REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 403 OF 2010
SOMASUNDARAM @ SOMU ………… APPELLANT
Vs.
STATE REP. BY DY. COMM. OF POLICE ………… RESPONDENT
WITH
Criminal Appeal No. 827 of 2013
and
Criminal Appeal No. 828 of 2013
J U D G M E N T
V. GOPALA GOWDA, J.
The present appeals arise out of the common impugned judgment and
order dated 06.10.2007 in Criminal Appeal Nos. 698, 716 and 781 of 2004 and
Criminal Appeal No. 685 of 2005 passed by the High Court of Judicature at
Madras, whereby the conviction and sentences awarded to the accused-
appellants by the Additional District and Sessions Judge, (Fast Track Court-
I), Chennai were upheld for the offences punishable under different
sections of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”),
for the abduction and murder of one M.K. Balan (hereinafter referred to as
the “deceased”).
The following table outlines the conviction and sentences awarded to each
of the accused by the Trial Court:
| Senthil Kumar (A-1) |
|Section 120-B IPC: Imprisonment for life and fine of Rs. 50,000/- |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Hariharan (A-2) |
|Section 120-B IPC: Imprisonment for life. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
| |
|Poonga Nagar Manickam (A-3) |
| |
|Section 120-B IPC: Acquitted under Section 235(1) of Code of Criminal |
|Procedure, 1973(hereinafter referred to as the “CrPC”). |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Somasundaram (A-4) |
| |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
| |
| |
|Balamurugan (A-5) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Shankar Ganesh (A-6) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Irudhayaraj (A-7) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Jaibeam Anbu (A-8) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Udhayam Kumar (A-9) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
| |
|Leela Shankar (A-10) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Sampath (A-11) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
| |
|Romita Mary (A-12) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
| |
|Swamikannu (A-13) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Sori Ramesh (A-14) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Bomb Selvam (A-15) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Jagadeesan (A-16) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Gunasekar (A-17) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Naraimudi Ganesan (A-18) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
The aforesaid sentences imposed upon each one of the accused persons were
ordered to run concurrently.
Out of all the accused persons who were tried by the Sessions Court, only
three, i.e., Manickam @ Poonga Nagar Manickam (hereinafter referred to as
“A-3”), Somasundaram (hereinafter referred to as “A-4”) and Bomb Selvam
(hereinafter referred to as “A-15”) are in appeal before us. Since we are
only required to examine the correctness of the conviction and sentences as
against these three accused persons, we shall restrict to the appreciation
of facts and evidence relevant to these three accused persons only. The
facts of the incident leading up to the case, the arrest of the accused
persons followed by their trial and conviction are stated as under:
The case of the prosecution is that on 30.12.2001, at about 5:30 a.m.,
the deceased went for morning walk, but did not return home. As a result,
his son, B. Manimaran (PW-1) lodged a missing person complaint at the
Pattinapakkam Police Station at 11.00 a.m. The same was registered as Crime
No. 986 of 2001. PW-66, the Inspector started the investigation. The
statements of various witnesses were recorded. The breakthrough came on
21.02.2002, when the Investigating Officer came to know of the involvement
of Balamurugan (A-5) in the case through an informant. A-5 was arrested on
18.03.2002 by PW-67, who also recorded his statement, produced as Ex. P-43.
On the basis of the statement of A-5, the FIR was altered and the offences
under Sections 120B read with Sections 364, 365, 302 and 201 of IPC were
added to the same. Subsequently, the rest of the accused persons were
arrested on the basis of the statements of the witnesses. A-3 was arrested
on 25.03.2002 and his statement was recorded, which is produced as Ex. P-
20. On the basis of the evidence of A-3, M.O. 12- Maruti Zen Car, under
mahazar Ex. P-6 was recovered on the same day. On 01.04.2002, A-3 and A-1
were remanded to police custody as per the order of the Magistrate for a
period of ten days. A-4 was arrested on 09.04.2002 from Chrompet Railway
Station. His statement was recorded as Ex.P-34 in the presence of PW-9. On
the basis of the disclosure made in the statement, M.O.-6, Ford Escort Car
bearing Registration No. TN-10-F-5555 was recovered, which has been
produced as Ex. P-19. A-15 was arrested on 25.04.2002 from near the Egmore
Railway Station, from where he was taken to the office of the CBCID. On the
basis of the disclosure made in the statement of A-15, a ‘Tiruvalluvar Hero
Honda 6475’, marked as M.O.-10 and a black coloured Reebok shoe, marked as
M.O.- 1, kept inside the side box of that motor cycle were recovered.
5. On 14.06.2002, the final report under Section 173(2) of CrPC was filed
in PRC No. 55 of 2002 before the XXIII Metropolitan Magistrate, Chennai,
against A-1 to A-17 and one unknown person. Pursuant to further
investigation and apprehension of A-18, final report was filed on
10.01.2003 under Section 120-B read with Sections 364, 365, 419,
437,387,302,402 and 201 of IPC.
6. During the course of the trial, the prosecution examined 67 Prosecution
Witnesses to establish the guilt of the accused persons.
7. The Trial Court, after examining the evidence produced on record,
convicted and sentenced A-1 to A-11 and A-13 to A-17, as specified in the
table referred to supra. A-12 and A-18 were acquitted of all charges. The
accused persons preferred appeals against their conviction and the State
preferred an appeal against the acquittal of A-12 and A-18 before the High
Court. The High Court, after consideration of the evidence placed on
record, upheld the order of conviction and sentence passed by the learned
Sessions Judge against all the accused, except A-10. A-10 was acquitted of
all the charges by the High Court. The appeals filed were accordingly,
dismissed. The High Court, in the impugned judgment and order relied on the
testimony of PW-1, the son of the deceased, who spoke about the fact that
his father went on his usual morning walk but did not return and the
testimony of PW-13, who saw the deceased walking. The next crucial link,
according to the High Court is provided from the evidence of Venugopal (PW-
10) and Newton (PW-11), who saw some of the accused bringing the deceased
into the vermicelli manufacturing factory premises at Mudichur on the
morning of 30.12.2001. Both PW-10 and PW-11 also deposed as to the prior
arrangements made by them on the direction of the accused persons,
including the arrangement of the premises of the vermicelli factory,
vehicles and food. PW-11 also deposed that he saw four of the accused
persons carrying the dead body of the deceased. PW-32, the Doctor, deposed
that at the instance of A-3, he had issued a death certificate to PW-33,
which was needed to cremate the body of the deceased. He also stated that
he had done so without actually seeing the body of the deceased as he had
known PW-33 for a long time and trusted him. Both the Trial Court and the
High Court treated PW-10 and PW-11 as accomplices, keeping in view their
role in the entire incident. The High Court then went on to examine the
case law with regard to the reliability of the evidence of the accomplice.
On this aspect, the High Court held as under:
“An accomplice is undoubtedly a competent witness under the Indian Evidence
Act. There can be, however, no doubt that the very fact that he has
participated in the commission of the offence introduces a serious stain in
his evidence and Courts are naturally reluctant to act on such tainted
evidence unless it is corroborated in material particulars by other
independent evidence.
It would not be right to expect that such independent corroboration should
cover the whole of the prosecution story on even all the material
particulars. If such a view is adopted, it would render the evidence of the
accomplice wholly superfluous……
……the appreciation of an approver’s evidence has to satisfy a double test.
His evidence must show that he is a reliable witness and that is a test
which is common to all witnesses. If this test is satisfied the second test
which still remains to be applied is that the approver’s evidence must
receive sufficient corroboration.”
The High Court accordingly, came to the conclusion that the evidence of PW-
10 and PW-11 was reliable and could be considered while examining the guilt
of the appellants. It was held as under:
“PW-10 and PW-11 are accomplices and they were present at all stages along
with the accused and aided them in very many ways, we have analysed their
evidence with great care and caution. It is true that both of them had not
informed the occurrence to anybody and were not to be seen for more than a
period of months. For their conduct they have given acceptable explanation.
Both the witnesses have spoken that as they came to that A-3 and A-9 had
indulged in an act of serious offence, they were threatened by the accused
that if they reveal what had happened, they and their family members would
be in danger. Afraiding such danger, they had hided themselves and
therefore, they had not disclosed to anyone, only fearing not only to their
lives but also to their family members……”
8. The High Court held that the case of the prosecution, as sought to be
proved by the evidence of PW-10 and PW-11, is that PW-10 was a business
associate of A-9. A-9 informed PW-10 that A-3 would get him in a post in a
political party if he completed a task that was assigned to him. A-9 asked
PW-10 to help him finish the same. At the request of A-9, PW-10 had
arranged the vermicelli manufacturing factory premises belonging to PW-34
for a week. Further, A-9 informed A-3 of the place that had been chosen to
carry out the task. PW-10, A-3 and A-9 then visited the places to inspect
the suitability of the premises. After the same had been approved by A-3,
PW-10 at the request of A-3, arranged a Maruti van, table, chair, cot,
bedpan etc. and kept the same in the said premises of the vermicelli
manufacturing factory. PW-10 and PW-11 also made arrangements for procuring
cash as and when A-3 and A-9 needed them. PW-10 and PW-11 also arranged
rooms at Hotel Henkala, Tambaram for A-9. PW-10 also heard the driver of A-
3 asking him for a chain to tie the deceased. A-3 also asked PW-10 to
provide food for those who are staying in the vermicelli factory premises.
PW-10 and PW-11 also saw four of the accused persons bringing down the body
of the deceased, which was loaded in the van and taken out of the place. PW-
10 was also informed by A-13 that the body of the deceased had been burnt
in the Erukancheri cremation ground. PW-10 then left for Bangalore and
stayed there till he was informed by his wife on 18.03.2002 that A-5 was
arrested by CBCID police in connection with the murder of the deceased.
9. The High Court further observed that PW-10 has implicated A-1 to A-11
and A-14. He also identified A-4, A-5, A-6, A-7, A-8, A-11 and A-15 on
three occasions as spoken to by PW-60, the Magistrate who conducted the
identification parade. On the issue of delay in test identification parade,
the High Court held that:
“In a complicated investigation like this, where there was no clue for the
involvement of any of the accused till A-5 was arrested on 18.03.2002, the
delay in holding the test identification parade, if at all from the last
arrest of A-16, i.e., on 22.05.2002 would not in our view render the same
inconsequence and consequently it would not affect the test on the ground
of delay.”
10. The High Court placed reliance on the decision of this Court in the
case of Daya Singh v. State of Haryana[1] for the same. The High Court
further held that the common object for the offence was to collect some
money from the deceased, and in case the money did not come through, to do
away with the deceased. The High Court held that to achieve the common
object, they had conspired together.
11. Further, on the contention that the body which was cremated was not
identified by anybody, the High Court held that the man who was abducted on
the morning of 30.12.2001, was kept in the vermicelli factory premises by
the accused persons, and was murdered there. His body was cremated in the
Perambur crematorium. It was held that the circumstances adequately point
to the same.
12. The High Court, therefore, held that the conviction and sentence
imposed by the Trial Court in respect of all the accused persons is liable
to be confirmed as the same does not suffer from any infirmity in law.
13. The correctness of the impugned judgment and order passed by the High
Court is under challenge in these appeals by three of the
accused–appellants, i.e. A-3, A-4 and A-15 in support of which they have
urged various facts and legal contentions before this Court.
14. The rival legal contentions urged on behalf of the accused persons and
the prosecution are stated hereunder:
Contentions urged on behalf of the accused-appellants:
Mr. Siddharth Luthra, learned senior counsel appearing on behalf of A-4 in
Criminal Appeal No. 403 of 2010, contends that the conviction of the
appellant is wholly erroneous and is liable to be set aside.
The learned senior counsel contends that the recovery of the Ford Car (M.O.-
6) was not done in accordance with law, and thus, the same is vitiated.
According to the statement given by A-4 to the Police [Ex. P- 34], he had
stated as under:
“If I am taken, I will identify the house, in Chrompet, wherein we were
staying and the Muddichur Vermicelli Factory, wherein we had detained M.K.
Balan and the cars which were used by us for the kidnapping of Balan.”
The Ford Car in question, M.O-6 was recovered from the house of PW-10 on
09.04.2002. In the evidence of PW-10, he had deposed that he had purchased
M.O.6 Ford Car for Rs.3,60,000/-. He had bought the same from one Advocate
Duraipandi. He further stated that M.O.6 was not registered in his name. It
was registered in the name of one Ranjit Kumar. The learned senior counsel
contends that in the absence of the proof of ownership of the vehicle, the
only evidence of the use of the vehicle on 30.12.2001 is the testimony of
PW-10, and the same cannot be used against A-4.
The learned senior counsel further contends that since the accused A-4 has
been acquitted of the charge under Section 120-B of IPC, Section 10 of the
Indian Evidence Act, 1872 (hereinafter referred to as the “Evidence Act”)
has no application either. Section 10 of the Evidence Act reads as under:
“10. Things said or done by conspirator in reference to common design.
Where there is reasonable round to believe that two or more persons have
conspired together to commit an offence or an actionable wrong, anything
said, done or written by any one of such persons in reference to their
common intention, after the time when such intention was first entertained
by any one of them, is a relevant fact as against each of the persons
believed to be so conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose of showing that any such
person was a party to it.”
The learned senior counsel places reliance on the decision of this Court in
the case of State v. Nalini[2], wherein the scope of Section 10 of the
Evidence Act was discussed as under:
“The first condition which is almost the opening lock of that provision is
the existence of "reasonable ground to believe" that the conspirators have
conspired together. This condition will be satisfied even when there is
some prima facie evidence to show that there was such a criminal
conspiracy. If the aforesaid preliminary condition is fulfilled then
anything said by one of the conspirators becomes substantive evidence
against the other, provided that should have been a statement "in reference
to their common intention". Under the corresponding provision in the
English Law the expression used is "in furtherance of the common object".
