. K.V.  Chinnaswamy,
PW-32, who had stated that PW-33 had asked him for a  death  certificate  in
the name of one Rajamani Chettiar. PW-32 stated that he  had  no  reason  to
suspect PW-33, whom he had known for about fifteen years, and  thus,  issued
the death  certificate  without  even  looking  at  the  dead  body  of  the
deceased.

The learned counsel further submits that after considering the  evidence  of
PW-1 and PW-3 and after  perusal  of  the  First  Information  Report,  that
according to the circumstantial evidence, it can be seen that it was  indeed
the deceased who had been kidnapped from MRC Nagar on  30.12.2001  at  about
5:30 a.m by the accused appellants.

The  learned  counsel  further  contends  that  PW-10  and  PW-11  are   not
accomplices, and thus, their evidence can be safely relied  upon,  in  light
of the fact that they corroborate each other  on  all  material  aspects  in
relation to  the  charges.  The  learned  counsel  places  reliance  on  the
decision of the High Court of Lahore, in the case of Ismail s/o  Hassan  Ali
v. Emperor[6], wherein an accomplice was defined as:
“The expression 'accomplice' has not been defined in the Evidence  Act,  but
there can  be  little  doubt  that  it  means  a  person  who  knowingly  or
voluntarily cooperates with or aids and assists another  in  the  commission
of a crime. The expression obviously includes principals in  the  first  and
second degree. In the case in ('36) 23 A.I.R. 1936 P.C. 242 : 163  I.C.  681
(P.C.), Mahadeo v. The King their Lordships of the Privy Council  held  that
the expression is wide enough to  include  persons  who  are  known  to  the
English law as accessories after the fact. An accessory after  the  fact  is
one who, knowing a  felony  to  have  been  committed,  receives,  relieves,
comforts or assists the felon. Three conditions must unite to render one  an
accessory after  the  fact:  (1)  the  felony  must  be  complete;  (2)  the
accessory must have knowledge that the principal committed the  felony;  and
(3) the accessory must harbour or assist the principal felon. Mere  acts  of
charity  which  relieve  or  comfort  a  felon,  but  do  not   hinder   his
apprehension and conviction nor  aid  his  escape,  do  not  render  one  an
accessory after the fact (4 Blackstone's commentaries p.  38).  He  must  be
proved to have done some act to assist  the  felon  personally  (1823-41)  9
C.P. 355). The mere fact, that one had  knowledge  that  a  crime  had  been
committed, and that he concealed or failed to disclose such knowledge,  does
not render him an accomplice. If, for example, the  concealment  is  due  to
the witness's anxiety for his own  safety  rather  than  to  any  desire  to
shield the criminal, he would not be an accomplice. Nor would a  person  who
remains passively silent after obtaining knowledge of the commission of  the
crime be an accessory or an accomplice within the rule as to  the  testimony
of accomplices. To render a person an accomplice his  participation  in  the
crime must be criminally corrupt.”
                            (emphasis laid by this Court)


The learned counsel further contends that  PW-10  and  PW-11  only  did  the
things they were told to do, like scouting for the  location  and  arranging
the necessary items needed to keep the deceased at  the  vermicelli  factory
premises at the instance of the accused-appellants.  PW-10  and  PW-11  were
also threatened with harm to themselves and to their families  if  they  did
not comply with the instructions given to them  by  the  accused-appellants.
The learned counsel further contends that mere knowledge  of  a  crime  does
not make a person an accomplice. Reliance has been placed  on  the  decision
of the Calcutta  High  Court  in  the  case  of  Narain  Chandra  Biswas  v.
Emperor[7], wherein it was held as under:
“ It may further be noticed that where a witness is not concerned  with  the
commission of the crime for which the accused is charged, he cannot be  said
to be  an  accomplice  in  the  crime,  as  it  is  well  settled  that  all
accessories before the fact, if they participate in the preparation for  the
crime are  accomplices,  but  if  their  participation  is  limited  to  the
knowledge that crime is to be committed, they are not accomplices.  "Whether
therefore a person is or is not an accomplice  depends  upon  the  facts  in
each particular case considered in connexion with the nature of  the  crime;
and persons to be accomplices must participate  in  the  commission  of  the
same crime as the accused persons  in  a  trial  are  charged.  All  persons
coming; technically within  the  category  of  accomplices  cannot  also  be
treated as on precisely the same footing.”

The learned counsel submits that there is nothing on record  to  prove  that
PW-10 and PW-11 had prior knowledge that the deceased would be  murdered  at
the hands of the accused-appellants. The only knowledge they  had  was  that
the factory premises was needed for some work by the accused appellants.

The learned counsel further contends that  even  if  PW-10  and  PW-11  were
taken to be accomplices, their testimony can still be  safely  relied  upon,
for the reason that they corroborate each other, as well as corroborated  by
other independent witnesses, including PW-1, the son  of  the  deceased,  as
well as PW-13, who is an eyewitness to the kidnapping of the  deceased.  The
learned counsel places reliance on the decision of this Court  in  the  case
of K Hashim v. State of Tamil Nadu[8], wherein it was held that:
“First, it is not necessary that there should  be  independent  confirmation
of every material circumstance in the sense that  the  independent  evidence
in the case, apart from the testimony of the complainant or the  accomplice,
should in itself be sufficient to sustain conviction. As Lord Readings  says
-
'Indeed, if it were required that the  accomplice  should  be  confirmed  in
every detail of the crime, his evidence would not be essential to the  case,
it would be merely confirmatory of other and independent testimony.'
38. All that is required is that there  must  be  some  additional  evidence
rendering it probable that the story of the accomplice (or  complainant)  is
true and that it is reasonably safe to act upon it.
39. Secondly, the independent  evidence  must  not  only  make  it  safe  to
believe that the crime  was  committed  but  must  in  some  way  reasonably
connect or tend to connect  the  accused  with  it  by  confirming  in  some
material particular the testimony of the accomplice or complainant that  the
accused committed the crime. This does not meant that the  corroboration  as
to identify must extend to all the circumstances necessary to  identify  the
accused with the offence. Again, all that is necessary is that  there  would
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."
40. Thirdly, the corroboration must come from independent sources  and  thus
ordinarily the testimony of  one  accomplice  would  not  be  sufficient  to
corroborate that of another. But of course the circumstances may be such  as
to make it safe to dispense with  the  necessity  of  corroboration  and  in
those special circumstances a conviction so based would not  be  illegal.  I
say this because it was contended that the mother in this case  was  not  an
Independent source.
41. 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.]”

The learned counsel contends that the Trial Court and the  High  Court  were
correct in placing  reliance  on  the  testimony  of  PW-10  and  PW-11  and
convicting and sentencing the accused-appellants for kidnapping  and  murder
of the deceased and the same does  not  warrant  any  interference  by  this
Court  in  exercise  of  its  appellate  power  under  Article  136  of  the
Constitution.

We have heard the learned counsel appearing on behalf  of  all  the  parties
and have appreciated the evidence on record.  The  essential  question  that
would arise for our consideration is whether the High  Court  was  justified
in upholding the conviction and sentence imposed  on  A-3  and  A-4  by  the
Trial Court. At the cost of reiteration, since the  only  appellants  before
us in the present appeals are A-3, A-4  and  A-15,  we  shall  restrict  our
examination of the evidence on record only to their role  in  the  crime  as
has been alleged by the prosecution.

From a perusal of the evidence on record, it becomes clear that the case  of
the prosecution as far as A-3 and A-4 are concerned  rests  heavily  on  the
evidence of PW-10 and PW-11, whose evidence is supported by the evidence  of
PW-33 and PW-34.

 At the outset, it is crucial for me to examine the evidence  of  PW-10  and
PW-11, as this forms the backbone of the case of the prosecution against  A-
3 and A-4.

PW-10 has admitted to making preparations  for  the  crime,  albeit  on  the
instructions of the accused. PW-10 stated that he had shown  various  houses
to the accused, including his own, before  settling  in  on  the  vermicelli
factory premises as the place where the deceased would be brought and  kept.
PW-10 was also present in the alleged meeting  held  on  05.12.2001  at  the
residence of A-3 at Perambur. In that meeting, PW-10 stated  that  A-3  told
everyone present there that the  deceased  had  to  be  abducted  and  money
recovered from him. It is further evident from the evidence  of  PW-10  that
he arranged money and vehicles, as and when  needed.  What  becomes  further
clear from the evidence of PW-10 is that he has squarely  kept  himself  out
of the actual abduction and murder of the deceased. According to  PW-10,  on
31.12.2001, the day that the deceased was abducted,  A-9  Udayakumar  called
PW-10 to a hotel, from where A-3, A-9, A-1 went  in  a  Maruti  Van  to  the
vermicelli factory  at  Mudichur.  It  was  after  reaching  the  vermicelli
factory that PW-10 was taken to the room where the deceased was tied  up  in
chains. PW-10 was then asked by  A-3  to  arrange  for  an  ambulance  or  a
vehicle like an ambulance. On 01.01.2002, at about 9:00  P.M.,  he  saw  the
body of the deceased being carried downstairs by four persons. A-3  and  A-4
were not among them.

Newton, PW-11, in his deposition states that at the request of A-9,  he  and
PW-10 showed houses to A-3 and A-9. PW-11 was also present  at  the  meeting
on 05.12.2001 and saw A-4, A-6 and A-11 there. On the day of the  abduction,
PW-11 saw the deceased being brought into the vermicelli  factory  premises.
He stated as under:
“……After half an hour, Udayakumar called me over the phone and  told  me  to
open the gate of the vermicelli  factory.  Then,  the  Tata  Sumo  car  came
first, followed by the Ford Escort Car and a Maruti Zen Car. 4  persons  got
down from the Ford Car. Those 4 persons brought M.K. Balan  by  closing  his
eyes, mouth and tying his hands and took him to the 1st  floor.  M.K.  Balan
was wearing black colour pant, sandal colour T shirt and  shoes.  3  persons
came out of the zen car. Udayakumar came to me and asked me whether  I  know
that he is M.K. Balan and he also threatened me that if I disclose the  same
to anybody Poonga Nagar Manickam will kill me and my  family  members.  Then
all the three cars went from the company. I can identify the 4 persons,  who
brought M.K. Balan in the Ford Car, if I see them.  They  are  4th  accused,
11th Accused, 16th Accused and 17th Accused………………The next  day  around  6.00
A.M. when Udayakumar came there, I went from there.  Thereafter,  Udayakumar
called me over phone and asked me to buy tiffin for 10 persons and  gve  the
same to Balamurugan in the vermicelli factory.  By  12.00  noon,  Udayakumar
called again and asked me to buy lunch for  10  persons,  B.P.  tablets  and
head ache tablet and  to  handover  the  same  to  Balamurugan  in  Mudichur
vermicelli factory. I gave them the same and went home……”

PW-11 also speaks about seeing the  dead  body  of  the  deceased.  He  also
identified the Ford Escort Car, M.O. 7, whose registration number is  T.T.N.
10-F-5555. As far as A-15 is concerned, only PW-11  identifies  him  at  the
vermicelli factory premises on 30.12.2001, when he states that A-15 was  one
of the four persons who  came  with  accused  Balamurugan  with  the  tiffin
parcel.

From a perusal of the evidence of PW-10 and PW-11,  it  becomes  clear  that
they are accomplice witnesses. It  is  also  clear  that  the  case  of  the
prosecution heavily rests on their evidence. Before we  proceed  to  examine
the culpability of A-3 and A-4, it  is  important  for  us  to  examine  the
reliability of the evidence of the above accomplices.  Section  133  of  the
Indian Evidence Act, 1872, which deals  with  the  testimony  of  accomplice
witness, reads as under:
“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.”


The High Court, in the impugned judgment  and  order  also  considered  this
aspect at some length. After  adverting  to  judgments  of  both  the  Privy
Council as well as this Court, the High Court concluded as under:
“ A deep study on the above approach in law as to the evidentiary  value  of
the  deposition  of  an  accomplice,  the   following   settled   principles
culminate; that an  evidence  of  an  accomplice  need  not  necessarily  be
rejected, that the evidence requires corroboration in  material  particulars
as well as the corroboration of the evidence connecting or tend  to  connect
the accused with the crime, that such accomplice  witness  is  reliable.  If
the above tests are satisfied, the evidence of an accomplice can  be  safely
relied upon to hold the accused guilty of the  offence.  Keeping  the  above
principle in mind, the evidence of PW-10 and PW-11 should be considered.”

In the instant case, PW-10 and PW-11 have not been  granted  pardon  by  any
Court and have been arrayed as prosecution witnesses. This  Court  has  held
that the mere fact that pardon has not been tendered by a court of law  does
not make an  accomplice  cease  being  an  accomplice.  The  learned  senior
counsel Mr. Basant R. has aptly placed reliance upon the  case  of  Laxmipat
Choraria v. State of Maharashtra[9], this Court held as under:
“The word accomplice is ordinarily  used  in  connection  with  the  law  of
evidence  and  rarely  under  the  substantive  law  of  crimes.  Accomplice
evidence  denotes  evidence  of  a  participant  in   crime   with   others.
Section 133 of the Evidence Act makes the  accomplice  a  competent  witness
against an accused person.
The witness was, of course, treated as an accomplice. The evidence  of  such
an accomplice was received with necessary  caution  in  those  cases.  These
cases have all been mentioned in In  re  Kandaswami  Gounder  AIR1957Mad727,
and it is not necessary to refer to them in detail here. The  leading  cases
are : Queen Emperor v. Mona Puna I.L.R. 16 Bom. 661, Banu Singh  v.  Emperor
I.L.R. 33 Cal. 1353, Keshav Vasudeo Kortikar v. Emperor I.L.R. 59 Bom.  355,
Empress v. Durant I.L.R. 23 Bom.  213,  Akhoy  Kumar  Mookerjee  v.  Emperor
I.L.R. 45 Cal. 720, A.V. Joseph v. Emperor I.L.R. 3 Rang. 11, Amdumiyan  and
others v. Crown I.L.R. 1937 Nag. 315, Gallagher v. Emperor  I.L.R.  54  Cal.
52, and Emperor v. Har Prasad, Bhargava I.L.R. 45 All. 226. In  these  cases
(and several others cited and relied upon in them) it has been  consistently
held that the evidence of an accomplice may be read although he  could  have
been tried jointly with the accused. In some of  these  cases  the  evidence
was received although the procedure of s. 337, Criminal Procedure  Code  was
applicable but was not followed. It is  not  necessary  to  deal  with  this
question any further because the consensus of opinion in India is  that  the
competency of an accomplice is not destroyed  because  he  could  have  been
tried jointly with the accused but was not and  was  instead  made  to  give
evidence in the case.”
               (emphasis laid by this Court)

The same view has been reiterated by this Court more recently  in  the  case
of Chandran @ Maniyan v. State of Kerala[10].

