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

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 403 OF 2010
SOMASUNDARAM @ SOMU ... APPELLANT(S)
VERSUS
THE STATE REP. BY THE DEPUTY
COMMISSIONER OF POLICE ... RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. 827 OF 2013
CRIMINAL APPEAL NO. 828 OF 2013
CRIMINAL APPEAL NO. 1504 OF 2017
CRIMINAL APPEAL NO(s). 2006-2007 OF 2017
AND
CRIMINAL APPEAL NO(s). 2008-2009 OF 2017
J U D G M E N T
K.M. JOSEPH, J.
1. Six appeals arise out of a common judgment rendered
by the High Court confirming the conviction and
1
sentence of the appellants by the Trial Court. The
earliest of the aforesaid appeals, i.e., Criminal
Appeal No. 403 of 2010, is filed by the fourth accused.
Criminal Appeal No. 827 of 2013 and Criminal Appeal No.
828 of 2013 are filed by the third and the fifteenth
accused, respectively.
WHY THIS THREE-JUDGES BENCH?
2. The appeals filed by the third, fourth and
fifteenth accused came to be heard by a Bench of two
learned Judges. There was a cleavage of opinion among
the learned Judges. One learned Judge (Justice V.
Gopala Gowda), by his Judgment, proceeded to acquit the
accused while Justice Arun Mishra dismissed the
appeals. The Judgment rendered by the two learned
Judges is reported in Somasundaram alias Somu v. State
 Represented by Deputy Commissioner of Police1. After the
judgment was rendered, it is that the other appeals
came to be filed by the other accused. They are as
follows:
1 (2016) 16 SCC 355
2
a. A5 and A8 have filed Criminal Appeal Nos. 2008 of
2017;
b. A6 has filed Criminal Appeal No.1504 of 2017;
c. A7, A11, A14, A16 and A17 have together filed
Criminal
Appeal No. 2006 of 2017;
d. Though Criminal Appeal No.2007 of 2017 and Criminal
Appeal No. 2009 of 2017 were also filed, subsequent
to the hearing, applications have been filed
seeking to withdraw the aforesaid two appeals and
they are liable to be dismissed as withdrawn.
THE PROSECUTION CASE
3. On M.K. Balan (hereinafter referred to as ‘the
deceased’, for short), who was an Ex. M.L.A., was
reported to be missing by his son-PW1 after he went for
his morning walk on 30.12.2001. On the basis of the
complaint, law was set in motion. PW67-Inspector of
Police, took over the investigation on 12.01.2002 from
PW66. It was, in fact, PW66, who initially conducted
3
investigation. PW66 has spoken about information of the
absconding person being given to the Police Control
Room and to all Police Stations by wireless. He has
sent photograph of absconding person to be published in
the daily newspapers. Inquiry was conducted in
hospitals. He has examined a large number of witnesses.
It is, as noted, on 12.01.2002, further investigation
was taken over by PW67-Deputy Superintendent of CBCID.
The evidence of PW67 would show that from 13.01.2002,
the Officer has examined several witnesses. According
to the prosecution, the breakthrough came on the basis
of information, as per which, the A5 (fifth accused)
came to be arrested on 18.03.2002. On the very next
day, A6 came to be arrested. Still, within the space of
twenty-four hours, viz., on 20.03.2002, A7 came to be
arrested. A8 was arrested on 22.03.2003. A1 was
arrested on 23.03.2002. A3 was arrested on 25.03.2002.
A4 came to be arrested on 09.04.2002. A15 was arrested
on 25.04.2002. It is the prosecution case that the
accused made confessional statements within the meaning
4
of Section 27 of the Indian Evidence Act, 1872
(hereinafter referred to as ‘the Evidence Act’, for
short) yielding information leading to recoveries. It
is the case of the prosecution that the deceased had
been abducted (though it is shown as kidnapped) on
30.01.2002, taken and kept in a factory premises which
belonged to PW34-Krishna Pandi with whom PW10 and PW11
had become partners. A huge sum, running into several
crores, motivated the accused to hatch the conspiracy
to abduct the deceased. It was the further case of the
prosecution that the accused decided to do away with
the deceased in case he did not yield to the demand. As
it transpired as the deceased did not yield, he was
murdered while he was kept captive in the first floor
of the vermicelli factory, which, as already noted, was
being operated by PW34. A3 was noted as leader of the
ADMK. A12, it was alleged, who was married to the A2,
was made to speak in the voice of an AIADMK leader
Shashikala to A3. In this, the A1 and A2 played a role.
It is, according to the prosecution, on being so
5
spurred by the command given by A12, apparently
mimicking the voice of the AIADMK leader, A3 acts. A9
contacted PW10 and PW11. It is alleged that PW10 and
PW11 were persuaded to search for houses. Not satisfied
with many of the houses shown to A3 and A9, they
finally found favour with the factory premises which is
located in Mudichur. It is the further case of the
prosecution that after he was murdered, the body of the
deceased came to be cremated at the Corporation
cremation ground on 01.01.2002 and, in order to
accomplish the same, PW33-an employee working in a
Government Hospital, was roped in by A3 to procure a
false death certificate. Accordingly, PW33, it was
alleged, approached PW32-a Medical Practitioner. The
Medical Practitioner gives a death certificate wherein
the name of a person is indicated in the certificate,
and allegedly residing at an address, which, the
Police, on investigation, found, was not the abode of
the person. In other words, the name of a non-existing
and a fictional person was used to concoct a death
6
certificate and, under the cover of the same, the body
of the deceased came to be cremated.
4. On the basis of the charge-sheet and after
complying with the formalities, the Trial Court framed
charges against the accused. The following are the
charges framed against the various accused as evident
from the Trial Court Judgment:
 "The following charges were framed
against the accused in this case: That
during the month of November 2001, the
1
st, 2nd and 3rd accused conspired together
and discussed about the matter as to how
the Ex.M.L.A. M.K. Balan could be
kidnapped and extract money from him and
it was decided to murder him in case if he
refuses to pay any amount and that
consequent upon such conspiracy on
30.12.01 early morning, he was kidnapped
near MRC Nagar and he was illegally kept
at T.K.P. Vermicelli factory at Mudichur
and on account of committing him murder on
1.1.02 night at about 9:00 p.m., thereby a
charge under section 120.B. IPC has been
framed as against the accused 1 to 18 in
this case.
Secondly for the purpose fulfilling
the object of such conspiracy, while the
said Ex.M.L.A. M.K. Balan was walking in
the morning on 30.12.01 near MRC Nagar, at
the knife point he was kidnapped near
Iyyapan temple at about 5.30 am by the
7
accused 4,7,10,11,14,15,16 and 17 in the
Maruti van bearing Regn. No.: TN-A-7484
and at that time the 15th accused went in
front of that van in a Hero Honda to show
the route for them and lastly the said
M.K. Balan was kept illegally at
Vermicelli factory belonging to one
Krishnapandi at Mudichur road, thereby the
said accused have been charged under
Section 365 IPC and for abetment of the
said offence the accused 1,2,3,5,6,8,9 and
13 to 18 accused in going in a car bearing
Regn. No.: TN-10-F-5555 have been charged
under Section 365 read with Section 109
IPC.
Thirdly in order to fulfil the object
of such conspiracy, in the said place on
the said date the said M.K. Balan
(Ex.M.L.A.) was tied with iron chain and
rope in a cot and he was threatened to
part with Rs.16 crores of Rupees or else
to execute the document in respect of his
properties in their favour, thereby the
accused 1 to 11 and 14 to 18 have been
charged under Section 387 IPC.
Fourthly, in order to fulfil such
conspiracy and in pursuant of the same at
the instance and instigation of the
accused 1 and 2, the 12th accused spoke to
the third accused over phone by changing
the voice as that of Smt. Sasikala
uttering the words” if possible get the
amount or else close him and come along
with Senthil and meet me and Senthil would
tell you everything later, thereby the
said accused have been framed charges
under Section 419, 420 and 387 IPC read
with 109 IPC.
8
Fifthly in order to fulfil the object
of the said conspiracy and consequent upon
the said occurrence on 1.1.02 night at
about 9:00p.m. the accused 3,4,6 to
8,10,11 and 14 to 18 committed the murder
of M.K. Balan who refused to pay any money
or to execute any documents in respect of
his properties, by tying a rope around the
neck and tightened, thereby all the above
said accused persons had committed the
offence punishable under section 302 IPC.
Likewise the accused 1,2,5,9,12 and 13
were charged under section 302 read with
section 109 IPC for having committed the
offence of abetment for the act of
committing the murder.
Sixthly, consequent upon the same on
the same day in the said occurrence, with
an object of extracting the property from
the deceased M.K. Balan, he was kidnapped
thereby accused 3 to 11 and 13 to 18 were
framed charge under section 347 and 364
IPC and for being abetment for the said
offence, the accused 1,2 and 12 have been
framed charge under section 347 read with
109 and 364 read with 109 IPC.
Seventhly, after committing the
murder of the deceased M.K. Balan, the
body was taken to the cremation ground and
cremated in Perambur cremation ground by
getting false death certificate as if one
Rajamani Chettiar died due to heart
ailment and that therefore by suppressing
the real facts in order to screen the
crime, accused 8,10,11 and 13 to 18 have
been framed charge under section 201 IPC.”
9
5. The prosecution has sought to discharge its burden
by examining 67 witnesses. It has also produced and
proved a large number of documents (P1 to P86) and also
material objects (MO1 to MO39). Five witnesses were
examined by the accused. D1 to D8 were proved on their
behalf. The Trial Court, on appreciation of the
evidence, found merit in the case of the prosecution,
except in regard to the A12 and A18. Resultantly, the
Trial Court convicted the accused as follows:
(i) A1 and A2 were found guilty of the offences
under Sections 120B of The Indian Penal Code, 1860
(hereinafter referred to as ‘the IPC’, for short),
Section 365 read with Section 109 of the IPC,
Section 387 of the IPC, Section 302 read with
Section 109 of the IPC, Section 347 read with 109
of the IPC and under
Section 364 read with Section 109 of the IPC.
(ii) A3 is found to have acted upon the conspiracy
of A1 and A2. He was found guilty of the offences
under Section 365 read with Section 109 of the IPC,
10
Section 387 of the IPC, Section 302 of the IPC,
Section 347 of the IPC, Section 364 of the IPC and
Section 201 of the IPC. He was acquitted under
Section 120B of the IPC. (See paragraph 194 of the
Trial Court Judgment);
(iii) A4 was found guilty of the offences under
Section 365 of the IPC, Section 387 of the IPC,
Section 302 of the IPC, Section 347 of the IPC,
Section 364 of the IPC and Section 201 of the IPC.
He was acquitted under Section 120B of the IPC;
(iv) A5 was found guilty under Section 365 read with
Section 109 of the IPC, Section 387 of the IPC,
Section 302 read with Section 109 of the IPC,
Section 347 of the IPC, Section 364 of the IPC and
Section 201 of the IPC. He was, however, acquitted
under Section 120B of the IPC.
(v) A6 was found guilty under Section 365 read with
Section 109 of the IPC, Section 387 of the IPC,
Section 302 of the IPC, Section 347 of the IPC,
11
Section 364 of the IPC and Section 201 of the IPC.
He stood acquitted under Section 120B of the IPC;
(vi) A7 was found guilty under Section 365 of the
IPC, Section 387 of the IPC, Section 302 of the
IPC, Section 347 of the IPC, Section 364 of the IPC
and Section 201 of the IPC. He stood acquitted
under Section 120B of the IPC;
(vii) A8 was found guilty under Section 365 read with
Section 109 of the IPC, Section 387 of the IPC,
Section 302 read with Section 109 of the IPC,
Section 347 of the IPC, Section 364 of the IPC and
Section 201 of the IPC and he stood acquitted under
Section 120B of the IPC;
(viii) A11, who is one of the appellants before
us, was convicted, Section 365 of the IPC, Section
387 of the IPC, Section 302 of the IPC, Section 347
of the IPC, Section 364 of the IPC and Section 201
of the IPC and was acquitted under Section 120B of
the IPC;
(ix) A12 was acquitted of all the charges;
12
(x) A14, A15, A16 and A17 were convicted under
Section 365 of the IPC, Section 387 of the IPC,
Section 302 of the IPC, Section 347 of the IPC,
Section 364 of the IPC and Section 201 of the IPC
and the charge under Section 120B of the IPC was
found not proved against them and they stood
acquitted.
6. It is necessary to notice the details of the
findings against each of the accused (appellants):
“211. The accused 3,6 and 8 for
having abetted the crime of conspiracy of
the accused 1 and 2, on 30.12.01 at about
5:30 a.m. the former M.L.A. M.K. Balan was
kidnapped and kept in a secret place at
Vermicelli factory at Mudichur road,
Tambaram, committed the offence under
section 365 read with 109 IPC and for
having made an attempt to extract money or
property from the said M.K. Balan, former
MLA, committed the offence under section
387 IPC and when it was not able to get
the same, by committing the murder of the
said M.K. Balan, committed the offence
under section 302 IPC and before
committing murder him, for having kept him
in a secret place unlawfully and
illegally, committed the offence under
section 347 IPC and for having kidnapped
him for the purpose of murdering him,
committed the offence under section 364
13
IPC and after the murder of the said M.K.
Balan, former M.L.A., the body was
cremated at the crematorium at
Erukkancherry, Perambur and with a view to
screen the traces and giving false
information, committed the offence under
section 201 IPC and accordingly they are
found guilty of the above said offences.
212. In order to fulfil the object of
on 30.12.01 at about 5.30 a.m. the former
M.L.A. M.K. Balan was kidnapped and kept
in a secret place at Vermicelli factory at
Mudichur road, Tambaram, committed the
offence under section 365 read with 109
IPC and for having made an attempt to
extract money or property from the said
M.K. Balan, former MLA, committed the
offence under section 387 IPC and when it
was not able to get the same, by
committing the murder of the said M.K.
Balan, committed the offence under section
302 IPC and before committing murder him,
for having kept him in a secret place
unlawfully and illegally, committed the
offence under section 347 IPC and for
having kidnapped him for the purpose of
murdering him, committed the offence under
section 364 IPC conspiracy of the accused
1 and 2, the 4th accused has been charged
for the above said offences.
213. The 5th accused is found guilty
of the offences for having fulfilled the
conspiracy of the accused 1 and 2 on
30.12.01 at about 5:30 a.m. the former
M.L.A. M.K. Balan was kidnapped and kept
in a secret place at Vermicelli factory at
Mudichur road, Tambaram, committed the
offence under section 365 read with 109
14
IPC and for having made an attempt to
extract money or property from the said
M.K. Balan, former MLA, committed the
offence under section 387 IPC and when it
was not able to get the same, by
committing the murder of the said M.K.
Balan, committed the offence under section
302 IPC and before committing murder him,
for having kept him in a secret place
unlawfully and illegally, committed the
offence under section 347 IPC and for
having kidnapped him for the purpose of
murdering him, committed the offence under
section 364 IPC and after the murder of
the said M.K. Balan, former MLA, the body
was cremated at the crematorium at
Erukkancherry, Perambur and with a view to
screen the traces and giving false
information, committed the offence under
section 201 IPC and accordingly he is
found guilty of the above said offences.
214. The 7th, 10th, 11th and 14th accused
were charged for the offences for having
colluded with the accused 1 and 2 in
fulfilling their conspiracy by stating
that on 30.12.01 at about 5.30 a.m. the
former M.L.A. M.K. Balan was kidnapped and
kept in a secret place at Vermicelli
factory at Mudichur road, Tambaram,
committed the offence under section 365
read with 109 IPC and for having made an
attempt to extract money or property from
the said M.K. Balan, former MLA, committed
the offence under section 387 IPC and when
it was not able to get the same, by
committing the murder of the said M.K.
Balan, committed the offence under section
302 IPC and before committing murder him,
for having kept him in a secret place
15
unlawfully and illegally, committed the
offence under section 347 IPC and for
having kidnapped him for the purpose of
murdering him, committed the offence under
section 364 IPC and after the murder of
the said M.K. Balan, former M.L.A., the
body was cremated at the crematorium at
Erukkancherry, Perambur and with a view to
screen the traces and giving false
information, committed the offence under
section 201 IPC and accordingly, they are
found guilty of the above said offences as
decided in this case.
215. It is stated as against the
accused 9 and 13 that for fulfilling the
object of conspiracy of the accused 1 and
2 on 30.12.1 at about 5.30 a.m. the former
M.L.A. M.K. Balan was kidnapped and kept
in a secret place at Vermicelli factory at
Mudichur road, Tambaram, committed the
offence under section 365 read with 109
IPC and for having made an attempt to
extract money or property from the said
M.K. Balan, former M.L.A., committed the
offence under section 387 IPC and when it
was not able to get the same, by
committing the murder of the said M.K.
Balan, committed the offence under section
302 IPC and before committing murder him,
for having kept him in a secret place
unlawfully and illegally, committed the
offence under section 347 IPC and for
having kidnapped him for the purpose of
murdering him, committed the offence under
section 364 IPC and accordingly they were
found guilty of the above said offences.”
7. The sentencing is as follows:
16
“220. Further the accused 3, 6 and 8
are convicted for the offence under
section 365 read with 109 IPC and
sentenced to undergo 7 years RI and to pay
fine of Rs. 5000/- each in default to
undergo one year RI each; convicting them
for the offence under section 387 IPC and
sentencing them to undergo 7 years RI and
to pay fine of Rs. 5000/- in default to
undergo one year RI each and that
convincing them for the offence under
section 302 IPC and sentencing them to
undergo life imprisonment and to pay fine
of Rs. 50000/- each and convicting them
for the offence under section 347 IPC and
sentencing them to undergo three years RI
each and to pay fine of Rs. 5000/- in
default to undergo six months RI each;
also convicting them for the offence under
section 364 IPC and sentencing them to
undergo 10 years RI and to pay fine of Rs.
5000/- in default to undergo two years RI
each; convicting them for the offence
under section 201 IPC and sentencing them
to undergo 7 years RI and to pay fine of
Rs. 10000/- in default to undergo one year
RI each and that the total fine amount
imposed on them each Rs. 80000/- (Rupees
eighty thousand only) and that it is
ordered that all the sentences imposed on
these accused shall run concurrently.
221. The 4th accused is convicted for
the offence under section 365 IPC and
sentenced to undergo 7 years RI and to pay
fine of Rs. 5000/- and in default to
undergo one year RI and convicting him for
the offence under section 387 IPC and
sentenced to undergo 7 years RI and to pay
17
fine of Rs.5000/- in default to undergo
one year RI; that convicting him for the
offence under section 302 IPC and
sentencing him to undergo life
imprisonment and to pay fine of Rs.
50,000/- convicting him for the offence
under section 347 IPC and sentencing him
to undergo 3 years and to pay fine of Rs.
5000/- in default to undergo six months
RI; convicting him to undergo 10 years RI
and to pay fine of Rs. 5000/- in default
to undergo 2 years RI and that it is
ordered that all the sentences imposed on
this accused shall run concurrently (total
fine amount imposed on him is Rs. 70,000/-
Rupees seventy thousand only).
222. The 5th accused is convicted for
the offence under Section 365 read with
109 IPC and sentenced to undergo 7 years
RI and to pay fine of Rs.5000/- in default
to undergo one year RI; convicting him for
the offence under section 387 IPC and
sentencing him to undergo 7 years RI and
to pay fine of Rs. 5000/- in default to
undergo one year RI; convicting him for
the offence under section 302 IPC read
with 109 IPC and sentencing him to undergo
life imprisonment and to pay fine of
Rs.50,000/- convicting him for the offence
under section 347 IPC and sentencing him
to undergo 3 years RI and to pay fine of
Rs. 5000/- in default to undergo six
months RI and convicting him for the
offence under section 364 IPC and
sentencing him to undergo 10 years RI and
to pay fine of Rs. 5000/- in default to
undergo two years RI; convicting him for
the offence under section 201 IPC and
sentencing him to undergo 7 years RI and
18
to pay fine of Rs. 10,000/- in default to
undergo one year RI and that total fine
imposed on this accused is Rs. 80,000/-
(Rupees eighty thousand only) and that all
the sentences imposed on this accused
shall run concurrently;
223. The 9th accused is convicted for
the offence under section 365 read with
109 IPC and sentenced to undergo 7 years
RI and to pay fine of Rs. 5000/- in
default to undergo one year RI, convicting
him for the offence under section 387 IPC
and sentencing him to undergo 7 years RI
and to pay fine of Rs.5000/- in default to
undergo one year RI; convicting him for
the offence under section 302 read with
109 IPC and sentencing him to undergo life
imprisonment and to pay fine of Rs.
50,000/- and also convicting him for the
offence under section 347 IPC and
sentencing him to undergo 3 years RI and
to pay fine of Rs. 5000/- in default to
undergo six months RI; and also convicting
the accused for the offence under section
364 IPC and sentencing him to undergo 10
years RI and to pay fine of Rs. 5000/- in
default to undergo 2 years RI as decided.
It is ordered that all the sentences
imposed on him in this case shall run
concurrently (total fine amount is Rs.
Seventy thousand only).
224. Further the 13th accused is
convicted for the offence under section
365 read with 109 IPC and sentenced to
undergo 7 years RI and to pay fine of Rs.
5000/- in default to undergo one year RI;
convicting the accused for the offence
under section 302 read with 109 IPC and
19
sentencing him to undergo life
imprisonment and to pay fine of Rs.
50000/- and also convicting him for the
offence under section 347 IPC and
sentencing him to undergo 3 years RI and
to pay fine of Rs. 5000/- in
default to undergo six months RI;
convicting him for the offence under
section 364 IPC and sentencing him to
undergo 10 years RI and to pay fine of Rs.
5000/- in default to undergo two years RI;
convicting him for the offence under
section 201 IPC and sentencing him to
undergo 7 years RI and to pay fine of Rs.
10000/- in default to undergo one year RI
as ordered. All the sentences imposed on
him shall run concurrently. (Total fine
amount imposed on this accused is Rs.
Seventy five only). It is further ordered
that this 13th accused shall undergo the
sentences imposed on him in respect of the
case in S.C. No. 206/03 along with the
sentences imposed on him in this case
concurrently.
225. Further the accused
7,10,11,14,15,16 and 17 are convicted for
the offence under section 365 IPC and
sentenced to undergo seven years RI and to
pay fine of Rs.5000/- in default to
undergo one year RI each; convicting them
for the offence under section 387 IPC and
sentencing them to undergo 7 years RI and
to pay fine of Rs. 5000/- in default to
undergo one year RI each; convicting them
for the offence under section 302 IPC and
sentencing them to undergo life
imprisonment and to pay fine of Rs.
50000/- each and also convicting them for
the offence under section 347 IPC and
20
sentencing them to undergo 3 years RI and
to pay fine of Rs. 5000/- in default to
undergo six months RI each; convicting
them for the offence under section 364 IPC
and sentencing them to undergo 10 years RI
and to pay fine of Rs. 5000/- in default
to undergo two years each; convicting them
for the offence under section 201 IPC and
sentencing them to undergo 7 years RI and
to pay fine of Rs. 10,000/- in default to
undergo one year RI each as decided. (The
total fine amount being Rs. 80,000/- each)
All the sentences imposed on these accused
shall run concurrently as ordered.”