No doubt, the words "in reference to their common intention" are wider than
the words used in English Law……
…………We cannot overlook that the basic principle which underlies in Section
10 of the Evidence Act is the theory of agency. Every conspirator is an
agent of his associate in carrying out the object of the conspiracy.
Section 10, which is an exception to the general rule, while permitting the
statement made by one conspirator to be admissible as against another
conspirator restricts it to the statement made during the period when the
agency subsisted. Once it is shown that a person became snapped out of the
conspiracy, any statement made subsequent thereto cannot be used as against
the other conspirators under Section 10.”
The learned senior counsel contends that since A-4 has been acquitted of
the charge of conspiracy, no statement made by any witness or accused which
seeks to prescribe any sort of common intention can be used against A-4.
The learned senior counsel further contends that the only relevant
testimonies as far as A-4 is concerned are that of Manimaran (PW-1),
Sudhakar (PW-3), Venugopal (PW-10), Newton (PW-11), Krishnapandi (PW-34)
and the Investigating Officer (PW-67). PW-3, who is one of the eyewitnesses
to the kidnapping of the deceased, deposed in his evidence as under:
“……On 30.12.2001, at about 5.30 A.M. as usual I started to run. By that
time, I heard a sound. I saw that 3 persons were forcing a person to get
into a van at a distance of about 75 metres. Thereafter, all of them went
in the same van. It’s an Omni Van. A motor cycle followed that van.
Thereafter, my friend Selvam came there. I told this to him. I told
Selvaraj Master. Selvaraj Master told me “Why should we bother about
others”……”
The learned senior counsel further contends that PW-3 thus, neither names,
nor identifies nor prescribes any specific role to A-4 in kidnapping of the
deceased on 30.12.2001. The learned senior counsel further contends that
according to the evidence of PW-3, the deceased was kidnapped in an Omni
Van, which was followed by a motorcycle. However, even if the alleged
confession of A-4 is taken to be true, what was recovered at his direction
was a Ford Escort Car (M.O.6).
The learned senior counsel further contends that during the trial, the
prosecution has not arrayed PW-10 and PW-11 as accused, nor have they been
made approver in the case. Thus, the testimonies of PW-10 and PW-11 cannot
be relied upon in absence of corroboration from independent sources, as the
same are in the nature of accomplice evidence in terms of Section 133 of
the Evidence Act. The learned senior counsel places reliance on the
decision of this Court in the case of Rameshwar v. State of Haryana[3]:
“……The rule, which according to the cases has hardened into one of law, is
not that corroboration is essential before there can be a conviction but
that the necessity of corroboration, as a matter of prudence, except where
the circumstances make it safe to dispense with it, must be present to the
mind of the judge, and in jury cases, must find place in the charge, before
a conviction without, corroboration can, be sustained……”
The learned senior counsel further places reliance on the three judge bench
decision of this Court in the case of Bhiva Dolu Patil v. State of
Maharashtra[4]:
“……the provisions of s. 133 of the Evidence Act which reads:-
S. 133 "An accomplice shall be a competent witness against an accused
person; and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice".
It cannot be doubted that under that section a conviction based merely on
the uncorroborated testimony of an accomplice may not be illegal, the
courts nevertheless cannot lose sight of the rule of prudence and practice
which in the words of Martin B in Res. v. Boyes (1861) 9 CCC. 32 "has
become so hallowed as to be deserving of respect" and in the words of Lord
Abinger "it deserves to have all the reverence of the law". This rule of
guidance is to be found in illustration (b) to s. 114 of the Evidence which
is as follows :-
"The court may presume that an accomplice is unworthy of credit unless he
is corroborated in material particulars"………”
The learned senior counsel contends that PW-10 and PW-11 were witnesses to
the entire conspiracy and does not prescribe any role to A-4 after the
meeting on 05.12.2001 at the house of A-9. Nor does he prescribe any
specific role to A-4 for the kidnapping of the deceased on 30.12.2001. The
learned senior counsel further places reliance on the cross examination of
PW-10 which reads as under:
“When I and Newton had gone to the house of the 3rd accused Manickam, 3rd
accused Manickam said to the persons available there that the Ex M.L.A.
Balan has to be brought and that some money has to be collected from him.
After hearing this it was not struck to me that it could be violence act.
After Manickam said as such I and the witness Newton came out of the house.
I do not know what they had spoken and decided thereafter. Thereafter I did
not see the accused Somasundaram………”
(emphasis laid by this Court)
The learned senior counsel contends that PW-10 does not place A-4 on the
spot at the vermicelli factory at any of the days from 30.12.2001 till
01.01.2002. Further, in his cross examination he admits the fact of not
having seen A-4 after 05.12.2001. According to PW-10, A-4 was not even one
of the four persons who carried the body of the deceased out of the
premises of the vermicelli factory.
The learned senior counsel further contends that since A-3 to A-11 and A-
13 to A-17 have been acquitted by the Trial Court of the offence punishable
under Section 120-B of IPC, the conviction under Section 107 of IPC cannot
be sustained. Reliance has been placed on the decision of this Court in the
case of Pramatha Nath Talukdar v. Saroj Ranjan Sarkar[5], wherein it was
held as under:
“Furthermore, it appears to me that though the expression "criminal
conspiracy" occurs in para. 5 of the complaint, the facts alleged in the
petition of complaint essentially disclose an offence of abetment by
conspiracy. This brings us to the distinction between the offence of
criminal conspiracy as defined in s. 120A and the offence of abetment by
conspiracy as defined in s. 107 of the Indian Penal Code. Section 120A
which defines the offence of criminal conspiracy and s. 120B which punishes
the offence are in Ch. VA of the Indian Penal Code. This Chapter introduced
into the criminal law of India a new offence, namely, the offence of
criminal conspiracy. It was introduced by the criminal Law Amendment Act,
1913 (VIII of 1913). Before that, the sections of the Indian Penal Code
which directly dealt with the subject of conspiracy were these contained in
Ch. V and s. 121 (Ch. VI) of the Code. The present case is not concerned
with the kind of conspiracy referred to in s. 121A. The point before us is
the distinction between the offence of abetment as defined in s. 107 (Ch.
V) and the offence of criminal conspiracy as defined in s. 120A (Ch. VA).
Under s. 107, second clause, a person abets the doing of a thing, who
engages with one or more other person or persons in any conspiracy for the
doing of that thing, if an act or illegal omission takes place in pursuance
of that conspiracy, and an order to the doing of that thing. Therefore, in
order to constitute the offence of abetment by conspiracy, there must first
be a combining together of two or more persons in the conspiracy; secondly,
an act or illegal omission must take place in pursuance of that conspiracy,
and in order to the doing of that thing. It is not necessary that the
abettor should concert the offence with the person who commits it. It is
sufficient if he engages in the conspiracy in pursuance of which the
offence is committed. It is worthy of note that a mere conspiracy or a
combination of persons for the doing of a thing does not amount to an
abetment. Something more is necessary, namely, an act or illegal omission
must take place in pursuance of the conspiracy and in order to the doing of
the thing for which the conspiracy was made. Before the introduction of Ch.
VA conspiracy, except in cases provided by Sections 121A, 311, 400, 401 and
402 of the Indian Penal Code, was a mere species of abetment where an act
or an illegal omission took place in pursuance of that conspiracy, and
amounted to a distinct offence. Chapter VA, however, introduced a new
offence defined by s. 120A. That offence is called the offence of criminal
conspiracy and consists in a mere agreement by two or more persons to do or
cause to be done an illegal act or an act which is not illegal by illegal
means; there is a proviso to the section which says that no agreement
except an agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by one or more
parties to such agreement in pursuance thereof. The position, therefore
comes to this. The gist of the offence of criminal conspiracy is in the
agreement to do an illegal act or an act which is not illegal by illegal
means. When the agreement is to commit an offence, the agreement itself
becomes the offence of criminal conspiracy. Where, however, the agreement
is to do an illegal act which is not an offence or an act which is not
illegal by illegal means, some act besides the agreement is necessary.
Therefore, the distinction between the offence of abetment by conspiracy
and the offence of criminal conspiracy, so far as the agreement to commit
an offence is concerned, lies in this. For abetment by conspiracy mere
agreement is not enough. An act or illegal omission must take place in
pursuance of the conspiracy and in order to the doing of the thing
conspired for. But in the offence of criminal conspiracy the very agreement
or plot is an act in itself and is the gist of the offence.”
(emphasis laid by this Court)
The learned senior counsel submits that the language of the charge is that
of abetment for fulfilling the conspiracy against the accused persons. As
the charge under Section 120-B of IPC has not been proved, Section 107 of
IPC cannot be attracted in this case as the distinction between the offence
of abetment by conspiracy and offence of criminal conspiracy is that in the
former, a mere agreement among persons is not enough.
Mr. Basant R., the learned senior counsel appearing on behalf of A-3
submits that A-3 has been acquitted of the offence under Section 120-B of
IPC. The learned senior counsel further submits that A-3 was never charged
with the offences under Sections 34 and 149 of IPC. He was only charged
with the offence under Section 109 of IPC, which by itself was a vague
charge, making it impossible to defend. The learned senior counsel contends
that the inclusion of the charge under Section 109 of IPC would indicate
that A-3 was in fact not involved in the actual murder of the deceased. It
is further contended that once the charge under Section 120B of IPC fails
to be established, the prosecution has to show the exact manner in which
the abetment of an offence was done by A-3. The learned senior counsel
contends that this did not happen in the instant case.
The learned senior counsel further contends that as far as the charge of
offence under Section 302 of IPC is concerned, even that has not been
proved by the prosecution satisfactorily. At the outset, the learned senior
counsel contests the factum of the death of the deceased itself. It is
contended that no prosecution witness has identified the dead body that was
burnt on the night of 01.01.2002. No DNA tests have been conducted to
conclusively verify the identity of the body that was allegedly burnt on
01.01.2002. It is submitted that the reliance placed by the courts below on
the evidence of PW-32 and PW-33 is also misplaced. PW-33 stated in his
testimony that A-3 had told him to procure a death certificate for one
Rajamani Chettiar who had died. PW-33 then asked PW-32, a doctor he knew
for the last fifteen years to issue the same. There is nothing to actually
connect A-3 to the death certificate except the spoken word of PW-33. It is
contended that it was in fact PW-32 and PW-33 who created the false
evidence, and are now conveniently pinning it squarely on A-3. The learned
senior counsel further contends that the specific role of A-3 in the murder
of the deceased has not been proven, which makes it erroneous in law to
convict him of the offence under Section 302 read with Section 109 of IPC.
The learned senior counsel further contends that the testimony of PW-10 and
PW-11 should not be relied upon, as their evidence is not corroborated by
other material evidence. The learned senior counsel further contends that
the fact that PW-10 and PW-11 have not been termed as ‘accomplices’ by the
courts below and their evidence has no bearing on the reliability to record
the finding of guilt. The fact that the term ‘accomplice’ has not been used
to describe them is irrelevant, as if the evidence on record points to them
being accomplices, then PW-10 and PW-11 are in fact, accomplices. The
learned senior counsel further submits that the term accomplice has not
been defined in any statute. He places reliance on the definition of the
term ‘accomplice’ in Black’s Law Dictionary, in which it has been defined
as under:
“One who is in some way concerned or associated in commission of crime, a
partaker of guilt, one who aids or assists, or is an accessory.”
Ramanatha Aiyar’s Law Dictionary defines ‘accomplice’ as:
“There is some authority for using the word ‘accomplice’ to include all
principals and all accessories, but the preferred usage is to include all
principals and accessories before the fact, but to exclude accessories
after the fact. If this limitation is adopted, the word ‘accomplice’ will
embrace all perpetrators, abettors and inciters.
The term in it fullness includes in its meaning all persons, who have been
concerned in the commission of a crime, all participles criminis, whether
they are considered in strict legal property as principals in the first or
second degree or merely as accessories before or after the fact.”
The learned senior counsel submits that the burden upon the accused to show
that someone is an accomplice is only to the extent that the term
accomplice is commonly understood. The burden on the accused is not to show
the guilt of the witness beyond reasonable doubt.
The learned senior counsel contends that it becomes clear from a perusal of
the testimony of PW-10 and PW-11 (extracted in the earlier part of this
judgment) that they were actively involved in the preparation of the crime.
The learned senior counsel further contends that the testimony also clearly
shows that both the PWs had full knowledge of the purpose for which they
were making the preliminary preparations, i.e., for the abduction of the
deceased and keeping him in the premises of the vermicelli factory. The
learned senior counsel further submits that PW-10 and PW-11 can by no
stretch of imagination be said to be approvers, as no court has granted
them pardon and made them as approvers.
On the question of the role prescribed by PW-10 and PW-11 to A-3, the
learned senior counsel submits that there is no evidence which suggests
that A-3 came in contact with the deceased while he was at the vermicelli
factory premises. PW-10 had deposed as under:
“On 30.12.2001 at 8:30 A.M., Udaykumar called me over my cell phone. Asked
me to come to Henkala Hotel. I also went there. After sometime Accused
Manickam came by Uno car. After coming to the room, he asked Udaykumar that
he need a Maruti Van. Manickam took myself, Udaykumar and Senthilkumar in
that Maruti Van and went to the vermicelli factory at Mudichur. When we
went to the company, Manickam alone got down and was standing there. One
person came down from upstairs and took me and Senthilkumar to upstairs.
There were about 5 or 6 persons. Ex. M.L.A. Balan was tied up with chain
and his eyes were also closed with a cloth and he had been made to sit on
the green steel cot which was provided by us already………”
Further, PW-10 identifies four accused who brought down the dead body of
the deceased and A-3 is not one of these four accused.