Thus, PW-10 and PW-11 being accomplice witnesses,  their  evidence  must  be
treated as such, and  subject  to  the  same  test  of  reliability  of  the
evidence of an accomplice or approver are subject to.

As far as how much  reliance  can  be  placed  upon  the  evidence  of  such
witnesses is concerned, in this regard this Court has  laid  down  the  well
settled position of law. In support  of  the  above  legal  submission,  the
learned senior counsel Mr. Basant R. relied upon the case  of  Sarwan  Singh
v. State of Punjab[11], a three judge bench of this Court held as under:
“An accomplice is undoubtedly a competent witness under the Indian  Evidence
Act. There can be, however,  no  doubt  that  the  very  fact  that  he  has
participated in ,the commission of the offence introduces  a  serious  stain
in his evidence and courts are naturally reluctant to act  on  such  tainted
evidence  unless  it  is  corroborated  in  material  particulars  by  other
independent evidence. It would not be right to expect that such  independent
corroboration should cover the whole of the prosecution story -or  even  all
the material particulars. If such a view is  adopted  it  would  render  the
evidence of the accomplice wholly superfluous. On the other hand,  it  would
not be safe to act upon such evidence merely because it is  corroborated  in
minor  particulars  or  incidental  details  because,  in   such   a   case,
corroboration does not afford the necessary assurance that  the  main  story
disclosed by the approver can be reasonably and  safely  accepted  as  true.
But it must never be forgotten that before the court reaches  the  stage  of
considering the question of corroboration and  its  adequacy  or  otherwise,
the first initial and essential question to consider is whether even  as  an
accomplice the approver is  a  reliable  witness.  If  the  answer  to  this
question is against the approver then there is an end of the matter, and  no
question as to whether his evidence is  corroborated  or  not  falls  to  be
considered. In other words, the appreciation of an approver's  evidence  has
to satisfy a double test. His evidence must  show  that  he  is  a  reliable
witness and that is a test which is common to all witnesses.  If  this  test
is satisfied the second test which still remains to be applied is  that  the
approver's evidence must receive  sufficient  corroboration.  This  test  is
special to  the  cases  of  weak  or  tainted  evidence  like  that  of  the
approver. ”
                  (emphasis laid by this Court)

The above principle was reiterated in the case of  Haroom  Haji  Abdulla  v.
State of Maharashtra[12], as under:
“8. ...... The Evidence Act in Section 133 provides that an accomplice is  a
competent witness against an accused person and that  a  conviction  is  not
illegal merely because it proceeds upon the uncorroborated testimony  of  an
accomplice. The effect of  this  provision  is  that  the  court  trying  an
accused may legally convict him on the single evidence,  of  an  accomplice.
To this there is a rider in Illustration (b)  to  Section  114  of  the  Act
which provides that the Court may presume that an accomplice is unworthy  of
credit unless he is corroborated in material  particulars.  This  cautionary
provision incorporates  a  rule  of  prudence  because  an  accomplice,  who
betrays his associates, is not a fair witness and it  is  possible  that  he
may, to please the prosecution, weave false details  into  those  which  are
true and his whole story appearing true, there may be no means  at  hand  to
sever the false from that which is true. It is for this reason that  courts,
before they act on accomplice evidence, insist on corroboration in  material
respects as to the offence itself and also implicating in some  satisfactory
way, however small, each accused named by the accomplice. In  this  way  the
commission of the offence is confirmed  by  some  competent  evidence  other
than  the  single  or  unconfirmed  testimony  of  the  accomplice  and  the
inclusion by the accomplice of an innocent person is defeated. This rule  of
caution or  prudence  has  become  so  ingrained  in  the  consideration  of
accomplice evidence as to have almost the standing of a rule of law.
9. The argument here is that the cautionary rule applies, whether  there  be
one accomplice or more and that the confessing co-accused cannot  be  placed
higher than an accomplice. Therefore, unless there is some evidence  besides
these implicating the accused in some material  respect,  conviction  cannot
stand. Reliance is placed in this connection upon the  observations  of  the
Judicial Committee in Bhuboni Sahu v. Emperor a case in which  a  conviction
was founded upon the  evidence  of  an  accomplice  supported  only  by  the
confession of a co-accused. The Judicial Committee  acquitting  the  accused
observed:
"...... Their Lordships whilst  not  doubting  that  such  a  conviction  is
justified in law under s. 133, Evidence Act, and  whilst  appreciating  that
the coincidence of a number of confessions  of  co-accused  all  implicating
the particular accused given independently, and without  an  opportunity  of
previous concert, might be entitled  to  great  weight,  would  nevertheless
observe that Courts should be slow to depart  from  the  rule  of  prudence,
based  on  long  experience,  which  requires  some   independent   evidence
implicating the particular accused. The danger  of  acting  upon  accomplice
evidence is not merely that the accomplice is on his own admission a man  of
bad character who took part in the offence and afterwards  to  save  himself
betrayed his former associates, and how has placed himself in a position  in
which  he  can  hardly  fail  to  have  a  strong  bias  in  favour  of  the
prosecution; the real danger is that he is telling  a  story  which  in  its
general outline is true, and it is easy for  him  to  work  into  the  story
matter which is untrue....."”
                          (emphasis laid by this Court)

In the case of Ravinder Singh v. State of Haryana[13], a three  judge  bench
of this Court held as under:
“12. An approver is a most unworthy  friend,  if  at  all,  and  he,  having
bargained for his immunity, must prove his  worthiness  for  credibility  in
court. This test is fulfilled, firstly, if the  story  he  relates  involves
him in the crime and appears intrinsically to  be  a  natural  and  probable
catalogue of events that had taken place. The  story  if  given,  of  minute
details according with reality is likely to save  it  from  being  rejected.
Secondly, once that hurdle is crossed, the story given  by  an  approver  so
far as the accused on trial is concerned,  must  implicate  him  in  such  a
manner as to give rise to a conclusion of guilt beyond reasonable doubt.  In
a rare case taking into consideration all  the  factors,  circumstances  and
situations  governing  a  particular   case,   conviction   based   on   the
uncorroborated evidence of an approver  confidently  held  to  be  true  and
reliable  by  the  court  may  be  permissible.  Ordinarily,   however,   an
approver's  statement  has  to  be  corroborated  in  material   particulars
bridging closely the distance between the crime and  the  criminal.  Certain
clinching features of involvement  disclosed  by  an  approver  appertaining
directly to an accused, if reliable, by the touchstone of other  independent
credible evidence, would give the needed assurance  for  acceptance  of  his
testimony on which a conviction may be based.”
                   (emphasis laid by this Court)

It becomes clear from a perusal of the abovementioned case  law  that  while
the evidence of an accomplice can be used to convict an accused, as  a  rule
of prudence,  the  Court  must  first  ensure  that  the  testimony  of  the
accomplice is corroborated in material particulars by  adducing  independent
evidence. It is also a well settled position of law  that  the  evidence  of
two accomplices cannot be used to corroborate with each other,  as  held  in
the case of R  v.  Baskerville[14].  The  same  position  of  law  has  been
reiterated and adopted in India in a catena of cases. In  this  regard,  the
learned senior counsel Mr. Basant R. has   placed reliance upon the case  of
Mohd. Hussain Kochra v. K.S. Dalipsinghji & Ors.[15], a  three  judge  bench
of this Court held as under:
“The combined effect of Sections  133  and  114  Illustration  (b)  is  that
though a conviction based upon accomplice evidence is legal the  Court  will
not accept such evidence unless it is corroborated in material  particulars.
The corroboration must connect the accused with the crime. It may be  direct
or circumstantial.  It  is  not  necessary  that  the  corroboration  should
confirm all the  circumstances  of  the  crime.  It  is  sufficient  if  the
corroboration is in material particulars. The corroboration must be from  an
independent source. One accomplice cannot corroborate another.”
                  (emphasis laid by this Court)


The said position of law was  reiterated  by  this  Court  in  the  case  of
Chonampara Chellapan v. State of Kerala[16] as under:

“The law is well settled that the Court looks with some amount of  suspicion
on the evidence of an accomplice witness which is tainted evidence and  even
Section 133 of the Evidence Act clearly provides that  the  evidence  of  an
accomplice witness should not be accepted unless corroborated. At  the  same
time, it must be  remembered  that  corroboration  must  be  in  respect  to
material particulars and not with respect of each  and  every  item  however
minor or insignificant it may be. Actually the requirement of  corroboration
is a rule of prudence which the courts  have  followed  for  satisfying  the
test of the reliability of an approver and has now been crystallized into  a
rule of law. It is equally well settled that  one  tainted  evidence  cannot
corroborate another tainted evidence because if this is allowed to  be  done
then the very necessity of corroboration is frustrated.”
                            (emphasis laid by this Court)

 Further, the independent evidence must be such that  it  corroborates  with
the testimony of the  accomplice  in  material  particulars,  that  is,  the
corroboration must be both in respect of the crime as well as  the  identity
of the accused. This particular test  assumes  significance  when  there  is
more than one accused in a case, as  is  the  case  here.  In  the  case  of
Sheshanna Bhumanna Yadav v. State of Maharashtra[17],  this  Court  held  as
under:
“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 time. 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 accused,  and
he stole the sheep and he put the skins in a certain  place,  the  discovery
of the skins in that  place  would  not  corroborate  the  evidence  of  the
witness as against  the  accused.  But  if  the  skins  were  found  in  the
accused's house, this would corroborate because it  would  tend  to  confirm
the statement that the accused had some hand in the theft.
This Court stated  the  law  of  corroboration  of  accomplice  evidence  in
several decisions. One of the earlier decision is Sarwan Singh v.  State  of
Punjab and the recent decision is Lachi Ram v. State of  Punjab.  In  Sarwan
Singh's case this Court laid down that before the court would look into  the
corroborative evidence it was necessary to find out whether the approver  or
accomplice was a reliable witness. This Court in Lachi Ram's case said  that
the first test of reliability of approver and accomplice  evidence  was  for
the court to be satisfied that there was nothing  inherently  impossible  in
evidence. After, that conclusion is reached as to reliability  corroboration
is required. The rule as to corroboration is based  on  the  reasoning  that
there must be sufficient corroborative evidence in material  particulars  to
connect the accused with the crime.”

The accused before us are A-3, A-4 and A-15. What is crucial to consider  at
this stage is that the Trial Court acquitted all the above  accused  of  the
charge of conspiracy under Section 120-B of IPC.  They  have  however,  been
convicted for, among others,  the  offences  under  Section  302  read  with
Section 109 and Section 364 read with Section 109 of IPC. There  is  nothing
on record to show the direct involvement of  the  accused  –  appellants  in
either the abduction of the deceased or his  murder.  The  Ford  Escort  Car
(M.O.12) recovered at the instance of PW-10, from the  house  of  A-3,  does
not trace back its ownership to A-4. The requirement of  corroboration  from
independent sources in material particulars has not been met in the  instant
case. This makes it impossible for  the  accused  to  be  convicted  of  the
offences under Sections 302 and 364 of IPC.  Neither  PW-10  nor  PW-11  are
witnesses to the abduction  of  the  deceased.   PW-13,  who  witnessed  the
abduction, also did not mention the above three accused at the site  of  the
abduction. PW-10 places A-3 and A-4 at the meeting on 05.12.2001.  But  this
fact loses significance in view of the fact that they  have  been  acquitted
of the offence of conspiracy under Section 120B  of  IPC.  PW-10  and  PW-11
also saw the body of the deceased  being  brought  down  in  the  vermicelli
factory premises on the night of 01.01.2002. But neither of them places  any
of the three accused at the site at that time. Further, what comes to  light
from the testimony of PW-10  and  PW-11  is  that  even  at  the  vermicelli
factory premises, A-3  stayed  downstairs,  while  it  was  PW-11  who  went
upstairs and actually saw the deceased tied to chains and the room where  he
was kept. PW-11 only saw A-15 at  the  site  on  the  night  of  30.12.2001,
carrying a tiffin parcel.  A-4  has  not  been  mentioned  anywhere  at  the
vermicelli factory at all.  Further, as far as  A-3  is  concerned,  another
evidence used against him is the testimony  of  PW-32  and  PW-33  who  have
admitted to creating the  evidence  of  the  death  certificate,  which  was
allegedly required by A-3 to produce at the crematorium in order to  cremate
the deceased. In light of the fact that PW-32 has admitted  to  issuing  the
death certificate without even seeing the dead body of the deceased  at  the
request of PW-33. PW-33 has stated that he only did so at the instance of A-
3. There is no other  evidence  on  record  to  connect  A-3  to  the  death
certificate. Even if the death certificate is taken to be genuine,  it  does
not in any way connect A-3 to the deceased, thus rendering the claim of  the
prosecution doubtful and shaky.