8. The High Court confirmed the judgment of the Trial
Court except as regards A10 who was acquitted.
9. We heard the learned Counsel for the appellants.
10. We have also heard the learned Counsel appearing
for the respondent-State in all the appeals.
11. Learned Counsel for A3 would submit that the case
of the prosecution was based on the theory of
conspiracy. It is accordingly that the charge under
Section 120B was framed against the accused including
A3. The case of the prosecution in this regard was,
A12, who was married to A2, made phone calls to A3. A3
was told over phone by A12 allegedly in the voice of
21
Shashikala that A1 and A2 would meet A3 and he was
asked to do what they would ask him to do. There were
further calls. In fact, the conspiracy was, according
to the prosecution, hatched in the minds of A1 and A2.
A1 flaunted his proximity to M.K. Stalin (a political
leader) stating that he was about to marry his
daughter. A2 was in dire financial straits. He had
contracted an inter-religious marriage with A12. They
hit upon the idea of abducting the deceased and to
compel him to part with a large sum of money (Rs.16
crores) and, in case he refused, to do away with him.
It is pointed out that the Trial Court has disbelieved
the case of the prosecution relating to criminal
conspiracy which culminated in the court acquitting A12
of the charge against her. The appellant also stood
acquitted under Section 120B of the IPC. The entire
edifice of the prosecution case was built on the
alleged criminal conspiracy which involved A12. Once
this edifice was knocked out by the acquittal of A12,
22
the superstructure sought to be built by the
prosecution must necessarily fall to the ground.
12. Next, it is pointed out that the prosecution case
is otherwise based on the testimony of PW10 and PW11.
He would point out that PW10 and PW11 were unreliable
witnesses. It is clear that PW10 and PW11 were
accomplices. They were untrustworthy witnesses. It is
pointed out that it is settled law that the court would
not act on the deposition of accomplices unless they
are found reliable and, furthermore, there is
corroboration of their testimony from other reliable
evidence. Neither are PW10 and PW11 reliable nor is
there any corroborative evidence forthcoming in this
case, it is submitted. As far as conviction employing
Section 109 of the IPC is concerned, learned Counsel
submitted that in order that Section 109 may apply
apart from mere conspiracy, some act or illegal
omission in pursuance of the so-called conspiracy is
indispensable. He would further submit that though V.
K. Shashikala was interrogated by PW67-Officer, she has
23
not been examined as a witness. There is no evidence
relating to what her voice is. Unless the voice of
Shashikala was known to A12, it would be well-nigh
impossible to believe that the A12 could speak in her
voice to A3 which ultimately is what the prosecution
case is all about. There is no evidence of Shashikala
having made a public speech. Though A3 may be familiar
with her voice being a party functionary, it hardly
suffices as there is no evidence to conclude that A12
was familiar with her voice without which it is
incredible that she could mimic Shashikala.
13. He would further contend that in this case once the
prosecution case relating to conspiracy under Section
120B of the IPC failed, reliance placed on Section 109
of the IPC, which contemplates a conspiracy and
something more would have no legs to stand on. Leave
alone any illegal act or omission based on a
conspiracy, no conspiracy itself is proved. Therefore,
Section 109 of the IPC can have no play. Regarding the
recovery of Maruti Zen car at the instance of A3, it is
24
pointed out that A3 is not the owner of the car. PW10
and PW11 were active participants. They were not
tendered pardon under Section 306 of The Code of
Criminal Procedure, 1973 (hereinafter referred to as
‘the CrPC’ for short). He would further contend that
the evidence of PW3 does not establish involvement of
A3. PW3 has merely stated that at 05.30 A.M., he saw
three persons and that he was at the distance of 75
meters when he saw three persons pushing another person
into a Maruti Van. Evidence of PW1, who is the son of
the deceased, would show that the shoes allegedly
recovered as was worn by the deceased, did not belong
to his father. The case of abduction is not proved on
the basis of the evidence tendered by PW3. The Van,
which was recovered, has not been identified. The
Motorcycle, which was recovered, again was not
identified. The recovery was also not proved, he
contends. The prosecution has failed to prove that A3
brought the deceased to the factory. PW34, on whose
testimony prosecution has placed considerable reliance,
25
is also an accomplice. He drew our attention to the
judgment2 of Justice Arun Mishra in paragraph 115, which
reads as follows:
“115. With respect to charge of
murder against A-3 and A-4 it is apparent
that MO 31 is in the handwriting of A-1.
It was read out by A-12 and heard by A-3
and was acted accordingly. Evidence of
Sahul Hameed, PW 47 also proves recovery
of chain with which M.K. Balan was tied
and that of other articles. It is apparent
that M.K. Balan was abducted. There was an
attempt to extract money when it was not
possible, he was murdered in factory
premises. The appellants were charged for
committing the murder by putting nylon
rope around his neck and tightening it.
Though there is no direct evidence with
respect to that but it can be inferred in
the circumstances that they committed the
offence of murder also. Once they had
abducted M.K. Balan it was for them to
explain how they dealt with him. The dead
body of M.K. Balan could not be found as
it was cremated in the name of a
fictitious person—Rajamani Chettiar. His
post-mortem also could not be conducted
but the evidence clearly indicates that
the dead body of M.K. Balan was taken from
the vermicelli factory. It gives an
inference that the accused persons had
murdered the victim. It is not necessary
for recording a conviction that corpus
delicti to be found. There is ample
evidence leading to an inescapable
2 (2016) 16 SCC 355
26
conclusion that M.K. Balan was done to
death by the appellants. His dead body was
seen by the witnesses.”
14. He complains that this approach involves shifting
of the burden to be shouldered by the prosecution to
the accused. Since abduction itself has not been
proved, in order that the prosecution should succeed in
the matter of securing conviction under Section 302 of
the IPC, the prosecution ought to have proved the case
as set out by it. A chain was allegedly used to commit
murder of the deceased. A14 and A16 were in jail. The
chain and the nylon rope were recovered on the basis of
the statements given by them. He would point out that
however the said recoveries cannot be used against the
other accused. He reminds the court of the backdrop in
which the investigation proceeded following the missing
of a high-profile person, as the deceased was an ExMLA. A Habeas Corpus Petition was filed in the Madras
High Court. There was much pressure. The matter engaged
the attention of the media also. This forced the
Investigating Officers to manufacture the version
27
indeed in order to cater to the general public. PW 21
and PW35 are Police Officers. They are alleged to have
identified some of the accused as loitering in a public
road after midnight on 01.01.2002, which was
immediately after the alleged commission of the crimes
including murder. But this cannot result in conviction
of A3. PW12 and PW19 are prosecution witnesses produced
to prove the case under Section 201 of the IPC, viz.,
destruction of the body of the deceased after the
commission of the crime, PW12 and PW19 worked at the
cremation ground. It is pointed out that as far as PW12
is concerned, he has turned hostile. It is pointed out,
in this regard, that the ashes were not recovered. The
bones of the deceased person were not recovered or sent
for scientific investigation.
15. He would submit that the body of the deceased
itself is not found or not produced, and therefore, the
case of the prosecution cannot be accepted. There is
evidence to show that for a person above 60 years, a
death certificate is not required for conducting
28
cremation. This is the submission made in the context
of evidence relied on by both the courts and also a
learned Single Judge of this Court to conclude that A3
was involved in procuring a false death certificate.
According to the prosecution, PW32-Doctor was
approached by PW33 at the instance of A3. It was
mentioned to the Doctor that another person had passed
away. Believing PW33, PW32-Doctor has deposed that he
gave a death certificate. According to PW19, the dead
body was cremated in the night on 01.01.2002. The death
certificate is, no doubt, dated 02.01.2002. [But what
weighed with the courts is the role played by A3 in
setting up a false case that a person, other than
deceased, involved in this case, had passed away and
securing a death certificate which paved the way for
cremation of the body of the deceased resulting in the
destruction of the evidence relating to the body of the
deceased].
29
16. Learned Counsel for the A3 pointed out that A3 must
be connected with the matter as sought to be done by
both courts which was not the case.
17. Regarding the recovery effected from A3, it is
pointed out that, MO12 is the Maruti Zen Car. He would
point out that the relevance of the recovery (apart
from the infirmity attached with the recovery) is not
established. MO28 are the audio cassettes. Regarding
the same, it is pointed out that it was incumbent upon
the prosecution to establish the content by providing
the transcript. The audio was supposed to contain
conversation of the deceased but it cannot be relied on
in the absence of a transcript. The relevancy of the
content has not been established. The voice of the
speaker has not been proved. Regarding MO12-Maruti Zen
Car, recovery at the instance of A3, it is contended
that the evidence would show that the owner of the said
car had given MO12 to A3 in November, 2001 and A3 has
given back the car in February, 2002. There is no
30
particular role which is attributed to the Maruti Zen
Car.
18. Regarding audio evidence, it is submitted that it
did not satisfy the requirements of Section 3 of the
Evidence Act. MO33 is a bit of paper on which, in the
alleged handwriting of A1, the message from A12 to A3
was written [it will be remembered that it is the case
of the prosecution that A12, imitating the voice of
Shashikala, had commanded A3, a party functionary, to
oblige A1 and A2 and this set in motion the chain of
events culminating in the gruesome murder of the
deceased]. It is the acquittal of A12 who allegedly
messaged to A3, which is the subject matter of MO33,
which is pressed before us to remove any importance it
may otherwise have had. Till 10.04.2002, the evidence
of PW67 would show that it was not sealed thus robbing
the material object of any legal efficacy it may have
otherwise had, it is contended. It is further contended
that the voice of the deceased, is not proved through
PW1. Learned Counsel would submit that if statement
31
under Section 27 is made and a person making it is
acquitted, such statement cannot be used against other
accused. Learned Counsel would contend that in the case
of a conviction employing Section 109 of the IPC, the
principal offender must be identified. He drew our
attention in regard to the judgment reported in Siri
Ram Batra and others v. Financial Commissioner, Delhi
 and others3. He pointed out that Justice Arun Mishra,
has proceeded on the basis that a confession under
Section 164 of the CrPC is a substantive piece of
evidence, which, it is not. In this regard, our
attention is drawn to the judgments of this Court. In
George and others v. State of Kerala and another4, it
was held as follows:
“36. We may now turn to the evidence
of PW 50, detailed earlier. From the
judgment of the trial court we notice that
the substantial parts of its comments,
(quoted earlier) are based on his
statement recorded under Section 164 CrPC
and not his evidence in court. The said
statement was treated as substantive
3 (2004) 12 SCC 52
4 (1998) 4 SCC 605
32
evidence; as would be evident from the
following, amongst other observations made
by the learned trial court:
“If Ext. P-42 (the statement
recorded under Section 164 CrPC) is
found to be a genuine statement it
can be used as an important piece of
evidence to connect the accused with
the crime.”
In making the above and similar
comments the trial court again ignored a
fundamental rule of criminal jurisprudence
that a statement of a witness recorded
under Section 164 CrPC cannot be used as
substantive evidence and can be used only
for the purpose of contradicting or
corroborating him.”
(Emphasis supplied)
19. Learned Counsel for A3 relied upon the following
decisions. In Baldev Singh v. State of Punjab5, this
Court noted that the High Court had fallen into error
in relying upon the statement of the witness under
Section 161 of the CrPC as well as on the FIR regarding
identification of the accused in a case where, in his
cross-examination in the court, he deposed that he
could not, due to darkness, identify the culprits. The
5 (1990) 4 SCC 692
33
court emphasised that the statement under Section 161
of the CrPC is not to be used for any purpose except to
contradict the witness in the manner provided in
Section 162 of the CrPC. Obviously, this judgment is
invoked against the court relying upon the evidence of
PW19.
20. In Ziyauddin Burhanuddin Bukhari v. Brijmohan
 Ramdass Mehra and others6, is relied on to point out
that while taking record of speeches as documents under
Section 3 of the Evidence Act, the admissibility would
depend upon the following conditions being fulfilled:
“(a) The voice of the person alleged to
be speaking must be duly identified by the
maker of the record or by others who know
it.
(b) Accuracy of what was actually
recorded had to be proved by the maker of
the record and satisfactory evidence,
direct or circumstantial, had to be there
so as to rule out possibilities of
tampering with the record.
(c) The subject-matter recorded had to
be shown to be relevant according to rules
of relevancy found in the Evidence Act.”
6 (1976) 2 SCC 17
34
21. He also pointed out that if the photograph of the
accused is shown to the witnesses and the witnesses
then depose about identifying the accused, it would
deprive the identification of any value it would have
otherwise. He relied on the judgement of this Court in
Vijayan v. State of Kerala7:
“8. Another circumstance sought to be
established was through the evidence of PW
4, a young girl living a few yards away
from the house of the deceased. According
to her, she heard the sound of somebody
running and when she turned, she saw
accused Vijayan running away after
crossing a water channel and wearing a
blue pant and blue shirt. It is no doubt
true that she identified accused Vijayan
in the test identification parade but for
the reasons already advanced while
discussing the evidence of PWs 3 and 9,
the identification of the accused in the
test identification parade cannot be
relied upon. The High Court unfortunately
appears to have taken a view that the
identification of the accused by PW 4 in
the test identification parade should be
relied upon. We are unable to agree with
this conclusion particularly when it is
apparent from the prosecution material
that much before the holding of the test
identification parade, the photograph of
7 (1999) 3 SCC 54
35
the accused Vijayan had been published in
the newspaper and because of a certain
sensation in the locality, it had a lot of
publicity and there was sufficient
opportunity for the witnesses being shown
the accused person. In this view of the
matter, in our considered opinion, the
High Court erroneously interfered with the
conclusion of the learned Sessions Judge
in this regard and came to hold that the
identification of Vijayan by PW 4 could be
relied upon. We have examined the evidence
of the said PW 4 in great detail and we
are unable to subscribe to the view the
High Court has taken on the evidence of
the aforesaid witness. We also really fail
to understand how a witness seeing an
unknown man running away could be able to
identify him at a later point of time. No
special feature was also indicated by the
witness. In our view, the evidence of PW 4
is totally unworthy of credit and, as
such, cannot be relied upon for bringing
home the charge.”
(Emphasis supplied)
It was a case where also just before the Test
Identification Parade, someone told her to identify the
tallest man in the Parade.
22. Learned Counsel would point out that the accused
are entitled to request the Court to draw an adverse
36
inference against the prosecution when the best
evidence has not been produced [See Mohanlal Shamji
Soni v. Union of India and another8. Clearly, the
accused was entitled to at least the benefit of doubt.
CRIMINAL APPEAL NO. 2006 OF 2017
23. The learned Counsel for A3 also adopted arguments
in Criminal Appeal No. 2006 of 2017 where he appeared
for A7, A11, A14, A16 and A17 about PW10 and PW11 and
other submissions.
CRIMINAL APPEAL NO. 403 OF 2010
APPEAL BY ACCUSED NO.4(A4)
24. The learned Counsel would submit that no value can
be given to the Test Identification Parade (TIP)
conducted insofar as A4 is concerned. He would point
out that PW10 and PW11 are proved to be familiar with
A4 by having seen him on a number of occasions prior to
the TIP. This would deprive the alleged identification
of any value it would have. MO6 is the Ford Escort Car,
8 1991 Supp (1) SCC 271
37
which is recovered from A4 on the basis of the
statement given under Section 27 of the Evidence Act.
The recovery is attacked by the learned Counsel on the
basis that it is planted evidence. He took us through
the deposition of PW25 to impugn the recovery.
According to PW67, he points out that car was parked
outside. He would complain that the courts have relied
on PW10 and PW11 as if they were reliable witnesses,
which they were not. He would also emphasise that being
accomplices, they should not only be reliable but their
evidence must stand the test of corroboration. He
points out that the prosecution has tried to build up
the case that the said witnesses had not approached the
Police out of fear for their lives and that of their
family members but he would point out that on a perusal
of their evidence, it would be clear that they were
involved with the matter right from the beginning and
nothing prevented them from approaching the law
enforcement authorities. Their evidence, therefore,
should not inspire the confidence of the court. He
38
would point out that PW10 and PW11 were in police
custody for about more than two months. They would have
bargained with the police and their testimony is
suspect. The TIP was held after 45 days on 24.05.2002.
He would point out contradiction between the testimony
of PW10 and PW11. In other words, he would point out
that leave alone corroboration from other evidence
available on record, there is no corroboration of
evidence of PW10 even from the evidence of PW11 as
their deposition reveal contradictions. The learned
Counsel otherwise adopts arguments of A3.
25. Substantially, similar arguments are addressed in
regard to A5 as in respect of A3. It is also contended
that PW67 was aware of the involvement of all and the
evidence of PW10 and PW11 was unreliable.
CRIMINAL APPEAL NO. 1504 OF 2017
26. Herein the appellant is A6. The learned Counsel for
the appellant would address the following submissions.
He would submit that there are four circumstances used
39
against A6. It is first sought to be contended by the
prosecution that A6 was seen on 05.12.2001. Next, his
presence on 31.12.2001 at the factory, where the
deceased was allegedly done to death, is used against
him. Still further, the deposition of PW10 that he saw
him on 01.01.2002 and that he threatened PW10, are used
against him. He would also point out the contradiction
between PW10 and PW11, in this regard. MO8 is the white
colour Maruti Van recovered at the instance of A6. The
said vehicle bore Number - TN-22-BO/343. He would point
out that there is no evidence to show that the said
vehicle was used for abduction or transportation. He
would, in other words, question its very relevance to
secure conviction of his client. He would further point
out that PW24-Police Officer has in fact identified A8
as A6. In this regard, he drew our attention to
paragraph 147 of the Trial Court judgement. He further
submitted that PW12-the employee at the crematorium,
did not identify A6 though PW19 identified A6.
Identification by PW19 is unreliable as he did not
40
mention about physical features of A6. He would
complain that PW19 would have seen photographs in the
media, a complaint which is being echoed on behalf of
the other accused, also. Next, the circumstance used
against A6 is deposition of PW21 and PW35, Police Head
Constable and Constable, respectively. He would, in
fact, submit that even accepting their deposition, it
would prove nothing more than the fact A6 was there on
the public road on the midnight of 01.01.2002. It would
not connect A6 with the crime. He would further point
out that the deposition of PW35 would show that
contrary to the usual practice in the Beat Note, there
is nothing noted about A6 though he has deposed that
along with three others, A6 presence was noted. The
identification of A6 by the Police Officers is not
reliable, it is contended. It is pointed out that the
Police Officer would have visited the jail and also
been in the court premises where he would have seen A6.
Therefore, the identification of A6 by the Police
Officers loses all meaning.
41
27. He also relied on deposition of PW1 that the Reebok
Shoes did not belong to his father-the deceased. There
is no corroboration of the evidence relating to the
presence of A6 on 30.01.2001 and 31.01.2001. There is
no evidence to establish the presence of A6 on
01.01.2002. PW10 and PW11, accomplices, were tutored by
the Police Officers considering the pressure on the
Investigating Officers consequent upon the fact that
the case attracted considerable publicity as a result
of the Habeas Corpus Petition being filed in the High
Court. He would submit that PW67-Investigating Officer,
after the arrest of A5 on 18.03.2002, was completely
aware of involvement of all the persons.
28. It is also the case of the appellant-A15 that no
reliance could be placed on the recovery of the shoe
when PW1-son of the deceased, has himself deposed that
the shoe which is recovered was not the one which was
worn by his father. It is also the contention that PW31
has not been able to identify the person who took away
allegedly the shoe from the factory.
42
29. Per contra, the learned Counsel appearing on behalf
of the State would begin by submitting that PW10 and
PW11 were not accomplices. Their evidence would,
therefore, not require corroboration. He tried to make
good this submission by pointing out that qua the
offence under Section 302 of the IPC, PW10 and PW11 had
no involvement and the mere fact that they were
familiar with the developments leading to the murder
and other acts of the accused, they could not be
treated as accomplices. He would point out, in fact,
that accused nos. 1 and 2, have been convicted under
Section 120B read with 302 of the IPC. He would draw
considerable support from the deposition of PW34. He
further submitted that A1 and A2 were the principal
conspirators. The other accused, who have been
convicted under Section 109 of the IPC, have aided and
connived, within the meaning of Section 109 of the IPC,
with A1 and A2. He would submit that the acquittal of
A12 would have no impact on the conviction of the
appellants. He would point out that this Court, in the
43
case of this nature, which is based on circumstantial
evidence, what is to be looked into is the cumulative
effect of all the circumstances put together. In regard
to any defect in charge, he drew our attention to
Section 460 of the CrPC and contended that there is no
incurable illegality involved in this case. He drew our
attention to the deposition of PW60. He referred us to
the recoveries which have led to relevant evidence
believed in by two courts, and what is more, a learned
Single Judge of this Court. He would further point out
to the deposition of PW19. He points out that both PW12
and PW19 had made statements under Section 164 of the
CrPC. Statement under Section 164 of the CrPC could be
used for the purpose of corroborating though it could
not be used as a substantive evidence by itself. He
also drew considerable support from deposition of PW32
read with PW33. The hand of A6 in the murder of a
public man is clearly made out, runs the argument. He
fairly does not dispute the contention of A6 in regard
to MOs 28 and 33. He assures the Court that the Court
44
can eschew the said items of evidence but he would
submit that even dehors the same, there is sufficient
material before the Court to confirm the conviction of
the appellants. Learned Counsel for A3, in reply, would
point out that in fact, even A1 and A2 have also been
convicted with the aid of Section 109 of the IPC. In
other words, it is his case that even A1 and A2 are not
the principal actors so that the other accused could be
convicted for abetting them. They were themselves
convicted on the basis that they abetted the crimes in
question. He further pointed out that PW10 and PW11
have been treated as accomplices by the High Court
contrary to what is sought to be espoused by the
learned Counsel for the State.
SECTIONS 120A, 107, 108, 109, 141 AND 149 OF THE IPC
30. Section 120A of the IPC defines “criminal
conspiracy”, which reads as follows:
45
“120A. Definition of criminal conspiracy.—
When two or more persons agree to do, or
cause to be done,—
(1) an illegal act, or
(2) an act which is not illegal by
illegal means, such an agreement is
designated a criminal conspiracy:
Provided that no agreement except
an agreement to commit an offence
shall amount to a criminal conspiracy
unless some act besides the agreement
is done by one or more parties to
such agreement in pursuance thereof.
Explanation.—It is immaterial
whether the illegal act is the
ultimate object of such agreement, or
is merely incidental to that object.”
31. Section 141 of the IPC falls under Chapter VIII,
viz., offences against the public tranquillity. Section
141 defines unlawful assembly as assembly of five or
more persons, the common object of the persons being
any one of the five mentioned thereunder. It includes
the common object to commit any mischief or criminal
trespass or other offence. Section 142 of the IPC
declares that if a person, being aware of facts which
render an assembly an unlawful assembly, either
46
initially joins it or continues in it is a member of
such unlawful assembly.