The learned senior counsel contends that even if the evidence of PW-10 and
PW-11 are accepted in toto, it does not at all suggest that A-3 was present
in the vermicelli factory, which is the alleged scene of crime when the
death occurred. Hence, the charge of the offence under Section 302 read
with Section 109 IPC cannot be sustained against A-3 at all.
Mr. P.V. Yogeswaran, the learned counsel appearing on behalf of A-15
contends that there is nothing in the evidence to directly implicate A-15
except M.O.1, the Reebok shoes produced by the prosecution on record which
allegedly belonged to the deceased. PW-1 however, in his testimony stated
that M.O.1 showed to him in court, did not belong to his father. PW-2, the
driver of the deceased has also denied that those shoes belonged to the
deceased. The learned counsel further submits that the testimony of PW-10
and PW-11 cannot be relied upon, as the proper procedure as required under
Section 164 of CrPC has not been followed by the Court while recording
their evidence.
Contentions urged on behalf of the prosecution:
On the other hand, Mr. Yogesh Kanna, the learned counsel appearing on
behalf of the State of Tamil Nadu contends that there is no infirmity in
the impugned judgment and order passed by the High Court, upholding the
conviction and sentence passed against the accused-appellants by the Trial
Court, and the same need not be interfered with by this Court in exercise
of its jurisdiction under Article 136 of the Constitution of India.
The learned counsel places reliance on the evidence of Venugopal (PW-10).
PW-10, in his deposition mentions the scouting for locations that had taken
place, to carry out the most suitable location where the crime could be
carried out. He deposed as under:
“In the second week of November, 2001, this Accused Udayakumar called me
over telephone and came to my office. At that time he asked me whether the
houses are ready. I replied him that I have made them ready. Next day,
Udaykumar called me once again and asked me and Newton to be in the office.
He also told me that Poonga Nagar Manickam of Perambur is coming to my
office. Around 2 P.M. on that day Udaykumar and Poonga Nagar Manickam came
to my office. I and Newton were present in our office. Myself and Newton
took Poonga Nagar Manickam and Udaykumar for the purpose of showing the
houses. First we went from Tambaram to Camp Road and in a considerable
distance from there to Mahalakshmi Nagar and showed my friend Mr. Choudry’s
house. Besides that, we showed 4 or 5 houses in that place. At last, they
saw my house also. Then Manickam told Udaykumar that he don’t like the
houses shown by us including my house. Then, Udaykumar asked to show the
Vermicelli factory in Mudhichur Road. Myself and Newton took Poonga Nagar
Manickam and Udayakumar and showed the Vermicelli factory in Mudichur Road.
Witness Krishnapandi was also there. Manickam saw the factory. After seeing
the factory, Manickam told Udayakumar that this place is the correct place
for the work to be done by us.”
38. The learned counsel further contends that apart from explaining the
meetings between the accused persons to hatch the conspiracy to abduct the
deceased, PW-10 has also spoken about the Maruti Van that was used to carry
the dead body of the deceased after the crime had been committed. PW-10 has
deposed as follows:
“On 30.12.2001 at 8:30 A.M., Udaykumar called me over my cell phone. Asked
me to come to Henkala Hotel. I also went there. After sometime Accused
Manickam came by Uno Car. After coming to room, he asked Udayakumar that he
needed a Maruti Van. He went outside and brought one sandal colour Maruti
Van. Manickam took myself, Udayakumar and Senthilkumar in that Maruti Van
and went to the vermicelli factory at Mudichur. When we went to the
company, Manickam alone got down and was standing there. One person came
down from upstairs and took me and Senthilkumar to upstairs. There were
about 5-6 persons. Even Ex MLA M.K. Balan was tied up with chain and his
eyes were also closed with a cloth and he had been made to sit on the green
steel cot which was provided by us already. He was wearing black pant and
sandal colour T-shirt……”
The learned counsel further submits that PW-10 in fact also saw the
accused carrying the body of the deceased out of the vermicelli factory
premises. The relevant portion of his evidence is extracted hereunder:
“On 1.1.2002 morning, I came back to my house. By 10:30 a.m. Udayakumar
called up over phone and asked me to come to Henkala Hotel. I also went
there. After sometime Manickam came there. Manickam asked Udayakumar to
provide an ambulance to him. Udayalumar took me with him and went to 2,3
places in search of an ambulance. He could not find ambulance. Then
Manickam told him that if ambulance is not there it does not matter, but to
arrange one Maruti Van and fix one Lumax light as fixed in ambulance
vehicle. By that time, Manickam’s driver Viji came there……After sometime
Manickam called Udayakumar over phone. Then Udayakumar told me that
Manickam asked me to arrange for a Maruti Van. Udayakumar asked me to wait
there and went out and came back with a Maruti Car. That Maruti Van is of
gold colour……I came to a tea shop with Newton by his motor cycle. Newton
told me that lunch was not supplied in the afternoon to the Vermicelli
factory and they have told over phone that they do not need dinner also. I
also told Newton about their requirement of ambulance. Also I told him that
they are arranging for a vehicle like ambulance. I told him about
Udayakumar sending the Maruti van by 8.00 P.M. and also about my fear on
seeing all these. Newton was also very much scared. Both of us suspected
that something is going on in the company. Then, both of us started around
8:45 P.M. from Tambaram and reached the Mudichur company by 9.00 P.M. There
the gate in the ground floor was closed……The Golden colour Maruti sent from
Henkala Hotel was standing there……Then 4 persons came from upstairs
carrying on Mr. M.K. Balan’s body. Among that four persons, 2 persons were
holding his legs and the other 2 persons were holding his hands. By that
time also M.K. Balan was wearing black colour pant, and sandal colour T
shirt. After coming from the upper steps, there is a slab like place. They
kept the body there. They took a cloth from the bag brought by Balamurugan
and tied around M.K. Balan’s body, like doing a dead body. There is no
movement in the body.”
The learned counsel thus, submits that PW-10 has explicitly mentioned
seeing the dead body of the deceased by some of the accused, and has also
spoken about the Maruti Van which was recovered from the accused-
appellants. His testimony is crucial in placing the accused-appellants at
the scene of the crime, and their involvement in the same. It thus,
establishes their guilt beyond reasonable doubt.
The learned counsel further places reliance on the testimony of Newton (PW-
11). PW-11 has also spoken about making the preparations on the instruction
of Poonga Nagar Manickam, A-3. Significantly, PW-11 also mentions seeing
the dead body of the deceased being carried down the vermicelli factory
premises. The relevant portion of his evidence is extracted as under:
“……As per that, both of us went to the vermicelli company by the motor
cycle. By that time, 2 persons were near the gate. Then both of them told
us that we do not have any work there and we can go from there. Then I left
the bike adjacent to the company and when I and Venugopal crossed the
company gate, we saw Balamurgan going into the vermicelli factory. At that
time, 4 persons came from upstairs of the vermicelli factory, carrying M.K.
Balan, who was wearing Black colour pant and T shirt (sandal colour) and
they left him on the floor. They tied up M.K. Balan with the dhoti brought
by Balamurugan and carried him to the van and the van started from there……I
and Venugopal were scared and came back to home. PW-10 Venugopal told me
that he was called by Poonga Nagar Manickam and told by him that if this
matter is leaked out anywhere he will kill him and his family.”
The learned counsel further places reliance on the testimony of PW-33,
Kamaraj, who had procured the death certificate, which was shown as that of
the deceased in order to cremate him. PW-33 stated that he had procured the
death certificate at the instance of A-3. The relevant portion of his
evidence is extracted hereunder:
“……At that time Sami told me that Manickam asked me to come by 6 am in the
morning. Next day I went to Manickam’s house by 6 am and when he enquired
about my conveyance and I told him that I had come by Auto and he gave me
Rs 50/- for expenses. Further he told that watchman working in a Kolathur
company had died; and one Rajamani Chettiar expired and asked me to get a
certificate. I immediately told about PW-32, Dr. Anbarasu known to me for
the past 15 years; and went to his place by auto. The Doctor was there. I
told him that a watchman in a Kolathur Company had died. He believed me and
gave it in writing in a letterhead. I gave it to Manickam in Perambur and
came back to my house……”
The learned counsel further relies on the evidence of Dr. K.V. Chinnaswamy,
PW-32, who had stated that PW-33 had asked him for a death certificate in
the name of one Rajamani Chettiar. PW-32 stated that he had no reason to
suspect PW-33, whom he had known for about fifteen years, and thus, issued
the death certificate without even looking at the dead body of the
deceased.
The learned counsel further submits that after considering the evidence of
PW-1 and PW-3 and after perusal of the First Information Report, that
according to the circumstantial evidence, it can be seen that it was indeed
the deceased who had been kidnapped from MRC Nagar on 30.12.2001 at about
5:30 a.m by the accused appellants.
The learned counsel further contends that PW-10 and PW-11 are not
accomplices, and thus, their evidence can be safely relied upon, in light
of the fact that they corroborate each other on all material aspects in
relation to the charges. The learned counsel places reliance on the
decision of the High Court of Lahore, in the case of Ismail s/o Hassan Ali
v. Emperor[6], wherein an accomplice was defined as:
“The expression 'accomplice' has not been defined in the Evidence Act, but
there can be little doubt that it means a person who knowingly or
voluntarily cooperates with or aids and assists another in the commission
of a crime. The expression obviously includes principals in the first and
second degree. In the case in ('36) 23 A.I.R. 1936 P.C. 242 : 163 I.C. 681
(P.C.), Mahadeo v. The King their Lordships of the Privy Council held that
the expression is wide enough to include persons who are known to the
English law as accessories after the fact. An accessory after the fact is
one who, knowing a felony to have been committed, receives, relieves,
comforts or assists the felon. Three conditions must unite to render one an
accessory after the fact: (1) the felony must be complete; (2) the
accessory must have knowledge that the principal committed the felony; and
(3) the accessory must harbour or assist the principal felon. Mere acts of
charity which relieve or comfort a felon, but do not hinder his
apprehension and conviction nor aid his escape, do not render one an
accessory after the fact (4 Blackstone's commentaries p. 38). He must be
proved to have done some act to assist the felon personally (1823-41) 9
C.P. 355). The mere fact, that one had knowledge that a crime had been
committed, and that he concealed or failed to disclose such knowledge, does
not render him an accomplice. If, for example, the concealment is due to
the witness's anxiety for his own safety rather than to any desire to
shield the criminal, he would not be an accomplice. Nor would a person who
remains passively silent after obtaining knowledge of the commission of the
crime be an accessory or an accomplice within the rule as to the testimony
of accomplices. To render a person an accomplice his participation in the
crime must be criminally corrupt.”
(emphasis laid by this Court)
The learned counsel further contends that PW-10 and PW-11 only did the
things they were told to do, like scouting for the location and arranging
the necessary items needed to keep the deceased at the vermicelli factory
premises at the instance of the accused-appellants. PW-10 and PW-11 were
also threatened with harm to themselves and to their families if they did
not comply with the instructions given to them by the accused-appellants.
The learned counsel further contends that mere knowledge of a crime does
not make a person an accomplice. Reliance has been placed on the decision
of the Calcutta High Court in the case of Narain Chandra Biswas v.
Emperor[7], wherein it was held as under:
“ It may further be noticed that where a witness is not concerned with the
commission of the crime for which the accused is charged, he cannot be said
to be an accomplice in the crime, as it is well settled that all
accessories before the fact, if they participate in the preparation for the
crime are accomplices, but if their participation is limited to the
knowledge that crime is to be committed, they are not accomplices. "Whether
therefore a person is or is not an accomplice depends upon the facts in
each particular case considered in connexion with the nature of the crime;
and persons to be accomplices must participate in the commission of the
same crime as the accused persons in a trial are charged. All persons
coming; technically within the category of accomplices cannot also be
treated as on precisely the same footing.”
The learned counsel submits that there is nothing on record to prove that
PW-10 and PW-11 had prior knowledge that the deceased would be murdered at
the hands of the accused-appellants. The only knowledge they had was that
the factory premises was needed for some work by the accused appellants.
The learned counsel further contends that even if PW-10 and PW-11 were
taken to be accomplices, their testimony can still be safely relied upon,
for the reason that they corroborate each other, as well as corroborated by
other independent witnesses, including PW-1, the son of the deceased, as
well as PW-13, who is an eyewitness to the kidnapping of the deceased. The
learned counsel places reliance on the decision of this Court in the case
of K Hashim v. State of Tamil Nadu[8], wherein it was held that:
“First, it is not necessary that there should be independent confirmation
of every material circumstance in the sense that the independent evidence
in the case, apart from the testimony of the complainant or the accomplice,
should in itself be sufficient to sustain conviction. As Lord Readings says
-
'Indeed, if it were required that the accomplice should be confirmed in
every detail of the crime, his evidence would not be essential to the case,
it would be merely confirmatory of other and independent testimony.'
38. All that is required is that there must be some additional evidence
rendering it probable that the story of the accomplice (or complainant) is
true and that it is reasonably safe to act upon it.
39. Secondly, the independent evidence must not only make it safe to
believe that the crime was committed but must in some way reasonably
connect or tend to connect the accused with it by confirming in some
material particular the testimony of the accomplice or complainant that the
accused committed the crime. This does not meant that the corroboration as
to identify must extend to all the circumstances necessary to identify the
accused with the offence. Again, all that is necessary is that there would
be independent evidence which will make it reasonably safe to believe the
witness's story that the accused was the one, or among those, who committed
the offence. The reason for this part of the rule is that -
"a man who has been guilty of a crime himself will always be able to relate
the facts of the case, and if the confirmation be only on the truth of that
history, without identifying the persons, that is really no corroboration
at all ...... It would not at all tend to show that the party accused
participated in it."