As far as A-15 is concerned, the crucial  evidence  on  which  reliance  was
placed upon by both the courts below to convict  him  was  the  recovery  of
M.O. 1, reebok shoes on his direction. PW-31, Samundeswari, a supervisor  at
the vermicelli factory, in her deposition stated that she saw  a  person  at
the vermicelli factory premises  on  the  next  day,  i.e.  01.01.2002,  who
stated that he had come to take something. He took a Reebok  shoe  from  the
factory. Both the courts below, however, failed to  notice  that  PW-31  had
explicitly stated in her testimony that:
“On 18th March, one person was brought by the police  that  I  only  shouted
him and that if it is asked me whether I could be able to identify the  said
person, I could say that as it is a lapse of more than 2 years, I could  not
remember that person.”
                  (emphasis laid by this Court)

Thus, the  evidence  of  PW-31  cannot  be  used  against  A-15,  which  has
erroneously been done by the courts below. Further, PW-1 and PW-2 have  both
stated in their testimony that the particular reebok shoe did not belong  to
the deceased. Thus, there is nothing on record which  connects  A-15  either
to the crime, or to the deceased.

Thus, the evidence of PW-10 and PW-11 is  not  reliable  for  recording  the
finding of guilt on the charges against the accused appellants. Even  if  it
is placed reliance upon, A-3, A-4  and  A-15  cannot  be  convicted  of  the
offences of kidnapping and murder, more so in light of the  fact  that  they
had been acquitted of the charge of criminal conspiracy under Section  120-B
of IPC by the courts below. There was no basis  for  convicting  them  under
the other Sections like 302 and 365 of IPC.  After  having  found  that  the
accused persons were not guilty under Section 120-B of IPC, it was the  duty
of the Trial Court to establish the  involvement  of  each  of  the  accused
persons individually in each offence for which  they  had  been  charged  to
hold them guilty under the same.
The accused appellants in the instant case have also  been  convicted  under
Section 109 of IPC (Section 302 read with 109 and 365 read  with  109  IPC),
which prescribes the punishment for the offence of abetment. Section 107  of
IPC provides for the offence of abetment as under:
“107. Abetment of a thing— A person 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 1— 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.   ……”

Mr. Siddharth Luthra, the learned senior  counsel  appearing  on  behalf  of
appellant A-4 rightly places reliance on the decision of this Court  in  the
case of Pramatha Nath Talukdar (supra), wherein  this  Court  discussed  the
distinction between the offence of criminal conspiracy  under  Section  120A
of IPC and that of abetment by conspiracy under  clause  second  of  Section
107 of IPC. The view taken in that case was  reiterated  by  a  three  judge
bench of this Court in the case  of  Kehar  Singh  &  Ors  v.  State  (Delhi
Administration)[18] as under:
“……For the present, it may be sufficient to  state  that  the  gist  of  the
offence of criminal  conspiracy  created  under  Section  120-A  is  a  bare
agreement to commit an offence. It has been made  punishable  under  Section
120-B. The offence of abetment created under the second  clause  of  Section
107 requires that there must be  something  more  than  a  mere  conspiracy.
There must be some act or illegal omission in pursuance of that  conspiracy.
That would be evident by the wordings of Section 107 (Secondly)……”
              (emphasis laid by this Court)

Thus, for Section 109 of IPC, it is not enough to show a conspiracy. It  has
to be taken a step further. What needs to be proved is an act  committed  in
furtherance of that conspiracy. In the instant case, both the  courts  below
did not find sufficient evidence to convict the accused  appellants  of  the
charge under Section 120B of IPC. Once the charge under Section 120B of  IPC
falls, in order to convict the accused appellants  under  Section  302  read
with Section 109 IPC, or Section 365 read with Section  109  IPC,  what  was
needed to be established was the happening of some overt act on the part  of
the accused appellants. From the evidence on record which has  already  been
appreciated in detail in the preceding part of this judgment,  there  is  no
evidence except the testimony of PW-10 and PW-11  which  links  the  accused
appellants to the crime. For the reasons stated supra, I have  already  come
to the conclusion that the testimony of PW-10  and  PW-11  is  untrustworthy
and cannot be relied upon to convict the accused appellants in  the  instant
case. Thus, the charge under Section 109 of IPC also cannot sustain.
Thus, for the reasons stated supra, the Trial Court erred in convicting  the
accused appellants, more so, after having acquitted them of the  offence  of
criminal conspiracy punishable under Section 120B  of  IPC.  Even  the  High
Court adopted  the  same  erroneous  approach  while    re-appreciating  the
evidence against the  accused  appellants  and  attempting  to  look  for  a
complete link, as if the accused persons had been convicted for  the  charge
of criminal conspiracy as well. This shows a gross non- application of  mind
on the part of the courts  below,  which  certainly  cannot  be  allowed  to
sustain by this Court, as the same is wholly erroneous  in  law.  Therefore,
these criminal appeals must be allowed in exercise  of  the  power  of  this
Court under Article 136  of  the  Constitution  of  India  and  the  accused
appellants are entitled for acquittal from the charges.

For the reasons recorded supra, I set aside the impugned judgment and  order
dated 06.10.2007 passed by the High Court  in  upholding  the  judgment  and
order  passed  by  the  Trial  Court  convicting  A-3,  A-4  and  A-15.  The
prosecution has not proved its case  beyond  reasonable  doubt  against  the
accused appellants. Hence, I acquit   A-3, A-4  and  A-15  of  all  charges.
They may be released forthwith if they are not required in any other case.


                               …………………………………………………………J.
                                [V. GOPALA GOWDA]


New Delhi,                                        September 28, 2016

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.403 OF 2010



Somasundaram @ Somu                          … Appellant(s)

Vs.

State represented by Deputy
Commissioner of Police                            … Respondent

With

Criminal Appeal No.827/2013; and
Criminal Appeal No.828/2013.


                               J U D G M E N T


ARUN MISHRA, J.


1.    I have gone through the opinion of my  esteemed  Brother  but  I  find
myself unable to agree with  the  same.  In  my  opinion  judgment-order  of
conviction of Trial Court affirmed by the High Court deserves to be  upheld.

2.    The appellants are aggrieved  by  their  conviction.  They  have  been
convicted and sentenced, as noted by my learned Brother, for  commission  of
abduction and murder of one Shri M.K. Balan, former  Member  of  Legislative
Assembly. In all, 18 accused were put to trial. The  trial  court  acquitted
Romita Mary accused No.12  and  Ganesan  accused  No.18  and  convicted  the
remaining  accused.  The  appeal  filed  by  accused  No.10,  namely,  Leela
Shankar, has been allowed by the High Court and with  respect  to  remaining
15  appellants,  the  same  has  been  dismissed;  thereby  maintaining  the
conviction and sentence imposed by the trial court.  Out  of  the  convicted
accused,  only  three  accused  Manickam  @  Poonga  Nagar   Manickam   A-3;
Somasundaram A-4; and Bomb Selvam A-15 are  in  appeal  before  us.  Senthil
Kumar A-1 and Manickam were highly influential figures and the murder  is  a
high profile political murder involving various personalities.

3.    As per the prosecution case, on 30.12.2001 one M.K. Balan went  for  a
morning walk at about 5.30 a.m. but did not return home. Hence, a  complaint
was lodged by his  son  Manimaran  PW-1.  Complaint  Ex.  P1  was  filed  at
Pattinpakkam P.S. at about 11 a.m. Photo of deceased  Shri  M.K.  Balan  was
published in the newspaper and sent to the Police  Stations.  The  case  was
transferred to CBCID, Chennai on  12.1.2002.  Initially,  the  investigation
was done by John Joseph, PW-66. Later on, it was taken over  by  PW-67,  the
Deputy Superintendent of Police, CB CID.  On  21.2.2002,  the  Investigating
Officer (IO) came to know of the involvement of  accused  A-5,  Balamurugan,
in the offence through an  informant.  On  18.3.2002,  at  about  5.30  a.m.
Investigating Officer PW-67  arrested  A-5  and  recorded  his  confessional
statement  Ex.  P-43  who  identified  T.K.P.  Food  Products  Company  i.e.
vermicelli factory at Mudichur  as  place  where  deceased  was  kept  after
abduction. A-5 also took the IO to a  cremation  ground  at  Perambur  where
body was cremated, the IO prepared a memo Ex.  A-47,  sketch  Ex.  P-48  and
recorded statements of PWs. 12 and 19, two vettiyans, who identified MO  14,
the  photograph  of  the  deceased  M.K.  Balan  whose  body  was  cremated.
Identification memo  Ex.  P-46  was  prepared  in  the  presence  of  PW-44.
Thereafter, one Kannan, Office Assistant of Corporation of Chennai had  been
examined and death report Ex. P-29  submitted  in  the  name  of  fictitious
person to cremate  deceased,  was  seized  which  related  to  one  Rajamani
Chettiar son of Chindamani Chettiar, aged about 61  years.  Ex.  P-30  death
register, Ex. P-31 the counterfoil and Ex. P-32 despatch notebook were  also
seized. Deceased was cremated on the basis of false death certificate Ex. P-
27. After two and half months on 19.3.2002, certain articles were  recovered
from cremation ground and on the same  day  at  about  11.30  p.m.,  Shankar
Ganesh A-6 was arrested near  Perambur  bus-stand,  and  I.O.  recorded  the
confessional statement of A-6 on 20.3.2002 in the  presence  of  Jagannathan
PW-24 and other witnesses. Seizure of Maruti Omni van under  memo  Ex.  P-17
was also made. Irudhayaraj A-7 was also arrested on the  same  day  and  his
confessional statement Ex. P-38 was  recorded.  Pursuant  thereto,  an  iron
cot, used in factory premises of Mudichur, MO-11 was seized vide memo Ex. P-
7 in the presence of Geetha PW-17.

4.    On 25.3.2002, at about 8.15 a.m., Manickam A-3, was arrested  and  his
confessional statement Ex. P-20 came to be recorded on the basis whereof MO-
12 Maruti zen car was seized vide memo Ex. P-6. On the same day the IO  also
recorded the statement of  PW-32  who  was  Lusker  in  the  Corporation  of
Chennai, and the proprietor of  vermicelli  factory  T.K.P.  Food  Products,
Mudichur, namely, Krishnapandi PW-34. Accused No.9 was arrested and  as  per
his information furnished under section 27 of the Evidence Act,  Maruti  van
TN-22-B-8853 was recovered from V.R.  Pandian  PW-18,  in  the  presence  of
Sriramulu PW-25. On  the  basis  of  confessional  statement  of  A-3  dated
5.4.2002, recovery of MOs. 28 to 33 vide memo Ex.  P-36  was  made.  Somu  @
Somasundaram A-4, had been arrested on 9.4.2002 at about 6 a.m. at  Chrompet
Railway Station. His confessional statement Ex. P-34 had  been  recorded  in
the presence of PW-9 and recovery of MO-6 Ford Escort car  No.  TN-10-F-5555
was made vide memo Ex. P-9. Bomb Selvam A-15, was arrested on 24.4.2002  and
his confessional statement Ex. P-50 was recorded in the presence  of  PW-44.
Pursuant to information furnished by him, recovery of MO-10 Hero Honda  bike
was made vide memo Ex. P-51. Other accused persons were also  arrested  from
time  to  time.  Their  confessional  statements  were  also  recorded   and
recoveries made. Ultimately, after investigation, final  report  was  filed.
In the course of trial, the  prosecution  examined  all  the  67  witnesses.
Documents Ex.P-1 to P-86 were exhibited and  articles  MOs.  1  to  39  were
produced consisting of six cars : MO6 Ford  Escort  Car  TN  10F  5555;  MO7
Golden colour Maruti van TN 22P 8853, MO8 Maruti van TN 02 0343; MO9  Maruti
van TNA 7484; MO-12 Maruti Zen TN 02  Z99;  Tata  Sumo  car  TN-04  D  9657;
Motorcycle MO-10 – Hero Honda; tape-recorder; suitcase; bedpan; chain;  iron
cot; photo of M.K. Balan; TTK cassettes;  2  pants,  2  shirts,  one  dhoti,
knife, charger, mobile phones etc. were  recovered.  Accused  abjured  their
guilt and pleaded innocence.
5.    The arguments advanced and evidence produced by  prosecution  consists
of different sets which can be divided in the following heads :
(i)   Prosecution case - Evidence of PWs. 10 and 11;
(ii)  Prior relationship of accused;
(iii)      Selection  of  premises  where  M.K.  Balan  was  kept/and  other
arrangements;
(iv)  Abduction of  deceased M.K.Balan on 30.12.2001 in white omni van;
(v)   Taking of M.K.Balan to factory premises/meeting  dated  30.12.2001  at
the residence of A-9;
(vi)  Commission of offence under section 302 IPC;
(vii) Removal of dead body from factory premises;
(viii)      Cremation of dead body;
(ix)    Procurement of death certificate by A-3;
(x)   Confessions and recoveries from accused;
(xi)  Commission of offence under section 387 IPC;
(xii) Effect of acquittal under section 120B IPC;
(xiii)  Evidence of accomplices;
(xiv)  Holding TI/recording of statement under section 164 Cr.P.C.;
(xv)    Cell phones/cassettes/forensic evidence