32. Section 149 of the IPC declares the Principle of
Vicarious Criminal Liability. Upon an offence being
committed by any member of an unlawful assembly in
prosecution of the common object, every person, who at
the time of the offence being committed is a member of
such assembly is guilty of such offence. Equally, in
the second part of Section 149, the Law Giver has
provided that upon an offence being committed by any
member of the unlawful assembly which was such that
members of that assembly, viz., the unlawful assembly,
knew to be likely to be committed in prosecution of
that object, every member of the assembly, though he
may not have committed the offence, is rendered guilty
of the offence.
33. In Nanak Chand v. State of Punjab9, the Court had
to deal with a contention on behalf of the prosecution
that Section 149 of the IPC did not create any offence
at all and hence a separate charge, was not obligatory.
9 AIR 1955 SC 274
47
This Court, therefore, found it necessary to decide a
question whether Section 149 of the IPC creates a
specific offence. The Court held, inter alia, as
follows:
“6. … Under this section a person,
who is a member of an unlawful assembly is
made guilty of the offence committed by
another member of the same assembly, in
the circumstances mentioned in the
section, although he had no intention to
commit that offence and had done no overt
act except his presence in the assembly
and sharing the common object of that
assembly. Without the provisions of this
section a member of an unlawful assembly
could not have been made liable for the
offence committed not by him but by
another member of that assembly. Therefore
when the accused are acquitted of riot and
the charge for being members of an
unlawful assembly fails, there can be no
conviction of any one of them for an
offence which he had not himself
committed. …”
34. The Court, thereafter, went on to notice the
distinction between Sections 34 and 149 of the IPC.
Dealing with the argument that Section 149 of the IPC
cannot be understood as creating an offence because it
48
did not itself provide for the punishment, this Court
held as follows:
“7. … There is a clear distinction
between the provisions of Sections 34 and
149 of the Indian Penal Code and the two
sections are not to be confused. The
principal element in Section 34 of the
Indian Penal Code is the common intention
to commit a crime. In furtherance of the
common intention several acts may be done
by several persons resulting in the
commission of that crime. In such a
situation Section 34 provides that each
one of them would be liable for that crime
in the same manner as if all the acts
resulting in that crime had been done by
him alone. There is no question of common
intention in Section 149 of the Indian
Penal Code. An offence may be committed by
a member of an unlawful assembly and the
other members will be liable for that
offence although there was no common
intention between that person and other
members of the unlawful assembly to commit
that offence provided the conditions laid
down in the section are fulfilled. Thus if
the offence committed by that person is in
prosecution of the common object of the
unlawful assembly or such as the members
of that assembly knew to be likely to be
committed in prosecution of the common
object, every member of the unlawful
assembly would be guilty of that offence,
although there may have been no common
intention and no participation by the
other members in the actual commission of
49
that offence. In Barendra Kumar
Ghosh v. Emperor [(1925) ILR LII Cal 197]
Lord Sumner dealt with the argument that
if Section 34 of the Indian Penal Code
bore the meaning adopted by the Calcutta
High Court, then Sections 114 and 149 of
that Code would be otiose. In the opinion
of Lord Sumner, however, Section 149 is
certainly not otiose, for in any case it
created a specific offence. It postulated
an assembly of five or more persons having
a common object, as named in Section 141
of the Indian Penal Code and then the
commission of an offence by one member of
it in prosecution of that object and he
referred to Queen v. Sabid Ali [(1873) XX
Weekly Reporter (Cr), p 5]. He pointed out
that there was a difference between object
and intention, for although the object may
be common, the intentions of the several
members of the unlawful assembly may
differ and indeed may be similar only in
respect that they are all unlawful, while
the element of participation in action,
which is the leading feature of Section
34, was replaced in Section 149 by
membership of the assembly at the time of
the committing of the offence. It was
argued, however, that these observations
of Lord Sumner were obiter dicta. Assuming
though not conceding that may be so, the
observations of a Judge of such eminence
must carry weight particularly if the
observations are in keeping with the
provisions of the Indian Penal Code. It
is, however, to be remembered that the
observations of Lord Sumner did directly
arise on the argument made before the
Privy Council, the Privy Council reviewing
50
as a whole the provisions of Sections 34,
114 and 149 I.P.C.”
(Emphasis supplied)
35. Further, this Court proceeded to hold that a person
charged with an offence under Section 149 of the IPC
cannot be convicted of the substantive offence without
there being a specific charge framed as required under
Section 233 of the CrPC, 1898. This Court held as
follows:
“10. After an examination of the
cases referred to on behalf of the
appellant and the prosecution we are of
the opinion that the view taken by the
Calcutta High Court is the correct view,
namely, that a person charged with an
offence read with Section 149 cannot be
convicted of the substantive offence
without a specific charge being framed as
required by Section 233 Cr.P.C.”
36. Section 107 falls in Chapter V of the IPC. It reads
as follows:
“107. Abetment of a thing.—A person
abets the doing of a thing, who—
(First) — Instigates any person to do that
thing; or
51
(Secondly) —Engages with one or more other
person or persons in any conspiracy for
the doing of that thing, if an act or
illegal omission takes place in pursuance
of that conspiracy, and in order to the
doing of that thing; or
(Thirdly) — Intentionally aids, by any act
or illegal omission, the doing of that
thing.
Explanation I.—A person who, by wilful
misrepresentation, or by wilful
concealment of a material fact which he is
bound to disclose, voluntarily causes or
procures, or attempts to cause or procure,
a thing to be done, is said to instigate
the doing of that thing.
Illustration A, a public officer, is
authorized by a warrant from a Court of
Justice to apprehend Z. B, knowing that
fact and also that C is not Z, wilfully
represents to A that C is Z, and thereby
intentionally causes A to apprehend C.
Here B abets by instigation the
apprehension of C.
Explanation II.—Whoever, either prior to
or at the time of the commission of an
act, does anything in order to facilitate
the commission of that act, and thereby
facilitate the commission thereof, is said
to aid the doing of that act.”
37. Section 108 of the IPC provides that a person abets
an offence who abets either the commission of an
52
offence or the commission of an act which would be an
offence if committed by a person capable by law of
committing an offence with the same intention or
knowledge as that of the abettor. The first Explanation
provides that abetment of an illegal omission of an act
may amount to an offence although the abettor may not
himself be bound to do that act. Explanation (2)
declares that it is not necessary to constitute
abetment that the act abetted should be committed or
that the effect requisite to constitute the offence
should be caused. The Illustration(a) under Explanation
II provides as follows:
“ (a) ’A’ Instigates ‘B’ to murder
‘C’. ‘B’ refuses to do so. ‘A’ is guilty
of abetting ‘B’ to commit murder.”
38. The second limb of the Explanation (II) is
illumined by the illustration(b) and it reads as
follows:
“(b) ‘A’ instigates ‘B’ to murder
‘D’, ‘B’ in pursuance of the instigation
stabs ‘D’. ‘D’ recovers from the wound.
53
‘A’ is guilty of instigating ‘B’ to commit
murder.”
39. Explanation (3) declares that it is not necessary
that the person abetted should be capable by law of
committing an offence or that he should have the same
guilty intention or knowledge as that of the abettor or
any guilty intention or knowledge. The first
illustration is as follows:
“(a) ‘A’, with a guilty intention,
abets a child or a lunatic to commit an
act which would be an offence, if
committed by a person capable by law of
committing an offence, and having the same
intention as ‘A’. Here ‘A’, whether the
act be committed or not, is guilty of
abetting an offence.”
40. Another illustration(d) is as follows:
“(d) ‘A’, intending to cause a theft
to be committed, instigates ‘B’ to take
property belonging to ‘Z’ out of ‘Z’s
possession. ‘A’ induces ‘B’ to believe
that the property belongs to ‘A’. ‘B’
takes the property out of Z’s possession,
in good faith, believing it to be A’s
property. ‘B’, acting under this
misconception, does not take dishonestly,
54
and therefore does not commit theft. But
‘A’ is guilty of abetting theft, and is
liable to the same punishment as if ‘B’
had committed theft.”
41. Thus, Explanation (3) constitutes an exception to
the main provisions of Section 108 of the IPC.
42. Abetment of an offence being an offence, the
abetment of such abetment is also an offence under
Explanation IV. Explanation V makes it clear that it is
not necessary to the commission of offence of abetment
by conspiracy that the abettor should concert the
offence with the person who commits and it is
sufficient if he engages in the conspiracy in pursuance
of which the offence is committed. The illustration
under Explanation V is as follows:
“’A’ concerts with ‘B’ a plan for
poisoning ‘Z’. ‘A’ was to under the
agreement administer the poison. ‘B’ then
explains the plan to ‘C’ without taking
the name of ‘A’. ‘C’ agrees to procure the
poison and deliver it to ‘B’ for it being
used in the manner explained. ‘Z’ dies
pursuant to the poison being administered.
However, ‘A’ and ‘C’ have not conspired
together yet since ‘C’ has been engaged in
the conspiracy in pursuant to which ‘Z’
was murdered, ‘C’ has committed an offence
55
of abetment who is guilty for punishment
for murder.”
(Emphasis supplied)
43. Thus, abetment of a thing is defined in Section 107
of IPC and the concept of “abettor” is explained in
Section 108 of the IPC. Sections 107 and 108 of the IPC
must be read together to glean the intention of the Law
Giver. So read, abetment can happen in three situations
(a) It may happen when a person instigates another
person to do the thing which is abetted; (b) Secondly,
abetment takes place if a person engages with one or
more other person or persons in any conspiracy for
doing of that thing, if an act or illegal omission
takes place in pursuance of that conspiracy, and in
order to the doing of that thing. Finally, there is
abetment when a person intentionally aids, by an act or
omission, the doing of that act. At this juncture, we
may have to take a deeper look at the concept of
abetment by engaging in a conspiracy resulting in
abetment and conspiracy as provided in Section 120A of
the IPC.
56
44. In Pramatha Nath Talukdar v. Saroj Ranjan Sarkar10
,
this Court spoke about the distinction between the
offence of abetment by conspiracy and the offence of
criminal conspiracy (Section 120A of IPC):
“16. … The gist of the offence of
criminal conspiracy is in the agreement to
do an illegal act or an act which is not
illegal by illegal means. When the
agreement is to commit an offence, the
agreement itself becomes the offence of
criminal conspiracy. Where, however, the
agreement is to do an illegal act which is
not an offence or an act which is not
illegal by illegal means, some act besides
the agreement is necessary. Therefore, the
distinction between the offence of
abetment by conspiracy and the offence of
criminal conspiracy, so far as the
agreement to commit an offence is
concerned, lies in this. For abetment by
conspiracy mere agreement is not enough.
An act or illegal omission must take place
in pursuance of the conspiracy and in
order to the doing of the thing conspired
for. But in the offence of criminal
conspiracy the very agreement or plot is
an act in itself and is the gist of the
offence. Willes, J. observed
in Mulcahy v. Queen [(1868) LR 3 HL 306 at
317]:
10 AIR 1962 SC 876
57
“When two agree to carry it into
effect, the very plot is an act in
itself, and the act of each of the
parties, promise against
promise, actus contra actum,
capable of being enforced, if
lawful, punishable if for a
criminal object or for the use of
criminal means.”
Put very briefly, the distinction
between the offence of abetment under the
second clause of Section 107 and that of
criminal conspiracy under Section 120-A is
this. In the former offence a mere
combination of persons or agreement
between them is not enough. An act or
illegal omission must take place in
pursuance of the conspiracy and in order
to the doing of the thing conspired for;
in the latter offence the mere agreement
is enough, if the agreement is to commit
an offence.”
(Emphasis supplied)
45. Section 109 of the IPC provided for the punishment
of abetment if the act abetted is committed and where
there is no express provision made for punishment. It
provides that where no express provision is made for
the punishment of the abetment, the punishment will be
58
the same as is that which is provided for the offence.
The Explanation provides as follows:
“An act or offence is said to be
committed in consequence of abetment when
it is committed in consequence of the
instigation or in pursuance of the
conspiracy or with the aid which
constitutes the abetment.”
46. Explanation II to Section 108 of the IPC makes it
clear that the offence of abetment would be committed
irrespective of whether the act abetted is committed or
not or whether the effect which would constitute the
offence is caused or not. Illustrations(a) and (b) are
clear that the person who abets, as declared in law,
cannot extricate himself from criminal liability for
the offence of abetment on the ground that the act
which was abetted was not done or that the offence
which was actually abetted was not committed. Section
109 of the IPC contemplates, on the other hand, the
situation that there is abetment and the act abetted is
committed, and what is furthermore, it is committed as
a result of the abetment. Should these ingredients be
59
present and if there is no express provision under the
IPC for the punishment of the act of such abetment, the
person renders himself liable for being punished with
the punishment for that offence which stands committed
in consequence of the abetment by the accused.
47. In order that the act or offence, be committed
within the meaning of Section 109 of the IPC, in
consequence of the abetment, it must be as a
consequence of the instigation or in pursuance of the
conspiracy or with the aid which constitutes the
abetment. Explanation to Section 109 of the IPC must be
read in conjunction with Section 107 of the IPC which
creates the offence of abetting. As far as instigating
any person to do an act, it is relatable to the first
part of Section 107 which declares that abetment is
done when the person who abets instigates any person to
do that thing.
48. As far as conspiracy within the meaning of
Explanation to Section 109 of the IPC is concerned, it
deals with secondly under Section 107 of the IPC which
60
speaks about engaging of a person with one or more
other person or persons in any conspiracy for the doing
of that thing provided an act or illegal omission takes
place in pursuance of the conspiracy.
49. As far as the last part of the Explanation to
Section 109 of the IPC is concerned, which speaks about
an act or offence being committed in consequence of
abetment being committed with the aid which constitutes
abetment, it is relatable to thirdly under Section 107
of the IPC. Section 107 of the IPC under this head
requires intentional aiding by the act or illegal
omission. Instigation takes place in terms of
Explanation I to Section 107 of the IPC when
(i) a person by wilful representation; (ii) by wilful
concealment of a material fact which he is bound to
disclose, voluntarily causes or procures or attempts to
causes or procure a thing to be done and he would be
guilty of instigating the doing of that thing.
Explanation (2) to Section 107 declares that whoever,
either prior to or at the time of the commission of the
61
act, does anything in order to facilitate the
commission of that act and thereby facilitate its
commission, is said to aid the doing of that act. Thus,
anything done which facilitates the commission of the
criminal act and promotes the commission of the act,
would bring the person within the scope of abetment.
50. Explanation III to Section 108 also contemplates a
situation where the principal player meant to describe
the person who actually commits the act which is
abetted, would not be guilty of the offence such as a
child or a lunatic but the abettor, would remain guilty
of the offence of abetment of that offence and if it
attracts Section 109 of the IPC, would be punishable
for that offence under the appropriate provision. Also,
as we have noticed, under Explanation V to Section 108
of the IPC for the offence of abetment by conspiracy to
be committed, the principal player, meaning a person
who commits the act which results in the offence being
committed (as in the case of murder by poisoning) need
not be in league with the abettor. All that is required
62
is that the abettor also engages in the conspiracy
which must be understood as meaning participate in the
concert between two or more others even if he may not
have seen or known, by face or otherwise, one or more
persons who are privy to the conspiracy. Thus, based on
their involvement constituting abetment, a person or
any number of persons without even knowing the identity
of all the principal participants to the conspiracy,
can be prosecuted with the aid of Section 107 read with
Section 108 of the IPC.
51. In order to attract Section 109 of the IPC, the act
abetted must be committed in consequence of the
abetment. Sections 115 and 116 of the IPC deal with
punishments for abetment of offences when the offence
is not committed in consequence of the abetment and
where no express provision is made in the IPC for the
punishment of such abetment.
52. In Arjun Singh v. State of Himachal Pradesh11, this
Court held as follows:
11 AIR 2009 SC 1568
63
“11. … Law does not require
instigation to be in a particular form or
that it should only be in words. The
instigation may be by conduct. Whether
there was instigation or not is a question
to be decided on the facts of each case.
It is not necessary in law for the
prosecution to prove that the actual
operative cause in the mind of the person
abetting was instigation and nothing else,
so long as there was instigation and the
offence has been committed or the offence
would have been committed if the person
committing the act had the same knowledge
and intention as the abettor. The
instigation must be with reference to the
thing that was done and not to the thing
that was likely to have been done by the
person who is instigated. It is only if
this condition is fulfilled that a person
can be guilty of abetment by instigation.
…”
(Emphasis supplied)
53. Thus, to sum-up, abetment, as defined is a
substantive offence. The punishment for it varies
according to different circumstances. If the act which
is abetted is done in pursuance to the abetment, the
punishment is graver, as can been seen from Section 109
of the IPC, as the punishment is for the offence which
is committed based on the abetment. The offence of
64
abetment is punishable even if the act which is abetted
is not committed. As noted, Sections 115 and 116
provide for punishment in such cases. There are several
other aspects relating to offences including Section
114 of the IPC which provides cumulative punishment for
the act abetted and also for the act done.
54. At the heart of the offence of abetment, however,
is the presence of any of the three requirements in
Section 107 of the IPC. The key and indispensable
elements under the law to constitute abetment is
instigation, conspiracy or the intentional aiding by
any act or illegal omission, the doing of the thing.
The law does not permit the abettor to escape
punishment for abetment even if the actual player who
commits the offence is not criminally liable for the
actual act which results in the commission of an
offence (See in this regard, the situation contemplated
in illustrations in Explanation III of Section 108 of
the IPC). Equally, there need not be meeting of minds
between all the persons involved in a conspiracy and it
65
is sufficient if a person is engaged in the conspiracy
following which the offence is committed (See
Explanation V to Section 108 of the IPC). This means
that it is not even necessary that the persons who are
engaged in the conspiracy, to even know the identity,
leave alone physically meet the other players. There
can be any number of persons depending on their guilty
mind and acts or omissions which may render them
liable.
55. In Noor Mohammad Mohd. Yusuf Momin v. State of
 Maharashtra12, this Court had an occasion to deal with
Sections 34, 107 and 120B of the IPC and this is what
this Court lay down:
 “7. So far as Section 34 IPC is
concerned, it embodies the principle of
joint liability in the doing of a criminal
act, the essence of that liability being
the existence of a common intention.
Participation in the commission of the
offence in furtherance of the common
intention invites its application. Section
109 IPC on the other hand may be attracted
even if the abettor is not present when
12 (1970) 1 SCC 696
66
the offence abetted is committed, provided
that he has instigated the commission of
the offence or has engaged with one or
more other persons in a conspiracy to
commit an offence and pursuant to that
conspiracy some act or illegal omission
takes place or has intentionally aided the
commission of an offence by an act or
illegal omission. Turning to the charge
under Section 120-B IPC criminal
conspiracy was made a substantive offence
in 1913 by the introduction of Chapter V-A
in the Penal Code, 1860. Criminal
conspiracy postulates an agreement between
two or more persons to do, or cause to be
done, an illegal act or an act which is
not illegal, by illegal means. It differs
from other offences in that mere agreement
is made an offence even if no step is
taken to carry out that agreement. Though
there is close association of conspiracy
with incitement and abetment the
substantive offence of criminal conspiracy
is somewhat wider in amplitude than
abetment by conspiracy as contemplated by
Section 107 IPC…...”
(Emphasis supplied)
THE APPROACH OF THE TWO LEARNED JUDGES
THE APPROACH OF JUSTICE V. GOPALA GOWDA
67
56. The learned Judge proceeds to find that PWs 10 and
11 are accomplice witnesses. The two tests to test
accomplice evidence are referred to, viz., that the
evidence must be credible and, secondly, there must be
corroboration of accomplice evidence. The learned Judge
noted that PWs 10 and 11 have not been granted pardon
by any court but further notes that the mere fact that
pardon was not tendered, did not make the accomplice
cease to be an accomplice. It was further found that it
was a well-settled position of law that the evidence of
two accomplices cannot be used to corroborate with each
other as laid in R.V. Baskerville13. Support in this
regard was sought from precedent in India in the form
of judgment of this Court in Mohd. Husain Umar Kochra
Etc. v. K.S. Dalipsinghji and another Etc.14 wherein
this Court, inter alia, laid down that corroboration
must be from an independent source. One accomplice
cannot corroborate another. This position was noted to
be reiterated in a still later decision of this Court
13 1916 (2) KB 658
14 (1969) 3 SCC 429
68
in Chonampara Chellapan Etc. v. State of Kerala Etc.15.
Corroboration must be in regard to material particulars
or rather it must be in relation to the crime as well
as identity of the accused. Noting that the accused
before the Court were A3, A4 and A15, it was found
crucial that they were acquitted of the charge under
Section 120B of the IPC. They were found convicted for
the offence under Section 302 of the IPC read with
Section 109 of the IPC and Section 365 of the IPC read
with Section 109 of the IPC. Nothing on record was
found to show the direct involvement of the accused in
the abducting of the deceased or his murder. The Ford
Escort Car-MO12 recovered at the instance of PW10 did
not trace back its ownership to A4. Thereafter, it is
stated that the requirement of corroboration from
independent sources in material particulars, has not
been met in the instant case and made it impossible for
the accused to be convicted under Sections 302 and 364
of the IPC. PWs 10 and 11 were not witnesses to the
abduction of the deceased. PW3, who witnessed the
15 (1979) 4 SCC 312
69
abduction, it is stated, did not witness the accused at
the site of the abduction. Though, PW10 placed A3 and
A4 in the meeting on 05.12.2001, significance of the
same was lost in view of their acquittal under Section
120B of the IPC. PWs 10 and 11 have not placed any of
the three accused (A3, A4 and A15) at the site when the
body of the deceased was brought down in the factory.
A3, according to the deposition of the accomplices, was
found staying downstairs while PW11, who went upstairs,
actually saw the deceased tied to chains in the room
where he was kept. PW11 only saw A5 at the site on the
night of 30.12.2001 carrying a tiffin parcel. The death
certificate of the deceased issued by PW32, which PW33
has stated was got at the instance of A3, was found,
even if genuine, did not connect A3 in any way to the
deceased. As far as A15 is concerned, MO1-Reebok Shoe,
which was recovered, was brushed aside by noticing that
the courts had failed to consider that PW31-a worker in
the factory, has stated that she could not remember the
person who came to get it as there is lapse of more
70
than two years. Therefore, PW31 cannot be used against
A15. PWs 1 and 2 in their testimony (the son and
driver, respectively, of the deceased) stated that the
Reebok Shoes did not belong to the deceased. Evidence
of PWs 10 and 11 was not found reliable. Finding the
accused not guilty under Section 120B of the IPC, the
learned Judge noted that it was the duty of the Trial
Court to establish the involvement of each of the
accused persons individually for each offence for which
they have been charged. Reference was made to Section
107 of the IPC, and thereafter, to the Judgment of this
Court in Kehar Singh and others v. State (Delhi
 Administration)16 that something more than a mere
conspiracy, viz., some act or illegal omission in
pursuance of the conspiracy, is required to be
established for abetment by conspiracy. Once a charge
under Section 120B of the IPC fails, what was needed to
convict the appellants was the happening of some overt
act on the part of the appellants. The learned Judge
noted that there was no evidence except the testimony
16 (1988) 3 SCC 609
71
of PWs 10 and 11 which linked the appellants to the
crime. The charge under Section 109 of the IPC could
not be sustained.