40. Thirdly, the corroboration must come from independent sources and thus
ordinarily the testimony of one accomplice would not be sufficient to
corroborate that of another. But of course the circumstances may be such as
to make it safe to dispense with the necessity of corroboration and in
those special circumstances a conviction so based would not be illegal. I
say this because it was contended that the mother in this case was not an
Independent source.
41. Fourthly, the corroboration need not be direct evidence that the
accused committed the crime. It is sufficient if it is merely
circumstantial evidence of his connection with the crime. Were it
otherwise, "many crimes which are usually committed between accomplices in
secret, such as incest, offences with females' (or unnatural offences)
could never be brought to justice". [See M.O. Shamsudhin v. State of
Kerala.]”
The learned counsel contends that the Trial Court and the High Court were
correct in placing reliance on the testimony of PW-10 and PW-11 and
convicting and sentencing the accused-appellants for kidnapping and murder
of the deceased and the same does not warrant any interference by this
Court in exercise of its appellate power under Article 136 of the
Constitution.
We have heard the learned counsel appearing on behalf of all the parties
and have appreciated the evidence on record. The essential question that
would arise for our consideration is whether the High Court was justified
in upholding the conviction and sentence imposed on A-3 and A-4 by the
Trial Court. At the cost of reiteration, since the only appellants before
us in the present appeals are A-3, A-4 and A-15, we shall restrict our
examination of the evidence on record only to their role in the crime as
has been alleged by the prosecution.
From a perusal of the evidence on record, it becomes clear that the case of
the prosecution as far as A-3 and A-4 are concerned rests heavily on the
evidence of PW-10 and PW-11, whose evidence is supported by the evidence of
PW-33 and PW-34.
At the outset, it is crucial for me to examine the evidence of PW-10 and
PW-11, as this forms the backbone of the case of the prosecution against A-
3 and A-4.
PW-10 has admitted to making preparations for the crime, albeit on the
instructions of the accused. PW-10 stated that he had shown various houses
to the accused, including his own, before settling in on the vermicelli
factory premises as the place where the deceased would be brought and kept.
PW-10 was also present in the alleged meeting held on 05.12.2001 at the
residence of A-3 at Perambur. In that meeting, PW-10 stated that A-3 told
everyone present there that the deceased had to be abducted and money
recovered from him. It is further evident from the evidence of PW-10 that
he arranged money and vehicles, as and when needed. What becomes further
clear from the evidence of PW-10 is that he has squarely kept himself out
of the actual abduction and murder of the deceased. According to PW-10, on
31.12.2001, the day that the deceased was abducted, A-9 Udayakumar called
PW-10 to a hotel, from where A-3, A-9, A-1 went in a Maruti Van to the
vermicelli factory at Mudichur. It was after reaching the vermicelli
factory that PW-10 was taken to the room where the deceased was tied up in
chains. PW-10 was then asked by A-3 to arrange for an ambulance or a
vehicle like an ambulance. On 01.01.2002, at about 9:00 P.M., he saw the
body of the deceased being carried downstairs by four persons. A-3 and A-4
were not among them.
Newton, PW-11, in his deposition states that at the request of A-9, he and
PW-10 showed houses to A-3 and A-9. PW-11 was also present at the meeting
on 05.12.2001 and saw A-4, A-6 and A-11 there. On the day of the abduction,
PW-11 saw the deceased being brought into the vermicelli factory premises.
He stated as under:
“……After half an hour, Udayakumar called me over the phone and told me to
open the gate of the vermicelli factory. Then, the Tata Sumo car came
first, followed by the Ford Escort Car and a Maruti Zen Car. 4 persons got
down from the Ford Car. Those 4 persons brought M.K. Balan by closing his
eyes, mouth and tying his hands and took him to the 1st floor. M.K. Balan
was wearing black colour pant, sandal colour T shirt and shoes. 3 persons
came out of the zen car. Udayakumar came to me and asked me whether I know
that he is M.K. Balan and he also threatened me that if I disclose the same
to anybody Poonga Nagar Manickam will kill me and my family members. Then
all the three cars went from the company. I can identify the 4 persons, who
brought M.K. Balan in the Ford Car, if I see them. They are 4th accused,
11th Accused, 16th Accused and 17th Accused………………The next day around 6.00
A.M. when Udayakumar came there, I went from there. Thereafter, Udayakumar
called me over phone and asked me to buy tiffin for 10 persons and gve the
same to Balamurugan in the vermicelli factory. By 12.00 noon, Udayakumar
called again and asked me to buy lunch for 10 persons, B.P. tablets and
head ache tablet and to handover the same to Balamurugan in Mudichur
vermicelli factory. I gave them the same and went home……”
PW-11 also speaks about seeing the dead body of the deceased. He also
identified the Ford Escort Car, M.O. 7, whose registration number is T.T.N.
10-F-5555. As far as A-15 is concerned, only PW-11 identifies him at the
vermicelli factory premises on 30.12.2001, when he states that A-15 was one
of the four persons who came with accused Balamurugan with the tiffin
parcel.
From a perusal of the evidence of PW-10 and PW-11, it becomes clear that
they are accomplice witnesses. It is also clear that the case of the
prosecution heavily rests on their evidence. Before we proceed to examine
the culpability of A-3 and A-4, it is important for us to examine the
reliability of the evidence of the above accomplices. Section 133 of the
Indian Evidence Act, 1872, which deals with the testimony of accomplice
witness, reads as under:
“an accomplice shall be a competent witness against an accused person; and
a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice.”
The High Court, in the impugned judgment and order also considered this
aspect at some length. After adverting to judgments of both the Privy
Council as well as this Court, the High Court concluded as under:
“ A deep study on the above approach in law as to the evidentiary value of
the deposition of an accomplice, the following settled principles
culminate; that an evidence of an accomplice need not necessarily be
rejected, that the evidence requires corroboration in material particulars
as well as the corroboration of the evidence connecting or tend to connect
the accused with the crime, that such accomplice witness is reliable. If
the above tests are satisfied, the evidence of an accomplice can be safely
relied upon to hold the accused guilty of the offence. Keeping the above
principle in mind, the evidence of PW-10 and PW-11 should be considered.”
In the instant case, PW-10 and PW-11 have not been granted pardon by any
Court and have been arrayed as prosecution witnesses. This Court has held
that the mere fact that pardon has not been tendered by a court of law does
not make an accomplice cease being an accomplice. The learned senior
counsel Mr. Basant R. has aptly placed reliance upon the case of Laxmipat
Choraria v. State of Maharashtra[9], this Court held as under:
“The word accomplice is ordinarily used in connection with the law of
evidence and rarely under the substantive law of crimes. Accomplice
evidence denotes evidence of a participant in crime with others.
Section 133 of the Evidence Act makes the accomplice a competent witness
against an accused person.
The witness was, of course, treated as an accomplice. The evidence of such
an accomplice was received with necessary caution in those cases. These
cases have all been mentioned in In re Kandaswami Gounder AIR1957Mad727,
and it is not necessary to refer to them in detail here. The leading cases
are : Queen Emperor v. Mona Puna I.L.R. 16 Bom. 661, Banu Singh v. Emperor
I.L.R. 33 Cal. 1353, Keshav Vasudeo Kortikar v. Emperor I.L.R. 59 Bom. 355,
Empress v. Durant I.L.R. 23 Bom. 213, Akhoy Kumar Mookerjee v. Emperor
I.L.R. 45 Cal. 720, A.V. Joseph v. Emperor I.L.R. 3 Rang. 11, Amdumiyan and
others v. Crown I.L.R. 1937 Nag. 315, Gallagher v. Emperor I.L.R. 54 Cal.
52, and Emperor v. Har Prasad, Bhargava I.L.R. 45 All. 226. In these cases
(and several others cited and relied upon in them) it has been consistently
held that the evidence of an accomplice may be read although he could have
been tried jointly with the accused. In some of these cases the evidence
was received although the procedure of s. 337, Criminal Procedure Code was
applicable but was not followed. It is not necessary to deal with this
question any further because the consensus of opinion in India is that the
competency of an accomplice is not destroyed because he could have been
tried jointly with the accused but was not and was instead made to give
evidence in the case.”
(emphasis laid by this Court)
The same view has been reiterated by this Court more recently in the case
of Chandran @ Maniyan v. State of Kerala[10].
Thus, PW-10 and PW-11 being accomplice witnesses, their evidence must be
treated as such, and subject to the same test of reliability of the
evidence of an accomplice or approver are subject to.
As far as how much reliance can be placed upon the evidence of such
witnesses is concerned, in this regard this Court has laid down the well
settled position of law. In support of the above legal submission, the
learned senior counsel Mr. Basant R. relied upon the case of Sarwan Singh
v. State of Punjab[11], a three judge bench of this Court held as under:
“An accomplice is undoubtedly a competent witness under the Indian Evidence
Act. There can be, however, no doubt that the very fact that he has
participated in ,the commission of the offence introduces a serious stain
in his evidence and courts are naturally reluctant to act on such tainted
evidence unless it is corroborated in material particulars by other
independent evidence. It would not be right to expect that such independent
corroboration should cover the whole of the prosecution story -or even all
the material particulars. If such a view is adopted it would render the
evidence of the accomplice wholly superfluous. On the other hand, it would
not be safe to act upon such evidence merely because it is corroborated in
minor particulars or incidental details because, in such a case,
corroboration does not afford the necessary assurance that the main story
disclosed by the approver can be reasonably and safely accepted as true.
But it must never be forgotten that before the court reaches the stage of
considering the question of corroboration and its adequacy or otherwise,
the first initial and essential question to consider is whether even as an
accomplice the approver is a reliable witness. If the answer to this
question is against the approver then there is an end of the matter, and no
question as to whether his evidence is corroborated or not falls to be
considered. In other words, the appreciation of an approver's evidence has
to satisfy a double test. His evidence must show that he is a reliable
witness and that is a test which is common to all witnesses. If this test
is satisfied the second test which still remains to be applied is that the
approver's evidence must receive sufficient corroboration. This test is
special to the cases of weak or tainted evidence like that of the
approver. ”
(emphasis laid by this Court)
The above principle was reiterated in the case of Haroom Haji Abdulla v.
State of Maharashtra[12], as under:
“8. ...... The Evidence Act in Section 133 provides that an accomplice is a
competent witness against an accused person and that a conviction is not
illegal merely because it proceeds upon the uncorroborated testimony of an
accomplice. The effect of this provision is that the court trying an
accused may legally convict him on the single evidence, of an accomplice.
To this there is a rider in Illustration (b) to Section 114 of the Act
which provides that the Court may presume that an accomplice is unworthy of
credit unless he is corroborated in material particulars. This cautionary
provision incorporates a rule of prudence because an accomplice, who
betrays his associates, is not a fair witness and it is possible that he
may, to please the prosecution, weave false details into those which are
true and his whole story appearing true, there may be no means at hand to
sever the false from that which is true. It is for this reason that courts,
before they act on accomplice evidence, insist on corroboration in material
respects as to the offence itself and also implicating in some satisfactory
way, however small, each accused named by the accomplice. In this way the
commission of the offence is confirmed by some competent evidence other
than the single or unconfirmed testimony of the accomplice and the
inclusion by the accomplice of an innocent person is defeated. This rule of
caution or prudence has become so ingrained in the consideration of
accomplice evidence as to have almost the standing of a rule of law.
9. The argument here is that the cautionary rule applies, whether there be
one accomplice or more and that the confessing co-accused cannot be placed
higher than an accomplice. Therefore, unless there is some evidence besides
these implicating the accused in some material respect, conviction cannot
stand. Reliance is placed in this connection upon the observations of the
Judicial Committee in Bhuboni Sahu v. Emperor a case in which a conviction
was founded upon the evidence of an accomplice supported only by the
confession of a co-accused. The Judicial Committee acquitting the accused
observed:
"...... Their Lordships whilst not doubting that such a conviction is
justified in law under s. 133, Evidence Act, and whilst appreciating that
the coincidence of a number of confessions of co-accused all implicating
the particular accused given independently, and without an opportunity of
previous concert, might be entitled to great weight, would nevertheless
observe that Courts should be slow to depart from the rule of prudence,
based on long experience, which requires some independent evidence
implicating the particular accused. The danger of acting upon accomplice
evidence is not merely that the accomplice is on his own admission a man of
bad character who took part in the offence and afterwards to save himself
betrayed his former associates, and how has placed himself in a position in
which he can hardly fail to have a strong bias in favour of the
prosecution; the real danger is that he is telling a story which in its
general outline is true, and it is easy for him to work into the story
matter which is untrue....."”
(emphasis laid by this Court)
In the case of Ravinder Singh v. State of Haryana[13], a three judge bench
of this Court held as under:
“12. An approver is a most unworthy friend, if at all, and he, having
bargained for his immunity, must prove his worthiness for credibility in
court. This test is fulfilled, firstly, if the story he relates involves
him in the crime and appears intrinsically to be a natural and probable
catalogue of events that had taken place. The story if given, of minute
details according with reality is likely to save it from being rejected.
Secondly, once that hurdle is crossed, the story given by an approver so
far as the accused on trial is concerned, must implicate him in such a
manner as to give rise to a conclusion of guilt beyond reasonable doubt. In
a rare case taking into consideration all the factors, circumstances and
situations governing a particular case, conviction based on the
uncorroborated evidence of an approver confidently held to be true and
reliable by the court may be permissible. Ordinarily, however, an
approver's statement has to be corroborated in material particulars
bridging closely the distance between the crime and the criminal. Certain
clinching features of involvement disclosed by an approver appertaining
directly to an accused, if reliable, by the touchstone of other independent
credible evidence, would give the needed assurance for acceptance of his
testimony on which a conviction may be based.”