6.    Evidence of PW-10 and PW-11 :

      It appears that Venugopal PW-10 and Newton PW-11  helped  the  accused
persons for hiring of vermicelli factory at Mudichur, renting some of  cars,
arranging for hotels, food, arrangement of  fan,  bedpan,  cot,  arrangement
for money, hiring of vermicelli factory which was hired twice firstly for  a
week in the end of November/early December then again in  end  of   December
to 1.1.2002 when incident took place.
7.    Venugopal PW-10 is one of the main witnesses in the instant  case.  He
has deposed that he and Newton PW-11, are business  partners.  During  1999,
he and A-9  had  obtained  licence  to  quarry  sand  at  Kulur,  Tiruvallur
district. A-9 told him that one  Krishnapandi  PW-34  is  running  a  Semiya
manufacturing company in the name of T.K.P. Food Products  at  Mudichur  and
as the company was running at loss, and if  they  invested,  they  may  earn
profit.  Therefore, both, PW-10 and PW-11 invested Rs. 3 lakhs each  in  the
said company and gave money to Krishnapandi.  That  while  PW-10  and  PW-11
had gone to a polling booth in the election held  during  August  2001,  A-9
met PW-10.  A-9 told PW-10 that he  will  be  joining  a  leading  political
party and A-3 will help him and to reciprocate, he  should  do  some  favour
for A-3.  A-9 also told him that A-3 has promised him to get him a  post  in
the party and therefore, he wanted a place to complete the job  assigned  to
him by A-3.
8.    Venugopal PW-10 has clearly stated that he  had  shown  the  house  at
Mahalakshmi Nagar of his friend Mr.  Chowdry  but  that  was  not  liked  by
Manickam and Udayakumar. The house of the witness  was  also  not  liked  by
accused Manickam  A-3  and  Udayakumar  A-9.  A-9  had  asked  to  show  the
vermicelli factory at Mudichur Road then the said witness took A-3  and  A-9
to vermicelli factory where Krishnapandi P-34 was also present. Manickam  A-
3 told A-9 that place is suitable for the work to be  done  by  them.  Later
on, it was this factory where deceased M.K. Balan was kept after  abduction.
Krishnapandi was told that they required the factory for one  week  and  the
loss to be caused will be paid to him. The witness has identified  A-3.  The
said witness Venugopal PW-10. Newton PW-11, A-3 and  A-9  travelled  in  the
same car to Tambaram, that is in the white Ambassador car PY-01-H-4046.  The
witness has also stated that Manickam,  A-3  told  him  that  a  screen  was
required to be put on the windows of factory in the  first  floor  in  which
M.K. Balan was kept. The witness also arranged two cots on credit from  M/s.
Nirmala Industries. On being asked  by  A-9  besides  the  chairs  from  his
house, fan from A-9’s house,  bed  pan  was  also  kept  in  the  vermicelli
factory at Mudichur. Venugopal PW-10, A-9 and his friend  Newton  PW-11  had
put them in the room. Screen over the windows was also fitted. Manickam  A-3
and Udayakumar A-9 asked Krishnapandi to give one week off to the  employees
of the factory but on and around 5.12.2001, no VIP came  there  as  at  that
time, M.K. Balan could not be abducted. In the end of  November,  A-9  asked
the witness for his Ford Escort car for  2-3  months  to  send  it  to  A-9.
Vijayan PW-49, driver  of  A-3  took  the  car.  On  5.12.2001,  A-9  called
Venugopal PW-10 over phone and requested him and Newton PW-11 to  reach  the
house of Manickam A-3 at Perambur. On that day they went to the house of  A-
3. In the house 2-3 persons were also there. They  went  inside  the  house.
Manickam A-3  was  telling  to  the  persons  who  were  present  there  and
Udayakumar A-9 that ex-MLA M.K. Balan has to be brought as  some  money  was
to be collected from him. After that PW-10 and PW-11 went  and  sat  in  the
car. After about half an hour A-9 came. Manickam A-3 also came out who  went
out in Ford Escort car of Venugopal PW-10 which had been  given  by  him  on
rent. They followed the said car. Venugopal  PW-10,  Newton  PW-11  and  A-9
followed the said car of A-9. Other persons who were present in the  meeting
at the residence of Manickam, came by another car. They were Somasundaram A-
4, Shankar A-6, and Sampath A-11.  When  they  were  travelling  by  a  car,
Manickam A-3 called A-9 over phone and asked him to come to  the  temple  at
N.S.C. Bose Road. Venugopal PW-10, Newton PW-11 and Udayakumar A-9  went  to
the temple. After sometime Manickam A-3 brought two men  and  one  woman  in
the Ford Escort car. Four persons came in the car,  went  to  a  temple  and
came out after worship. Thereafter Manickam travelled in the same car.  They
followed  them.  The  persons  accompanying  A-3  were  Senthil  Kumar  A-1,
Hariharan A-2 and Romita A-12. A-12 was dropped at Chintadripet and the  car
ultimately reached Woodlands Drive Hotel. Then  PW-10  and  PW-11  left  for
their respective places. By that time Manickam A-3 told A-9  to  follow  and
went along with Senthil Kumar A-1 and Hariharan A-2 in the Ford Escort  car.
A-3 came  alone  to  the  hotel  by  the  car  then  Venugopal,  Newton  and
Udayakumar came by the car of A-9 to Tambaram.  A-9  again  contacted  PW-10
over phone on the next day, and requested him to get the key  of  the  house
belonging to one Chowdry of Mahalakshmi Nagar.  Accordingly, PW-10  and  PW-
11 collected the said key from Chowdry and waited in the house  for  A-9  to
come.  At around 7 p.m., Manickam A-3,  A-9  and  A-1  came  with  one  more
person by Ford Escort car along  with  A-5.  A-3  introduced  Venugopal  and
Newton to A-1 by referring him as a big VIP known as Senthil Kumar and  that
they should not talk to him. A-3 also asked Venugopal PW-10 to arrange  food
for Senthil Kumar and to do other works for him. Balamurugan A-5 served  the
food to A-1. Since mobile connection was not available for Senthil Kumar  A-
1 at the said place, he was made to stay in the house of A-9, Cell No.  used
by Senthil Kumar A-1 was 9840230709.
9.    PW-10 has further stated that on 08.10.2001, A-1 informed  PW-10  that
A-3 requires Rs.1,10,000/- and it will be returned in  two  to  three  days.
On  10.12.2001,  PW-10   pledged  jewels  belonging  to  him  and   obtained
Rs.1,10,000/-  and  took  the  said  amount  to  A-9’s  house  as  per   his
instruction.  Thereafter A-9 took PW-10   to  Hotel  Excellency  in  T.Nagar
where A-9 handed over the said amount to A-2. As  factory  at  Mudichur  was
selected to keep abductee.   That at the request of A-9 and A-3, PW-10   had
arranged the Semiya manufacturing factory belonging to  PW-34  for  a  week.
On 30.12.2001, after getting the keys of Semiya manufacturing  factory  from
him, A-3 handed over the said keys to A-5 and A-3 returned  to  A-9’s  house
along with PW-10, where PW-10  saw A-1 and A-2 were staying and PW-10  heard
A-3 telling them that M.K. Balan was brought (abducted) and the money  alone
remains to be collected.  On  31.12.2001,  A-1  asked  A-9  to  collect  the
recorded cassettes from A-2 and bring a tape recorder and  empty  cassettes.
A-3 also directed A-9 to collect the same from A-2, A-9 collected two  audio
cassettes.
10.   PW-10 has stated that PW-11 had provided food  to  A-1  on  30.12.2001
and 31.12.2001.  Again A-3 requested PW-10  to arrange a Maruti Van, but  he
expressed his inability to provide Maruti  Van.   That  thereafter,  on  the
request  PW-10  and PW-11 had arranged rooms in Hotel Henkala, Tambaram  for
A-9.  He heard A-3 asking A-9 as to where they have disposed the Maruti  Van
on that A-9 replied that the Maruti  van  was  just  in  front  of  Vasantha
Bhavan Hotel.  PW-10  also heard the driver of A-3 asking him  for  a  chain
to tie M.K. Balan.  He also saw A-9 handed over Rs.100/- to the driver  Viji
PW-49 for purchasing a chain.  He also saw A-3 informing PW-10   to  provide
food for those who are staying in the  Semiya  factory.   On  31.12.2001  at
about 8.30 p.m., both PW-10  and PW-11 saw M.K. Balan tied in a  chain,  his
eyes also tied and was sitting on the green colour  steel  cot  which  PW-10
and PW-11 had purchased.  He also saw M.K. Balan  wearing  the  T-shirt  and
dark pant and also the Reebok shoes lying just some distance away  from  the
cot.  PW-10  made arrangement  to  buy  the  audio  cassettes  and  he  also
arranged  the  two-in-one  tape  recorder  which  was  used  for  recording.
Thereafter, PW-10  heard A-3 saying A-9 that he  wants  one  Ambassador  car
and A-9 replied that in spite of the  best  effort,  he  could  not  get  an
Ambassador car.   Thereafter, he also heard that if no  Ambassador  car  was
available, if he could get one Maruti van and to fix one Lummox light on  it
to look like ambulance. As PW-10  and  PW-11  had  suspected  something  was
going on, they again went to the Semiya factory at 8.45  p.m.  on  1.1.2002,
and saw four persons bringing down the body of M.K. Balan  and  A-5  covered
the body with a cloth brought by him.  Both of them saw no movements in  the
body, it was the dead body and they also saw the body was loaded in the  van
and taken out from the place.  PW-10 had paid the  room  hiring  charges  to
Henkala Hotel, Tambaram.  He was also informed by one Sami  A-13  that  M.K.
Balan  was  murdered  and  his  body  was  burnt  in  cremation  ground  and
therefore, he  requested PW-10 to perform pooja in the factory premises  but
PW-10 did not do.  He also saw  the  fan,  bedpan,  chair,  cot  etc.,  were
removed  from  the  premises  on  01.01.2002.   On   03.01.2002,   he   made
arrangements for taking a room as told by A-9  for  A-1,  A-2  and  A-12  to
stay.  Thereafter he left  for  Bangalore  and  stayed  there  till  he  was
informed by his wife on 18.03.2002 that A-5 was arrested by CBCID Police  in
connection with the murder of M.K. Balan and the police  had  enquired  her.
He contacted his wife on 25th or 26th of April, 2002, and at the request  of
his wife, he came to CBCID Office on 01.05.2002 and narrated as to what  had
happened.
11.   Newton PW-11 is another witness in the  instant  case.  He  has  fully
supported the  version  given  by  Venugopal  PW-10.  He  has  deposed  that
Venugopal and Udayakumar were  partners  in  Sand  Quarry  business.  If  he
happens to see Udayakumar A-9, he could identify him. A-9  was  same  person
produced before the court. In August,  2001,  Venugopal  PW-10  purchased  a
Ford Escort car bearing  Regn.  No.TN  10-F-5555.  By  the  end  of  August,
Corporation election was held. He along  with  PW-10  went  to  the  Polling
Booth in the said car. At Udayakumar’s A-9 request, he and Venugopal  showed
some houses to Udayakumar A-9 and Manickam A-3. Venugopal PW-10  showed  his
house and some other houses to Udayakumar and Manickam, as they  had  asked.
In 1999, Udayakumar A-9 told him and Venugopal  PW-10  to  invest  money  in
vermicelli factory which had been run by Krishnapandi PW-34,  since  he  had
faced losses in business. Accordingly he and Venugopal  became  partners  in
the said company. Manickam A-3 told Udayakumar that vermicelli  factory  was
the correct place for the works to be done by him as it was away from  other
buildings. He also told that the said place is needed by  them  for  a  week
and that company should be given leave for a week and also he was  ready  to
pay the amount towards the loss  of  income  during  that  period.   He  has
totally supported the other version  of   Venugopal  PW-10  with  regard  to
other facts also.
12.   In addition he has deposed that M.K. Balan  was  brought  to  Mudichur
Semiya facory on 30.12.2001. He has also stated that  he  saw  four  persons
bringing body of M.K. Balan from upstairs and put the same in a  Maruti  van
and also saw the van leaving the said place. He had also  stated  that  even
on 5.12.2001 he travelled with accused Manickam in his car along with  other
accused persons.
In re: Prior relationship of accused

13.   With regard to prior relationship of accused persons, prosecution  has
examined Mohan Babu PW-4, Ganeshan @  Vethilai  Ganesan  PW-5,  Nehru   PW6;
Kamal Anand PW7; Deivanayaki PW8; and Lalitha  PW14.   PW-4  has  stated  in
respect of meeting of deceased M.K. Balan with Senthil  Kumar  –  A1.  PW  5
Ganeshan alias Vethilai has stated that he knew M.K. Balan. Mohan Babu  PW-4
has also deposed that Senthil Kumar came with him.  PW-4  deposed  that  one
Lalitha  helped  him  in  getting  the  job  in  the  financial  institution
belonging  to  deceased.  Lalitha  asked  him  to  arrange  for  a  loan  of
Rs.2,50,000 for lesser interest and she stated that  she  would  return  the
amount by lending the said amount for higher rate of interest but  she  paid
interest for the first month only and was avoiding further payment. That  he
met A-1 on road when he took lift from him. Thereafter he even  sought  help
of A-1 in getting the money back from Lalitha. It is  stated  that  deceased
M.K.Balan told PW-4 that he wanted to meet A-1. Both the  deceased  and  A-1
met each other. Nehru PW-6 has stated that he knew  Manickam  A-3.  He  also
met Hariharan A-2. Kamal Anand PW-7 has deposed that  Deivanayaki  PW-8  had
asked  for  his  cell  phone  for  two  days.  He  gave   her   cell   phone
No.9840053887. After two days he asked the cell phone  back  for  which  she
told that she requires the cell phone for one more week and he told that  he
will procure another cell phone from one Muttu. As told to her  he  got  one
cell phone from Muttu with No.9840133368 and gave it to  her  and  got  back
Mobile No. 9840053887 from her. PW-8, sister in law of A-2 has  stated  that
her brother-in-law had asked for the cell phone for  the  purpose  of  party
work for two days which she obtained  from  Kamal  Anand  PW-7  who  in  the
meantime procured the cell phone from his friend  Muttu.  A-2  returned  the
cell phone in the first week of December and she handed  over  the  same  to
Kamal Anand PW-7. Christopher PW-9 has stated that  he  knew  A-1  and  A-2.
Durai Swami PW-15 had stated that he knew Udayakumar A-9 and sold Tata  Sumo
car No. TN 04T-9657 - MO-13 to A-9 for Rs.1,75,000/-. Udayakumar  also  sold
Maruti zen car to him.  In  January,  2002,  Udayakumar  A-9  left  the  car
stating that the car was not auspicious and took his  old  Maruti  zen  back
from him. Laxminiwas Chaudhary PW-16 gave Zen car  MO-12  to  Manickam  A-3.
Danasekar PW-27 was known to A-1. Jayaprakash PW-28 was in  the  company  of
deceased M.K. Balan. Soundarajan PW-30 knew Udayakumar A-9 and owner of  van
MO-9. Samundeswari PW-31 worked with T.K.P. Food Products factory where  the
deceased was kept after abduction.  John  Kennedy  PW-37  is  the  owner  of
Maruti van MO-8. He had given the same to Venugopal PW-10. Syed Akbar  PW-48
is the owner of motorcycle, Viji @  Vijayan  PW-49  is  the  Driver  of  A-3
Manickam. Suresh PW-57 is stated to be driver of Somasundaram A-4.  Evidence
as to prior relationship has also been furnished by Venugopal PW-10,  Newton
PW-11, Krishnapandi PW-34, owner  of  vermicelli  factory;   Lalitha  PW-14,
mother of kept of deceased; and Ramesh PW-2, driver of the deceased.