THE APPROACH OF JUSTICE ARUN MISHRA
57. The learned Judge divided the circumstances into
fifteen circumstances. They are as follows:
(i) Prosecution case - Evidence of PWs. 10 and
11;
(ii) Prior relationship of accused;
(iii) Selection of premises where M.K. Balan was
kept/and other arrangements;
(iv) Abduction of deceased M.K. Balan on
30.12.2001 in white omni van;
(v) Taking of M.K. Balan to factory
premises/meeting dated 30.12.2001 at the
residence of A9;
(vi) Commission of offence under section 302
IPC;
72
(vii) Removal of dead body from factory
premises;
(viii) Cremation of dead body;
(ix) Procurement of death certificate by A3;
(x) Confessions and recoveries from accused;
(xi) Commission of offence under section 387
IPC;
(xii) Effect of acquittal under section 120B
IPC;
(xiii) Evidence of accomplices;
(xiv)Holding TIP/recording of statement under
section 164 CrPC.;
(xv) Cell phones/cassettes/forensic evidence.
58. The learned Judge proceeded to discuss the evidence
of PWs 10 and 11 elaborately. Thereafter, the prior
relationship between the accused came to be discussed.
The circumstance relating to selection of premises
where the deceased was kept and other arrangements as
also “abduction of the deceased” was discussed. The
73
learned Judge referred to the deposition of PW1-son of
the deceased. He also referred to evidence of PW3 and,
at paragraph 20, it stated that PW3 has clearly stated
that the former MLA was abducted at 05.30 A.M..
[Actually PW3 has stated that a person was put inside a
van by three persons]. Thereafter, motorcycle followed
the said van. That his friend Selvam also came there.
PW13 has also stated that he has seen the deceased
taking morning walk at about 05.45 A.M.. The learned
Judge finds that it is apparent that the deceased in
this case was abducted from M.R.C. Nagar. After
abduction, the evidence discloses meeting at the
residence of A9. He further finds that on 30.12.2001,
PWs 10 and 11 have stated about A3 stating that the
abduction of the deceased has been made and money
remains to be collected. Thereafter, the learned Judge
discusses evidence relating to taking of the deceased
to the factory premises. In this regard, apart from PWs
10 and 11, the learned Judge refers to the evidence of
PW56 also. In regard to the commission of offence under
74
Section 302 of the IPC, it is found that abduction is
proved and the deceased was murdered soon after
abduction in two days and the body cremated under the
name of a fictitious person. The learned Judge finds
that in the aforesaid circumstances, it is for the
accused person to satisfy the Court how the abducted
victim was dealt with by them. Undoubtedly, he noted
that there is no direct evidence with respect to the
murder by putting nylon rope around the neck and
tightening it but it can be inferred, in the
circumstances, that they committed the offence of
murder also. There is evidence which clearly indicated
that the dead body of the deceased was taken from the
factory. Thereafter, the Court discusses again evidence
of PWs 10, 11, 21 and 35 in regard to the removal of
the dead body from the factory premises. Next, the
learned Judge discusses the evidence relating to the
cremation of the dead body. The evidence referred to
include PWs19 and 36 apart from noting that PW12 has
resiled from part of his statement. Next, the learned
75
Judge elaborately discusses the evidence relating to
the procuring of the death certificate by A3. The
confessions and recoveries by the accused were next
discussed. The effect of acquittal under Section 120B
of the IPC next engaged the learned Judge. It was found
that mere acquittal under Section 120B of the IPC when
the charge under Section 109 of the IPC was found
established, was of no avail to them. Charges, which
were framed, were specific. Ingredients of Section 109
of the IPC were there and have been rightly found to be
present by both the courts below. Section 120B of the
IPC was found established against accused A1 and A2 and
other charges against the accused appellants. Sections
120B and 109 of the IPC were found to be distinct
offences. He referred to the judgment of this Court in
Ranganayaki v. State by Inspector of Police17, which,
inter alia, held that for an offence under Section 120B
of the IPC, a charge under Section 109 of the IPC was
unnecessary and inappropriate. The commission of
offence under Section 109 of the IPC was found
17 (2004) 12 SCC 521
76
established along with other offences. The acquittal
under Section 120B of the IPC was found not to
adversely impinge upon the ingredients of Section 109
of the IPC. The evidence of PWs 10 and 11, even taken
as accomplices, was found corroborated by overwhelming
evidence on record on each and every aspect. Regarding
holding of TI/Recording of Statement under Section 164
of the CrPC, it was proved by PWs 60, 59, 61, 32, 33,
62, 12 and 19. The last circumstance discussed was the
cell phone/cassette/forensic evidence. Cassettes were
recovered with suitcase-MO2 from A2 which was supported
by PW43. Regarding the contention that no value is to
be attached to the recovery of the Ford Car at the
instance of A4 based on ownership, it was found that
ownership was irrelevant. PW10 may have purchased the
car in the name of Shri Ranjit Kumar. The evidence
disclosed that the car in the possession of PW10 was
given by him to the accused. Total six cars were used
in the offence including the Ford Escort Car and one
motorcycle. As regards the recovery of the remains from
77
the cremation ground not being proved to be that of the
deceased, it was found that as the case of the
prosecution, the body was fully burnt, their seizure
and forensic report was of no value. This broadly is
the basis for the learned Judge to uphold the
conviction.
ACCOMPLICE EVIDENCE
59. Section 133 of the Evidence Act declares that an
accomplice is a competent witness and further that a
conviction based on the uncorroborated testimony of an
accomplice is not illegal only on account of it being
so. Section 133 reads as follows:
“133. Accomplice.- An accomplice
shall be a competent witness against an
accused person; and a conviction is not
illegal merely because it proceeds upon
the uncorroborated testimony of an
accomplice.”
60. It is apposite to notice Section 114 of the
Evidence Act, Illustration ‘b’, the Court may presume:
78
 “(b) That an accomplice is unworthy of
credit, unless he is corroborated in
material particulars.”
61. Thus, there appears to be a contradiction between
these provisions. The matter is no longer res integra.
We may notice the following statement of the law
contained in an early judgment of this Court reported
in Sarwan Singh Rattan Singh v. State of Punjab18:
 “7. It is hardly necessary to deal at
length with the true legal position in
this matter. An accomplice is undoubtedly
a competent witness under the Indian
Evidence Act. There can be, however, no
doubt that the very fact that he has
participated in the commission of the
offence introduces a serious stain in his
evidence and courts are naturally
reluctant to act on such tainted evidence
unless it is corroborated in material
particulars by other independent evidence.
 It would not be right to expect that
such independent corroboration should
cover the whole of the prosecution story
or even all the material particulars. If
such a view is adopted it would render the
evidence of the accomplice wholly
superfluous. On the other hand, it would
not be safe to act upon such evidence
merely because it is corroborated in minor
particulars or incidental details because,
in such a case, corroboration does not
18 AIR 1957 (SC) 637
79
afford the necessary assurance that the
main story disclosed by the approver can
be reasonably and safely accepted as true.
 But it must never be forgotten that
before the court reaches the stage of
considering the question of corroboration
and its adequacy or otherwise, the first
initial and essential question to consider
is whether even as an accomplice the
approver is a reliable witness. If the
answer to this question is against the
approver then there is an end of the
matter, and no question as to whether his
evidence is corroborated or not falls to
be considered.
 In other words, the appreciation of
an approver's evidence has to satisfy a
double test. His evidence must show that
he is a reliable witness and that is a
test which is common to all witnesses. If
this test is satisfied the second test
which still remains to be applied is that
the approver's evidence must receive
sufficient corroboration. This test is
special to the cases of weak or tainted
evidence like that of the approver.”
(Emphasis supplied)
62. We may profitably also refer to the views expressed
in Haroom Haji Abdulla v. State of Maharashtra19:
 “8. The law as to accomplice evidence
is well settled. The Evidence Act in
19 AIR (1968) SC 832
80
Section 133 provides that an accomplice is
a competent witness against an accused
person and that a conviction is not
illegal merely because it proceeds upon
the uncorroborated testimony of an
accomplice. The effect of this provision
is that the court trying an accused may
legally convict him on the single
evidence, of an accomplice. To this there
is a rider in Illustration (b) to Section
114 of the Act which provides that the
Court may presume that an accomplice is
unworthy of credit unless he is
corroborated in material particulars. This
cautionary provision incorporates a rule
of prudence because an accomplice, who
betrays his associates, is not a fair
witness and it is possible that he may, to
please the prosecution, weave false
details into those which are true and his
whole story appearing true, there may be
no means at hand to sever the false from
that which is true. It is for this reason
that courts, before they act on accomplice
evidence, insist on corroboration in
material respects as to the offence itself
and also implicating in some satisfactory
way, however small, each accused named by
the accomplice. In this way the commission
of the offence is confirmed by some
competent evidence other than the single
or unconfirmed testimony of the accomplice
and the inclusion by the accomplice of an
innocent person is defeated. This rule of
caution or prudence has become so
ingrained in the consideration of
accomplice evidence as to have almost the
standing of a rule of law.”
(Emphasis supplied)
81
63. The dichotomy between the mandate of Section 133
and illustration (b) to Section 114, of the Evidence
Act has been explained as follows in Sheshanna Bhumanna
Yadav v. State of Maharashtra20:
“12. The law with regard to
appreciation of approver's evidence is
based on the effect of Sections 133 and
114, illustration (b) of the Evidence Act,
namely, that an accomplice is competent to
depose but as a rule of caution it will be
unsafe to convict upon his testimony
alone. The warning of the danger of
convicting on uncorroborated evidence is
therefore given when the evidence is that
of an accomplice. The primary meaning of
accomplice is any party to the crime
charged and someone who aids and abets the
commission of crime. The nature of
corroboration is that it is confirmatory
evidence and it may consist of the
evidence of second witness or of
circumstances like the conduct of the
person against whom it is required.
Corroboration must connect or tend to
connect the accused with the crime. When
it is said that the corroborative evidence
must implicate the accused in material
particulars it means that it is not enough
that a piece of evidence tends to confirm
20 AIR (1970) SC 1330
82
the truth of a part of the testimony to be
corroborated. That evidence must confirm
that part of the testimony which suggests
that the crime was committed by the
accused. If a witness says that the
accused and he stole the sheep and he put
the skins in a certain place, the
discovery of the skins in that place would
not corroborate the evidence of the
witness as against the accused. But if the
skins were found in the accused's house,
this would corroborate because it would
tend to confirm the statement that the
accused had some hand in the theft.”
(Emphasis supplied)
64. We may finally advert to a recent pronouncement of
this Court in K. Hashim v. State of Tamil Nadu21:
“38. First, it is not necessary that
there should be independent confirmation
of every material circumstance in the
sense that the independent evidence in the
case, apart from the testimony of the
complainant or the accomplice, should in
itself be sufficient to sustain
conviction. As Lord Reading says:
“Indeed, if it were required that the
accomplice should be confirmed in
every detail of the crime, his
evidence would not be essential to
the case; it would be merely
confirmatory of other and independent
testimony.” (Baskerville case [(1916)
21 (2005) 1 SCC 237
83
2 KB 658 : (1916-17) All ER Rep 38
(CA)] , All ER p. 42 B-C)
39. All that is required is that
there must be some additional evidence
rendering it probable that the story of
the accomplice (or complainant) is true
and that it is reasonably safe to act upon
it.
40. Secondly, the independent
evidence must not only make it safe to
believe that the crime was committed but
must in some way reasonably connect or
tend to connect the accused with it by
confirming in some material parti.cular
the testimony of the accomplice or
complainant that the accused committed the
crime. This does not mean that the
corroboration as to identification must
extend to all the circumstances necessary
to identify the accused with the offence.
Again, all that is necessary is that there
should be independent evidence which will
make it reasonably safe to believe the
witness's story that the accused was the
one, or among those, who committed the
offence. The reason for this part of the
rule is that:
“A man who has been guilty of a
crime himself will always be able to
relate the facts of the case, and if
the confirmation be only on the truth
of that history, without identifying
the persons, that is really no
corroboration at all…. It would not
84
at all tend to show that the partyaccused participated in it.”
41. Thirdly, the corroboration must come
from independent sources and thus
ordinarily the testimony of one accomplice
would not be sufficient to corroborate
that of another. But of course the
circumstances may be such as to make it
safe to dispense with the necessity of
corroboration and in those special
circumstances a conviction so based would
not be illegal. I say this because it was
contended that the mother in this case was
not an independent source.
42. Fourthly, the corroboration need not
be direct evidence that the accused
committed the crime. It is sufficient if
it is merely circumstantial evidence of
his connection with the crime. Were it
otherwise, “many crimes which are usually
committed between accomplices in secret,
such as incest, offences with females” (or
unnatural offences) “could never be
brought to justice”. (See M.O.
Shamsudhin v. State of Kerala [(1995) 3
SCC 351 : 1995 SCC (Cri) 509].)”
(Emphasis supplied)
65. To summarize, by way of culling out the principles
which emerge on a conspectus of the aforesaid
decisions, we would hold as follows:
85
The combined result of Sections 133 read with
illustration (b) to Section 114 of Evidence Act is
that the Courts have evolved, as a rule of
prudence, the requirement that it would be unsafe
to convict an accused solely based on
uncorroborated testimony of an accomplice. The
corroboration must be in relation to the material
particulars of the testimony of an accomplice. It
is clear that an accomplice would be familiar with
the general outline of the crime as he would be one
who has participated in the same and therefore,
indeed, be familiar with the matter in general
terms. The connecting link between a particular
accused and the crime, is where corroboration of
the testimony of an accomplice would assume crucial
significance. The evidence of an accomplice must
point to the involvement of a particular accused.
It would, no doubt, be sufficient, if his testimony
in conjunction with other relevant evidence
86
unmistakably makes out the case for convicting an
accused.
66. As laid down by this Court, every material
circumstance against the accused need not be
independently confirmed. Corroboration must be such
that it renders the testimony of the approver
believable in the facts and circumstances of each case.
The testimony of one accomplice cannot be, ordinarily,
be supported by the testimony of another approver. We
have used the word ‘ordinarily’ inspired by the
statement of the law in paragraph-4 in K. Hashim
(supra) wherein in this Court, did contemplate special
and extraordinary cases where the principle embedded in
Section 133 would literally apply. In other words, in
the common run of cases, the rule of prudence which has
evolved into a principle of law is that an accomplice,
to be believed, he must be corroborated in material
particulars of his testimony. The evidence which is
used to corroborate an accomplice need not be a direct
87
evidence and can be in the form of circumstantial
evidence.
ACCOMPLICE AND APPROVER
67. An accomplice is in many cases, pardoned and he
becomes what is known as an approver. An elaborate
procedure for making a person an approver, has been set
out in Section 306 of the CrPC. Briefly, the person is
proposed as an approver. The exercise is undertaken
before the competent Magistrate. His evidence is
recorded. He receives pardon in exchange for the
undertaking that he will give an unvarnished version of
the events in which he is a participant in the crime.
He would expose himself to proceedings under Section
308 of the CrPC. Section 308 contemplates that if such
person has not complied with the condition on which the
tender of pardon was given either by wilfully
concealing anything essential or by giving false
evidence, he can be put on trial for the offence in
respect to which the pardon was so tendered or for any
88
other offence of which he appears to be a guilty in
connection with the same matters. This is besides the
liability to be proceeded against for the offence of
perjury. Sub-section (2) of Section 308 declares that
any statement which is given by the person accepting
the tender of pardon and recorded under Section 164 and
Section 306 can be used against him as evidence in the
trial under Section 308(1) of the CrPC. An accomplice
or an approver are competent witnesses. An approver is
an accomplice, who has received pardon within the
meaning of Section 306. We would hold, that as between
an accomplice and an approver, the latter would be more
beholden to the version he has given having regard to
the adverse consequences which await him as spelt out
in Section 308 of the CrPC. as explained by us. It is
also settled principle that the competency of an
accomplice is not impaired, though, he could have been
tried jointly with the accused and instead of so being
tried, he has been made a witness for the prosecution.
89
See the judgment of this Court reported in Chandran and
Others v. State of Kerala22.
PURPORT AND VALUE OF SECTION 164 OF CRPC
68. Section 164 of the CrPC enables the recording of
the statement or confession before the Magistrate.
Is such statement substantive evidence? What is the
purpose of recording the statement or confession under
Section 164? What would be the position if the person
giving the statement resiles from the same completely
when he is examined as a witness? These questions are
not res integra. Ordinarily, the prosecution which is
conducted through the State and the police machinery
would have custody of the person. Though, Section 164
does provide for safeguards to ensure that the
statement or a confession is a voluntary affair it may
turn out to be otherwise. We may advert to statements
of law enunciated by this Court over time.
22 (2011) 5 SCC 161
90
69. As to the importance of the evidence of the
statement recorded under Section 164 and as to whether
it constitutes substantial evidence, we may only to
advert to the following judgment, i.e., in George and
others v. State of Kerala and another23:
“In making the above and similar
comments the trial Court again ignored a
fundamental rule of criminal jurisprudence
that a statement of a witness recorded
under S. 164, Cr.P.C., cannot be used as
substantive evidence and can be used only
for the purpose of contradicting or
corroborating him.”
70. What is the object of recording the statement,
ordinarily of witnesses under Section 164 has been
expounded by this Court in R. Shaji v. State of
 Kerala24:
“15. So far as the statement of
witnesses recorded under Section 164 is
concerned, the object is two fold; in the
first place, to deter the witness from
changing his stand by denying the contents
of his previously recorded statement, and
secondly, to tide over immunity from
23 AIR 1998 SC 1376
24 AIR 2013 SC 651
91
prosecution by the witness under Section
164. A proposition to the effect that if a
statement of a witness is recorded under
Section 164, his evidence in Court should
be discarded, is not at all warranted.
(Vide: Jogendra Nahak & Ors. V. State of
Orissa & Ors., AIR 1999 SC 2565: (1999 AIR
SCW 2736); and Assistant Collector of
Central Excise, Rajamundry v. Duncan Agro
Industries Ltd. & Ors., AIR 2000 SC
2901) : (2000 Air SCW 3150).
16. Section 157 of the Evidence Act
makes it clear that a statement recorded
under Section 164 Cr.P.C., can be relied
upon for the purpose of corroborating
statements made by witnesses in the
Committal Court or even to contradict the
same. As the defence had no opportunity to
cross-examine the witnesses whose
statements are recorded under Section 164
Cr.P.C., such statements cannot be treated
as substantive evidence.”
71. Thus, in a case where a witness, in his statement
under Section 164 of the CrPC, makes culpability of the
accused beyond doubt but when he is put on the witness
stand in the trial, he does a complete somersault, as
the statement under Section 164 is not substantial
evidence then what would be the position? The
substantive evidence is the evidence rendered in the
Court. Should there be no other evidence against the
92
accused, it would be impermissible to convict the
accused on the basis of the statement under Section
164.

CONTOURS OF JURISDICTION IN APPEAL BY SPECIAL LEAVE
72. Before we embark upon a consideration of the
contentions, we think it is necessary to remind
ourselves of the contours of this Court’s jurisdiction
in an appeal generated by Special Leave under Article
136 of the Constitution of India. This question, far
from being res integra, is the subject matter of a
large number of decisions of this Court. We would only
advert to one out of many decisions, rendered by one of
us (K.M. Joseph, J.), in Jagjit Singh v. State of
 Punjab25. Therein, the Court noted the principles laid
down by this Court in Dalbir Kaur v. State of Punjab26
wherein this Court culled out the principles in
paragraph-8 as follows:
25 (2018) 10 SCC 593
26 (1976) 4 SCC 158
93
“8. Thus the principles governing
interference by this Court in a criminal
appeal by special leave may be summarised
as follows:
“(1) that this Court would not
interfere with the concurrent finding
of fact based on pure appreciation of
evidence even if it were to take a
different view on the evidence;
(2) that the Court will not normally
enter into a reappraisement or review
of the evidence, unless the assessment
of the High Court is vitiated by an
error of law or procedure or is based
on error of record, misreading of
evidence or is inconsistent with the
evidence, for instance, where the
ocular evidence is totally inconsistent
with the medical evidence and so on;
(3) that the Court would not enter into
credibility of the evidence with a view
to substitute its own opinion for that
of the High Court;
(4) that the Court would interfere
where the High Court has arrived at a
finding of fact in disregard of a
judicial process, principles of natural
justice or a fair hearing or has acted
in violation of a mandatory provision
of law or procedure resulting in
serious prejudice or injustice to the
accused;
(5) this Court might also interfere
where on the proved facts wrong
inferences of law have been drawn or
where the conclusions of the High Court
94
are manifestly perverse and based on no
evidence.”
It is very difficult to lay down a rule
of universal application, but the
principles mentioned above and those
adumbrated in the authorities of this
Court cited supra provide sufficient
guidelines for this Court to decide
criminal appeals by special leave. Thus in
a criminal appeal by special leave, this
Court at the hearing examines the evidence
and the judgment of the High Court with
the limited purpose of determining whether
or not the High Court has followed the
principles enunciated above. Where the
Court finds that the High Court has
committed no violation of the various
principles laid down by this Court and has
made a correct approach and has not
ignored or overlooked striking features in
the evidence which demolish the
prosecution case, the findings of fact
arrived at by the High Court on an
appreciation of the evidence in the
circumstances of the case would not be
disturbed.”
A LOOK AT THE OFFENCES INVOLVED
73. Section 201 of the IPC, inter alia, is as follows:
“201. Causing disappearance of evidence of
offence, or giving false information to
screen offender.—Whoever, knowing or
having reason to believe that an offence
95
has been committed, causes any evidence of
the commission of that offence to
disappear, with the intention of screening
the offender from legal punishment, or
with that intention gives any information
respecting the offence which he knows or
believes to be false.”
74. Section 347 of the IPC reads as follows:
“347. Wrongful confinement to extort
property, or constrain to illegal act.—
Whoever wrongfully confines any person for
the purpose of extorting from the person
confined, or from any person interested in
the person confined, any property or
valuable security or of constraining the
person confined or any person interested
in such person to do anything illegal or
to give any information which may
facilitate the commission of an offence,
shall be punished with imprisonment of
either description for a term which may
extend to three years, and shall also be
liable to fine.”
75. Section 364 of the IPC, inter alia, deals with
abducting in order to murder. It reads as follows:
“364. Kidnapping or abducting in order to
murder.—Whoever kidnaps or abducts any
person in order that such person may be
murdered or may be so disposed of as to be
put in danger of being murdered, shall be
96
punished with 1[imprisonment for life] or
rigorous imprisonment for a term which may
extend to ten years, and shall also be
liable to fine.”
76. The offence of abduction is described in
Section 362 of the IPC and it reads as follows:
“Abduction.- Whoever by force compels, or
by any deceitful means induces, any person
to go from any place, is said to abduct
that person.”
It is to be distinguished from kidnapping which is
of two kinds as stated in Section 359 of the IPC, viz.,
kidnapping from India and kidnapping from lawful
guardianship. Both kidnapping and abducting, are
referred to in Sections 364 and 365 of the IPC.
77. Section 365 of the IPC reads as follows:
“365. Kidnapping or abducting with intent
secretly and wrongfully to confine person.