(emphasis laid by this Court)
It becomes clear from a perusal of the abovementioned case law that while
the evidence of an accomplice can be used to convict an accused, as a rule
of prudence, the Court must first ensure that the testimony of the
accomplice is corroborated in material particulars by adducing independent
evidence. It is also a well settled position of law that the evidence of
two accomplices cannot be used to corroborate with each other, as held in
the case of R v. Baskerville[14]. The same position of law has been
reiterated and adopted in India in a catena of cases. In this regard, the
learned senior counsel Mr. Basant R. has placed reliance upon the case of
Mohd. Hussain Kochra v. K.S. Dalipsinghji & Ors.[15], a three judge bench
of this Court held as under:
“The combined effect of Sections 133 and 114 Illustration (b) is that
though a conviction based upon accomplice evidence is legal the Court will
not accept such evidence unless it is corroborated in material particulars.
The corroboration must connect the accused with the crime. It may be direct
or circumstantial. It is not necessary that the corroboration should
confirm all the circumstances of the crime. It is sufficient if the
corroboration is in material particulars. The corroboration must be from an
independent source. One accomplice cannot corroborate another.”
(emphasis laid by this Court)
The said position of law was reiterated by this Court in the case of
Chonampara Chellapan v. State of Kerala[16] as under:
“The law is well settled that the Court looks with some amount of suspicion
on the evidence of an accomplice witness which is tainted evidence and even
Section 133 of the Evidence Act clearly provides that the evidence of an
accomplice witness should not be accepted unless corroborated. At the same
time, it must be remembered that corroboration must be in respect to
material particulars and not with respect of each and every item however
minor or insignificant it may be. Actually the requirement of corroboration
is a rule of prudence which the courts have followed for satisfying the
test of the reliability of an approver and has now been crystallized into a
rule of law. It is equally well settled that one tainted evidence cannot
corroborate another tainted evidence because if this is allowed to be done
then the very necessity of corroboration is frustrated.”
(emphasis laid by this Court)
Further, the independent evidence must be such that it corroborates with
the testimony of the accomplice in material particulars, that is, the
corroboration must be both in respect of the crime as well as the identity
of the accused. This particular test assumes significance when there is
more than one accused in a case, as is the case here. In the case of
Sheshanna Bhumanna Yadav v. State of Maharashtra[17], this Court held as
under:
“The law with regard to appreciation of approver's evidence is based on the
effect of Sections 133 and 114 illustration (b) of the Evidence Act,
namely, that an accomplice is competent to depose but as a rule of caution
it will be unsafe to convict upon his testimony alone. The warning of the
danger of convicting on uncorroborated evidence is therefore given when the
evidence is that of an accomplice. The primary meaning of accomplice is any
party to the crime charged and someone who aids and abets the commission of
crime. The nature of corroboration is that it is confirmatory evidence and
it may consist of the evidence of second witness or of circumstances like
the conduct of the person against whom it is required. Corroboration must
connect or tend to connect the accused with the time. When it is said that
the corroborative evidence must implicate the accused in material
particulars it means that it is not enough that a piece of evidence tends
to confirm the truth of a part of the testimony to be corroborated. That
evidence must confirm that part of the testimony which suggests that the
crime was committed by the accused. If a witness says that the accused, and
he stole the sheep and he put the skins in a certain place, the discovery
of the skins in that place would not corroborate the evidence of the
witness as against the accused. But if the skins were found in the
accused's house, this would corroborate because it would tend to confirm
the statement that the accused had some hand in the theft.
This Court stated the law of corroboration of accomplice evidence in
several decisions. One of the earlier decision is Sarwan Singh v. State of
Punjab and the recent decision is Lachi Ram v. State of Punjab. In Sarwan
Singh's case this Court laid down that before the court would look into the
corroborative evidence it was necessary to find out whether the approver or
accomplice was a reliable witness. This Court in Lachi Ram's case said that
the first test of reliability of approver and accomplice evidence was for
the court to be satisfied that there was nothing inherently impossible in
evidence. After, that conclusion is reached as to reliability corroboration
is required. The rule as to corroboration is based on the reasoning that
there must be sufficient corroborative evidence in material particulars to
connect the accused with the crime.”
The accused before us are A-3, A-4 and A-15. What is crucial to consider at
this stage is that the Trial Court acquitted all the above accused of the
charge of conspiracy under Section 120-B of IPC. They have however, been
convicted for, among others, the offences under Section 302 read with
Section 109 and Section 364 read with Section 109 of IPC. There is nothing
on record to show the direct involvement of the accused – appellants in
either the abduction of the deceased or his murder. The Ford Escort Car
(M.O.12) recovered at the instance of PW-10, from the house of A-3, does
not trace back its ownership to A-4. The requirement of corroboration from
independent sources in material particulars has not been met in the instant
case. This makes it impossible for the accused to be convicted of the
offences under Sections 302 and 364 of IPC. Neither PW-10 nor PW-11 are
witnesses to the abduction of the deceased. PW-13, who witnessed the
abduction, also did not mention the above three accused at the site of the
abduction. PW-10 places A-3 and A-4 at the meeting on 05.12.2001. But this
fact loses significance in view of the fact that they have been acquitted
of the offence of conspiracy under Section 120B of IPC. PW-10 and PW-11
also saw the body of the deceased being brought down in the vermicelli
factory premises on the night of 01.01.2002. But neither of them places any
of the three accused at the site at that time. Further, what comes to light
from the testimony of PW-10 and PW-11 is that even at the vermicelli
factory premises, A-3 stayed downstairs, while it was PW-11 who went
upstairs and actually saw the deceased tied to chains and the room where he
was kept. PW-11 only saw A-15 at the site on the night of 30.12.2001,
carrying a tiffin parcel. A-4 has not been mentioned anywhere at the
vermicelli factory at all. Further, as far as A-3 is concerned, another
evidence used against him is the testimony of PW-32 and PW-33 who have
admitted to creating the evidence of the death certificate, which was
allegedly required by A-3 to produce at the crematorium in order to cremate
the deceased. In light of the fact that PW-32 has admitted to issuing the
death certificate without even seeing the dead body of the deceased at the
request of PW-33. PW-33 has stated that he only did so at the instance of A-
3. There is no other evidence on record to connect A-3 to the death
certificate. Even if the death certificate is taken to be genuine, it does
not in any way connect A-3 to the deceased, thus rendering the claim of the
prosecution doubtful and shaky.
As far as A-15 is concerned, the crucial evidence on which reliance was
placed upon by both the courts below to convict him was the recovery of
M.O. 1, reebok shoes on his direction. PW-31, Samundeswari, a supervisor at
the vermicelli factory, in her deposition stated that she saw a person at
the vermicelli factory premises on the next day, i.e. 01.01.2002, who
stated that he had come to take something. He took a Reebok shoe from the
factory. Both the courts below, however, failed to notice that PW-31 had
explicitly stated in her testimony that:
“On 18th March, one person was brought by the police that I only shouted
him and that if it is asked me whether I could be able to identify the said
person, I could say that as it is a lapse of more than 2 years, I could not
remember that person.”
(emphasis laid by this Court)
Thus, the evidence of PW-31 cannot be used against A-15, which has
erroneously been done by the courts below. Further, PW-1 and PW-2 have both
stated in their testimony that the particular reebok shoe did not belong to
the deceased. Thus, there is nothing on record which connects A-15 either
to the crime, or to the deceased.
Thus, the evidence of PW-10 and PW-11 is not reliable for recording the
finding of guilt on the charges against the accused appellants. Even if it
is placed reliance upon, A-3, A-4 and A-15 cannot be convicted of the
offences of kidnapping and murder, more so in light of the fact that they
had been acquitted of the charge of criminal conspiracy under Section 120-B
of IPC by the courts below. There was no basis for convicting them under
the other Sections like 302 and 365 of IPC. After having found that the
accused persons were not guilty under Section 120-B of IPC, it was the duty
of the Trial Court to establish the involvement of each of the accused
persons individually in each offence for which they had been charged to
hold them guilty under the same.
The accused appellants in the instant case have also been convicted under
Section 109 of IPC (Section 302 read with 109 and 365 read with 109 IPC),
which prescribes the punishment for the offence of abetment. Section 107 of
IPC provides for the offence of abetment as under:
“107. Abetment of a thing— A person abets the doing of a thing, who—
(First)— Instigates any person to do that thing; or
(Secondly)— Engages with one or more other person or persons in any
conspiracy for the doing of that thing, if an act or illegal omission takes
place in pursuance of that conspiracy, and in order to the doing of that
thing; or
(Thirdly)— Intentionally aids, by any act or illegal omission, the doing of
that thing.
Explanation 1— A person who, by wilful misrepresentation, or by wilful
concealment of a material fact which he is bound to disclose, voluntarily
causes or procures, or attempts to cause or procure, a thing to be done, is
said to instigate the doing of that thing. ……”
Mr. Siddharth Luthra, the learned senior counsel appearing on behalf of
appellant A-4 rightly places reliance on the decision of this Court in the
case of Pramatha Nath Talukdar (supra), wherein this Court discussed the
distinction between the offence of criminal conspiracy under Section 120A
of IPC and that of abetment by conspiracy under clause second of Section
107 of IPC. The view taken in that case was reiterated by a three judge
bench of this Court in the case of Kehar Singh & Ors v. State (Delhi
Administration)[18] as under:
“……For the present, it may be sufficient to state that the gist of the
offence of criminal conspiracy created under Section 120-A is a bare
agreement to commit an offence. It has been made punishable under Section
120-B. The offence of abetment created under the second clause of Section
107 requires that there must be something more than a mere conspiracy.
There must be some act or illegal omission in pursuance of that conspiracy.
That would be evident by the wordings of Section 107 (Secondly)……”
(emphasis laid by this Court)
Thus, for Section 109 of IPC, it is not enough to show a conspiracy. It has
to be taken a step further. What needs to be proved is an act committed in
furtherance of that conspiracy. In the instant case, both the courts below
did not find sufficient evidence to convict the accused appellants of the
charge under Section 120B of IPC. Once the charge under Section 120B of IPC
falls, in order to convict the accused appellants under Section 302 read
with Section 109 IPC, or Section 365 read with Section 109 IPC, what was
needed to be established was the happening of some overt act on the part of
the accused appellants. From the evidence on record which has already been
appreciated in detail in the preceding part of this judgment, there is no
evidence except the testimony of PW-10 and PW-11 which links the accused
appellants to the crime. For the reasons stated supra, I have already come
to the conclusion that the testimony of PW-10 and PW-11 is untrustworthy
and cannot be relied upon to convict the accused appellants in the instant
case. Thus, the charge under Section 109 of IPC also cannot sustain.
Thus, for the reasons stated supra, the Trial Court erred in convicting the
accused appellants, more so, after having acquitted them of the offence of
criminal conspiracy punishable under Section 120B of IPC. Even the High
Court adopted the same erroneous approach while re-appreciating the
evidence against the accused appellants and attempting to look for a
complete link, as if the accused persons had been convicted for the charge
of criminal conspiracy as well. This shows a gross non- application of mind
on the part of the courts below, which certainly cannot be allowed to
sustain by this Court, as the same is wholly erroneous in law. Therefore,
these criminal appeals must be allowed in exercise of the power of this
Court under Article 136 of the Constitution of India and the accused
appellants are entitled for acquittal from the charges.
For the reasons recorded supra, I set aside the impugned judgment and order
dated 06.10.2007 passed by the High Court in upholding the judgment and
order passed by the Trial Court convicting A-3, A-4 and A-15. The
prosecution has not proved its case beyond reasonable doubt against the
accused appellants. Hence, I acquit A-3, A-4 and A-15 of all charges.
They may be released forthwith if they are not required in any other case.
…………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi, September 28, 2016
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.403 OF 2010
Somasundaram @ Somu … Appellant(s)
Vs.
State represented by Deputy
Commissioner of Police … Respondent
With
Criminal Appeal No.827/2013; and
Criminal Appeal No.828/2013.
J U D G M E N T
ARUN MISHRA, J.
1. I have gone through the opinion of my esteemed Brother but I find
myself unable to agree with the same. In my opinion judgment-order of
conviction of Trial Court affirmed by the High Court deserves to be upheld.
2. The appellants are aggrieved by their conviction. They have been
convicted and sentenced, as noted by my learned Brother, for commission of
abduction and murder of one Shri M.K. Balan, former Member of Legislative
Assembly. In all, 18 accused were put to trial. The trial court acquitted
Romita Mary accused No.12 and Ganesan accused No.18 and convicted the
remaining accused. The appeal filed by accused No.10, namely, Leela
Shankar, has been allowed by the High Court and with respect to remaining
15 appellants, the same has been dismissed; thereby maintaining the
conviction and sentence imposed by the trial court. Out of the convicted
accused, only three accused Manickam @ Poonga Nagar Manickam A-3;
Somasundaram A-4; and Bomb Selvam A-15 are in appeal before us. Senthil
Kumar A-1 and Manickam were highly influential figures and the murder is a
high profile political murder involving various personalities.
3. As per the prosecution case, on 30.12.2001 one M.K. Balan went for a
morning walk at about 5.30 a.m. but did not return home. Hence, a complaint
was lodged by his son Manimaran PW-1. Complaint Ex. P1 was filed at
Pattinpakkam P.S. at about 11 a.m. Photo of deceased Shri M.K. Balan was
published in the newspaper and sent to the Police Stations. The case was
transferred to CBCID, Chennai on 12.1.2002. Initially, the investigation
was done by John Joseph, PW-66. Later on, it was taken over by PW-67, the
Deputy Superintendent of Police, CB CID. On 21.2.2002, the Investigating
Officer (IO) came to know of the involvement of accused A-5, Balamurugan,
in the offence through an informant. On 18.3.2002, at about 5.30 a.m.