14.    The  happenings  in-between  5.12.2001   and   30.12.2001   regarding
preparation are apparent from the statements of PW-10, PW-11, statements  of
PW-49, PW-7, PW-8, A-2, Laxminiwas Chaudhary PW-16 about Maruti  van  MO-12,
PW-18 V.R. Pandian, Velmayal PW-20 and Krishnapandi PW-34 etc. on record.
In  re  :  Selection  of  premises  where  M.K.  Balan  was  kept/and  other
arrangements

15.   It is proved that selection of premises T.K.P. vermicelli  factory  at
Mudichur near Tambaram where M.K. Balan was kept after abduction,  had  been
done by A-3 amd A-9. It is stated by PWs.10, 11 and 34 that accused A-3  and
A-9 had selected the same.  PW-10 and PW-11  were  partners  for  some  time
with proprietor Krishnapandi PW-34. A-9 met and told  PW-10  that  he  would
join an important political party for which Manickam,  A-3  will  help  him,
and for that some obligations have to be done to him. Manickam  was  one  of
the secretaries of the Branch of an important political party. The  evidence
also discloses that after inspecting vermicelli  factory  at  Mudichur,  A-3
and A-9 had asked to put fan, table, chair, cot, bedpan in the room  in  the
upstairs and screen cloth to cover the windows. The  premises  were  earlier
too hired before a month in November and earlier part of December for  about
a week. PW-34 has deposed that from 29th day of  November,  2001  leave  was
given for a period of one week. Same has been supported by PW-31  and  PW-10
but as M.K. Balan could not be abducted at that time, no  one  came  in  the
factory. Statement of PWs.10 and 11 is corroborated by PWs.31 and 34.
16.   Evidence also discloses that A-9 had called PW-10 and  asked  for  his
Ford car MO-6 for 2-3 months on rent. The same was given by Viji to A-9.  It
was taken by Viji who was driver of A-3. Use  of  said  car  is  established
from evidence. There is nothing to doubt that PW-10 and  PW-11  visited  the
house of  Manickam at Perambur along with A-9; and it  is  established  that
Manickam had told A-9 in the presence of PWs.10 and 11 that M.K.  Balan  has
to be brought as some amount had to be collected from him.  The  involvement
of Manickam-A-3, A-4 and Bomb Selvam–A-15 is  established  at  the  relevant
time, and were part of the design to abduct M.K. Balan. It  is  unbelievable
that A-4 was present by chance but he had an  active  participation  in  the
commission of the offence. Ford car which was given was  used  by  A-3.  A-4
had followed them in another car along with 3 other persons;  A-6  and  A-11
etc. Venugopal PW-10 had arranged for a sum  of  Rs.1,10,000/-  by  pledging
his jewels and handed over the amount to accused Hari along with A-9 in  the
Hotel Excellent. Evidence also discloses that on 24.12.2001, Udayakumar  A-9
phoned to PW-10 and went to the house of A-3 and  A-3  had  asked  PW-10  to
arrange for a Maruti van. As the charges for Ford car were not paid to  him,
he replied in the negative. Udayakumar A-9 then informed PW-10 that  he  had
already made arrangements to get a Maruti van from  one  Kennedy  PW-37  and
another Maruti van from one Jayaprakash, brother-in-law  of  Soundara  Rajan
and sent them to the house of Manickam A-3.
17.   Syed Akbar PW-48, owner of Hero Honda motorcycle  has  been  examined.
PW-10 has stated that the said motorcycle was given through him. Thus  PW-48
corroborates and confirms the evidence of Venugopal PW-10 and PW-11.
In re : Abduction of M.K. Balan on 30.12.2001

18.   With respect to abduction of M.K. Balan on 30.12.2001 in white  Maruti
van, statement of  Sudhakar  PW-3  is  that  he  used  to  practice  boxing,
skipping and running along with others at MRC Nagar from 5.30 to 7  a.m.  On
30.12.2001 at about 5.30 a.m. he started to run and at that time he heard  a
noise and saw that at a distance of 75 mtrs. a person  was  pushed  down  in
the van by the three persons and all the three  persons  went  in  the  same
van.  The van was an Omni Van and one motor cycle was chasing the said  Van.
 Nirmal Kumar PW-13 has stated that he used to go for walk in  M.R.C.  Nagar
everyday at about 5.30 a.m. On 30.12.2001 at about 5.45 a.m. in the  morning
when he was walking in the Kasturi Estate, M.K.  Balan  came  from  opposite
direction.  He was wearing  bright shoes,  sandal  color  T-Shirt  and  dark
pant.  He crossed him and left.

19.   Son of M.K. Balan, deceased, Manimaran PW-1, lodged a complaint  about
missing of his father M.K. Balan stating that the deceased used  to  go  for
morning walk everyday at about 5.30 a.m. He  used  to  walk  up  to  Ayappan
Temple M.R.C. Nagar and return by 7.30 a.m. On 30.12.2001  his  father  went
for walk but did not return back. He was informed  about  the  same  by  his
mother at around 8.30 A.M.  Since his father was not found anywhere he  gave
a complaint E-5 to police station.  He also filed a Habeas  Corpus  petition
before the High Court.
20.   When we assess evidence, it becomes apparent  that  PW-3  has  clearly
stated that the former MLA was abducted on 30.12.2001  at  about  5.30  a.m.
Sudhakar PW-3 has stated that a  person  was  put  inside  a  van  by  three
persons. Thereafter motorcycle  followed  the  said  van.  That  his  friend
Selvam A-15 also came there. PW-13 had also stated that  he  had  seen  M.K.
Balan taking morning walk at about 5.30 a.m. A  person  was  pushed  into  a
Maruti van. It is apparent that M.K. Balan had  been  abducted  from  M.R.C.
Nagar.
21.   After abduction was  made  in  the  morning  at  about  5.30  a.m.  on
30.12.2001, the evidence discloses meeting at the residence of Udayakumar A-
9. On 30.12.2001 at 8.30 a.m. as unfolded by Venugopal PW-10 and Newton  PW-
11, where A-3 stated that abduction of M.K. Balan has been  made  and  money
remains to be collected.
In re : Taking of M.K. Balan to factory premises
22.   On the day of abduction 30.12.2001 at about 8.30 a.m., A-9  phoned  to
PW-10 asking him to come to the house of A-9. PW-10 asked PW-11 to  come  to
the house of A-9 and then he had taken Newton, PW-11 in a  motorcycle  which
belonged to a boy working in the office of PW-10 and left Newton,  PW-11  at
the house of A-9. Udayakumar A-9 asked PW-10 to give the key  of  vermicelli
factory and as he had no vehicle to go to the vermicelli factory,  he  asked
him to take PW-10 on the motorcycle kept in his house.  Accordingly  he  had
done so. PW-10 and Balamurugan A-5 were getting down at  vermicelli  factory
at that time A-9 contacted PW-10 on his cell phone and  asked  whether  they
had reached the vermicelli factory to which  PW-10  replied  that  they  had
reached. A-9 further asked PW-10 whether he had  received  the  key  of  the
factory. Cellphone was given for  talking  to  Krishnapandi  PW-34  by  A-9.
Krishnapandi agreed to give the key to PW-10 and after  some  time  the  key
was entrusted by Krishnapandi to  PW-10.  Newton  PW-11  and  Manickam  came
there in an auto-rickshaw and the key kept by PW-10 was given to Manickam A-
3. The key was entrusted by A-3 to A-5. A-3 asked  Venugopal  PW-10  how  he
came to which he replied that he came on a motorcycle.  Manickam  A-3  asked
Venugopal to drive the motorcycle. He also sat on the  motorcycle  and  went
to the house of A-9. While Manickam A-3 went upstairs,  PW-10  followed  him
where accused A-1 and A-2 were also present. At that time Manickam had  told
those two accused persons that M.K. Balan was brought and the collection  of
amount was to be made from him. These are the facts stated by PW-10.
23.   The evidence of Newton,  PW-11  indicates  that  on  30.12.2001  after
about half an hour, A-9 phoned  to  him  to  open  the  gate  of  vermicelli
factory. At that time firstly the Tata Sumo car and  then  Ford  Escort  car
followed by one Maruti zen car came there and four  persons  got  down  from
the said Ford car  and  they  took  M.K.  Balan  to  upstairs  of  the  said
vermicelli factory by shutting his eyes, mouth and  hands.  M.K.  Balan  was
wearing black colour pant, sandal colour T-shirt and  shoes.  At  that  time
Manickam A-3 and A-9 had asked him  not  to  disclose  it  to  anybody.  The
persons who came in Ford car were Somasundaram @ Somu A-4, A-11, A-16 and A-
17. PW-11 has further stated that A-5 went in zen car and  came  back  after
about 30 minutes in Tata Sumo car carrying  tiffin  to  the  factory.  Along
with A-5 were other accused, namely, A-4, A-6, A-7  and  Bomb  Selvam  A-15.
Thus presence and participation in abduction and at  vermicelli  factory  of
accused Manickam A-3, Somasundaram A-4 and Bomb Selvam A-15 is  established.
In addition presence of A-15 stands established at place of  abduction  also
as stated by PW-3. It is apparent from the evidence of PWs.10  and  11  that
when M.K. Balan was brought to the vermicelli factory at Mudichur, A-3 to A-
7, A-11 and A-15 to A-17 were present or came there. Thus,  it  is  apparent
that all the three  appellants along with other  convicted  accused  persons
were involved in the  abduction  of  deceased  M.K.  Balan.  A-3  played  an
important role in the entire episode. The  finding  recorded  by  the  trial
court as affirmed by the High Court is that the appellants were involved  in
the abduction  stands established to the hilt.
24.   On 31.12.2001 and 1.1.2002 when M.K. Balan  was  abducted,  the  meals
were supplied through Newton PW-11 and in order to establish the  fact  that
PW-56 has been examined where he has stated that on 31.12.2001 and  1.1.2002
he had taken the tiffin in the morning, meals in the afternoon  and  evening
tiffin, they carried the food for about 8 to 10 persons. The  witness  lends
support to evidence of Venugopal PW-10. PW-56 also supports version  of  PW-
11.

In re: commission of offence under section 302

25.   With respect to charge of murder against A-3 and A-4  it  is  apparent
that MO-31 is in the handwriting of A-1. It was read out by A-12  and  heard
by A-3 and was acted  accordingly.  Evidence  of  Sahul  Hameed  PW-47  also
proves recovery of chain with which M.K. Balan was tied and  that  of  other
articles. It is apparent that M.K. Balan was abducted. There was an  attempt
to extract money when it was  not  possible,  he  was  murdered  in  factory
premises. The appellants were charged for committing the murder  by  putting
nylon rope around his neck and tightening it.  Though  there  is  no  direct
evidence with respect to that but it can be inferred  in  the  circumstances
that they committed the offence of murder also. Once they had abducted  M.K.
Balan it was for them to explain how they dealt with him. The dead  body  of
M.K. Balan could not  be  found  as  it  was  cremated  in  the  name  of  a
fictitious person – Rajamani Chettiar. His post mortem  also  could  not  be
conducted but the evidence clearly indicates that  the  dead  body  of  M.K.
Balan was taken from the vermicelli factory. It gives an inference that  the
accused persons had murdered the victim. It is not necessary  for  recording
a conviction that corpus delicti  to  be  found.  There  is  ample  evidence
leading to an inescapable conclusion that M.K. Balan was done  to  death  by
the appellants. His dead body was seen by the witnesses.
26.   I find no force in the submission that at the time of  murdering  M.K.
Balan there is no evidence and appellants were not present  when  dead  body
was taken out. In the instant  case  it  is  clear  that  abduction  of  the
deceased is proved and deceased had been murdered soon after  his  abduction
in two days and thereafter his body had been cremated under the  name  of  a
fictitious person. In the aforesaid circumstances it  was  for  the  accused
persons to satisfy the court how the  abducted  victim  was  dealt  with  by
them. In the absence of such explanation it is open to the court to  draw  a
presumption that the abductor was the murderer also, as held by  this  Court
in State of M.P. v. Lattora (2003) 11 SCC 761 :

“4. Learned counsel for the appellant State contended that the  High  Court,
while rendering the impugned judgment, did  not  follow  the  correct  legal
position. This Court in State of W.B. v. Mir Mohd. Omar  (2000)  8  SCC  382
held that if the deceased was proved to have been abducted  by  the  accused
and was found murdered soon thereafter it is for the  abductors  to  satisfy
the court as to how else the abducted victim was dealt with by them. In  the
absence of any such explanation  it  is  open  to  the  court  to  draw  the
presumption that the abductor is the murderer also. The said  view  of  this
Court was reconsidered subsequently  in  Sucha  Singh  v.  State  of  Punjab
(2001) 4 SCC 375 and the legal position has been reiterated by this Court.
5. In the light of the legal position so adumbrated by this Court,  we  deem
it necessary, in the  interest  of  justice,  that  the  High  Court  should
consider the appeal filed by the respondent  all  over  again.  This  is  to
enable the respondent to canvass regarding the conviction under Section  364
of the Indian Penal Code also. If the conviction is  to  be  maintained  the
High Court has to consider how far  the  presumption  mentioned  above  will
apply to the situation  of  this  case.  For  enabling  the  High  Court  to
reconsider the appeal afresh we set aside the impugned judgment. The  appeal
filed before the High Court shall stand remitted to the High Court.”