—Whoever kidnaps or abducts any person
with intent to cause that person to be
secretly and wrongfully confined, shall be
punished with imprisonment of either
description for a term which may extend to
97
seven years, and shall also be liable to
fine.”
78. Section 302 of the IPC, no doubt, deals with the
offence of murder. Lastly, Section 387 of the IPC is a
heightened, a more serious form of offence of extortion
and it reads as follows:
“387. Putting person in fear of death or
of grievous hurt, in order to commit
extortion.—Whoever, in order to the
committing of extortion, puts or attempts
to put any person in fear of death or of
grievous hurt to that person or to any
other, shall be punished with imprisonment
of either description for a term which may
extend to seven years, and shall also be
liable to fine.”
79. It is clear that kidnapping differs from
abduction. Kidnapping is of two kinds. Kidnapping from
India involves taking a person against his consent or
consent of legally authorised person out of India
(Section 360). Kidnapping from lawful custody is
occasioned if a male below 16 years or female below 18
years or person of unsound mind is taken out of custody
of lawful guardian without his consent (Section 361).
98
Abduction, as defined in Section 362 of the IPC, occurs
when by force or deceitful means, a person is induced
to go from any place. In this case, under Sections 364
and 365, though, it could be kidnapping and abduction,
what is involved is abduction.
80. Section 364 of the IPC, more graver than Section
365 of the IPC, occurs when abduction, inter alia, is
done with the intention to commit murder or that he is
so disposed of so as to put the abducted person in
danger of being murdered. Section 365 of the IPC is
attracted when the abduction takes place to cause the
abducted person to be secretly and wrongfully confined.
81. It is true that in a given case, a person may be
abducted to be secretly and wrongfully confined and
also to commit murder. Such a situation may attract
both Sections 364 and 365 of the IPC.
82. As with any other offence, there could be the
actual offender, who abducts. Any other person could be
roped in with the aid of Section 120A of the IPC or
99
Section 109 of the IPC (abetting). Also, principle of
vicarious liability, under Section 34 of the IPC or a
charge under Section 149 of the IPC, if proved, could
visit another with criminal liability.
ABDUCTION, THE EVIDENCE
83. PW1 is the son of the deceased. He has deposed,
inter alia, as follows:
His father is an MLA of Saidapet
Constituency. He is Director of Mahilapur Hindu
Saswatha Nidhi Limited for a period of ten
years. He used to go walking in the morning as
he was suffering from diabetes. He used to
leave the house at 05.30 A.M. in the morning
for walking in MRC Nagar near Ayyapan Temple
and return home at about 07.30 A.M.. He also
used to go for walking in the morning along
with one Ramesh residing near their house. On
30.12.2001, his father went for walking at
about 05.30 A.M.. Normally, his father used to
100
wear t-shirt, black track pant and black shoes.
The shoes were of one Reebok company. He did
not return home on 30.12.2001. He went in
search of his father. He contacted his friends.
Then, he went and lodged a complaint marked as
Exhibit PSEI. In cross-examination, PW1 deposed
that he did not state that his father used to
walk by using the Reebok shoes. The shirt and
the pant were not shown to him by the Crime
Branch who investigated him. The Police asked
him to remove certain averments made by him in
his complaint. The complaint, after removal of
the averments, is PSE1. He went, at 08.00 P.M.,
to the Anna Nagar Police Station. They have
told him that the father was in Tirumangalam
Police Station. Then, he went to Tirumangalam
Police. He was told that he was not there. He
speaks about learning that his father was kept
in the Police Station and, sensing danger, he
filed a Habeas Corpus Petition. In the
101
complaint, he has averred that when his father
went for walking, he was illegally detained by
the Police for procuring certain statements
from him. He has read the Nakeeran Journal of
05.03.2002. He says that he has stated that the
arrest of the A3 and A5 was mere eyewash. On
30.12.2001, when his father went for walking
only his mother had seen him. The shoes worn by
his father was bought from the Mount Road
Vasant Complex Reebok Company. Then he says
that the size of shoes was told by him to the
Police (CBCID) and then, they showed the shoes
to him. PW1 told that the shoes did not belong
to his father. Thereupon, permission was sought
and granted to declare PW10 as hostile and he
was cross-examined. On 30.12.2001, his father
had gone for walking and had not returned till
today. He has not contacted them through letter
or phone. He has not challenged the dismissal
of Habeas Corpus petition. The age of his
102
father is disclosed as 52 years on 30.12.2001.
His father did not fight with any private
person and only fought with political
adversaries. To the question, whether the
Police had given him any audio cassette
containing the voice of his father and played
it before his mother and brother, he answers in
the affirmative. He says there was no dispute
between his father and A3 and other accused. In
answer to the question, whether the persons of
ADMK had any grudge against his father for
changing his party to DMK, he said, yes, there
were serious disputes regarding this. He still
believed that his father was alive. The
prosecution conducted re-examination of PW1. He
states that when the CBCID examined him on
06.04.2002, he has not stated that the voice in
the audio cassette was of his father.
Suggestion that he was purposefully deposing in
favour of the accused, was denied.
103
1. PW2-Ramesh deposes that he is a car driver by
profession. He knew the deceased. He used to go to the
house at 08.45 A.M. or 09.00 A.M.. He speaks about
taking the deceased to the company of which he was the
Director. He speaks about coming at about 09.00 A.M. on
30th and the wife of the deceased informed him that her
husband has not returned home after he had gone for
walking. He says, to his knowledge, he did not know
about the fact that deceased went for walking on that
day. After 29.12.2001, he has not seen the deceased.
2. PW3 is another key witness produced by the
prosecution to prove the aspect of abduction. He is a
native of Sri Lanka. He came to Chennai in 1991. In
2001, he used to practice wrestling. He would do
skipping and running along with others at MRC Nagar.
His wrestling master is Selvaraj. On 30.12.2001, at
about 05.30 A.M., as usual, he started to run. At that
time, at a distance of about 75 meters, he saw three
persons forcing a person to get into a van. Thereafter,
all of them went in the same van. It was an Omni Van. A
104
motorcycle followed that van. Thereafter, his friend
Selvam came there. He told this to him. He told
Selvaraj Master. Selvaraj Master told him “why should
we bother about others.” He has stood by his statement
in the cross-examination. He, no doubt, inter alia says
that in December, the sunrise will be late and that
05.30 A.M. will be dark. He saw the incident at a
distance of 75 meters as there was street light. No
doubt, he says that during Police investigation, he did
not mention about the glow of street light. He did not
lodge any complaint in the Police Station about the
incident.
3. The next witness, who is produced to prove
abduction, is PW13. He states as follows:
His brother is working in the Police
Department. From 1999, he has diabetes. He goes
for walk at MRC Nagar every day at morning
05.30 A.M.. On 30.12.2001, at 05.45 A.M. in the
morning, when he was walking in the MRC Nagar,
Kasturi Estate, the deceased came opposite to
105
him. He was wearing bright shoes, sandal colour
t-shirt and dark pant. He crossed him. He is
shown MO14-photograph and he identified the
deceased. In cross-examination, he says that he
saw in the newspaper that the deceased was not
found but he did not see the TV.
It is, no doubt, true that Justice Arun
Mishra has found that it becomes apparent that
PW13 clearly stated that the former MLA Balanthe deceased was taking morning walk. The
learned Judge concluded that it is apparent
that M.K. Balan had been abducted. PW3 has not
stated that it was the deceased who was
abducted. He has not stated that three persons,
who pushed the deceased into the van were from
amongst the accused in the case.
4. However, reading the evidence of PWs 1, 2, 3 and
13, the following is established. The deceased used to
go for morning walk. He was indeed sighted by PW13 who
also used to go for morning walk. PW3 has indeed
106
witnessed a person being pushed into Maruti Omni Van by
three persons and the Van going away followed by the
motorcycle.
5. These facts are established. The evidence of PW10
and PW11 is to be seen next in this regard. PW10 has,
inter alia, stated that first and second accused were
there at the house of A9 on 30.12.2001. Both of them
told A3 that they have brought the MLA [M.K. Balan
(deceased)] and only money had to be collected from
him. PW11 has stated that on 30.12.2001, he saw three
cars at the factory led by a Tata Sumo (recovered at
the instance of A9), a Ford Escort Car (recovered at
the instance of A4) and finally came the Zen Car
(recovered at the instance of A3). Four persons
identified as A4, A11, A16 and A17 brought the deceased
out of the Ford Car. This takes place within hours of
abduction on the same day. PW11 also speaks of three
persons coming out of the Zen Car. PW10 also says that
on 31.12.2001, he found that the deceased was tied-up
with chain and his eyes were covered with a cloth and
107
he had been made to sit on a green steel cot provided
by them already. He was wearing black pant and sandal
colour t-shirt. He has deposed that it was A5, A6, A7,
A8, A10, A11 and A14, who were present. Still further,
he says that A3 threatened him that he would kill him
and his family members if he discloses anything about
the matter. He further stated that “we had kidnapped
ex-MLA Balan itself, you are nothing to me”. Unless
PW10 and PW11, PW3 and PW13 are disbelieved, the
conclusion is inevitable that the deceased was indeed
abducted. The trial court finds that no one else was
kidnapped on the same day. The Trial Court finds that
A3, A4 to A8, A10, A11 and A14 to A17 kidnapped the
deceased (A10 stands acquitted by the High Court).
THE CIRCUMSTANCES RELATING TO OBTAINING OF FALSE DEATH
CERTIFICATE
6. PW32-a Medical Practitioner has proved ExhibitP27-Death Certificate. He has deposed that PW33-
Kamaraj, who was working in the Government General
Hospital, Chennai and acquainted with him for fifteen
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years, came to him. He deposed that PW33 told that one
person known to him, viz., Rajamani Chettiar was 61
years and poor, died on 01.01.2002 at 06.00 P.M. due to
cardiac arrest. There was no body to cremate him and he
alone had to do all the work for him. He wanted death
certificate. Then, PW32 told PW33 that he would go to
see him (apparently, the deceased). PW33 told him, he
very well knows PW32 for the past fifteen years, would
he lie to him and that no one else was with him
(deceased) and PW33 has to do everything and he did not
have time. Believing what he stated to be true, PW32
says that he issued P27-death certificate without
seeing the dead body. No doubt, PW32 has deposed in
cross-examination that PW33 came to his house and
stated that his younger paternal uncle working as a
watchman in the company had passed away. He has given
the certificate on 02.01.2002. Though, it is not
written that it was issued on 02.01.2002, and in P27,
it was shown that it was issued on 01.01.2002.
7. PW33 states, inter alia, as follows:
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 He knew A3 for the last five years. He
corroborates statement of PW32 that they were
known to each other for fifteen years. On
01.01.2002, he was lying sick in his house. One
Samikannu-A13 came and told him that he was
called by A3. He was taken by Samikannu to the
house of A3. A3 told him that one watchman died
in Kollathur. PW33 was asked whether a vehicle
could be arranged. He tried in vain. He was
given Rs.50/- by A3 on noting that he had
reached the next day by auto. A3 told him that
one Rajamani Chettiar expired and asked him to
get a certificate. PW33 told about PW32 being
known to him for the last fifteen years. He
went to his place by auto. PW32 was there and
he told him that a watchman in Kollathur
Company had died. PW32 believed PW33 and gave
it in writing in a letterhead. He gave it to
A3. He identifies P27 as the certificate. He
also identifies A3 and A13 (Samikannu). He
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states that the certificate is dated 01.01.2002
as he had asked so. He says that he is giving
the deposition like this because he will lose
his job if he does not do so. He did not
identify A13 to the Police or the Magistrate in
the TI Parade. He also says, inter alia, that
it is false to say that accused-Samipannu did
not call him or take him to A3. He also says it
is not correct to state that he is giving false
deposition in the fear of losing his job. We
see no reason to take a different view. The
irresistible inference would be as follows:
A3 engaged A13, and at the behest of
A3, a certificate is issued by PW32-
medical practitioner certifying that one
Rajamani Chettiar had passed away on
01.01.2002.
8. Now, the next question to be decided would be
whether such a person as Rajamani Chettiar had indeed
passed away and whether he was residing at the place
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reported? PW38 has deposed that no person, as shown in
the Certificate, died. Then, PW36-Office Assistant InCharge also supported the prosecution version. It is to
be noted that going by the evidence of PW32 and PW33,
A3 wanted such a certificate. The evidence of PW19 does
support the prosecution case though he may not have
identified the ‘8’ persons who came. The Trial Court,
noted that he had identified them in the Test
Identification Parade. It is clear as daylight that the
person cremated on 01.01.2002 by PW19 and PW12 late in
night was the deceased under a fake name though.
THE EVIDENCE RELATING TO VEHICLES USED
THE VEHICLES RECOVERED
9. The evidence relating to vehicles used is as
follows:
i. M09 is van bearing No. TNA 7484. A5 made a
statement to the Police. PW30 has spoken about
the vehicle being given to A9 and PW44 is a
witness to the seizure. It is the vehicle which
is used in the abduction of the deceased.
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ii. The next vehicle is TN02P343. This is
marked though PW10 as MO8 and is another Van.
PW10 states that on 24.12.2001, A9 told him
that A3 wanted a Maruti Van. He speaks about
complaining about not receiving rent for the
Ford Escort-MO6 and non-return of MotorcycleMO10. He further says that A9 called later and
said that he had arranged for vehicle of
Kennedy and brother-in-law of PW30, Jayprakash
(MO9) and sent it to A3. PW24-Sub-Inspector
deposes to witnessing confessional statement of
A6 leading to the recovery of MO8, the Van
bearing No. TN-22-BO-343. But he stated “I can
identify A6 who also identifies A8”. Pw37 IS
John Keneddy who has deposed about buy MO8 on
24.12.2001. PW10 called him on cell-phone and
asked for Van for two days. It was given to
him. It was returned back in two days. Apart
from the fact that PW24 identifies A8 as A6,
the connection with the offences is not clear.
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No doubt, PW37 was declared hostile and crossexamined by the State.
iii. A3 gave P20 statement leading to the
recovery of MO12-Maruti Zen having No. TN9-Z99. PW16 has been examined to establish that
MO12 was given by him to A3 in November, 2001
and it was returned back only in February,
2002. This is the vehicle which is used on
30.03.2001, the crucial day, along with two
other vehicles. The Trial Court has also, no
doubt, relied on the evidence of PWs 10 and 11.
iv. A9 gave P37 statement. PW41 is a witness.
Pursuant to the same, MO7-Maruti Omni Van,
having golden colour and bearing No. TN22B8853,
was recovered. PW18 is acquainted with A9 since
childhood. He has deposed to giving MO7-golden
colour Maruti Omni van to A9 four times. He has
deposed that the last time he gave was on
01.01.2002 and it was not returned on the same
day, as was the case on the earlier occasions,
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but was returned only on 02.01.2002. It is this
van which has been used to take the body of the
deceased away after the murder at the factory
building. The evidence of PW11 and, more
appropriately PW35-Police Constable, clinches
the issue as to its use.
v. The statement of A9 has also led to the
recovery of a Tata Sumo and it stood marked as
MO13. The number of the vehicle is TN04D9657.
PW15 is the Dealer in cars, inter alia. He has
deposed that he knew A9 for 30 years. He
further deposed that A9 went to him for buying
the Tata Sumo and gave advance of Rs.15,000/-
in September, 2001 and sold his Maruti Zen and
took the Sumo. Later, he came, he left the Tata
Sumo saying that it was not auspicious and took
away the car. The Tata Sumo makes its
appearance along with the Ford Escort on
30.12.2001. The link is undeniable.
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vi. A4 has given statement leading to the
recovery of the Ford Escort White Car having
No. TN-10F-5555. It was marked as MO6. It was
entrusted to A3 through A9 by PW10 for the car.
On the basis of statement given by A4, the said
car came to be recovered. We notice that
Justice Arun Mishra has correctly rejected the
contention that since the car stood registered
in the name of another person, and therefore,
it could not be relied upon. It is to be
noticed that the connection of the car with the
crime is that the deceased is brought to the
factory in the Ford Escort car, according to
evidence (PW10).
vii. A15 has given P51-statement pursuant to
which MO10-Hero Honda Motorcycle and the black
colour Reebok shoe (the shoe which the
prosecution alleges was worn by the deceased
and kept in the side pocket of the motorcycle,
were recovered).
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The shoe was marked as MO1. More about the
motorcycle, will be discussed later on.
This shoe has been marked as MO1. There is the
evidence of Pw48. More about this vehicle will
follow in discussion relating to A15.
WHAT THE ACCOMPLICES SAID
10. We think it is appropriate that we should consider
the evidence of PWs 10 and 11. We have already set out
the principles which govern the appreciation of
evidence of accomplices. Proceeding on the basis that
PWs 10 and 11 are accomplices (though the Counsel for
the State has a case that PWs 10 and 11 cannot be
considered as accomplices insofar as it related to
offence under Section 302 of the IPC), we notice the
following.
11. PW10 was examined on 30.10.2003. We are referring
to the date of his deposition only to bear in mind that
this is not a case where the witness is examined after
117
a long gap from the date of crime as the murder is
alleged to have taken place on 01.01.2002.
12. Let us examine what he has stated. He was doing
rice business in Tambaram from 1984 to 1995. From 1995,
he ran a business under the name and style of Valluvar
Travels from 1985 with Uday Kumar (the ninth accused),
his friend. In 1998, he started a wine shop in which
PW11 was also a partner. It was in 1999, the ninth
accused informed that Krishna Pandi-PW34 was running a
vermicelli company in Mudichur. He was facing a loss.
PWs 10 and 11 invested in the venture of Krishna Pandi.
There is reference to the relationship between PW10 and
the ninth accused turning sour. PW10 purchased a Ford
Escort car though in the name of one Ranjit Singh with
whom he had business connections. The registration
number of the car was TN-10F-5555. He speaks about his
reconciliation with Uday Kumar. In 2001, Uday Kumar
approached him and told him that he was to join ADMK
with the help of the A3 for which he had to do certain
works. For the same, he needed some houses. A search
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was mounted for an appropriate house. The third accused
comes upon the scene. PWs 10 and 11, along with Uday
Kumar-A9 and A3, finally, finalise the vermicelli
factory at Mudichur Road. He identified the third
accused. Instructions were given by the third accused
for a screen to be put up on the windows of the factory
building. As ninth accused asked for two cots, PW10
asked for two cots from one Guru, his friend. Chairs
from the house of PW10, fan from the house of ninth
accused and bedpan were kept in the factory by PW10, A9
and PW11. Screen for the windows was put. Third accused
told PW34 to give a weeks’ leave for the company.
Believing that he would get rent, PW10, upon being
asked for his Ford Escort car, sent the car to the
house of the ninth accused. There is reference to what
happened on 05.12.2001. On the said day, he was called
by the ninth accused to come over to the residence of
the third accused. There were two or three other
persons. PWs 10 and 11 followed the ninth accused who
went inside the house. Third accused was telling the
119
persons and the ninth accused that the deceased had to
be brought and some money to be collected from him.
PW10 identifies A4, A6 and A11 as persons who were
present at the residence of A3 and who followed them in
another car. There is reference to the involvement of
A1, A2 and A12. PW10 has identified A5 as the person
who came along with A3, A9 and A1 by his Ford Escort
car. A1 was shown and he was talked about as a VIP, a
very big VIP. PWs 10 and 11 were to get food for him
and to do other works. PW10 has spoken about
Rs.1,10,000/- being given, as requested by Uday KumarA9, as money needed by A3. Money was handed over to A2.
WHAT TRANSPIRED ON 30.12.2001 AS PER VERSION OF PW10 -
THE SALIENT ELEMENTS
13. On the said date, at 08.30 a.m., A9 called him
over phone to his house. PW10 called PW11. A boy
working in his office, dropped him in residence in his
motorcycle and went back. A5 was asked to drop him at
the factory by a bike which was at the residence of A9.
On reaching factory, he received a phone call from A9
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asking him whether he had got the key. He further asked
to handover the cell-phone to PW34-Krishna Pandi. After
the conversation, PW34-Krishna Pandi agreed to handover
the key. He handed over the key to A3 who came by auto.
The key came to be handed over to A5. A3 thereafter sat
as a pillion rider with PW10 and went to the house of
A9. PW10 followed A3 to the upstairs portion. Therein,
A1 and A2 were there. They told A3 that they had
brought the Ex. MLA (deceased) and only the money had
to be collected from him. There is reference to Hotel
Henkala where room was booked for A1. On the same day,
at 05.00 p.m., the Ford Escort car was left in his
office by the driver of A3.
31.12.2001 – THE IMPORTANT FEATURES
14. Udai Kumar-A9 calls PW10 at 08.30 a.m. He was
asked to come to Hotel Henkala. He went there. After
some time, A3 came. A3 told A9 that he needed a Maruti
van. Apparently, A9 went outside and brought sandal
colour Maruti van. A3 took PW10, A9 and A1 in that
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Maruti van and went to the factory. A9 alone got down
and was standing there. One person came from upstairs
and took him (PW10) and A1 upstairs. There were about
five or six persons. The deceased was tied up with the
chair and his eyes were also closed with cloth. He had
been made to sit on the green steel cot which was
provided by them already. He was wearing black pant and
sandal colour t-shirt. Navy blue shoes were lying in
the room somewhere far away from the steel cot. A1
asked A9 to go to his house to get the recorded
cassettes (two in number) and two empty cassettes from
A2. This is besides the tape recorder. A3 approached
PW10 and A9 to get the things. PW10 speaks about the A9
getting Philips two-in-one tape recorder from his house
and two recorded cassettes from A2. Also, two empty
cassettes were purchased from a shop. One person came
from upstairs and A3 told him to remove the cloth tied
around the eyes of the deceased. PW10 speaks about
feeling frightened. A3 came to him and told him that he
suspected only PW10 and his suspicion was that he would
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tell to somebody. A3, it is deposed, threatened PW10
that if he disclosed anything about the matter, he
would actually kill him and his family members. A3
further stated that “we have kidnapped Ex. MLA Balan
itself, you are nothing to me”. He speaks about being
very much frightened. Around 07.30 p.m., on 30.12.2001,
A9 called over phone and asked him to stay in the
hotel.
01.01.2002
15. He went at 10.30 a.m. to the hotel after coming
back from the hotel in the morning from the hotel to
his house. After some time, A3 came there. A3 asked A9
for an ambulance. PW10 and A9 went in search for an
ambulance. Not finding one, and on being told so, A3
told A9 to arrange for one Maruti van and to fix an
Alumax light as fixed in an ambulance. There is
reference to driver Vigi of A3 pointing out that shops
were closed as it was a holiday (being the New Year
Day). By 08.00 p.m., a Maruti van was taken away by two
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persons from the ninth accused. PW10 identifies these
persons as sixth accused and accused-Sampath (A11).
PW10 speaks with PW11 about the ambulance being
required and arranging up of a vehicle like ambulance.
PW10 deposed that both of them suspected that something
was going on in the company. They started at 08.45 p.m.
and reached Mudichur by 09.00 a.m.. The gate was
closed. A6 was standing near the gate. He saw them and
made them go from there. A golden colour Maruti van was
standing there. Because they were scared, they came by
walk. A5 went in a motorbike to the company. The
motorbike went inside and it was standing in the light.