Investigating Officer PW-67 arrested A-5 and recorded his confessional
statement Ex. P-43 who identified T.K.P. Food Products Company i.e.
vermicelli factory at Mudichur as place where deceased was kept after
abduction. A-5 also took the IO to a cremation ground at Perambur where
body was cremated, the IO prepared a memo Ex. A-47, sketch Ex. P-48 and
recorded statements of PWs. 12 and 19, two vettiyans, who identified MO 14,
the photograph of the deceased M.K. Balan whose body was cremated.
Identification memo Ex. P-46 was prepared in the presence of PW-44.
Thereafter, one Kannan, Office Assistant of Corporation of Chennai had been
examined and death report Ex. P-29 submitted in the name of fictitious
person to cremate deceased, was seized which related to one Rajamani
Chettiar son of Chindamani Chettiar, aged about 61 years. Ex. P-30 death
register, Ex. P-31 the counterfoil and Ex. P-32 despatch notebook were also
seized. Deceased was cremated on the basis of false death certificate Ex. P-
27. After two and half months on 19.3.2002, certain articles were recovered
from cremation ground and on the same day at about 11.30 p.m., Shankar
Ganesh A-6 was arrested near Perambur bus-stand, and I.O. recorded the
confessional statement of A-6 on 20.3.2002 in the presence of Jagannathan
PW-24 and other witnesses. Seizure of Maruti Omni van under memo Ex. P-17
was also made. Irudhayaraj A-7 was also arrested on the same day and his
confessional statement Ex. P-38 was recorded. Pursuant thereto, an iron
cot, used in factory premises of Mudichur, MO-11 was seized vide memo Ex. P-
7 in the presence of Geetha PW-17.
4. On 25.3.2002, at about 8.15 a.m., Manickam A-3, was arrested and his
confessional statement Ex. P-20 came to be recorded on the basis whereof MO-
12 Maruti zen car was seized vide memo Ex. P-6. On the same day the IO also
recorded the statement of PW-32 who was Lusker in the Corporation of
Chennai, and the proprietor of vermicelli factory T.K.P. Food Products,
Mudichur, namely, Krishnapandi PW-34. Accused No.9 was arrested and as per
his information furnished under section 27 of the Evidence Act, Maruti van
TN-22-B-8853 was recovered from V.R. Pandian PW-18, in the presence of
Sriramulu PW-25. On the basis of confessional statement of A-3 dated
5.4.2002, recovery of MOs. 28 to 33 vide memo Ex. P-36 was made. Somu @
Somasundaram A-4, had been arrested on 9.4.2002 at about 6 a.m. at Chrompet
Railway Station. His confessional statement Ex. P-34 had been recorded in
the presence of PW-9 and recovery of MO-6 Ford Escort car No. TN-10-F-5555
was made vide memo Ex. P-9. Bomb Selvam A-15, was arrested on 24.4.2002 and
his confessional statement Ex. P-50 was recorded in the presence of PW-44.
Pursuant to information furnished by him, recovery of MO-10 Hero Honda bike
was made vide memo Ex. P-51. Other accused persons were also arrested from
time to time. Their confessional statements were also recorded and
recoveries made. Ultimately, after investigation, final report was filed.
In the course of trial, the prosecution examined all the 67 witnesses.
Documents Ex.P-1 to P-86 were exhibited and articles MOs. 1 to 39 were
produced consisting of six cars : MO6 Ford Escort Car TN 10F 5555; MO7
Golden colour Maruti van TN 22P 8853, MO8 Maruti van TN 02 0343; MO9 Maruti
van TNA 7484; MO-12 Maruti Zen TN 02 Z99; Tata Sumo car TN-04 D 9657;
Motorcycle MO-10 – Hero Honda; tape-recorder; suitcase; bedpan; chain; iron
cot; photo of M.K. Balan; TTK cassettes; 2 pants, 2 shirts, one dhoti,
knife, charger, mobile phones etc. were recovered. Accused abjured their
guilt and pleaded innocence.
5. The arguments advanced and evidence produced by prosecution consists
of different sets which can be divided in the following heads :
(i) Prosecution case - Evidence of PWs. 10 and 11;
(ii) Prior relationship of accused;
(iii) Selection of premises where M.K. Balan was kept/and other
arrangements;
(iv) Abduction of deceased M.K.Balan on 30.12.2001 in white omni van;
(v) Taking of M.K.Balan to factory premises/meeting dated 30.12.2001 at
the residence of A-9;
(vi) Commission of offence under section 302 IPC;
(vii) Removal of dead body from factory premises;
(viii) Cremation of dead body;
(ix) Procurement of death certificate by A-3;
(x) Confessions and recoveries from accused;
(xi) Commission of offence under section 387 IPC;
(xii) Effect of acquittal under section 120B IPC;
(xiii) Evidence of accomplices;
(xiv) Holding TI/recording of statement under section 164 Cr.P.C.;
(xv) Cell phones/cassettes/forensic evidence
6. Evidence of PW-10 and PW-11 :
It appears that Venugopal PW-10 and Newton PW-11 helped the accused
persons for hiring of vermicelli factory at Mudichur, renting some of cars,
arranging for hotels, food, arrangement of fan, bedpan, cot, arrangement
for money, hiring of vermicelli factory which was hired twice firstly for a
week in the end of November/early December then again in end of December
to 1.1.2002 when incident took place.
7. Venugopal PW-10 is one of the main witnesses in the instant case. He
has deposed that he and Newton PW-11, are business partners. During 1999,
he and A-9 had obtained licence to quarry sand at Kulur, Tiruvallur
district. A-9 told him that one Krishnapandi PW-34 is running a Semiya
manufacturing company in the name of T.K.P. Food Products at Mudichur and
as the company was running at loss, and if they invested, they may earn
profit. Therefore, both, PW-10 and PW-11 invested Rs. 3 lakhs each in the
said company and gave money to Krishnapandi. That while PW-10 and PW-11
had gone to a polling booth in the election held during August 2001, A-9
met PW-10. A-9 told PW-10 that he will be joining a leading political
party and A-3 will help him and to reciprocate, he should do some favour
for A-3. A-9 also told him that A-3 has promised him to get him a post in
the party and therefore, he wanted a place to complete the job assigned to
him by A-3.
8. Venugopal PW-10 has clearly stated that he had shown the house at
Mahalakshmi Nagar of his friend Mr. Chowdry but that was not liked by
Manickam and Udayakumar. The house of the witness was also not liked by
accused Manickam A-3 and Udayakumar A-9. A-9 had asked to show the
vermicelli factory at Mudichur Road then the said witness took A-3 and A-9
to vermicelli factory where Krishnapandi P-34 was also present. Manickam A-
3 told A-9 that place is suitable for the work to be done by them. Later
on, it was this factory where deceased M.K. Balan was kept after abduction.
Krishnapandi was told that they required the factory for one week and the
loss to be caused will be paid to him. The witness has identified A-3. The
said witness Venugopal PW-10. Newton PW-11, A-3 and A-9 travelled in the
same car to Tambaram, that is in the white Ambassador car PY-01-H-4046. The
witness has also stated that Manickam, A-3 told him that a screen was
required to be put on the windows of factory in the first floor in which
M.K. Balan was kept. The witness also arranged two cots on credit from M/s.
Nirmala Industries. On being asked by A-9 besides the chairs from his
house, fan from A-9’s house, bed pan was also kept in the vermicelli
factory at Mudichur. Venugopal PW-10, A-9 and his friend Newton PW-11 had
put them in the room. Screen over the windows was also fitted. Manickam A-3
and Udayakumar A-9 asked Krishnapandi to give one week off to the employees
of the factory but on and around 5.12.2001, no VIP came there as at that
time, M.K. Balan could not be abducted. In the end of November, A-9 asked
the witness for his Ford Escort car for 2-3 months to send it to A-9.
Vijayan PW-49, driver of A-3 took the car. On 5.12.2001, A-9 called
Venugopal PW-10 over phone and requested him and Newton PW-11 to reach the
house of Manickam A-3 at Perambur. On that day they went to the house of A-
3. In the house 2-3 persons were also there. They went inside the house.
Manickam A-3 was telling to the persons who were present there and
Udayakumar A-9 that ex-MLA M.K. Balan has to be brought as some money was
to be collected from him. After that PW-10 and PW-11 went and sat in the
car. After about half an hour A-9 came. Manickam A-3 also came out who went
out in Ford Escort car of Venugopal PW-10 which had been given by him on
rent. They followed the said car. Venugopal PW-10, Newton PW-11 and A-9
followed the said car of A-9. Other persons who were present in the meeting
at the residence of Manickam, came by another car. They were Somasundaram A-
4, Shankar A-6, and Sampath A-11. When they were travelling by a car,
Manickam A-3 called A-9 over phone and asked him to come to the temple at
N.S.C. Bose Road. Venugopal PW-10, Newton PW-11 and Udayakumar A-9 went to
the temple. After sometime Manickam A-3 brought two men and one woman in
the Ford Escort car. Four persons came in the car, went to a temple and
came out after worship. Thereafter Manickam travelled in the same car. They
followed them. The persons accompanying A-3 were Senthil Kumar A-1,
Hariharan A-2 and Romita A-12. A-12 was dropped at Chintadripet and the car
ultimately reached Woodlands Drive Hotel. Then PW-10 and PW-11 left for
their respective places. By that time Manickam A-3 told A-9 to follow and
went along with Senthil Kumar A-1 and Hariharan A-2 in the Ford Escort car.
A-3 came alone to the hotel by the car then Venugopal, Newton and
Udayakumar came by the car of A-9 to Tambaram. A-9 again contacted PW-10
over phone on the next day, and requested him to get the key of the house
belonging to one Chowdry of Mahalakshmi Nagar. Accordingly, PW-10 and PW-
11 collected the said key from Chowdry and waited in the house for A-9 to
come. At around 7 p.m., Manickam A-3, A-9 and A-1 came with one more
person by Ford Escort car along with A-5. A-3 introduced Venugopal and
Newton to A-1 by referring him as a big VIP known as Senthil Kumar and that
they should not talk to him. A-3 also asked Venugopal PW-10 to arrange food
for Senthil Kumar and to do other works for him. Balamurugan A-5 served the
food to A-1. Since mobile connection was not available for Senthil Kumar A-
1 at the said place, he was made to stay in the house of A-9, Cell No. used
by Senthil Kumar A-1 was 9840230709.
9. PW-10 has further stated that on 08.10.2001, A-1 informed PW-10 that
A-3 requires Rs.1,10,000/- and it will be returned in two to three days.
On 10.12.2001, PW-10 pledged jewels belonging to him and obtained
Rs.1,10,000/- and took the said amount to A-9’s house as per his
instruction. Thereafter A-9 took PW-10 to Hotel Excellency in T.Nagar
where A-9 handed over the said amount to A-2. As factory at Mudichur was
selected to keep abductee. That at the request of A-9 and A-3, PW-10 had
arranged the Semiya manufacturing factory belonging to PW-34 for a week.
On 30.12.2001, after getting the keys of Semiya manufacturing factory from
him, A-3 handed over the said keys to A-5 and A-3 returned to A-9’s house
along with PW-10, where PW-10 saw A-1 and A-2 were staying and PW-10 heard
A-3 telling them that M.K. Balan was brought (abducted) and the money alone
remains to be collected. On 31.12.2001, A-1 asked A-9 to collect the
recorded cassettes from A-2 and bring a tape recorder and empty cassettes.
A-3 also directed A-9 to collect the same from A-2, A-9 collected two audio
cassettes.
10. PW-10 has stated that PW-11 had provided food to A-1 on 30.12.2001
and 31.12.2001. Again A-3 requested PW-10 to arrange a Maruti Van, but he
expressed his inability to provide Maruti Van. That thereafter, on the
request PW-10 and PW-11 had arranged rooms in Hotel Henkala, Tambaram for
A-9. He heard A-3 asking A-9 as to where they have disposed the Maruti Van
on that A-9 replied that the Maruti van was just in front of Vasantha
Bhavan Hotel. PW-10 also heard the driver of A-3 asking him for a chain
to tie M.K. Balan. He also saw A-9 handed over Rs.100/- to the driver Viji
PW-49 for purchasing a chain. He also saw A-3 informing PW-10 to provide
food for those who are staying in the Semiya factory. On 31.12.2001 at
about 8.30 p.m., both PW-10 and PW-11 saw M.K. Balan tied in a chain, his
eyes also tied and was sitting on the green colour steel cot which PW-10
and PW-11 had purchased. He also saw M.K. Balan wearing the T-shirt and
dark pant and also the Reebok shoes lying just some distance away from the
cot. PW-10 made arrangement to buy the audio cassettes and he also
arranged the two-in-one tape recorder which was used for recording.
Thereafter, PW-10 heard A-3 saying A-9 that he wants one Ambassador car
and A-9 replied that in spite of the best effort, he could not get an
Ambassador car. Thereafter, he also heard that if no Ambassador car was
available, if he could get one Maruti van and to fix one Lummox light on it
to look like ambulance. As PW-10 and PW-11 had suspected something was
going on, they again went to the Semiya factory at 8.45 p.m. on 1.1.2002,
and saw four persons bringing down the body of M.K. Balan and A-5 covered
the body with a cloth brought by him. Both of them saw no movements in the
body, it was the dead body and they also saw the body was loaded in the van
and taken out from the place. PW-10 had paid the room hiring charges to
Henkala Hotel, Tambaram. He was also informed by one Sami A-13 that M.K.