27.   In Ram Gulam Chaudhary & Ors. v. State of  Bihar  (2001)  8  SCC  311,
this Court considered assaulting the victim by the accused persons and  they
carried away the  body,  the  victim  was  not  seen  alive  thereafter.  No
explanation was given by the accused as to what they did  with  the  victim.
The accused abductor who  had  special  knowledge  in  this  regard,  having
withheld the information, this Court held that an  inference  can  be  drawn
that they had murdered the victim. This Court has laid down thus :

“24. Even otherwise, in our view, this is a case where Section  106  of  the
Evidence Act would apply. Krishnanand Chaudhary was brutally  assaulted  and
then a chhura-blow was given on the chest. Thus chhura-blow was given  after
Bijoy Chaudhary had said “he is still  alive  and  should  be  killed”.  The
appellants  then  carried  away  the  body.  What  happened  thereafter   to
Krishnanand Chaudhary is especially within the knowledge of the  appellants.
The appellants have given no explanation as to  what  they  did  after  they
took away the body. Krishnanand Chaudhary has not been since seen alive.  In
the absence of an explanation, and considering the fact that the  appellants
were suspecting the boy to have  kidnapped  and  killed  the  child  of  the
family of the appellants, it was for the appellants to have  explained  what
they did with him after they took him  away.  When  the  abductors  withheld
that information from the court, there is every  justification  for  drawing
the inference that they had murdered the boy. Even  though  Section  106  of
the Evidence Act may not be intended  to  relieve  the  prosecution  of  its
burden to prove the guilt of the accused beyond reasonable  doubt,  but  the
section would apply to cases like the present,  where  the  prosecution  has
succeeded in proving facts from which a reasonable inference  can  be  drawn
regarding death. The appellants by virtue of their  special  knowledge  must
offer an explanation  which  might  lead  the  Court  to  draw  a  different
inference. We,  therefore,  see  no  substance  in  this  submission  of  Mr
Mishra.”

In re: Removal of dead body from factory premises
28.   With respect to the death  of  deceased  M.K.  Balan  in  the  factory
premises and removal of his dead body from the same, the evidence of  PW-10,
PW-11, Rajendran PW-21 and Head Constable on Beat Duty, and Arumugham,  Head
Constable PW-35 are relevant.
29.   PWs.10 and 11 both have stated that body of M.K. Balan was  taken  out
of the  vermicelli   factory  on  1.1.2002.  Both  of  them  suspected  that
something was going on in the factory and at about 8.40 p.m.,  they  reached
the factory at Mudichur. At 9 p.m. the gate of the  vermicelli  factory  was
closed. A-6 was standing there. A-5 came to the factory on a motorcycle.  He
carried one cloth bag  on  the  motorcycle.  Four  persons  came  down  from
upstairs carrying body of M.K. Balan. Two persons  were  holding  legs;  two
others were holding the hands and the body  was  brought  down  and  covered
like a dead body with cloth brought by A-5. There was  no  movement  in  the
body, it appeared to be a dead body. Body was taken in the Maruti  van.  The
Maruti van went away speedily. A-5 followed  the  same  on  motorcycle.  One
person was sitting along with him on the motorcycle. Due to fear, PW-10  and
PW-11 came out of factory. Body of M.K. Balan was carried by A-6,  A-7,  A-8
and A-11. Version is supported by PW-21 and PW-35.
30.   PW-21 deposed that he was the Head Constable of Sembiyam Crime  Branch
Police Station.  That on 01.01.2002 he was given beat tickets and  appointed
for night rounds from 23 hours to   6  PM.   At  about  100  ft.  away  from
Melpatti Ponnappa Street a Maruti Van was standing  in  the  middle  of  the
road and he went along with constable Arumugam to the  Van  and  enquired  4
persons who were in the van.  Then they left the place.  MO-7  Golden  Color
Maruti Van was identified by him, and 4 persons were identified  as  Accused
6, 7, 8 and 11.
      PW-35 deposed  that  he  was  working  as  Head  Constable.   That  on
01.01.2002 he was given beat tickets and appointed for night rounds from  23
hours to 6 PM.  At about 100  ft.  away  from  Melpatti  Ponnappa  Street  a
Maruti Van was standing in the middle of the road and  he  went  along  with
the head constable Rajendran went to the Van  and  enquired  4  persons  who
were in the van.  Then they left the place. MO-7  Golden  Color  Maruti  Van
was identified by him, the 4 persons were identified as Accused 6, 7, 8  and
11.
31.    Driver  Vijayan  PW-49  was  examined  so  as  to  prove  attempt  of
procurement of Dumax top light for  the  van  to  look  like  an  ambulance.
However,  the  witness  has  turned  hostile,  resiled  from  his  statement
recorded under section 164 Cr.PC. Even if his statement  is  ignored  it  is
apparent from other statements that the vehicle was procured and  light  was
fitted on it.
32.   The van on which body was taken was  bearing  Regn.  No.  TN-22-B-8853
and was marked as MO-7. It  is  apparent  that  M.K.  Balan  was  killed  in
factory some time on 1.1.2002 and the fact  that  the  appellants  were  not
persons  who brought down body from upstairs  is  not  enough  to  exonerate
appellants considering the established facts and circumstances in case  they
have been rightly held guilty of murder also.
In re: cremation of dead body

33.   Next set of evidence is with respect to the  cremation  ground.  Ramu,
PW-12 was asked by Hari Krishnan PW-19 to lit pyre. He was declared  hostile
as he resiled from part of his statement.
      Ramu PW-12, who had cremated  the  body  had  deposed  that  he  is  a
Cemetery Keeper.  That on 01.01.2002 he was told by  Harikrishnan  to  light
the pyre.  That they did not know who came in the vehicle  and  the  vehicle
particulars.  He further deposed that they did not know if the body  was  of
male or female.

      Hari Krishnan PW-19, vettiyan in  the  cremation  ground  at  Melpatti
Ponnappa Mudali Street, has stated on 1.1.2002 at about 6 p.m.  two  persons
came and told that a body has to be burnt and they would take the body  from
the hospital to the cremation ground  and  paid  the  expenses  for  getting
woods, cow-dung cakes, kerosene and informed that the body would come  at  8
p.m. in the night but the body came at 10 p.m. They carried the body and  on
asking the death certificate of hospital, they told that  they  would  bring
the same the next day. Body was cremated at night  itself.  It  was  deposed
that the CB CID had examined him and put his signature on the reverse of MO-
14, photo of M.K. Balan; and the test identification parade  was  conducted.
He was able to identify certain accused persons,  out  of  7-8  persons  who
came for cremation. He had identified MO-14 the  photo  of  M.K.  Balan.  He
stated that he under threat of police,  had  stated  to  the  Magistrate  in
statement under section 164 Cr.PC that accused Manickam came there and  told
Hari Krishnan that he is an important person in the area and  asked  him  to
cremate the body and told that he will produce the death certificate in  the
next morning. Be that as it may. He also said that he did not  identify  the
accused before  the  Magistrate  and  was  not  aware  whether  A-3  was  an
influential person of a political party. Be that as it may.  We  ignore  the
part of statement under section 164 from which he has resiled.
34.   Kannan PW-36, in-charge of the cremation ground has  deposed  that  he
is working as Office Assistant in Chennai Corporation.  That  on  01.01.2002
he left early from the cremation ground.  That when  returned  on  the  next
date then he was informed by Hariharan that one  dead  body  came  after  he
left the office and that the dead body has been cremated and the person  who
came along with the dead  body  assured  that  death  certificate  would  be
produced in the morning.  That at around 8.15 AM one person came along  with
Hariharan who produced  the  death  certificate  in  the  name  of  Rajamani
Chettiar.  That in the certificate the address  and  father’s  name  of  the
deceased was not mentioned and he got the particulars from  the  person  who
came with the death certificate.   The  same  were  recorded  in  the  Death
Register.
In re: Procurement of death certificate by A-3
35.   Next set of evidence is relating to procurement of  death  certificate
in the name of Rajamani Chettiar. For cremating  a  body  in  the  cremation
ground, death certificate was required to accompany  the  dead  body.  Death
certificate in a fictitious name of Rajamani Chettiar was obtained from  PW-
32 at the instance of Manickam A-3 through one Kamaraj PW-33.
      Dr. Anbarasu PW-32 deposed that on 02.01.2002 at 6 AM in  the  morning
one Kamaraj who is working in the Government General Hospital and  known  to
him for the past 15 years came and requested to issue death certificate  for
Rajamani Chettiar  aged  about  61  years.   Kamaraj  PW-33  submitted  that
Rajamani Chettiar was the poor person and died  due  to  chest  pain.   That
there was no one to perform  his  last  rites.   He  believed  the  word  of
Kamaraj PW-33 and issued the death certificate in question.
      Damodaran PW-38 has been examined so as to prove  that  no  person  in
the name of Rajamani Chettiar ever resided in his  house  in  question,  the
particulars of which were falsely given in the death certificate.
      Dr. Prabhavathi PW-45 deposed that she is  working  as  Asst.  Welfare
Officer in the Chennai Corporation.   That  she  has  given  Medical  Report
Ex.P27, Death Report Form 2 Ex. P29.  That the letter given by  him  to  DSP
is marked as Ex.P52.  Medical certificate and death  certificate  have  been
proved by PW-45.
36.   With respect to obtaining of  death  certificate  by  A-3,  the  trial
court has given the following findings :

“171. Now we have to analyze whether there are any other evidences for  that
and for that purpose, the evidence of PWs-32, 33,  36  and  38  have  to  be
perused.  PW 32 is the Doctor Anbarasu and before analyzing the evidence  of
PW-32, the evidence  of PW-33 has to be analyzed.   PW-33   has  deposed  in
his evidence that on 1.1.2002 while he was on bed  due  to  illness  in  the
evening at about 5.00 p.m. one Samikannu came to him and  told  that  Poonga
Nagar Manickam is calling him and that at that time he told that he was  not
well and asked him as to what was the matter for which he said  he  did  not
know anything about the same, then the said Samikannu took  him  along  with
him and that Poonga Nagar Manickam was in his house and that  at  that  time
he informed him that one watchman of a company at Kolathur expired and  that
he asked him whether any trama car is available  for  taking  the  body  for
that he had replied to him (Manickam) that to bring out  the  dead  body  no
such vehicle would be available and then he has informed me to try  for  the
same by saying so he has sent Samikannu  to accompany him and that  then  he
has gone to Government General Hospital, Chennai  from  Perambur  and  after
finding out that no such vehicle was available there and informing the  same
and when he was about to board a bus to go, Samy informed  him  that  Poonga
Nagar Manickam asked him to come to his house at 6.00 am in the morning  and
that accordingly on the next day morning i.e. on 2nd he went  to  the  house
of Poonga Nagar Manickam and that this was the time for finding out  car  in
many ways for bringing the body of the deceased M.K.  Balam  as  established
by the evidence of PW-32 and that in the said circumstances,   on  the  next
day i.e. on 2.1.02 PW-33  went  to  the  house  of  the  said  Poonga  Nagar
Manickam and that at that time the 3rd accused Manickam  informed  him  that
one Rajamani Chettiar, aged about 61 years died  on  the  previous  day  for
which he asked him to get a  doctor’s  certificate,  as  deposed.    He  has
further deposed in his evidence that he has been well  acquainted  with  him
(Manickam) for the past 16 years and that he went to  the  doctor  Anbarasan
(PW-32) and obtained a certificate from him in his  English  letter  pad  to
the effect that one watchman of a company at  Kolathur  died  due  to  chest
pain and that  certificate  has  been  marked  as  Ex.  P.27.   That  Doctor
Anbarasu PW-32 has been examined as a  witness  in  this  case  and  he  has
deposed in his evidence that he has issued the certificate Ex.P.27 and  that
as requested by PW-33 Kamaraj, he has issued the  said  certificate  Ex.P.27
as deposed by him.   As per his evidence only on the  compulsion  of  PW-23,
the certificate Ex.P.27 has been issued and in the  certificate   issued  by
him in Ex.P.27 it has been mentioned by him that  ‘Rajamani  Chettiar,  aged
about 61 years died due to chest pain’.   Investigation was  done  to  prove
the fact that no such person in the name of Rajamani Chettiar  on  the  side
of the prosecution, and to that effect one Damodharan has been  examined  as
PW-38.  He has deposed in his evidence that ‘I am residing at  No.11/18  4th
street, Anjuham Nagar, Kulathur, Chennai and that this is my own  house  and
that my wife is Lalaitha and my father is  Ramasamy  and  that  I  have  one
daughter and two sons and that they  are  Prahbaharan  and  Sudhakaran  aged
about 29 and 27 respectively.  Both Prabaharan and Sudhakaran have no  other
names; that I am working in Sharp Motor company for the past  5  years.   In
one portion of my house Auto driver Devaraj is residing and that  no  person
in the name of Rajamani chettiar, aged about 61 years  was  residing  in  my
house ever before.  Either on 1.1.02 or on 2.1.02 no person in the  name  of
Rajamani chettiar, aged about 61 years was residing either in our  house  or
in any portion of our house; that  like  wise  no  person  in  the  name  of
Rajamani chettiar, son of Chinthamani chettiar, aged  about  61  years  died
either on 31.12.01 or 1.1.2002 in the above said  house  and  that  no  dead
body of that person was also brought to that house, as deposed.  It is  seen
from these evidences and documents that the 3rd accused  Manickam  sent  the
13th accused Samikannu, asking him to meet PW-33  Kamaraj  and  through  the
said Kamaraj, a forged document (doctor’s  certificate)  marked  as  Ex.P.27
has been obtained in the name of one Rajamani chettiar, aged about 61  years
from PW-32 and that the evidence of PW-36 has to be  analysed  to  find  out
the fact as to where that certificate has been given.  PW-36 is  Kannan  and
he has deposed in his evidence that  ‘I  am  residing  at  No.  371,  Sanjan
Nagar, Melpatti Ponnambala street, Vyasarpadi, Chennai-39.  I am working  as
Office Assistant  in the Corporation  of  Chennai  on  compassionate  ground
from 1979 onwards.  I joined in service during 1998  as  incharge  of  Hindu
Grave yard at Melpattu Ponnappa Mudali street, Chennai belonging to  Chennai
Corporation;  that my immediate superior officer  is  the  Assistant  Health
Officer’.   He has further deposed in his evidence that ‘on 2.1.02 as  usual
I came to grave yard at about 7.30 a.m. and that at that  time  Harikrishnan
who was present there told me that after I left that  place  one  dead  body
had come and that doctor’s certificate would be given  today  by  the  party
for cremating the body’.  He  has  further  deposed  in  his  evidence  that
‘Ex.P.27 was given  to  me  by  a  person  who  accompanied  with  the  said
Harikrishnan on 2.1.02 morning at about 8.15 a.m’.  He has  further  deposed
in his evidence that I registered this Ex.P.27 in Form.2.  This is the  said
Form.2 marked as Ex.P.29.  That death  has  been  registered  in  the  Death
Register as 1st row of the date 1.1.02 and that portion has been  marked  as
Ex.P.30 and that in that connection death report of the grave yard has  been
prepared and a copy of the same has been given to the person who came  along
with the said Harikrishnan and the other copy is marked as Ex.  P.31.     In
that regard I filed a Despatch note book which is  marked  as  Ex.P.32  (the
entry made in the said Despatch Note Book is marked as Ex.32).   The  person
who came along with Harikrishnan signed in Ex.P.31 and Ex.P.29 and that  for
the seizure of these documents the DSP attached to CB  CID  had  prepared  a
magazar and obtained my signature therein.  That magazar has been marked  as
Ex.P.33.  He has deposed evidence now that there is no necessity to  produce
the doctor certificate to cremate the body of a  person  who  is  aged  more
than 60 years.  While that being so it is the case of the accused that  this
Ex.P.27 has been fabricated falsely for the purpose of the case.   The  body
of the deceased M.K. Balan was taken to the grave yard and tried to  cremate
the body by saying that the deceased was the age of  61  years.   But  PW-12
asked for the production of doctor certificate by saying  that  the  age  of
the person would be 48 to 50 yrs.  Therefore Ex.P.27 has been created as  if
that deceased person would be aged about more than 60  years  and  the  same
has been issued by PW-36 and the same has been  recorded  which  has  to  be
taken into consideration.   In  that  manner  also  the  contention  of  the
accused could not be acceptable one.  Now we have to peruse the evidence  of
PW-45 Dr. Prabhavathi (Health officer) and that as per her statement it  has
been stated by her that ‘a letter dated 20.3.02 was shown  to  me  and  that
Medical Certificate (Ex.P.27) and death  report  (Form  II)  Ex.  P.29  were
given by me to the DSP, CB CID.  The letter given by me to the DSP has  been
marked as Ex.P.52’.  Now even  as  per  this  evidence  also,  it  has  been
established on the side of the prosecution that the body of M.K.  Balan  was
cremated.”
                                                                   (emphasis
supplied by me)