Four persons came from upstairs carrying the body of
the deceased, two holding his legs and two his hands.
PW10 refers to the deceased wearing black colour pant
and sandal colour t-shirt. Body was kept on a slab like
place. There was no movement in the body. The body was
loaded in the van and it started very fast. A5 went on
the motor bike. This, in short, is the account by PW10
about what he saw and what he knows about the incident.
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PW10 identifies A5, A6, A7, A8, A10, A11 and A14 as the
persons whom he saw near the deceased when he was tiedup on the first floor of the factory (this is
apparently on 31.12.2001). He also identified the four
persons who carried the body of the deceased as A6, A7,
A8 and A11.
16. PW10 has this to say in his cross examination:
On 30.12.2001 he did not go to the Vermicilli
factory [this is a point which is also pressed by
counsel for the appellant for the reason that in
his chief examination he had said that he had gone
to the factory on 30.12.2001]. However, it is
pertinent to note that in cross examination itself
PW10 has stated that on 30th at about 8.30 am he
went to get the key, from there he went back at
9.30 am. He did not go thereafter [which makes it
clear that that PW10 indeed did go on 30th] as
deposed by him in his cross examination. He, no
doubt, says that till he was there a person called
M.K. Balan was not brought there. He further says
125
in his cross examination that he had given a cheque
for the room rent for the hotel from which he has
vacated on 02.01.2002. He states that he did not
tell anyone outside about the matter, he had
mentioned the police for the first time what he has
seen on 01.05.2002. It was due to fear he did not
say. He further says that after seeing the Police,
his fear had gone. He further states that he
denies having met Nakkeran Gopal and discussed with
him. He no doubt says that if it is asked whether
he is accurately aware of the incident that had
happened in the factory from 31.12.2001, he did not
know. About 15-20 days before 5.12.2001 he had
seen A3. He saw A4 for the first time on 5.12.2001
at the house of the 3rd accused. He says after
hearing A3 telling the persons available there that
the Ex. MLA M.K. Balan had to be brought and some
money had to be collected from him, it did not
strike that it could be a violent act. He further
says in cross that all the accused were not to
126
known him earlier. He denies having identified A10
and A14 after they were identified by the Police to
him. He says that he had finally shown his house
also. His house was also shown to them as he could
get commission. There is toilet facility in the
Vermicilli factory. (In the re-examination he
states that toilet is in the ground floor. The
significance of this aspect is that a bedpack was
also used when the deceased was kept in the first
floor) He further states that he did not ask
Krishan Pandi (PW34) how long it is to let out and
what is the monthly rent and what is the advance
amount and what is the commission for the same, he
also did not tell him. He does not know how many
workers were working in the factory, he could not
approximately also. He does not have the details
about men and women who are working in the factory.
He was standing at a distance of 50ft. away from
the place of occurrence (apparently on 01.01.2002).
He next says that if it is asked that why it was
127
not informed to PW34 about the incident witnessed
by him when this incident took place, he was not a
partner in the factory but then he says that he
received the interest amount for the amount given
to PW34.
17. It is time to look what PW11, the other accomplice
has deposed. This is for the reason also that there is
an argument that PW10 and PW 11, the two accomplices do
not even corroborate each other.
18. He identifies A9 as the person with whom PW10 was
doing sand quarry business. He states about PW9 and PW
10 conversing with each other at the Polling Booth, A9
telling PW10 that he is going to join the ADMK and
about A3, he is going to arrange for a position for
him. He speaks about the need for some houses, the
hunt for houses and various houses being shown and the
involvement of A3 in this matter. He speaks about
investment which A9 persuaded him and PW10 to make in
the factory run by PW34. A3 told A9 that the factory
128
is the correct place. He is able to identify A3 and
identifies him. The Ford Escort car was obtained from
PW10 on rental basis by A9 and given to A3. On
05.12.2001, A9 informed him and PW10 that A3 has asked
them to go to his house. Three persons were present at
the residence of A3. He identifies them as A4, A6 and
A7. He further states that A3 told A9 that the
deceased had to give money and the same had to be
collected by bringing him. He speaks about A3 going
before them in the Ford Escort Car. He speaks about
A12. He identifies A5 as the person who assisted A1
Senthil Kr. On 30.12.2001, at round 8.30 A.M., PW10
called him and asked him to go to the house of A9. He
went there and saw that PW10 was not there. A9 took him
in Tata Sumo and they were waiting at Mudichur Road
Junction. After half an hour, the Ford Escort car came
and A3 came out of the car and was talking to A9. A9
told him to take A3 by an auto and go to the factory.
PW 10 and A5 was there at the factory. A3 saw him and
asked A5 whether the company is ready? Then he took
129
the company key from PW10 and gave the same to A5.
After about half an hour, A9 called him over phone and
told him to open the gate of the company. The Tata
Sumo came first, followed by Ford Escort and Maruti
Zen. Four persons got down from Ford car. Those four
persons brought the deceased by closing his eyes, mouth
and tying his hands and took him to the first floor.
The deceased was wearing black colour pant, sandalwood
colour t-Shirt and shoes. Three persons came out of
the Zen. A9 came to him and asked him whether he knew
that he is N.K. Balan (deceased) and he also threatened
him that if he discloses the same to anybody A3 will
kill him and his family members. He identified the
four persons who brought the deceased in the Ford
Escort car as A4, A11, A16 and A17. He speaks about
further details, like three more persons coming with
the tiffin parcels and that he could identify them,
viz., A6, A15 and A7. He went to his house. The same
day after PW10 called him over phone and asked him to
go Hotel Henkala. In Room No.207, he saw A9, PW10 and
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A1. He stayed with A1 during that night. The next
day, viz., on 31.12.2001 at 6.00 A.M., he went from the
Hotel where he stayed in the night on 30.12.2001. He
speaks about buying lunch for 10 persons in the
factory. By 12 noon he was asked to buy lunch for 10
persons, BP tablet and headache tablet and hand them
over to A5 in the factory. He bought them the same and
went home (on 1.1.2001), he was called at 10.00 am by
A9 and to get tiffin and he got the lunch for them in
the afternoon. A5 told him that there is no need for
getting dinner in the night and they are going to start
from there and asked him to convey the same to A9.
After 8.00 pm in the night PW 10 called him over phone
and asked him to come to Hotel Henkala… He went there
and PW10 told that they need not to get lunch and PW10
told him that A3 and A9 asked to arrange for a van and
for that he had replied that he cannot do and A9
arranged one van. PW10 told him that something is
going and he is not aware of the same. Then PW10 told
him that let us go and see in the factory. Both of
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them went to the company by the motorcycle. Two
persons were near the gate. Both of them told them
that they have no work there and they can go from
there. Then PW12 left the bike adjacent to the company
and when PW10 crossed the company gate they saw A5
going into the factory. At that time four persons came
from upstairs of the factory carrying N.K. Balan who
was wearing the black colour pant and T-shirt
sandalwood colour and they left him on the floor. They
tied up the deceased with a dhoti brought by A5 and
carried him to the van and the van started from there.
A5 went by motorbike. The van registration number is
TN 22-B-8853 (MO7). The Ford Escort number stated by
him is TN 10-F 5555 (MO6). Maruti van number is TN 02-
Z-99 (MO12) and Tata Sumo number is TN-04-B-9657
(MO13). PW11 speaks about him and PW10 being scared and
they went back home. PW10 told him that he was called
by A3 and told him that if this matter is leaked out
anywhere, he will kill him and his family. This, in
substance is, what PW11 has spoken in his chief
132
examination. No doubt, in cross he states inter alia
as follows:
He has TV in his house. He did not know of
news that deceased was missing was announced on TV.
He has seen that in the paper. He did not see the
deceased on 30.12.2001 at 10.30 A.M. in the upstairs
of the vermicelli company. He has seen the deceased
but he did not have any contact with him. PW10 had
left (MO6)-CAR in the travels for rent. The house
being selected and arrangements in the factory at
Mudichur Road were known to him, A9, A3, PW34 and
Venugopal PW 10 and the arrangement at the factory
was known to PW10 and PW11 alone. He speaks about
the cot being purchased from Nirmala industries on
Shanmugham Road. He, A9 and PW10 has purchased the
same. Three cots were purchased. The cot is of
green colour and he could identify it. He reiterates
that on 5.12.2001 he had been to the house of A3.
The identification marks of the three persons seen
in the home of A3 and age was mentioned during
133
police investigators. He mentions A4, A11 and A17 as
among the four. He also says another person came. He
says he did not remember. In the identification
parade he did not say that he did not tell him that
he has seen three persons in the house of A3-
Manickam. He has identified nine persons at the
time of identification parade. He had only given
the tiffin and meals to the accused in the factory.
He does not know whether on the 1st deceased was
upstairs. He says that we went from there after
9.00 P.M. on the 1st. PW34 did not give the interest
to him in January. Till date he has not given the
interest to him. He knew the accused already. He
saw A3 only on 05.12.2001 for the first time.
Thereafter he had seen him on the 30th. He did not
see him thereafter. A3 was not identified by him
during the identification parade. Police did not
call him to identify any of the accused. He also
did not go. He did not identify (MOI). He denies
it as incorrect that he did not mention about the
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accused Guna either during the police investigation
or before the judicial magistrate. He knows A16
having seen him in the factory. He does not
remember whether he was also of the four persons. He
does not remember two persons who told PW10 and him
at the factory that they do not have any work. He
denied having seen the Nakkeeeran Magazine. He
studied up to Plus 2. He denies as incorrect that
he and PW10 were not asked by anyone to get a house
for them. A9 is a member in the Puratchi Bharatem
Party at state level. He is not a member of ADMK.
A9 has own car. He says it is correct to state that
there is no need of A9 to either believe him or PW10
to do the work. During the police investigation the
identification, colour, height etc. of the deceased
was not asked from him and he had also not stated
about the same. When a person stands outside the
gate of the factory, the incident taking place there
could be seen. During the night there was no light
outside the factory. The police did not take him to
135
show the factory. They did not show him the van
TN22-B-8853 and asked him to identify. They did not
show MO6 also and examine him. Photographs of the
deceased was not shown. The Tata Sumo, Maruti van
car was not shown.
PW34, AN INDEPENDENT WITNESS?
19. It is next necessary to have a look at the
testimony of PW34. PW 34 is none other than the owner
of the factory and as per the prosecution case PW10 and
PW11 came to invest in the business of PW34 when he was
undergoing financial problems. He states, inter alia,
as follows:
In 1999, he approaches A9 owing to some
problems. He accepted PW10 and PW11 as partners.
He has the entire responsibility of the company.
PW10 and PW11 used to come occasionally and go. On
29.11.2001 at 6.00 P.M. PW10 and PW11 asked for
company premises to conduct a meeting. He refused.
They insisted. He locked the articles of the
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company in a room and handed over room in the
upstairs and went away. They asked him not to come
till the meeting was over. On December 5 they told
him the meeting was not over. When looked inside
the office they saw cot, dining table, chair,
pedestal fan. On 10th, PW10 and PW11 brought a
person and introduced him as Poonga Nagar ManickamA3 and told them that he was a big shot. (It is
true that PW10 places the meeting with PW34 as
having taken place earlier.) He was a Secretary at
the same time for two Districts. He was organising
meeting and went immediately. On 30.12.2001, at
08.30 A.M., PW 10 brought a person by name
Balamurugan-A5 and told him that a meeting was
called and asked him (PW34) to vacate the company.
When he told that they have kept semai for drying
and ladies are working and it will go waste, they
told the meeting is set and asked him to contact A9
who said he would compensate the loss for the
semai. PW34 sent the employees and announced leave.
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At 05.00 P.M., he came to the company for
collecting wet semiya with company employees
Chandru, Venu, Driver Karuppia. At that time, PW11
and A5 were standing downstairs. They loaded the
semiya in the van and PW11 and A5 helped them to
gather it. They took the semiya and went away. He
speaks about taking the semiya to Ezhichur and
dried the semiya and sent it to the market. The
employees were asked to come early and on
01.01.2002, the company was on holiday. He called
PW10 on the 1st and he told him to call on the next
day. He came to the company on the 2nd at 11.00
A.M.. His employees Rathnam, Chamundeswan were
there with doors open and lights burning but the
outside gate locked. He immediately went to the
public booth and called PW10 but got PW11. When he
saw the lock, it was merely wound by chain but not
locked. They went upstairs and saw cigarettes, two
case beer bottle and two shoes. The cot was
damaged and there was a bedpan. PW34 poured the
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urine inside it outside. At 12 to 12.30 P.M., a
Maruti Van came and a person came out and asked for
articles lying there. He went upstairs and took
away a cardboard box, shoes kept in a car and asked
if there were anything left behind. He took the
articles that were kept near the wood storing place
in the company kept in a plastic sack. He again
came at 02.00 P.M. and asked that he has been sent
to clean the place. The employee PW34
Chamundeswari admonished him saying that he has
spoilt a place where women are working and sent him
back saying that they will clean it themselves. He
identifies the shoes as MO1 series. He identified
A3, A9, and A5.
In cross examination, inter alia, he states as
follows:
He saw A3 on December 10, 12. He further says
he has not seen the deceased and he did not know
him. On 30.12.2001, at 08.30 A.M., he went to the
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company office. He did not give the key to anyone.
A5 did not allow us to go upstairs and he did not
go upstairs. He says that disappearance of the
deceased had come as news in papers and TV also.
PW10 requested the company premises for meeting and
he has told that it will interfere in the business
and refused him the place for holding the meeting
to which PW10 insisted again. In the records there
was nothing to show that PW10 and PW 11
were shareholders.
YET ANOTHER INDEPENDENT WITNESS PW31
20. In context would be the deposition of a worker of
PW34, Samundeswari examined as PW31. She says, inter
alia, as follows:
PW34 is the proprietor of the company. PW10
and PW11 became partners during 1999 and 16 persons
are working. She was the supervisor. She speaks
about attendance being maintained. The company was
closed for a period of one week from 29.11.2001
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treating as leave. Then they came to the company
on 6th December. They were informed that there were
no meeting convened. On 30th December she did not
go for duty as it was Sunday. On 31st December, they
were asked by PW34 to go to Ezhichur to dry up the
vermicelli and to pack the same and on the 1st
January the company was on leave. On 2nd January,
PW 31, Nagarathinam and PW34 went and saw the
company. The main gate was found locked. While
returning after making a phone call, the owner
found that the gate was not locked and only chain
along with was put. When they went upstairs, the
cot was found smashed and the lights were burning
and the bottles and the bits of cigarette were
found in an ugly scene and about 11.30 A.M. one
person came upstairs saying that he has come to
take a thing from there and he has taken Rebook
shoe marked as MOI and for the second time, the
same person came in a car and taken away something
in a gunny bag. At the same time at about 02.30
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P.M., one person came in a motorcycle and asked
whether it is cleaned and at that time she told him
as to why you are making the place ugly where the
ladies are working. She states further that on 18th
March, one person was brought by the police to the
company and enquired from her and at that time on
seeing that person, told the police that she only
shouted him and that if it is asked her whether she
could identify the said person she could say that
as it is a lapse of more than 2 years, she could
not remember that person. Regarding the cot she
says that cot is in green colour and if she is
asked to identify she could say that she could not
remember. The company owner PW34 declared holiday
on the suggestion of PW10. During police
interrogation she did not say that there was a
bedpan. Her husband Vijay Kumar had acted as
partner, she deposes with PW10. Her husband had
died of heart attack. She had seen the shoe when it
was taken away.
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THE MATERIALS AGAINT THE ACCUSED WHO ARE APPELLANTS
THE MATERIALS AGAINST A3
21. On the basis of his(A3) arrest on 25.3.2002, he
gave a confession statement, which has been recorded in
the presence of PW26. His statement led to the
discovery of Maruti Zen Car bearing No.TN-02-EZ-99.
PW16 has also supported prosecution version and it is
from him ultimately the vehicle came to be seized. P20
is the admissible portion. PW16 has identified A3. The
Maruti car which has been marked MO12, according to
PW16, was taken in November, 2001 by A3 and returned to
PW16 only during February, 2002. The relevant aspect of
the Maruti car is as follows:
PW11 has deposed that on 30.12.2001 at the
factory premises, A9 called him over phone and told
him to open the gate. Then, he deposes about a Tata
Sumo car coming first, followed by Ford Escort Car
and a Maruti zen car. The eyes and mouth of the
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deceased was closed. His hands were tied. The
deceased was taken to the first floor. PW11 has
identified the four persons who brought the
deceased in the position we have described a little
earlier. They are A4, A11, A16 and A17. A5 went in
the zen car which left the company. He had given
further statement on 05.04.2002 wherein he stated
that if taken to his office, he will surrender the
cassette, and bit paper given by A1 from the near
side of his wife’s photograph which are marked as
MO28 and MO33.
22. The next circumstance appearing against the third
accused which corroborates the testimony of PW10 and
PW11, is the circumstance relating to the creation of a
false death certificate of the deceased. In our view,
the prosecution has, indeed, succeeded in proving the
following:
At the instance of A3, PW32 (medical
practitioner) who was known to PW33 was persuaded
144
to issue a false certificate. The certificate was
got issued in the name of a fictional person which
is proved by the evidence of PW38 who has deposed
that no such person (Rajamani Chettiar) who has
been certified to have died by PW32 lived in the
residence as reported. PW36-Office Assistant InCharge of the Burial Ground has deposed that on
02.01.2002, PW19 told him after he (PW36) left,
(apparently on the previous day) a body came and
the Doctor’s Certificate would be given on that
day. The Certificate is P27. The certificate was,
apparently, produced in view of what was requested
by PW19, a licence in the cremation ground, PW12
has become hostile but even PW12 has deposed about
a person being cremated, on 01.01.2002, in the
night and his role along with PW19 in it. The
certificate was procured at the instance of A3. It
was meant to facilitate the cremation of the dead
body on the date of the death. Going by the
testimony of PW1, the deceased was around 52
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years. We say this because an attempt is made to
contend that for a person above 60 years, no
certificate is insisted upon to cremate as deposed
by PW6. It may be that the age is shown as above
60. The circumstance of A3 creating the document
for which purpose A13 was an emissary (A13 has not
filed any appeal), goes a long way to strengthen
the prosecution case. We see no reason at all not
to conclude that the body which was cremated
through PW19 and PW12 on 01.01.2002 was that of
the deceased. Not only would the cremation and
that too under a false name attract the offence
under Section 201 of IPC, which deals with the
destruction of evidence of committing of offence
but it is an important chain in the list of
circumstances which unerringly points to the role
of A3 and others in the crime of murder also. The
circumstance is a vital corroborative link which
establishes the case of not only murder but
relates back to the abduction. This is for the
146
reason that it will be absurd to believe that the
deceased went with the accused voluntarily and
willingly, particularly, when the evidence of PW13
and PW3 are also borne in mind. We stand reminded
that abduction takes place either when there is
force or deceit in causing a person to move from a
place under Section 362 of the IPC. PW10 has
spoken of seeing the deceased tied and blindfolded
in the upstairs portion.
23. This is a case where the accused have not only
carried out a grave crime of murder but they have also
attempted to efface the most important evidence
relating to the same, viz., the corpus delicti. We
reject also the contention that the non-production of
the body is fatal to the prosecution case. The evidence
of PW32, PW33 and PW36 (the Officer of the Corporation
before whom the certificate was produced) and PW38
assumes critical significance. The hand of A3 from the
beginning, i.e., from the selection of the factory,
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arranging of vehicles, confinement and cremation, is
crystal clear and his role in the murder is
established. It is in this context that evidence of
PW10 and PW11 falls to be appreciated. The evidence of
PW34 clearly confirms clinchingly the role of A3 and
sufficiently corroborates PW10 and PW11. We would
arrive at the conclusion even excluding MO28 and MO33
as agreed to by the Counsel for the State.
ACCUSED NO. 4 (A4)
24. A4 was arrested on 09.04.2002. He made a
confessional statement-P34 witnessed by PW39. It led to
the recovery of Ford Escort White Car TN1075554. PW10
deposed that he bought the same car though in the name
of one Ranjit Singh. He further deposes that by the end
of November, 2001, A9 called him over phone and asked
him for the said Ford car. A9 asked for two or three
months. PW10 believing that he will pay the rent, sent
the car to the house of A9. The driver of A3-Viji came
and took that car. The use of the said car is mentioned
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by PW10 thereafter by deposing that on 05.12.2001, A3
went out in the said car which had been given by him
for rent. He also identified A4 as one among the three
persons who followed them on that day. Thereafter, the
said car makes its appearance when he speaks about A3
telling A9 to be at the Woodlands Hotel and going along
with A1 and A2 in the car. He again speaks about A3
coming alone to the Woodlands Hotel by the same car.
Again around 07.00 P.M., A3, A9 and A1 came along with
one more person by the same car. That other person is
none other than A5. Thereafter, he says, on 30.12.2001,
at 05.00 P.M., the driver of A3 had left the car in his
office. In his cross-examination, PW10 has deposed that
he bought the car for Rs.3,60,000/- from one Advocate
Durai Pandi. He, no doubt, admits that it is not in his
name.
25. Passing on to PW11 in connection with the vehicle,
PW11 has noted the Ford Escort car on 30.12.2001 as the
car from which four persons got down and those persons
brought the deceased by closing his eyes and mouth and
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hands being tied and took him to the first floor. He
has marked the Ford Escort Car as MO6. It is this car
which stands recovered on the basis of the statement
given by A4. This is a case based essentially on
circumstantial evidence. The statement made by A4 led
to the discovery of the car in the circumstances which
have already been explained in the evidence of PW10 and
the presence of A4, not only on 05.12.2001 but also on
30.12.2001, has crucial relevance in particular the
presence on 30.12.2001. A4 was present along with three
others and they emerged out of the very same car, viz.,
the Ford Escort car, in which, apparently, the deceased
was brought. The condition of the deceased, viz., his
eyes and mouth being closed and hands being tied and
being taken to the first floor, are matters of moment
in connecting A4 with the gory episode having its
origin in the abduction of the deceased, his illegal
confinement and culminating in his murder and
cremation.
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ACCUSED NO. 5 (A5)
26. PW10 refers to him, in his deposition, as coming
along with A3, A9 and A1 around 07.00 P.M. by the Ford
Escort Car. He has been identified by PW10. This is on
05.12.2001. A3 introduced him to A5 and though they
(PW10 and PW11), provided food to Senthil Kumar-A1, it
was to be served only by A5. His involvement is further
spoken about by PW10 as having occurred on 30.12.2001.
On the said day, PW10 speaks about going to the
residence of A9 on being called by him. A9 asked for
the keys of the factory. A9 asked A5 to drop him in the
factory on a bike. PW10 and A5 went to the factory.
There is further reference to the key being handed over
by PW34 to PW10. The key was handed over by PW10 to A3
who came in the auto. PW10 deposed about the key being
given to A5. On the fateful day, on 01.01.2002, when
the murder took place, PW10 has named A5 as going in a
motorcycle to the company. It went inside and was
standing in the light. A cloth bag was there in the
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bike. The body of the deceased was brought from
upstairs by four persons. PW10 then deposes that a
cloth was taken from the bag brought by A5 and tied
around the body of the deceased like doing for a dead
body. A5 is cited by PW10 as going in his motorcycle.