Balan was murdered and his body was burnt in cremation ground and
therefore, he requested PW-10 to perform pooja in the factory premises but
PW-10 did not do. He also saw the fan, bedpan, chair, cot etc., were
removed from the premises on 01.01.2002. On 03.01.2002, he made
arrangements for taking a room as told by A-9 for A-1, A-2 and A-12 to
stay. Thereafter he left for Bangalore and stayed there till he was
informed by his wife on 18.03.2002 that A-5 was arrested by CBCID Police in
connection with the murder of M.K. Balan and the police had enquired her.
He contacted his wife on 25th or 26th of April, 2002, and at the request of
his wife, he came to CBCID Office on 01.05.2002 and narrated as to what had
happened.
11. Newton PW-11 is another witness in the instant case. He has fully
supported the version given by Venugopal PW-10. He has deposed that
Venugopal and Udayakumar were partners in Sand Quarry business. If he
happens to see Udayakumar A-9, he could identify him. A-9 was same person
produced before the court. In August, 2001, Venugopal PW-10 purchased a
Ford Escort car bearing Regn. No.TN 10-F-5555. By the end of August,
Corporation election was held. He along with PW-10 went to the Polling
Booth in the said car. At Udayakumar’s A-9 request, he and Venugopal showed
some houses to Udayakumar A-9 and Manickam A-3. Venugopal PW-10 showed his
house and some other houses to Udayakumar and Manickam, as they had asked.
In 1999, Udayakumar A-9 told him and Venugopal PW-10 to invest money in
vermicelli factory which had been run by Krishnapandi PW-34, since he had
faced losses in business. Accordingly he and Venugopal became partners in
the said company. Manickam A-3 told Udayakumar that vermicelli factory was
the correct place for the works to be done by him as it was away from other
buildings. He also told that the said place is needed by them for a week
and that company should be given leave for a week and also he was ready to
pay the amount towards the loss of income during that period. He has
totally supported the other version of Venugopal PW-10 with regard to
other facts also.
12. In addition he has deposed that M.K. Balan was brought to Mudichur
Semiya facory on 30.12.2001. He has also stated that he saw four persons
bringing body of M.K. Balan from upstairs and put the same in a Maruti van
and also saw the van leaving the said place. He had also stated that even
on 5.12.2001 he travelled with accused Manickam in his car along with other
accused persons.
In re: Prior relationship of accused
13. With regard to prior relationship of accused persons, prosecution has
examined Mohan Babu PW-4, Ganeshan @ Vethilai Ganesan PW-5, Nehru PW6;
Kamal Anand PW7; Deivanayaki PW8; and Lalitha PW14. PW-4 has stated in
respect of meeting of deceased M.K. Balan with Senthil Kumar – A1. PW 5
Ganeshan alias Vethilai has stated that he knew M.K. Balan. Mohan Babu PW-4
has also deposed that Senthil Kumar came with him. PW-4 deposed that one
Lalitha helped him in getting the job in the financial institution
belonging to deceased. Lalitha asked him to arrange for a loan of
Rs.2,50,000 for lesser interest and she stated that she would return the
amount by lending the said amount for higher rate of interest but she paid
interest for the first month only and was avoiding further payment. That he
met A-1 on road when he took lift from him. Thereafter he even sought help
of A-1 in getting the money back from Lalitha. It is stated that deceased
M.K.Balan told PW-4 that he wanted to meet A-1. Both the deceased and A-1
met each other. Nehru PW-6 has stated that he knew Manickam A-3. He also
met Hariharan A-2. Kamal Anand PW-7 has deposed that Deivanayaki PW-8 had
asked for his cell phone for two days. He gave her cell phone
No.9840053887. After two days he asked the cell phone back for which she
told that she requires the cell phone for one more week and he told that he
will procure another cell phone from one Muttu. As told to her he got one
cell phone from Muttu with No.9840133368 and gave it to her and got back
Mobile No. 9840053887 from her. PW-8, sister in law of A-2 has stated that
her brother-in-law had asked for the cell phone for the purpose of party
work for two days which she obtained from Kamal Anand PW-7 who in the
meantime procured the cell phone from his friend Muttu. A-2 returned the
cell phone in the first week of December and she handed over the same to
Kamal Anand PW-7. Christopher PW-9 has stated that he knew A-1 and A-2.
Durai Swami PW-15 had stated that he knew Udayakumar A-9 and sold Tata Sumo
car No. TN 04T-9657 - MO-13 to A-9 for Rs.1,75,000/-. Udayakumar also sold
Maruti zen car to him. In January, 2002, Udayakumar A-9 left the car
stating that the car was not auspicious and took his old Maruti zen back
from him. Laxminiwas Chaudhary PW-16 gave Zen car MO-12 to Manickam A-3.
Danasekar PW-27 was known to A-1. Jayaprakash PW-28 was in the company of
deceased M.K. Balan. Soundarajan PW-30 knew Udayakumar A-9 and owner of van
MO-9. Samundeswari PW-31 worked with T.K.P. Food Products factory where the
deceased was kept after abduction. John Kennedy PW-37 is the owner of
Maruti van MO-8. He had given the same to Venugopal PW-10. Syed Akbar PW-48
is the owner of motorcycle, Viji @ Vijayan PW-49 is the Driver of A-3
Manickam. Suresh PW-57 is stated to be driver of Somasundaram A-4. Evidence
as to prior relationship has also been furnished by Venugopal PW-10, Newton
PW-11, Krishnapandi PW-34, owner of vermicelli factory; Lalitha PW-14,
mother of kept of deceased; and Ramesh PW-2, driver of the deceased.
14. The happenings in-between 5.12.2001 and 30.12.2001 regarding
preparation are apparent from the statements of PW-10, PW-11, statements of
PW-49, PW-7, PW-8, A-2, Laxminiwas Chaudhary PW-16 about Maruti van MO-12,
PW-18 V.R. Pandian, Velmayal PW-20 and Krishnapandi PW-34 etc. on record.
In re : Selection of premises where M.K. Balan was kept/and other
arrangements
15. It is proved that selection of premises T.K.P. vermicelli factory at
Mudichur near Tambaram where M.K. Balan was kept after abduction, had been
done by A-3 amd A-9. It is stated by PWs.10, 11 and 34 that accused A-3 and
A-9 had selected the same. PW-10 and PW-11 were partners for some time
with proprietor Krishnapandi PW-34. A-9 met and told PW-10 that he would
join an important political party for which Manickam, A-3 will help him,
and for that some obligations have to be done to him. Manickam was one of
the secretaries of the Branch of an important political party. The evidence
also discloses that after inspecting vermicelli factory at Mudichur, A-3
and A-9 had asked to put fan, table, chair, cot, bedpan in the room in the
upstairs and screen cloth to cover the windows. The premises were earlier
too hired before a month in November and earlier part of December for about
a week. PW-34 has deposed that from 29th day of November, 2001 leave was
given for a period of one week. Same has been supported by PW-31 and PW-10
but as M.K. Balan could not be abducted at that time, no one came in the
factory. Statement of PWs.10 and 11 is corroborated by PWs.31 and 34.
16. Evidence also discloses that A-9 had called PW-10 and asked for his
Ford car MO-6 for 2-3 months on rent. The same was given by Viji to A-9. It
was taken by Viji who was driver of A-3. Use of said car is established
from evidence. There is nothing to doubt that PW-10 and PW-11 visited the
house of Manickam at Perambur along with A-9; and it is established that
Manickam had told A-9 in the presence of PWs.10 and 11 that M.K. Balan has
to be brought as some amount had to be collected from him. The involvement
of Manickam-A-3, A-4 and Bomb Selvam–A-15 is established at the relevant
time, and were part of the design to abduct M.K. Balan. It is unbelievable
that A-4 was present by chance but he had an active participation in the
commission of the offence. Ford car which was given was used by A-3. A-4
had followed them in another car along with 3 other persons; A-6 and A-11
etc. Venugopal PW-10 had arranged for a sum of Rs.1,10,000/- by pledging
his jewels and handed over the amount to accused Hari along with A-9 in the
Hotel Excellent. Evidence also discloses that on 24.12.2001, Udayakumar A-9
phoned to PW-10 and went to the house of A-3 and A-3 had asked PW-10 to
arrange for a Maruti van. As the charges for Ford car were not paid to him,
he replied in the negative. Udayakumar A-9 then informed PW-10 that he had
already made arrangements to get a Maruti van from one Kennedy PW-37 and
another Maruti van from one Jayaprakash, brother-in-law of Soundara Rajan
and sent them to the house of Manickam A-3.
17. Syed Akbar PW-48, owner of Hero Honda motorcycle has been examined.
PW-10 has stated that the said motorcycle was given through him. Thus PW-48
corroborates and confirms the evidence of Venugopal PW-10 and PW-11.
In re : Abduction of M.K. Balan on 30.12.2001
18. With respect to abduction of M.K. Balan on 30.12.2001 in white Maruti
van, statement of Sudhakar PW-3 is that he used to practice boxing,
skipping and running along with others at MRC Nagar from 5.30 to 7 a.m. On
30.12.2001 at about 5.30 a.m. he started to run and at that time he heard a
noise and saw that at a distance of 75 mtrs. a person was pushed down in
the van by the three persons and all the three persons went in the same
van. The van was an Omni Van and one motor cycle was chasing the said Van.
Nirmal Kumar PW-13 has stated that he used to go for walk in M.R.C. Nagar
everyday at about 5.30 a.m. On 30.12.2001 at about 5.45 a.m. in the morning
when he was walking in the Kasturi Estate, M.K. Balan came from opposite
direction. He was wearing bright shoes, sandal color T-Shirt and dark
pant. He crossed him and left.
19. Son of M.K. Balan, deceased, Manimaran PW-1, lodged a complaint about
missing of his father M.K. Balan stating that the deceased used to go for
morning walk everyday at about 5.30 a.m. He used to walk up to Ayappan
Temple M.R.C. Nagar and return by 7.30 a.m. On 30.12.2001 his father went
for walk but did not return back. He was informed about the same by his
mother at around 8.30 A.M. Since his father was not found anywhere he gave
a complaint E-5 to police station. He also filed a Habeas Corpus petition
before the High Court.
20. When we assess evidence, it becomes apparent that PW-3 has clearly
stated that the former MLA was abducted on 30.12.2001 at about 5.30 a.m.
Sudhakar PW-3 has stated that a person was put inside a van by three
persons. Thereafter motorcycle followed the said van. That his friend
Selvam A-15 also came there. PW-13 had also stated that he had seen M.K.
Balan taking morning walk at about 5.30 a.m. A person was pushed into a
Maruti van. It is apparent that M.K. Balan had been abducted from M.R.C.
Nagar.
21. After abduction was made in the morning at about 5.30 a.m. on
30.12.2001, the evidence discloses meeting at the residence of Udayakumar A-
9. On 30.12.2001 at 8.30 a.m. as unfolded by Venugopal PW-10 and Newton PW-
11, where A-3 stated that abduction of M.K. Balan has been made and money
remains to be collected.
In re : Taking of M.K. Balan to factory premises
22. On the day of abduction 30.12.2001 at about 8.30 a.m., A-9 phoned to
PW-10 asking him to come to the house of A-9. PW-10 asked PW-11 to come to
the house of A-9 and then he had taken Newton, PW-11 in a motorcycle which
belonged to a boy working in the office of PW-10 and left Newton, PW-11 at
the house of A-9. Udayakumar A-9 asked PW-10 to give the key of vermicelli
factory and as he had no vehicle to go to the vermicelli factory, he asked
him to take PW-10 on the motorcycle kept in his house. Accordingly he had
done so. PW-10 and Balamurugan A-5 were getting down at vermicelli factory
at that time A-9 contacted PW-10 on his cell phone and asked whether they
had reached the vermicelli factory to which PW-10 replied that they had
reached. A-9 further asked PW-10 whether he had received the key of the
factory. Cellphone was given for talking to Krishnapandi PW-34 by A-9.
Krishnapandi agreed to give the key to PW-10 and after some time the key
was entrusted by Krishnapandi to PW-10. Newton PW-11 and Manickam came
there in an auto-rickshaw and the key kept by PW-10 was given to Manickam A-
3. The key was entrusted by A-3 to A-5. A-3 asked Venugopal PW-10 how he
came to which he replied that he came on a motorcycle. Manickam A-3 asked
Venugopal to drive the motorcycle. He also sat on the motorcycle and went
to the house of A-9. While Manickam A-3 went upstairs, PW-10 followed him
where accused A-1 and A-2 were also present. At that time Manickam had told
those two accused persons that M.K. Balan was brought and the collection of
amount was to be made from him. These are the facts stated by PW-10.
23. The evidence of Newton, PW-11 indicates that on 30.12.2001 after
about half an hour, A-9 phoned to him to open the gate of vermicelli
factory. At that time firstly the Tata Sumo car and then Ford Escort car
followed by one Maruti zen car came there and four persons got down from
the said Ford car and they took M.K. Balan to upstairs of the said
vermicelli factory by shutting his eyes, mouth and hands. M.K. Balan was
wearing black colour pant, sandal colour T-shirt and shoes. At that time
Manickam A-3 and A-9 had asked him not to disclose it to anybody. The
persons who came in Ford car were Somasundaram @ Somu A-4, A-11, A-16 and A-
17. PW-11 has further stated that A-5 went in zen car and came back after
about 30 minutes in Tata Sumo car carrying tiffin to the factory. Along
with A-5 were other accused, namely, A-4, A-6, A-7 and Bomb Selvam A-15.
Thus presence and participation in abduction and at vermicelli factory of
accused Manickam A-3, Somasundaram A-4 and Bomb Selvam A-15 is established.