      From the aforesaid discussion made by the  trial  court  and  evidence
it is apparent that Kamaraj PW-33 on 2.1.2002 went to the house of  Manickam
A-3 who had informed him that one Rajamani Chettiar aged about 61 years  had
died and a doctor’s certificate was required. PW-33 had stated that he  knew
A-3 for the last 5 years and as such on his request went  to  Dr.  Anbarasan
PW-32 and obtained death certificate Ex.  P-27  from  him  with  respect  to
death of Rajamani Chettiar. Dr. Anbarasan PW-32 had deposed that  he  issued
the certificate Ex. P27 in the aforesaid  circumstances  to  Kamaraj  PW-33.
Damodharan PW-38 has stated that no such person  Rajamani  Chettiar  resided
in House No.11/18, 4th Street, Anjuham Nagar, Kulathur, Chennai. Thus it  is
apparent that the death certificate related to non-existent person and  dead
body of M.K. Balan was cremated under the  guise  and  at  the  instance  of
Manickam A-3; false certificate  Ex.  P-27  was  prepared  and  produced  at
cremation ground on next day showing cremation of Rajamani Chettiar.  Kannan
PW-36, Office Assistant in the Corporation of Chennai has deposed  that  Ex.
P-27 was given to him in the morning at about 8.15  a.m.  He  had  made  the
entry Ex.P-27 in Form 2 in the death register as 1st  row  of  1.1.2002  and
that portion is marked as Ex. P-30. The dispatch  book  Ex.  P-32  has  also
been proved by the witness along with memo Ex. P-33. Thus,  the  involvement
of Manickam A-3 is proved to the hilt by the aforesaid evidence also.

37.   The trial court has rightly found that the accused A-3, A-4  and  A-15
had acted upon the conspiracy of A-1 and A-2 and have been found  guilty  of
offences under sections 365, 387, 302, 347, 364, 109 and 201 IPC.
In re: confessions and recoveries from accused
38.   Witnesses as to police confessions of  various  accused  persons  have
been furnished by : Sahul Hameed PW-44 with respect to A-5; Tulasirangan PW-
22 with respect to A-1, Pasupathy PW-23 with respect to A-1, Jagannathan PW-
24 with respect to A-6; Siva PW-26 with respect to A-3;  Seetha  PW-29  with
respect to A-12, Francis Arpudham PW-39  with respect to A-4;  Prasad  PW-42
with respect to A-7; Raja Masilamani PW-46 with respect to  A-10  and  A-11;
and Sahul Hameed PW-47 with respect to A-16 etc.
39.   The seizure of articles has been proved by TMT Geetha PW-17  of  green
cot MO-11; Sriramulu PW-25 of Ford Escort car MO-6;  Babu  PW-40  of  audio-
cassettes MO-33; Raja Masilamani PW-46 of tape  recorder  MO-2;  Kuteeswaran
PW-41 of golden colour Maruti van and Tata Sumo  van  MOs.  9  and  13  etc.
Similarly, seizure of other articles has been proved.
40.   The accused persons’  confessional  statements  and  recoveries  based
thereon support the  version  of  PW-10  and  PW-11.  A-5  was  arrested  on
18.3.2002 at Perambur Railway Station. Kaha Sahul Hameed  PW-44  has  proved
the confessional statement of A-5. It  is  stated  that  he  identified  the
Maruti omni van and also the cremation ground where the body was  burnt  and
also disclosed the name of A-3  and  the  Maruti  van  which  was  used  for
abducting and that on instructions of  A-3,  dead  body  was  burnt  in  the
cremation ground. The witness has also proved the spot map of factory Ex. P-
44 signed by Selvaraj also. At the instance of  A-5,  Maruti  van  MO-9  has
been seized from one Jayaprakash vide Ex. P-25.  As  stated  by  PW-3,  M.K.
Balan was abducted in the said van. It has been established that  the  place
of occurrence is vermicelli factory at  Mudichur.  Samundeeswari  PW-31  and
Krishnapandi PW-34 have proved the said facts. PW-30 has also stated that A-
9 studied with him and one Somu of Chitlapakkam had entrusted a  Maruti  van
bearing Regn. No. TSI 7484 and A-9 had asked him to lend the said  car,  and
he had given the same to A-9 who told him to return the  same  on  the  next
day. On receiving the van, its tape recorder and speaker were found  missing
and there were liquor bottles in the same and seats were  burnt  with  fire.
Then he went upstairs in the house of Udayakumar A-9  and  asked  about  the
said condition of vehicle, and A-9 assured him to compensate  for  the  loss
but did not give any amount. Thereafter, CBCID came to PW-30 and seized  the
vehicle and prepared Ex. P-25. Thus it is apparent that MO-9 was in  custody
of A-9 and the vehicle was used in commission of offence.  This  also  lends
corroboration to statements of PW-10 and PW-11.
41.   Sankar Ganesh A-6 was arrested  on  19.3.2002  who  identified  Maruti
Omni van No. TN-0343 and  his  confessional  statement  Ex.  P-16  had  been
recorded in the presence of PW-24. At  his  instance  said  Maruti  van  was
recovered in front of the house of John Kennedy, PW-37 at 11.30  a.m.  under
Ex. P-17. Said Maruti van is MO-8. PW-37 has owned a signature on the  memo.
At the instance of A-7, cot which  was  used  to  keep  M.K.  Balan  in  the
factory had been  recovered.  Cot  had  been  identified  also.  This  lends
further support to versions of PWs. 10 and 11.
42.    A-3  was  arrested  on  25.3.2002.  His  confessional  statement  was
recorded by CB CID in the presence of Premkumar. PW-26  has  deposed  as  to
seizure of Maruti zen TN-02-Z-99. He was taken to the  residence  of  PW-16.
On being identified by A-3, said Maruti zen car had been seized from  PW-16.
Ex. P-20 is the admissible portion of the  confessional  statement  of  A-3.
Seizure memo Ex. P-6 of Maruti zen car, MO-12, was drawn. PW-16  has  stated
that he had given the car for marriage of said Manickam  as  his  office  is
near to his house so he could  identify  Manickam A-3. A-3 had  taken  MO-12
Maruti car in November, 2001 and was returned to him  during  the  month  of
February, 2002. The police seized the car from him on 25.3.2002 as  per  Ex.
P-6. Use of this car in offence is established by evidence on record.
43.    PW-26  who  is  an  Administrative  Officer,  has  also  proved   the
confessional statement of A-3. The witness has proved his signature  on  the
same. A-3 had identified the Maruti zen car  of  maroon  colour.  PW-11  has
stated that the Maruti zen car came to the  vermicelli  factory  along  with
Ford car and Tata Sumo car. It is apparent from PWs.10 and  11  that  Maruti
zen car was used for committing the offence. Maruti van was  also  recovered
on 30.3.2002 at the instance of A-9 from PW-18.  At  the  instance  of  A-9,
bedpan was also recovered. Maruti omni van MO-7 of  golden  colour,  bearing
Regn. No. TN-22-B-8853 and Tata Sumo car were also recovered. PWs.10 and  11
have deposed about bedpan, Tata Sumo and Maruti van. As instructed  by  A-3,
bedpan was kept at vermicelli factory, Maruti van MO-8, had  been  used  for
taking the dead body of the deceased, Tata Sumo car was  also  used  by  the
accused persons. PW-18 has deposed that he had given Maruti van to  A-9.  On
31.12.2001 at about 10 a.m., he had taken the van and  returned  it  in  the
night itself and on 1.1.2002 he took the same at about 10 a.m. but  did  not
return as usual on the night of 1.1.2002 but returned it  only  on  2.1.2002
at about 11 p.m.  i.e. after  M.K.  Balan  was  killed  and  body  cremated.
Thereafter on 30.3.2002 CB CID seized his Maruti car  MO-7,  vide  Ex.  P-8.
The statement of PW-18 corroborates the versions of  PW-10 and PW-11.
44.   Manickam’s confession was recorded on  5.4.2002  in  the  presence  of
Purushothaman and Babu-PW-40. PW-40 deposed that on  the  direction  of  the
Tehsildar, he along with one Purushothaman went to  the  CB  CID  Office  on
05.04.2002, where one Manickam was being investigated  with  regard  to  the
M.K.  Balan  murder  case  and  he  along  with  Purushothaman  signed   the
confession statement.   Based on  the  confessional  statement  the  TTK  90
Cassette along with a piece of paper kept in the back of the  photo  of  the
Accused No.3 was seized by CB CID and the same were marked as MO28 and  MO33
respectively.  The Mahazar was prepared  and  they  signed  the  same.   The
admitted portion Ex. P-35 of the confessional statement  given  by  Manickam
was also signed by them as witnesses.
45.   The bit of paper MO-33, which had been seized from A-3  and  also  bit
of paper MO-31 regarding extortion of money seized from  A-12  in  order  to
establish the fact that both had been written by  A-1.  As  mentioned  above
the High Court has ignored it as the articles were  not  kept  in  a  sealed
condition, we also leave it out of consideration.
46.   On 9.4.2002 accused Somasundaram A-4 was  arrested  at  about  6  a.m.
near Chromepet police station.  His  confessional  statement  Ex.  P-34  was
recorded in the presence of Francis Arpudham PW-39.  On  the  basis  thereof
Ford white colour car bearing Regn. No. TN-10-F-5555 was  recovered  as  per
memo  Ex.  P-19.  PW-39  has  proved  his  signatures  on  the  confessional
statement. Use of car is corroborated by PWs.10 and 11.  The  car  had  been
entrusted to accused A-9. Recovery of the car also implicates Somu  A-4  and
supports the versions of PWs.10 and 11.
47.    Bomb  Selvam  A-15  was  arrested  near  Egmore  Railway  Station  on
25.4.2002 at about 12.30 p.m. in the presence of Muthurakku and  Kaha  Sahul
Hameed PW-44. His confessional statement Ex. P-51 came to  be  recorded.  As
per his statement Hero  Honda  6475  and  black  colour  Reebok  shoes  were
recovered as per Ex. P-51. Motorcycle was  article  MO-10,  and  shoes  were
marked as MO-1. Samundeeswari, PW-31, has stated that at about  11.30  a.m.,
a person came and went upstairs and took along with him Reebok  shoe,  MO-1.
At that time he came in a car and took an object in a gunny bag. Even if  we
discard recovery of Reebok shoes it is apparent that motorcycle used by  the
accused had been recovered at the instance of A-15.  This  lends  additional
support to versions of PWs.10 and 11.
In re: Commission of offence under section 387 IPC
48.   On the basis of statement of PW-11, it is  established  that  A-4  was
present when  M.K.  Balan  was  brought  to  the  vermicelli  factory  after
abduction and after about half an hour, Bomb Selvam  A-15  also  came  there
along with A-5 to provide tiffin. PW-10 has also stated that M.K. Balan  was
tied with iron chain on 31.12.2001, his eyes were shut and  he  was  sitting
on a green colour cot and was wearing a black colour  pant  and  a  T-shirt.
Thus it is apparent that A-3, A-4 and A-15 along with other accused  persons
were involved in the abduction of ex-MLA M.K. Balan. PW-10 has deposed  that
driver of Manickam namely Viji told that he  wanted  a  chain  to  tie  M.K.
Balan. A-9 had taken out Rs.100/- from his shirt pocket to  buy  one  chain.
However, Viji PW-49 turned hostile. He was  confronted  with  his  statement
under section 164 Cr.PC. He admitted that he had given  a  statement  before
the Magistrate but under fear. Be that as it may. We ignore the  version  of
Viji PW-49. There is nothing to  doubt  the  aforesaid  statement  of  PW-10
regarding purchase of chain. The trial court with respect to  commission  of
offence under section 387 IPC has rightly given the   finding  in  para  166
that the prosecution has  established  its  case  to  the  effect  that  the
accused 1 to 11 and 14 to 17 have committed  the  offence  punishable  under
section 387 IPC beyond all reasonable doubt.