27. PW11 has also spoken about A3 telling them about
the person. He identified him. He also says that A3
told that A1 is a VIP and only A5 will do everything
for him and that they should not do anything
(apparently directly). He notices presence of A5 along
with PW10 on 30.12.2001 at the factory. A3 asked A5
whether the company is ready. A3 and A5 told that they
were going to the house of A9 and went from there. He
speaks about A5 going by the Zen car on 30.12.2001.
Thereafter, about half-an-hour later, the Tata Sumo car
came. In the same, A5 and three more persons came with
the tiffin parcel. These persons have been identified
as A6, A15 and A7. On 31.12.2001, by 12 Noon, on being
asked by A9, he purchases lunch and medicine and handed
over to A5. On 01.01.2002, A5 told PW11 that there was
152
no need for getting dinner in the night. PW11 has also
seen A5 going into the company. He also speaks about
dhoti brought by A5 used to tie-up the deceased and A5
leaving on a motorcycle. A5, who was arrested on
18.03.2002[the first arrestee in this case], has, in
fact, given statement under which he has identified the
Maruti Omni Van MO9 bearing No. TN-A-7484, the place
(factory) as also the cremation ground. The Maruti Omni
Van-MO9 is the Van which was used for abduction of the
deceased. PW3 has spoken about a person being pushed
into a Maruti Van. The facts discovered based on
statement by A5 are very significant, and hence, most
relevant, not only in revealing his involvement but
unravelling the entire prosecution case. A statement
under Section 27 of the Evidence Act is not only about
the thing as such which is discovered consequent upon
the statement but the knowledge attributable to the
person who makes the statement about the matter,
discovered, based on the statement. The evidence of
PW44 who was a Revenue Inspector and witness to the
153
statement of A5 and identification by A5, helps
establishing his clear link and sufficiently
corroborates PW10 and PW11. Lastly, PW34 has spoken
about the presence of A5 on 30.12.01 and identified
him.
A6, A7, A8 and A11
28. What is the evidence, as regards, these accused/
appellants before us? Taking the evidence of the
accomplices, PW10 has this to say about them – He says
that along with A4, A6 and A11 were present on
05.12.2001 as two out of the three persons present in
the residence of A3. He speaks about A3 telling the
persons and A9 that Balan had to be brought and some
money to be collected from him. He also speaks about
the three persons as A4, A6 and A11, following him,
PW11, A9 in another car. He further speaks about their
involvement when he deposed that on 01.01.2002, A9
asked PW10 to wait at the hotel and he came with a
golden colour Maruti van. By 8 P.M. that Maruti van was
154
taken by two persons from A9. Those two persons have
been identified as A6 and A11. Presence of A6 and his
involvement is further deposed by PW10 when he states
that the 6th accused was standing near the gate of the
factory later on 01.01.2002. PW10 and PW11 were asked
to go away. He speaks about PW10 and PW11 being scared
after the threat by A6. He further identifies A6, A7
and A11 as among the persons who were present near the
deceased when he was tied up in the first floor of the
factory. He also identified A6, A7, A8 and A11 as the
persons who carried the dead body of the deceased. They
go in the van with the body. At this juncture, it is
apposite to notice PW18 deposing that he is the owner
of van bearing No. TN 22-8853. He has deposed to giving
the van to A9 on earlier occasions. More importantly,
he has deposed to it being taken by A9 on 01.01.2002 at
about 10 A.M. and it being returned only on 2.01.2002
and its seizure by the police on 30.03.2002.
29. Turning to PW11, the other accomplice, this is what
he has deposed about the involvement of the accused in
155
question. PW11, for whatever it is worth in law, has
also identified A6 and A11 as two out of the three
persons who were in conversation at the residence of A3
on 05.12.2001. He has also spoken about A3 telling A9
that the deceased had to give some money and it has to
be collected by bringing him. He also speaks about A6
and A11, inter alia, following them in another car. He
has identified A11 as one among the four persons who
brought M.K. Balan in the Ford car on 30.12.2001. He
also identified A6 and A7 as among the persons as two
out of the three persons who came with A5 in the Tata
Sumo car which came again on 30.12.2001.
30. Now let us look at the other evidence available,
pointing to the involvement of the aforesaid accused.
PW21 is a Head constable (Police). He has deposed to be
on night duty on 01.01.2002. He speaks about being
given beat tickets along with PW35. He speaks about a
Maruti Omni van standing in the middle of the road. He
and PW35 went to the van. He asked the occupants what
they were doing at that hour. They told that they were
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celebrating the new year with drinks. Though, on become
suspicious, they searched the van from inside but there
was nothing suspicious inside it. They continued with
their duty. He has proved P10 beat ticket. He has also
identified the accused as A6, A7 and A11. He also
spoken about the identification done by him before the
Magistrate by way of TIP. He has proved P11 - the duty
book.
31. PW35 is the constable referred to by PW21. He also
speaks about being on duty on 01.01.2002. He speaks
about going with PW21 to Melpatti, Ponnappa Street from
24:00 hours (PW19 speaks about the cremation from being
at Melpatti, Ponnapa Mudali Street). He speaks about
finding of Maruti vehicle bearing no. TN-22-B8853 in
Melpatti New Street. He speaks about interacting with
the four persons. The vehicle was standing near
Perambur cemetery and the sodium lamp was burning. He
has proved P28 as his duty book. PW10 is also his beat
book. He has also identified A6, A7, A8 and A11 as the
persons who were present. He has also identified the
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van which he saw as MO7. He has spoken about the
identification done in the TIP.
32. It is relevant to remember that PW10 has identified
A6, A7, A8 and A11 as the persons who carried the dead
body of the deceased on 01.01.2002. It is also to be
borne in mind that PW10 and PW11 have spoken about
their body being loaded in a golden colour Maruti van
which has also been identified by PW10 as MO7 and
bearing the very same registration no. TN 22-B-8853. It
is corroborated by the evidence of PW35 (Police
Constable). The evidence clinchingly points to A6, A7,
A8 and A11 being involved apparently at the behest of
A3 and carrying dead body of the deceased on the
fateful day in the van and their presence near the
place where the deceased came to be cremated. To
overlook the testimony of PW10 and PW11 in a case based
on circumstantial evidence, being about matters which
could not possibly, have been witnessed by any other
witnesses other than the accomplices will be asking for
the impossible except perhaps concocted evidence.
158
33. A6 was arrested on 19.03.2002. He gave P16 which is
the admissible portion of his confession statement
within the meaning of Section 27 of the Evidence Act.
He identified the Maruti omni van bearing no. TN-0343
which was parked in front of the house of PW37 and
seized under P17. The Maruti van itself has been marked
as MO8 but we would exclude the same from consideration
for reasons which we have discussed.
34. A7 was arrested on 20.03.2002. He gave the
admissible portion of confession statement which is
P38. PW42 is a Village Administrative officer who has
witnessed the statement. On the basis of the statement,
the green colour steel cot was seized. It is marked as
MO11. It was produced and seized under P38 which is
also witnessed by PW42. PW34 and PW31 have also spoken
about the cot apart from PW10. The evidence of PW10
shows that when he went upstairs, he found that the
deceased whose eyes were closed was tied with a chain
and he was asked to sit in a green colour steel cot. He
159
has been identified by PW21 and PW35 police officers as
one of the four, present near the spot of cremation.
35. A8 was arrested on 22.03.2002. He gave a confession
statement in the presence of PW23 and another witness,
P14 is the admissible portion. PW35 police constable
has identified him as one of the four found in MO7 van
on 01.012002 near the cremation ground.
36. We have noticed that PW11 has identified A11 as one
of the persons who brought the deceased in the Ford car
to the factory. It is to be remembered that PW11 has
identified the accused in the Identification Parade
conducted by the Judicial Magistrate. That apart, after
arrest, he gave P53-Statement. He has produced the
Philips Stereo Cassette Recorder which was recovered
under P54-Mahazar marked as MO2. To lend assurance to
this circumstance, PW46, working in the Revenue
Department, has been examined. The tape-recorder was
hidden in the house of A11.
37. Moreover, PW21 and PW35, Police Constables, have
deposed to seeing A11 near the graveyard on
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01/02.01.2002. They were standing near MO7. MO7 is the
Van in which the deceased was taken from the factory
after the murder. It is the Golden Colour Maruti Van
bearing No. TN228853. PW11 has, in his deposition,
given the same number in his evidence as the number of
the Van in which the body of the deceased was taken
away from the factory. Therefore, presence of A11, as
noted by PW11, from 30.12.2001 till after the murder
and near the site of the cremation, as noted by
independent witnesses-PW21 and PW35, lend sufficient
assurance to the prosecution case against him. PW10 has
also deposed to identifying A11 as one of the three
persons who were present at the residence of A3 on
05.12.2001. It is on that day A3 said that the deceased
had to be brought and some money had to be collected
from him.
38. It must be remembered that the evidence in this
case establishes that the deceased was indeed cremated
under the name of a fictitious person mentioned in the
death certificate issued by PW32 (the medical
161
practitioner). It is also clear that such certificate
is procured by A3 through PW33. It is clear that A6,
A7, A8 and A11 were clearly involved.
A14
39. With regard to A14, his involvement in the matter
emerges as one of the persons who stood in the upstairs
of the building with the deceased when the deceased was
in the state of illegal confinement. This, no doubt, is
based on the testimony of PW10. No doubt, as far as A14
is concerned, there is no recovery. It is true that
there is no direct evidence that the accused abducted
or murdered the victim. The case, as already noticed,
hinges on circumstantial evidence. We do notice that
A10 has been acquitted by the High Court. A10 himself
was also named by PW10 as present along with A14 at the
time of the illegal confinement. The High Court has, in
paragraph 33, assigned cogent reasons for acquitting
A10, including, inter alia, that PW11 though had
identified A10 in the Test Identification Parade, could
162
not identify him in the Court. The evidence against A14
has been believed in by both the Courts.
A15
40. A15 is the sole appellant in Criminal Appeal No.
828 of 2013.
41. PW3, the witness to prove the abduction has spoken
about a motor cycle following the Omni van. He earlier
deposes that he saw three persons were forcing a person
to get into the van. A15 gave a statement to the police
in the presence of PW44 and another (Mutthu Rekku). The
admissible portion of the statement is P50. As per
PW44, he stated that he will provide the fashion Hero
Honda bearing No. TN-05-C-6475. PW44 says that he
identified the motorcycle parked in front of a compound
of a house at Gandhiji Street, Bharathi Nagar and also
the shoe. PW67 has spoken about recovery of the motor
cycle under P51 Mahazer. The motor cycle is MO10 while
the shoe is MO1. Justice Arun Mishra confirmed his
conviction even after eschewing MO1 shoes. [PW1 the son
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of the deceased deposed that the shoes showed by the
CBCID did not belong to his father]. As regards the
motorcycle, PW10 has deposed that A9 wanted an
ambassador car and a motor cycle. PW10 got the
motorcycle from his friend Akbar which is fashion
vehicle and navy blue in colour and gave it to A9. PW10
asked for return of the motorcycle. He marks the
motorcycle as MO10.
42. As noticed, A15 has stated that he got the
motorcycle from one Akbar. PW48 is the said Akbar. His
name is shown as Shaheed Akbar. In his deposition, he
has stated that he was having a fashion motor bike Hero
Honda but he states that he purchased through
financier. He further states that the Registration No.
TN-04-J-1878 blue colour. He further states that PW10
was known to him well. He used to take his vehicle
often. Last year, during November, 2001, the said Venu
(PW10) apparently, had taken his vehicle and did not
return it. The RC book related with the vehicle is with
the financier. He has produced and marked as P58
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photocopy of the RC of the said motor vehicle. He
deposes that motor bike seen by him which belongs to
him. He further says that the registration number of
the vehicle which he saw, was not in the said motor
bike. It is that motor bike which is marked as MO10. No
doubt, in the cross, he says that he does not know the
wheel base and weight of the bike, inter alia. He has
neither issued any notice to PW10 nor had he filed any
complaint. He says that he has neither repaid any loan
nor received any notice from any financier. MO10 was
marked by PW10 and under the statement under Section 27
the vehicle which is seized actually, has the
registration no. TN-8-6785 whereas the vehicle which
PW48 from whom PW10 took the vehicle for giving it to
A3 as requested by A9, bears no. TN-04-J-1878. The
evidence of PW48 makes it clear that it is the same
vehicle and he does, no doubt, say that the
registration number of the vehicle was not in the said
motorcycle. This means that the vehicle marked as MO10
is, indeed, the vehicle belonging to PW48. He makes it
165
over to PW10. As requested by A9, PW10 handed it over
to A9. It would appear that the registration number, as
was originally seen on the motorcycle, has been
changed. It is the motorcycle which was apparently seen
by PW3 and used at the time of abducting the deceased.
The vehicle has been recovered at the instance of A15.
Even ignoring the shoe which is recovered on the basis
of the statement, we would think that the evidence
sufficiently implicates A15.
A16
43. PW11 has deposed that they were amongst the four
persons who brought the deceased in the Ford car on the
30.12.2001. Moreover, no doubt, in cross, he is unable
to remember A16 which he persevered with the names of
other three. But he does speak of his presence at the
factory. Regarding A16, he was taken into custody, and
on questioning in the presence of PW47 and another
witness, he gave a confessional statement. He stated
that if he is taken, he would produce the black bag,
166
cell phone and knife from the house at Villivakkam. P56
is marked as the admissible portion. On being so taken
to the place at No.110/57, Nehru Nagar, Villivakkam, he
identified a Panasonic Cell Phone, sim card with
charger, one black colour carry bag, nine feet long
yellow colour nylon rope and two chains. This is
besides knife and three locks. Therefore, it cannot be
said that there was no corroboration for the role of
A16. It is quite clear that A16 was amongst the accused
who brought the deceased. His role in the abduction
becomes clear. It is also clear that the deceased is
not only not alive but was undoubtedly done away by way
of murder. Having abducted the deceased, it is clear
that the role of A16, as assessed by the Trial Court
and further accepted by the High Court, does not
require interference.
Accused No.17 (A17)
167
44. A17 is again another accused who was one of the
four persons identified by PW11 who brought the
deceased on 30.12.2001 to the factory. In this case, he
was arrested on 01.07.2002. The principle that
abduction followed by murder raises a presumption that
the abductor was instrumental in murder was rightly
invoked by the Trial Court.
AQUITTAL OF A12, THE INVOKING OF SECTION 109 OF THE IPC
EVEN AGAINST A1 AND A2 – THE ACQUITTAL OF A3 TO A18
UNDER SECTION 120B OF THE IPC
45. In this regard, it is necessary to have a closer
look at the prosecution case. The case of the
prosecution, in substance, is as follows:
The first and second accused were close
associates. The twelfth accused is the wife of
the second accused. The third accused belongs
to ADMK party. The other accused except the
twelfth accused, were all the henchmen of the
third accused. During the month of November
2001, at the instance of the first accused, the
168
twelfth accused had spoken to the third accused
over phone posing herself as Sasikala (a leader
of the ADMK party). The twelfth accused told
the third accused that she had entrusted a work
to the first accused for which the third
accused was to help him on the same day
evening. A1 to A3 conspired and planned as to
how to kidnap the deceased and to take money
from him. As per their plan on 30.12.2001, the
deceased came to be kidnapped (it must be
abducted). He was taken to the factory owned by
PW34, illegally detained; was tied with the
rope and iron chain in a cot. They threatened
him to give Rs. 16 crores and the deceased
refused to give the same. He was asked to tell
what is his property, and thereafter on
01.01.2002, the twelfth accused, spoke over
phone in the voice of Sasikala to the third
accused saying that if it is possible to get
the money or else finish the matter and to meet
169
her with the first accused and the rest of the
matter would be informed by the first accused
himself and accordingly what was stated by him
was recorded in a tape recorder. The accused on
the same day evening at about 09 P.M., by
strangulation, murdered the deceased and to
screen the crime, the accused had taken the
body in a vehicle and cremated the body for
which purpose a false death certificate was
brought from PW32.
THE ACQUITTAL OF A12 (Accused No.12)
46. It must be remembered that A12 came to be charged
under Sections 419, 420 and 387 IPC read with 109 of
the IPC. There is also a charge under Section 120B of
the IPC against her, as already noticed by us. The
Trial Court discusses the case against A-12 in the
following manner inter alia:
170
It is found that the twelfth accused was
an Anglo-Indian lady. On a perusal of P65 which
is the confessional statement given by her
under Section 164 of The Code of Criminal
Procedure, 1973 (hereinafter referred to as
‘the CrPC’, for short), the Court found that
anyone would come to the conclusion that she
was living as per the Indian culture. She is a
mother of twins and growing them well. The
second accused is her husband. The second
accused, as per P65 statement, was suffering a
loss and facing financial problems. The second
accused fell into the cunning trap of first
accused. The second accused forced the twelfth
accused to fall into the cunning trap of the
first accused. The first and twelfth accused
got married out of their love affair. The
marriage took place at a temple as per Hindu
Rites and Customs. Initially, when first
accused asked twelfth accused to talk like
171
Sasikala, she refused. Then the twelfth accused
did not talk over phone thereafter. The first
accused pushed the second accused into his
cunning trap and on account of that the twelfth
accused was convinced by the second accused and
she has talked over cell phone to the third
accused as if Sasikala talked to him. There was
a threat by the first accused to the twelfth
accused. A2 forced his wife to act and to fall
into the cunning trap. The Trial Court further
goes on to state that normally in foreign
countries, it would be commonly seen that while
the husband is committing mistakes and
misdeeds, the wife would leave her husband and
choose anyone as her husband of her choice as
that of changing clothes every day. The Trial
Court further finds that it is not the State in
our country. When the husband is doing any
wrong deeds, the wife would mend her husband in
some way or the other and when the wife is
172
trying to mend her husband and she is forced to
do the same by her husband, she would do it as
what her husband is asking her to do so and she
thinks that her husband is as God and thereby
she is committing such mistakes. The Trial
Court goes on to hold that the twelfth accused
that if she told anything about her husband, he
would be taken by the Police. As a result of
that she had been suffering and on account of
the fact that she followed the Tamil culture,
she did not whisper anything about her husband.
It is clearly seen that the Court goes on to
hold that A12 did not do anything to attract
the offence under Section 34 with the intention
or motive and that she did not feel that she
had done anything wrong and she was doing
anything only as to what was stated by her
husband and then she has been arrayed as A12.
The Court goes on to find that she cannot be
held guilty under the fourth charge which is
173
framed under Sections 419, 420 and 387 read
with Section 109 of the IPC. However, the Court
proceeds to find accused Nos. 1 and 2 had
committed offences under Sections 419 and 420
of the IPC.
47. A12 was not labouring under any disability. We may
have our reservation about exonerating A12 on the
reasoning that as it was perceived to be a part of the
duty of the wife in the Indian culture to obey her
husband even when the demand of the husband is to
commit a criminal act. We notice, however, that not
only A12 was acquitted by the Trial Court but the
appeal by the State against her acquittal has been
dismissed by the High Court. The State has also not
challenged her acquittal before this Court. No doubt
A12 would be criminally liable for only those acts done
with the requisite mens rea. Hence, we say no more.
48. What is, however, important is that it is not a
case where the Court has not believed the version of
174
the prosecution that the twelfth accused did make the
calls posing herself as Sasikala.
49. It is true that arguments have been addressed that
there is no evidence to show that A12 knew the voice of
Sasikala and contention is seen raised in Section 313
CrPC Statement of A3 that A3 knew the voice of
Sasikala. The prosecution would have to prove the
negative if it is called upon to prove that A3 did not
know the voice of Sasikala. Though it is the duty of
the prosecution to prove the case, it may not extend to
holding that a matter which could be proved by the
defence as something within his knowledge, the accused
can sit tight. Further, the case of the prosecution
must, at any rate, be judged with reference to the
actions of A3 and the other accused who are described
as his henchmen. The wealth of evidence, extending even
to A3, ‘procuring’ a totally false death certificate,
is formidable. It should be noted that the first charge
was essentially framed that A1 to A3 had conspired. A1
and A2 have accepted the verdict and we are not called
175
upon to judge the correctness of their conviction under
Section 120B. It may be true that, though, there is a
charge against all the accused under Section 120B of
the IPC, except A1 and A2, all the other accused stand
acquitted under Section 120B of the IPC.
50. The question would, therefore, arise as to what is
the effect of acquittal of the appellants before us
under Section 120B. We are primarily concerned with
their conviction under Section 302 besides Sections
387, 365 read with Section 109 of the IPC and Sections
364 and 201 of the IPC. The fact that the appellants
have been acquitted under Section 120B will not, in our
view, extricate them from criminal liability for their
acts which would constitute substantive offences under
Sections 302, 347 and 387 of the IPC.
A DEEPER GLANCE AT THE CHARGES; THE EFFECT OF ACQUITTAL
OF A12
51. The first charge is to the effect that A1, A2 and
A3 conspired in November, 2001 to kidnap the deceased
176
and to extract money. It was further agreed to murder
him in case he refuses to pay money. Based on the said
conspiracy, on 30.12.2001 early morning, he was
kidnaped, detained at the factory and murdered on
01.01.2002. Thereby a charge under Section 120B of the
IPC was framed against A1 to A18. The second charge is
about actual kidnapping (it must be understood as
abducting). The abduction is alleged to be done by A4,
A7, A10, A11, A14, A15, A16 and A17 in a Maruti Van
bearing Registration No. TNA7484. A15 went in a Hero
Honda Motorcycle to show the route. The deceased was
kept at the factory belonging to PW34. The aforesaid
accused were charged under Section 365 of the IPC. For
abetment of the said offences, A1 to A3, A5, A6, A8, A9
and A13 to A18 were charged under Section 365 of the
IPC read with Section 109 of the IPC for going in a car
bearing No. TN10F5555. All the accused, except A12 and
A13, were charged under Section 387 for tying the
deceased with iron chain and rope in a cot and he was
threatened to part with Rs. 16 crores or else execute
177
the documents in regard to his properties. The fourth
charge is to the effect that in order to fulfil such
conspiracy, and in pursuance to the same, at the
instance and the instigation of A1 and A2, A12 spoke to
A3 in the voice of Sashikala uttering the words, if
possible, to get the amount or else close him and come
along with A1 and meet her-A12. Charges were
accordingly framed against A12 under Section 419, 420
and 387 of the IPC read with Section 109 of the IPC.
The fifth charge was in order to fulfil the object of
the said conspiracy, consequent upon the said
occurrence, on 01.01.2002, A3, A4, A6 to A8, A10, A11
and A14 to A18 committed the murder of the deceased by
tying a rope around the neck and tightening it.
Likewise, A1, A2, A5, A9, A12 and A13 were charged
under Section 302 of the IPC read with Section 109 of
the IPC for abetment of murder. There is a charge under
Sections 347 and 364 of the IPC for kidnapping against
A3 to A11 and A13 to A18 and A1, A2 and A12 were
charged, with the aid of Section 109 of the IPC, under
178
Sections 347 and 364 of the IPC. Charge was also framed
against A8, A10, A11 and A13 to A18 under Section 201
of the IPC for cremation of the body and getting the
false certificate as if one Rajamani Chettiar had died
due to heart ailment.
52. There is the argument addressed before us that the
effect of the acquittal of the appellants under Section
120B of the IPC would be that their conviction under
Section 302 of the IPC and other offences cannot be
sustained. As we have noted, the charge under Section
120B of the IPC is based on the conspiracy hatched
between A1 to A3. No doubt, the charges laid against A1
to A18 under Section 120B of the IPC, is essentially
based on the conspiracy between A1 to A3. It is to be
noted, however, the charge under Section 302 of the IPC
is against A3, A4, A6 to A8, A10, A11 and A14 to A18.
It was A1, A2, A5, A9, A12 and A13, who were charged
under Section 302 of the IPC read with Section 109 of
the IPC.
179
53. We agree that for a charge under Section 109 of the
IPC, a minimum of two persons are required. There can
be any number of accused charged with the aid of
Section 109 of the IPC. In order that there is
abetment, it is indispensable also that there is a
person who abets another. To take an example, a person
shoots with his gun on being intentionally aided or
instigated in doing so by another. The latter would be
guilty under Section 109 of the IPC along with the
person who actually carried out the murder by shooting.
Thus, there is a principal player and the abettor. The
principal player would be guilty for the acts or
omissions which amount to offences under the law. The
abettor though does not trigger the gun, if we may use
the expression, “is the moving force behind it and
becomes liable as such”.
54. In this case, the Trial Court has proceeded to find
the appellants (except A5) guilty of the fifth charge
under Section 302 IPC whereas the A1 and A2 have been
found guilty of the charge of conspiracy under Section
180
120B of the IPC. In other words, the idea to commit the
offences came into being in the minds of A1 and A2. The
other players have been roped in on the basis of their
acts which was in tune with the conspiracy hatched by
A1 and A2. The acquittal of A12, who has been charged
under Section 120B of the IPC and also for offences
under Sections 419, 420 and 387 of the IPC read with
Section 109 of the IPC would not detract from the
criminality of the acts committed by the other accused
and, in the facts of this case, we would think that
there is no illegality involved in convicting the
appellants in the manner done under Section 302 of the
IPC. The Trial Court has found that the plan was the
brainchild essentially of A1 and A2
55. . We have noticed that the trial Court has
essentially proceeded on the basis that the appellants
were except A5, charged under Section 302 under the 5th
charge were guilty of the said charge (See paragraph167 for the discussion). We have referred to the
paragraphs in the judgment of the trial court wherein
181
the trial court has found A3, A4, A6, A7, A8, A9, A10,
A11, A14, A15, A16 and A17 guilty under section 302
IPC. It must be noticed that it is without invoking
Section 109 of the IPC. However, it so happened, that
in the initial portion of the judgment of the trial
Court it is mentioned that Section 109 was also invoked
along with Section 302 which is inconsistent with the
actual charge which was adverted to and findings by the
trial Court. It is on this basis apparently that the
High Court and this Court also proceeded in the matter.
This inconsistency must, in our view, be resolved by
holding that the finding is to be understood as one in
 terms of the 5th charge as discussed from paragraph 167
onwards of the judgment of the trial Court. We would
proceed to hold further that if it is so understood
then the criticism levelled that even A1 and A2 are
convicted with the aid of Section 109 and there would
be no principal player would not hold good. We must
appreciate that the first charge is that a conspiracy
was woven between accused No.1, 2 and 3 within the
182
meaning of Section 120B. It has not been found
acceptable to the trial Court and only A1 and A2 are
found guilty under Section 120B of the IPC. The
acquittal of A12 as we have noticed, would not deflect
from the factum of the conspiracy between A1 and A2. So
also, the acquittal of A3 in this regard. We have also
touched upon the provisions of explanation 5 to the
Section 108 of the IPC. We further notice that A1 and
A2 have been convicted under Section 302 read with
Section 109. It is to be noticed that accused 1 and 2
have been held guilty under Section 120B. It is
necessary to notice Section 120B.
“120B. Punishment of criminal conspiracy.
—
(1) Whoever is a party to a criminal
conspiracy to commit an offence punishable
with death,
2[imprisonment for life] or rigorous
imprisonment for a term of two years or
upwards, shall, where no express provision
is made in this Code for the punishment of
such a conspiracy, be punished in the same
manner as if he had abetted such offence.
(2) Whoever is a party to a criminal
conspiracy other than a criminal
conspiracy to commit an offence punishable
183
as aforesaid shall be punished with
imprisonment of either description for a
term not exceeding six months, or with
fine or with both.”
(Emphasis supplied)
56. This means that since accused 1 and 2 are held
guilty under Section 120B of the IPC to commit the
murder of the deceased, they are to be punished as if
they have abetted the said offence. The judgment of
the trial Court is to be understood in the said vein.
It is true that abetment by conspiracy is only one form
of abetment. There can be alternate charges. There can
be abetment by instigation and intentional acting even
when there is no conspiracy and, therefore, no abetment
by conspiracy. The fifth charge against A1, A2, A5, A9,
A12 and A13 would be in the form of an alternate
charge. We say this as A5 (Appellant before us) in
Criminal Appeal No. 2008 of 2017 is charged and found
guilty of murder under Section 302 of the IPC read with
Section 109 of the IPC. The role of A5, particularly,
having regard to the statement under Section 27 of the
Evidence Act, leading to recovery of the Van, the
184
discovery of the site of the factory and the cremation
ground besides other evidence, cannot be ignored. We
have no hesitation in repelling the contention of the
appellants on this ground. It is clear that their
acquittal under Section 120B of the IPC will not impact
their conviction under the other provisions.
CERTAIN CONTENTIONS OF A6
57. PW21 and PW35 have identified A6 in the Test
Identification Parade. The contention that there would
be possibility of these witnesses being seen before the
Parade does not appeal to us. The presence of the Omni
Van and A6 besides 3 others on the very date on which
murder was committed and near the site of cremation and
the fact of cremation of the body being done, is
certainly a very important circumstance and not to be
ignored as contended. The fact that PW19 has not found
it possible to remember A6 though he has identified him
in the Test Identification Parade before the Magistrate
cannot lead to the obliteration of the evidence
185
relating to the cremation on 01.01.2002 and about 8
persons coming there. The fact that PW 19 has stated
that the person identified in MO14 photograph was the
person cremated is not liable to be brushed aside. We
should also not be oblivious to the principle that in a
case of this nature, the total effect of the
circumstances, must be borne in mind. It must be safe
to believe the accomplice evidence based on other
materials available. We find the evidence of PW10 and
PW11 credible and the presence and role attributable to
A6 cannot be brushed aside. The presence of A6 spoken
to by the accomplices on 05.12.2001, 30.12.2001 and,
particularly, on 01.01.2002 on which last day in
carrying the dead body in the van which is later
identified by the police officer at a spot near the
cremation ground is certainly a vital circumstance
which cannot be brushed aside. The role of A6 in the
illegal confinement appears to be established. No
doubt there is recovery of MO8 which is attacked on the
score that PW 24 “has identified A8 as A6”. We have
186
dealt with it elsewhere and shall not be detained by
it.
ABDUCTION, ILLEGAL CONFINEMENT, MURDER AND CREMATION IN
FICTITIOUS NAME
58. It is clear that the deceased was abducted on
30.12.2001. It is also established that he was
confined illegally at the upstairs portion of the
factory at Moudihur owned by PW34. It is clear from
the evidence that it was the body of the deceased which
was cremated and a fictitious name was used and a
certificate issued at the instance of A3(P27) which
circumstance is clinching in establishing the
prosecution case. As far as the murder is concerned,
there is no direct evidence. There is no direct
evidence that deceased is murdered by strangulating
him. However, it is equally true that on the basis of
recovery made at the instance of A16 a nylon rope and
chain was recovered which undoubtedly strengthens the
prosecution case. There cannot be medical evidence
187
relating to murder in a case where the body stood
cremated. We have no hesitation in ignoring the
evidence relating to recovery of certain parts of the
body of the deceased but that is not sufficient for the
accused to persuade us to throw out the prosecution
case. A carefully thought out criminal plan has led to
the cruel snuffing out of precious life. The players
thought it through meticulously by destroying the
corpus delicti by cremation.
59. The abduction followed by murder in appropriate
cases can enable a court to presume that the abductor
is the murderer. Now the principle is that after
abduction, the abductor would be in a position to
explain what happened to his victim and if he failed to
do so, it is only natural and logical that an
irresistible inference may be drawn that he has done
away with the hapless victim. Section 106 of the
Evidence Act would come to the assistance of the
prosecution. In this regard it is necessary to look at
188
what this Court has laid down. In State of W.B. v. Mir
 Mohamad Omar27 this Court held as follows:
“13. Section 364 IPC says, whoever abducts
any person “in order that such person may
be murdered or may be so disposed of as to
be put in danger of being murdered” he
commits the offence punishable under the
section. So the important task of the
prosecution was to demonstrate that
abduction of Mahesh was for murdering him.
Even if the murder did not take place, the
offence would be complete if the abduction
was completed with the said objective.
Conversely, if there was no such objective
when the abduction was perpetrated, but
later the abductors murdered the victim,
Section 364 IPC would not be attracted,
though in such a case the court may have
to consider whether the offence of
culpable homicide (amounting to or not
amounting to murder) was committed.”
In this case the trial Court has convicted the
appellants under Section 364 IPC. This is apart from
also convicting them either under Section 365 or under
Section 365 read with Section 109 as already discussed.
This Court in a later judgment reported in AIR 2001
SC 1436 Sucha Singh v. State of Punjab turned down the
request of the appellant to reconsider the ratio laid
27 (2000) 8 SCC 382
189
down in State of W.B. V. Mir Mohd. Omar (supra). In
the said case, the conviction appears to have been only
under Section 302 though read with Section 34 of the
IPC. It is pertinent to note what this Court held
speaking through Justice K.T. Thomas:
“19. We pointed out that Section 106 of
the Evidence Act is not intended to
relieve the prosecution of its burden to
prove the guilt of the accused beyond
reasonable doubt, but the section would
apply to cases where the prosecution has
succeeded in proving facts for which a
reasonable inference can be drawn
regarding the existence of certain other
facts, unless the accused by virtue of
special knowledge regarding such facts
failed to offer any explanation which
might drive the court to draw a
different inference.
20. We have seriously bestowed our
consideration on the arguments addressed
by the learned Senior Counsel. We only
reiterate the legal principle adumbrated
in State of W.B. v. Mir Mohd.
Omar [(2000) 8 SCC 382 : 2000 SCC (Cri)
1516] that when more persons than one
have abducted the victim, who is later
murdered, it is within the legal
province of the court to justifiably
draw a presumption depending on the
190
factual situation, that all the
abductors are responsible for the
murder. Section 34 IPC could be invoked
for the aid to that end, unless any
particular abductor satisfies the court
with his explanation as to what else he
did with the victim subsequently, i.e.,
whether he left his associates en route
or whether he dissuaded others from
doing the extreme act etc. etc.
21. We are mindful of what is frequently
happening during these days. Persons are
kidnapped in the sight of others and are
forcibly taken out of the sight of all
others and later the kidnapped are
killed. If a legal principle is to be
laid down that for the murder of such
kidnapped there should necessarily be
independent evidence apart from the
circumstances enumerated above, we would
be providing a safe jurisprudence for
protecting such criminal activities.
India cannot now afford to lay down any
such legal principle insulating the
marauders of their activities of killing
kidnapped innocents outside the ken of
others.”
60. We would think that the aforesaid principle would
also apply to those persons who illegally confine the
person who stands abducted even if there is no evidence
191
that they have themselves carried out the abduction.
Section 387 is heightened form of extortion in which
the victim is put in the fear of death or grievous
hurt. Section 347 involves wrongful confinement of a
person for the purpose of committing extortion. The
appellants have been convicted under Sections 347 and
387 of the IPC. This is not an inexorable rule but to
be applied based on the factual matrix presented before
the court. Where abduction is followed by illegal
confinement and still later by death, the inference
becomes overwhelming that the victim died at the hands
of those who abducted/confined him. Nobody has a case
that the deceased died a natural death. In State of
W.B. (supra) therein, the Court, inter alia, held as
follows:
“34. When it is proved to the
satisfaction of the Court that Mahesh was
abducted by the accused and they took him
out of that area, the accused alone knew
what happened to him until he was with
them. If he was found murdered within a
short time after the abduction the
permitted reasoning process would enable
the Court to draw the presumption that the
accused have murdered him. Such inference
192
can be disrupted if the accused would tell
the Court what else happened to Mahesh at
least until he was in their custody.
35. During arguments we put a question
to learned Senior Counsel for the
respondents based on a hypothetical
illustration. If a boy is kidnapped from
the lawful custody of his guardian in the
sight of his people and the kidnappers
disappeared with the prey, what would be
the normal inference if the mangled dead
body of the boy is recovered within a
couple of hours from elsewhere. The query
was made whether upon proof of the above
facts an inference could be drawn that the
kidnappers would have killed the boy.
Learned Senior Counsel finally conceded
that in such a case the inference is
reasonably certain that the boy was killed
by the kidnappers unless they explain
otherwise.
36. In this context we may profitably
utilise the legal principle embodied in
Section 106 of the Evidence Act which
reads as follows: “When any fact is
especially within the knowledge of any
person, the burden of proving that fact is
upon him.
37. The section is not intended to
relieve the prosecution of its burden to
prove the guilt of the accused beyond
reasonable doubt. But the section would
apply to cases where the prosecution has
succeeded in proving facts from which a
reasonable inference can be drawn
regarding the existence of certain other
facts, unless the accused by virtue of his
193
special knowledge regarding such facts,
failed to offer any explanation which
might drive the court to draw a different
inference.”
61. The deceased was brought in a Ford Escort car.
He was brought by A4, A11, A16 and A17. It is to be
remembered that the case of the prosecution is that
except A12, A4 to A18 were the henchmen of A3. We have
referred to the evidence against A6, A11 and A16.
There are material other than the deposition of PW11.
We hold that the accomplices are credible witnesses
when the whole circumstances are borne in mind. Their
evidence may not be immaculate in character. By their
very nature, that is being accomplices, any such claim
would be incongruous. But the test is whether it is
safe to convict the accused believing such witnesses.
We are of the view that as regards the crime and the
accused, their testimony brings home the truth, as
regards accused who are appellants before us. There is
no motive attributed to PW10 and PW11 to falsely
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implicate. The presumption of murder was rightly
drawn.
62. The role of A15 is clear who was not only been
referred to in the accomplice evidence but corroborates
his link in the abduction with the recovery of
motorcycle at his instance. It has rightfully earned
him conviction under Section 365 IPC. There were two
cars apart from the Ford Escort on 30.12.2001 at the
site of the illegal confinement. From the Maruti Zen,
three persons emerged as witnessed by PW11. It is true
that PW11 has not identified them. That apart there was
also a Tata Sumo, PW11 no doubt identified A5 and A7
apart from A15 as the persons who came back on
30.12.2001 with tiffin after leaving the factory.
63. The trial Court has convicted A4, A11, A15, A16
and A17 under Section 365 which in our view is
unassailable in regard to these accused who are also
appellants before us. We do not see any error in the
court drawing the presumption that they are also guilty
of murdering the deceased.
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64. PW3, it must be remembered has spoken of three
men pushing another into a van on 30.12.2001. The van
moved and it was followed by a motorcycle. It must be
remembered that A15 gave a statement leading to the
recovery of a motorcycle. The evidence is relied by
the two courts and we see no reason to take a different
view.
65. As far as A3, A5, A6 and A8 are concerned, they
stand convicted under Section 365 read with Section
109. Abetting is to be understood in the context of
their acting on the conspiracy which stood proved
against A1 and A2. No doubt, abetting also takes place
when there is instigation or intentional aiding. The
role of A3 looms large. It is clear that he organised
the whole thing and it commenced with the search for an
appropriate house where the victim could be confined
after the abduction. His role along with his men in
carrying out the crime culminating in the cremation
under fictitious name of the abducted person is clear.
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Not only there is evidence of PW10 and PW11 but other
evidence which includes PW32, PW33, PW36 and PW8.
66. As far as A7 and A14 are concerned, they have also
been convicted under Section 365 and also under Section
364. The involvement of A7 is clear. He makes his
maiden
appearance in the accomplice evidence as early as on
05.12.2001. PW10 has witnessed him standing along with
certain other accused by the side of the deceased who
was then clearly in the state of illegal confinement.
He further establishes his complicity by bringing down
the body of the deceased on 01.01.2002 along with three
others. His role is also corroborated by the testimony
of PW21 and PW35, Police officers.
67. A7 and A14 we would think ought to have been
convicted under Section 365 read with Section 109 of
the IPC. We notice that A3, A5, A6 and A8 stood
convicted under Section 365 read with Section 109. We
notice however that the charge as against A7 and A14
was under Section 365. We further notice the charge as
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against A14 is concerned is also under Section 365 read
with Section 109 of the IPC. As already noticed all the
appellants have been convicted also under Section 364
of IPC.
68. In this connection as regards the lack of a charge
or defect in a charge is concerned, it is one which is
essentially intertwined with the question of prejudice
to the accused. See in this regard the judgment of
this Court in Willie (William) Slaney v. State of
Madhya Pradesh AIR 1956 SC 116. We do not think that
prejudice is caused in this regard in the facts.
69. It must be noticed that the evidence in this case
no doubt through the mouth of PW10 and PW11 who alone
have witnessed what truly happened would establish that
on 31.12.2001, PW10 saw A5, A6, A7, A8, A11 and A14
when he saw the deceased who was at that time tied up
on the first floor. We notice indeed that A10 has been
acquitted by the High Court, for which reason, stands
given by the High Court. Thus A5, A6, A7, A8, A11 and
A14 are persons who can be and have also been convicted
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in connection with the illegal confinement of the
deceased.
70. A4, A7, A11, A14, A15, A16 and A17 are persons who
have been found guilty under Section 365 of the IPC.
A3, A5, A6 and A8 stand convicted under Section 365 of
the IPC with the aid of Section 109 of IPC. All of
them have also been convicted under Section 364 of the
IPC. In this regard there is a dichotomy involved.
The law attaches criminality to the act or omission by
a person. Another person may become liable as an
abettor, a person who has conspired and thus liable
under Section 120B, a person who has shared a common
object and thus become vicariously liable and if there
be 5 or more persons under Section 141 read with
Section 149 or if the principle of vicarious liability
embedded in Section 34 of the IPC is attracted. In
other words, for a conviction under Section 364 actual
abduction is necessary. A person could no doubt be
liable under Section 364 read with Section 34 or under
Section 364 read with Section 149 or under Section 364
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read with Section 109 or if he is found guilty under
Section 120B. In this case there is no scope for
either 120B or 149. However just as they have been
found guilty under Section 365 we would support the
conviction under Section 364 in the same manner namely
the abduction within the meaning of Section 364. The
abduction is alleged to have been taken place on
30.12.2001. Be it remembered, that essence of abduction
is forced movement, inter alia, from any place. The
offence would be committed by any one who effects such
abduction at any or all points of the route. We have
already noticed that in a given case, an abduction may
attract both sections 364 and 365. The distinguishing
feature between the two kinds of abduction, is the
difference in the intent with which the abduction,
inter alia (as Sections 364 and 365 also deal with
kidnapping), is carried out. But so far as the
intention attracts both provisions in a given case,
conviction under both sections is not impermissible.
However, when some of the appellants are convicted
200
under Section 365 simpliciter and others are convicted
under Section 365 read with Section 109, then the
position of those accused/ appellants in regard to
conviction under Section 364 must also be the same.
However, this difference in our approach in the matter
of conviction under Section 364, cannot advance the
case of the appellants, as abduction whether it is with
the aid of Section 109 or which is under Section 364
simpliciter, enables the Court to raise the presumption
of murder, in the absence of any explanation offered
within the meaning of Section 106 of the Evidence Act.
In other words, while we would find A4, A11, A15, A16
and A17 guilty under Section 364 which is already found
by the courts below, we would support the conviction
under Section 364 of other appellants on the basis that
they have been actively aided the abduction. In other
words they would be guilty under Section 364 read with
Section 109 IPC. Also as far as A5, A6, A7, A8, A11
and A14 are concerned, there is the evidence of PW10
that when he saw the deceased in a clear state of
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wrongful confinement, as he was found tied on the first
floor of the factory, A5, A6, A7, A8, A11 and A14 were
present. They have also been convicted under Sections
347 and 387 of the IPC. Also, in fact, we have already
noted that on 30.12.2001, PW11 has deposed about three
cars out of which the deceased emerged out of one of
them, viz., the Ford Escort. A4, A11, A16 and A17 have
been referred in the evidence of PW 11 as emerging out
of the car along with the deceased but it is quite
clear that there were more persons than A4, A11, A16
and A17 who were involved in the abduction. In this
regard it is profitable to remember that PW3 has
witnessed three persons pushing another into a Maruti
Van early in the morning on 30.12.2001. No doubt there
is also a man on the Motorcycle. Within hours when he
is brought to the factory building, he comes out of a
Ford Escort. There were two other cars which
accompanied it. We must bear in mind that under
Section 362 of the IPC, abduction has been defined,
inter alia, as compelling a person to go from any
202
place. It, no doubt, also includes, such movement
procured by deceitful means. To make it more clear, if
we see the plot unravelling, viz., the abduction, the
illegal confinement, the death of the deceased and his
subsequent cremation, the role of A3, A5, A6, A7, A8
and A14 in aiding the abduction, appears to be made
out. It is also clear that A5, A6, A7, A8, A11 and A14
were involved in the wrongful confinement of the
deceased. We, no doubt, noticed that as far as A14 is
concerned, there is no recovery, as such, effected from
him under Section 27 of the Evidence Act and there is
essentially the evidence of PW10, as aforesaid. The
same is position about A17, whose involvement has been
referred to by PW11, the other accomplice. We, however,
find that that the accomplice witnesses, who have been
relied upon by two courts, are to be treated as
credible witnesses and, even in the absence of
corroborative evidence, in the facts and circumstances
of this case, we see no reason to disturb that
conviction. If that is so, even in the absence of any
203
direct evidence relating to murder, the presumption of
murder, being committed by the appellants before us,
would apply. In fact, the courts below have drawn a
presumption about murder being committed. This is a
presumption which cannot be said to be drawn without
any basis. Having regard to the facts and circumstances
before us, we are of the view that it cannot be
contended that no case is made out against the
appellants.
71. Applications for withdrawal of Criminal Appeal
No.2007/2017 and Criminal Appeal No.2009 of 2017 are
allowed. Criminal Appeals 2007 of 2017 and 2009 of
2017 are dismissed as withdrawn. Rest of the Criminal
Appeals are dismissed. The bail bonds of the
appellants who have been released on bail under orders
of this Court shall stand cancelled and they shall
surrender within three weeks to serve their sentences.
………………………………………………………J.
[ROHINTON FALI NARIMAN]
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………………………………………………………J.
 [K.M. JOSEPH]
………………………………………………………J.
 [V. RAMASUBRAMANIAN]
NEW DELHI;
JUNE 03, 2020.
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