Effect of acquittal under section 120B

49.   Now I take up effect of acquittal of  appellants  under  section  120B
IPC. The accused appellants have been convicted for  commission  of  offence
under section 365 read with section 109 IPC, under sections  387,  302  read
with section 109, under section 347 read with  section  109;  under  section
364  read  with  section  109  and  section  201  IPC.  In  the  facts   and
circumstances of the case when charge  under  section  109  has  been  found
established, mere their acquittal under section  120B  is  of  no  avail  to
them. Charges which were framed were specific  ingredients  of  section  109
have been  rightly  found  to  proceed  by  both  the  courts  below.  Their
acquittal under section 120B of IPC cannot help them  as  offences  of  both
sections are separate. Section 120B found established against  A-1  and  A-2
and other charges against accused/appellants.
50.   This Court has considered the abduction  under  section  109  and  the
conspiracy and the explanation thereof and  compared  with  the  same  under
section 120B. This Court held that under section 109 the abettor  is  liable
to the same punishment which may be inflicted on the principal  offender  if
the act of the latter is committed  in  consequence  of  the  abetment.  The
offence of conspiracy under section 120B is different. Section 120A is  bare
agreement to commit an offence which has been made punishable under  section
120B. The punishment for these  two  categories  of  crimes  is  also  quite
different. Section 109 IPC is concerned only  with  punishment  of  abetment
for which no express provision has been made  in  the  IPC.  An  offence  of
criminal conspiracy on the other hand is an  independent  offence  which  is
made punishable under section 120B IPC for which a charge under section  109
is unnecessary and inappropriate. In Ranganayaki v. State  by  Inspector  of
Police (2004) 12 SCC 521, this Court has held thus :
“10. Motive for doing a criminal act  is  generally  a  difficult  area  for
prosecution. One cannot normally see into the mind  of  another.  Motive  is
the emotion which impels a man to do a particular act. Such impelling  cause
need not necessarily be proportionally grave to  do  grave  crimes.  Many  a
murder has been committed without any  known  or  prominent  motive.  It  is
quite  possible  that  the   aforesaid   impelling   factor   would   remain
undiscoverable. Lord Chief Justice Campbell struck a note of caution in  Red
v. Palmer [Shorthand Report at p. 308, May 1856] thus:
“But if there be any motive which can be assigned, I am bound  to  tell  you
that the adequacy of that motive is of  little  importance.  We  know,  from
experience of criminal courts that atrocious crimes of this sort  have  been
committed from very slight motives; not merely from malice and revenge,  but
to gain a small pecuniary advantage, and to drive off for  a  time  pressing
difficulties.”
Though, it is a sound presumption that every criminal act  is  done  with  a
motive, it is unsound to suggest that no such criminal act can  be  presumed
unless motive is proved. After all, motive is  a  psychological  phenomenon.
Mere fact that prosecution failed to translate that  mental  disposition  of
the accused into evidence does  not  mean  that  no  such  mental  condition
existed in the mind of the assailants. In Atley v. State of  U.P.  AIR  1955
SC 807 it was held: (AIR p. 810, para 6)
“That is true, and where there is clear proof of motive for the crime,  that
lends additional support to the finding of the court that  the  accused  was
guilty, but absence of clear proof of motive does not  necessarily  lead  to
the contrary conclusion.”
In some cases it  may  be  difficult  to  establish  motive  through  direct
evidence, while in some other cases inferences from circumstances  may  help
in discerning the mental propensity of the person concerned. There may  also
be cases in which it is not possible to disinter the mental  transaction  of
the accused which would have impelled him to act. No proof can  be  expected
in all cases as to how the mind  of  the  accused  worked  in  a  particular
situation. Sometimes it may appear that the motive  established  is  a  weak
one. That by itself is insufficient to lead to an inference adverse  to  the
prosecution. Absence of motive, even if it is accepted,  does  not  come  to
the aid  of  the  accused.  These  principles  have  to  be  tested  on  the
background of factual scenario.
11. Under Section 109 the abettor is liable to  the  same  punishment  which
may be inflicted on the principal offender: (1) if the act of the latter  is
committed in consequence of the abetment, and (2) no  express  provision  is
made in IPC for punishment for such an  abetment.  This  section  lays  down
nothing  more  than  that  if  IPC  has  not  separately  provided  for  the
punishment of abetment as such then it is  punishable  with  the  punishment
provided for the original offence. Law does not require  instigation  to  be
in a particular form or that it should only be  in  words.  The  instigation
may be by conduct. Whether there was instigation or not is a question to  be
decided on the facts of each case. It  is  not  necessary  in  law  for  the
prosecution to prove that the actual operative cause  in  the  mind  of  the
person abetting was instigation and nothing  else,  so  long  as  there  was
instigation and the offence has been committed or  the  offence  would  have
been committed if the person committing the act had the same  knowledge  and
intention as the abettor. The instigation must  be  with  reference  to  the
thing that was done and not to the thing that was likely to have  been  done
by the person who is instigated. It is only if this condition  is  fulfilled
that a person can be guilty of abetment  by  instigation.  Further  the  act
abetted should be committed in consequence of the abetment or  in  pursuance
of the conspiracy as provided in the Explanation to Section 109.  Under  the
Explanation an act or offence is  said  to  be  committed  in  pursuance  of
abetment if it is done in consequence of (a)  instigation,  (b)  conspiracy,
or (c) with the aid constituting abetment. Instigation may be  in  any  form
and the extent of the influence which the instigation produced in  the  mind
of the accused would vary and depend upon facts of each  case.  The  offence
of conspiracy created under Section 120-A is bare  agreement  to  commit  an
offence. It has been made punishable under Section  120-B.  The  offence  of
abetment created under the second clause of Section 107 requires that  there
must be something more than mere conspiracy.  There  must  be  some  act  or
illegal omission in pursuance of that conspiracy. That would be  evident  by
Section 107 (secondly), “engages … in any conspiracy for the doing  of  that
thing, if an act or illegal  omission  takes  place  in  pursuance  of  that
conspiracy”. The punishment for these  two  categories  of  crimes  is  also
quite different. Section 109 IPC is concerned only with  the  punishment  of
abetment for which no express provision has been made  in  IPC.  The  charge
under Section 109 should, therefore, be along with charge for  murder  which
is the offence committed in consequence of abetment. An offence of  criminal
conspiracy is, on the  other  hand,  an  independent  offence.  It  is  made
punishable under Section 120-B for which  a  charge  under  Section  109  is
unnecessary and inappropriate. [See  Kehar  Singh  v.  State  (Delhi  Admn.)
(1988) 3 SCC 609] Intentional aiding and active complicity is  the  gist  of
the offence of abetment.”

51.   Thus commission of offence under  section  109  has  been  established
along with other sections. The conviction and the sentence  imposed  by  the
trial court and the High Court is absolutely proper and no  benefit  can  be
obtained by acquittal under  section  120B  IPC.  That  does  not  adversely
impinge upon the ingredients of section  109  IPC  and  other  sections  for
which he has been found guilty. Thus  I  find  no  force  in  submission  of
appellants that once appellants have been acquitted under section  120B  the
entire case falls down.
In re: evidence of accomplices
52.   Several decisions  were  cited  which  are  referred  to  by  esteemed
brother which indicate that accomplice version requires corroboration,  same
cannot be rejected outrightly.  It was submitted that PW-10  and  PW-11  are
not reliable being accomplices  and  there  is  no  corroboration  of  their
version. Submission is too tenuous to be accepted. Though  only  their  help
was taken as discussed above.   In my opinion even if PW-10  and  PW-11  are
taken as accomplices their  depositions  are  corroborated  by  overwhelming
evidence on record on each and every aspect. The accused persons  have  been
found guilty under section 109  IPC  also.  All  convicted  accused  persons
including appellants acted together.  Entire  gamut  of  evidence  discussed
above, admissible portions of confessional  statements  of  various  accused
persons including appellants, recovery of articles  of  offence  also  lends
credence to versions of PWs. 10 and 11.
In re : Holding T.I./recording statement under section 164 Cr.PC

53.   Holding test identification parade has been proved by  Krishnasamy-PW-
60. Recording of statement under  section  164  Cr.PC  has  been  proved  by
Thangamariyappan  PW-59;  Karunanidhi  PW-61  for  A-12,  PW-32  and  PW-33,
Vijayakanth PW-62 recorded the statements  of  Vettiyans  PW-12  and  PW-19.
Junath Sherif PW-64 has recorded the statement under section 164  of  PWs.10
and 11.

In re : Cell phones/cassettes/forensic evidence
54.   Evidence  discloses  that  cell  phone  was  given  to  A-2  by  PW-7.
Cassettes were recovered with suitcase MO3 from A-1 which  is  supported  by
PW-43 Accountant of Butts Paradise Hotel where suitcase  was  left  and  for
stay money was paid by Venu. Forensic evidence is furnished  by  Kasi  PW-63
and Dr. C.P. Singh PW-65.  PW-63  has  deposed  that  he  had  compared  the
documents MO31 and MO33 with the  specimen  handwritings  and  signature  of
Senthil  Kumar  and  submitted  his  report  Ex.  P-55  dated  24.7.2002  by
concluding that both the handwritings were of the  same  person.  PW-65  had
deposed that he had received four video cassettes and  two  audio  cassettes
which are marked as MOs.27 and 28. After analyzing he found both the  voices
to be same and marked the report as Ex. P-83. However, the  High  Court  has
not relied upon forensic evidence relating to cassettes and MOs. 31  and  33
and also regarding voice comparison, for the reason that the  said  articles
were not kept in a sealed  condition.  We  also  ignore  this  evidence  but
ignoring this evidence also does not further the case of the  appellants  in
any way as their guilt stands established by other overwhelming evidence.
55.   It was also contended that recovery of Ford car at the instance of  A-
4 is of no value. In my  opinion,  in  whose  name  car  was  registered  is
immaterial as its use in  offence  and  recovery  is  material  aspect.  The
registration of car is in name of  Ranjit  Kumar  who  paid  money  for  its
purchase is a matter inter se between PW-10  and  Ranjit  Kumar.  PW-10  may
have purchased the car in the name of Ranjit Kumar.  However,  the  evidence
clearly  disclosed that the car was in possession of PW-10 and was given  by
him to accused. Total six cars were used in offence  including  Ford  Escort
car and one motorcycle. They were used by one or other  accused  persons  at
one or other time while committing offence thus which vehicle  was  used  at
particular time by which  accused  would  not  create  any  circumstance  in
favour of an accused person when it has been proved  that  various  vehicles
seized have been used in offence their recovery at the instance  of  accused
persons cannot be ignored.
56.   Coming to submission that remains recovered from cremation ground  are
not proved to be of deceased M.K. Balan. As per the case of prosecution  the
body of the deceased was  fully  burnt  as  such  the  recovery  of  certain
remains which was made after several months from the  cremation  ground  was
of  no utility. Remains would not have been at cremation ground  after  2  ½
months when everyday bodies are cremated. Their  seizure  and  the  forensic
science report regarding that are of no value.
57.   Thus in my opinion the appeals preferred  by  appellants  sans  merits
hence, liable to  be  dismissed.  The  appeals  are  hereby  dismissed.  The
conviction and sentence imposed by the Trial Court as affirmed by  the  High
Court calls for no interference in the appeals.

New Delhi;                                        ……………………..J.
September 28, 2016.                               (Arun Mishra)

-----------------------
[1]

      [2] (2001) 3 SCC 468
[3]
      [4] (1999) 5 SCC 253
[5]
      [6] AIR 1952 SC 54
[7]
      [8] AIR 1963 SC 599
[9]
      [10] AIR 1962 SC 876
[11]
      [12] AIR 1947 Lah 220
[13]
      [14] AIR 1936 Cal 101
[15]
      [16] (2005) 1 SCC 237
[17]
      [18] AIR 1968 SC 938
[19]
      [20] (2011) 5 SCC 161
[21]
      [22] AIR 1957 SC 637
[23]
      [24] AIR 1968 SC 832
[25]
      [26] (1975) 3 SCC 742
[27]
      [28] [1916] 2 KB 658
[29]
      [30] (1969) 3 SCC 429
[31]
      [32] (1979) 4 SCC 312
[33]
      [34] AIR 1970 SC 1330
[35]
      [36] (1988)3 SCC 609

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