In addition presence of A-15 stands established at place of abduction also
as stated by PW-3. It is apparent from the evidence of PWs.10 and 11 that
when M.K. Balan was brought to the vermicelli factory at Mudichur, A-3 to A-
7, A-11 and A-15 to A-17 were present or came there. Thus, it is apparent
that all the three appellants along with other convicted accused persons
were involved in the abduction of deceased M.K. Balan. A-3 played an
important role in the entire episode. The finding recorded by the trial
court as affirmed by the High Court is that the appellants were involved in
the abduction stands established to the hilt.
24. On 31.12.2001 and 1.1.2002 when M.K. Balan was abducted, the meals
were supplied through Newton PW-11 and in order to establish the fact that
PW-56 has been examined where he has stated that on 31.12.2001 and 1.1.2002
he had taken the tiffin in the morning, meals in the afternoon and evening
tiffin, they carried the food for about 8 to 10 persons. The witness lends
support to evidence of Venugopal PW-10. PW-56 also supports version of PW-
11.
In re: commission of offence under section 302
25. With respect to charge of murder against A-3 and A-4 it is apparent
that MO-31 is in the handwriting of A-1. It was read out by A-12 and heard
by A-3 and was acted accordingly. Evidence of Sahul Hameed PW-47 also
proves recovery of chain with which M.K. Balan was tied and that of other
articles. It is apparent that M.K. Balan was abducted. There was an attempt
to extract money when it was not possible, he was murdered in factory
premises. The appellants were charged for committing the murder by putting
nylon rope around his neck and tightening it. Though there is no direct
evidence with respect to that but it can be inferred in the circumstances
that they committed the offence of murder also. Once they had abducted M.K.
Balan it was for them to explain how they dealt with him. The dead body of
M.K. Balan could not be found as it was cremated in the name of a
fictitious person – Rajamani Chettiar. His post mortem also could not be
conducted but the evidence clearly indicates that the dead body of M.K.
Balan was taken from the vermicelli factory. It gives an inference that the
accused persons had murdered the victim. It is not necessary for recording
a conviction that corpus delicti to be found. There is ample evidence
leading to an inescapable conclusion that M.K. Balan was done to death by
the appellants. His dead body was seen by the witnesses.
26. I find no force in the submission that at the time of murdering M.K.
Balan there is no evidence and appellants were not present when dead body
was taken out. In the instant case it is clear that abduction of the
deceased is proved and deceased had been murdered soon after his abduction
in two days and thereafter his body had been cremated under the name of a
fictitious person. In the aforesaid circumstances it was for the accused
persons to satisfy the court how the abducted victim was dealt with by
them. In the absence of such explanation it is open to the court to draw a
presumption that the abductor was the murderer also, as held by this Court
in State of M.P. v. Lattora (2003) 11 SCC 761 :
“4. Learned counsel for the appellant State contended that the High Court,
while rendering the impugned judgment, did not follow the correct legal
position. This Court in State of W.B. v. Mir Mohd. Omar (2000) 8 SCC 382
held that if the deceased was proved to have been abducted by the accused
and was found murdered soon thereafter it is for the abductors to satisfy
the court as to how else the abducted victim was dealt with by them. In the
absence of any such explanation it is open to the court to draw the
presumption that the abductor is the murderer also. The said view of this
Court was reconsidered subsequently in Sucha Singh v. State of Punjab
(2001) 4 SCC 375 and the legal position has been reiterated by this Court.
5. In the light of the legal position so adumbrated by this Court, we deem
it necessary, in the interest of justice, that the High Court should
consider the appeal filed by the respondent all over again. This is to
enable the respondent to canvass regarding the conviction under Section 364
of the Indian Penal Code also. If the conviction is to be maintained the
High Court has to consider how far the presumption mentioned above will
apply to the situation of this case. For enabling the High Court to
reconsider the appeal afresh we set aside the impugned judgment. The appeal
filed before the High Court shall stand remitted to the High Court.”
27. In Ram Gulam Chaudhary & Ors. v. State of Bihar (2001) 8 SCC 311,
this Court considered assaulting the victim by the accused persons and they
carried away the body, the victim was not seen alive thereafter. No
explanation was given by the accused as to what they did with the victim.
The accused abductor who had special knowledge in this regard, having
withheld the information, this Court held that an inference can be drawn
that they had murdered the victim. This Court has laid down thus :
“24. Even otherwise, in our view, this is a case where Section 106 of the
Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and
then a chhura-blow was given on the chest. Thus chhura-blow was given after
Bijoy Chaudhary had said “he is still alive and should be killed”. The
appellants then carried away the body. What happened thereafter to
Krishnanand Chaudhary is especially within the knowledge of the appellants.
The appellants have given no explanation as to what they did after they
took away the body. Krishnanand Chaudhary has not been since seen alive. In
the absence of an explanation, and considering the fact that the appellants
were suspecting the boy to have kidnapped and killed the child of the
family of the appellants, it was for the appellants to have explained what
they did with him after they took him away. When the abductors withheld
that information from the court, there is every justification for drawing
the inference that they had murdered the boy. Even though Section 106 of
the Evidence Act may not be intended to relieve the prosecution of its
burden to prove the guilt of the accused beyond reasonable doubt, but the
section would apply to cases like the present, where the prosecution has
succeeded in proving facts from which a reasonable inference can be drawn
regarding death. The appellants by virtue of their special knowledge must
offer an explanation which might lead the Court to draw a different
inference. We, therefore, see no substance in this submission of Mr
Mishra.”
In re: Removal of dead body from factory premises
28. With respect to the death of deceased M.K. Balan in the factory
premises and removal of his dead body from the same, the evidence of PW-10,
PW-11, Rajendran PW-21 and Head Constable on Beat Duty, and Arumugham, Head
Constable PW-35 are relevant.
29. PWs.10 and 11 both have stated that body of M.K. Balan was taken out
of the vermicelli factory on 1.1.2002. Both of them suspected that
something was going on in the factory and at about 8.40 p.m., they reached
the factory at Mudichur. At 9 p.m. the gate of the vermicelli factory was
closed. A-6 was standing there. A-5 came to the factory on a motorcycle. He
carried one cloth bag on the motorcycle. Four persons came down from
upstairs carrying body of M.K. Balan. Two persons were holding legs; two
others were holding the hands and the body was brought down and covered
like a dead body with cloth brought by A-5. There was no movement in the
body, it appeared to be a dead body. Body was taken in the Maruti van. The
Maruti van went away speedily. A-5 followed the same on motorcycle. One
person was sitting along with him on the motorcycle. Due to fear, PW-10 and
PW-11 came out of factory. Body of M.K. Balan was carried by A-6, A-7, A-8
and A-11. Version is supported by PW-21 and PW-35.
30. PW-21 deposed that he was the Head Constable of Sembiyam Crime Branch
Police Station. That on 01.01.2002 he was given beat tickets and appointed
for night rounds from 23 hours to 6 PM. At about 100 ft. away from
Melpatti Ponnappa Street a Maruti Van was standing in the middle of the
road and he went along with constable Arumugam to the Van and enquired 4
persons who were in the van. Then they left the place. MO-7 Golden Color
Maruti Van was identified by him, and 4 persons were identified as Accused
6, 7, 8 and 11.
PW-35 deposed that he was working as Head Constable. That on
01.01.2002 he was given beat tickets and appointed for night rounds from 23
hours to 6 PM. At about 100 ft. away from Melpatti Ponnappa Street a
Maruti Van was standing in the middle of the road and he went along with
the head constable Rajendran went to the Van and enquired 4 persons who
were in the van. Then they left the place. MO-7 Golden Color Maruti Van
was identified by him, the 4 persons were identified as Accused 6, 7, 8 and
11.
31. Driver Vijayan PW-49 was examined so as to prove attempt of
procurement of Dumax top light for the van to look like an ambulance.
However, the witness has turned hostile, resiled from his statement
recorded under section 164 Cr.PC. Even if his statement is ignored it is
apparent from other statements that the vehicle was procured and light was
fitted on it.
32. The van on which body was taken was bearing Regn. No. TN-22-B-8853
and was marked as MO-7. It is apparent that M.K. Balan was killed in
factory some time on 1.1.2002 and the fact that the appellants were not
persons who brought down body from upstairs is not enough to exonerate
appellants considering the established facts and circumstances in case they
have been rightly held guilty of murder also.
In re: cremation of dead body
33. Next set of evidence is with respect to the cremation ground. Ramu,
PW-12 was asked by Hari Krishnan PW-19 to lit pyre. He was declared hostile
as he resiled from part of his statement.
Ramu PW-12, who had cremated the body had deposed that he is a
Cemetery Keeper. That on 01.01.2002 he was told by Harikrishnan to light
the pyre. That they did not know who came in the vehicle and the vehicle
particulars. He further deposed that they did not know if the body was of
male or female.
Hari Krishnan PW-19, vettiyan in the cremation ground at Melpatti
Ponnappa Mudali Street, has stated on 1.1.2002 at about 6 p.m. two persons
came and told that a body has to be burnt and they would take the body from
the hospital to the cremation ground and paid the expenses for getting
woods, cow-dung cakes, kerosene and informed that the body would come at 8
p.m. in the night but the body came at 10 p.m. They carried the body and on
asking the death certificate of hospital, they told that they would bring
the same the next day. Body was cremated at night itself. It was deposed
that the CB CID had examined him and put his signature on the reverse of MO-
14, photo of M.K. Balan; and the test identification parade was conducted.
He was able to identify certain accused persons, out of 7-8 persons who
came for cremation. He had identified MO-14 the photo of M.K. Balan. He
stated that he under threat of police, had stated to the Magistrate in
statement under section 164 Cr.PC that accused Manickam came there and told
Hari Krishnan that he is an important person in the area and asked him to
cremate the body and told that he will produce the death certificate in the
next morning. Be that as it may. He also said that he did not identify the
accused before the Magistrate and was not aware whether A-3 was an
influential person of a political party. Be that as it may. We ignore the
part of statement under section 164 from which he has resiled.
34. Kannan PW-36, in-charge of the cremation ground has deposed that he
is working as Office Assistant in Chennai Corporation. That on 01.01.2002
he left early from the cremation ground. That when returned on the next
date then he was informed by Hariharan that one dead body came after he
left the office and that the dead body has been cremated and the person who
came along with the dead body assured that death certificate would be
produced in the morning. That at around 8.15 AM one person came along with
Hariharan who produced the death certificate in the name of Rajamani
Chettiar. That in the certificate the address and father’s name of the
deceased was not mentioned and he got the particulars from the person who
came with the death certificate. The same were recorded in the Death
Register.
In re: Procurement of death certificate by A-3
35. Next set of evidence is relating to procurement of death certificate
in the name of Rajamani Chettiar. For cremating a body in the cremation
ground, death certificate was required to accompany the dead body. Death
certificate in a fictitious name of Rajamani Chettiar was obtained from PW-
32 at the instance of Manickam A-3 through one Kamaraj PW-33.
Dr. Anbarasu PW-32 deposed that on 02.01.2002 at 6 AM in the morning
one Kamaraj who is working in the Government General Hospital and known to
him for the past 15 years came and requested to issue death certificate for
Rajamani Chettiar aged about 61 years. Kamaraj PW-33 submitted that
Rajamani Chettiar was the poor person and died due to chest pain. That
there was no one to perform his last rites. He believed the word of
Kamaraj PW-33 and issued the death certificate in question.
Damodaran PW-38 has been examined so as to prove that no person in
the name of Rajamani Chettiar ever resided in his house in question, the
particulars of which were falsely given in the death certificate.
Dr. Prabhavathi PW-45 deposed that she is working as Asst. Welfare
Officer in the Chennai Corporation. That she has given Medical Report
Ex.P27, Death Report Form 2 Ex. P29. That the letter given by him to DSP
is marked as Ex.P52. Medical certificate and death certificate have been
proved by PW-45.
36. With respect to obtaining of death certificate by A-3, the trial
court has given the following findings :
“171. Now we have to analyze whether there are any other evidences for that
and for that purpose, the evidence of PWs-32, 33, 36 and 38 have to be
perused. PW 32 is the Doctor Anbarasu and before analyzing the evidence of
PW-32, the evidence of PW-33 has to be analyzed. PW-33 has deposed in
his evidence that on 1.1.2002 while he was on bed due to illness in the
evening at about 5.00 p.m. one Samikannu came to him and told that Poonga
Nagar Manickam is calling him and that at that time he told that he was not
well and asked him as to what was the matter for which he said he did not
know anything about the same, then the said Samikannu took him along with
him and that Poonga Nagar Manickam was in his house and that at that time
he informed him that one watchman of a company at Kolathur expired and that
he asked him whether any trama car is available for taking the body for
that he had replied to him (Manickam) that to bring out the dead body no
such vehicle would be available and then he has informed me to try for the
same by saying so he has sent Samikannu to accompany him and that then he
has gone to Government General Hospital, Chennai from Perambur and after
finding out that no such vehicle was available there and informing the same
and when he was about to board a bus to go, Samy informed him that Poonga
Nagar Manickam asked him to come to his house at 6.00 am in the morning and
that accordingly on the next day morning i.e. on 2nd he went to the house
of Poonga Nagar Manickam and that this was the time for finding out car in
many ways for bringing the body of the deceased M.K. Balam as established
by the evidence of PW-32 and that in the said circumstances, on the next
day i.e. on 2.1.02 PW-33 went to the house of the said Poonga Nagar
Manickam and that at that time the 3rd accused Manickam informed him that
one Rajamani Chettiar, aged about 61 years died on the previous day for
which he asked him to get a doctor’s certificate, as deposed. He has
further deposed in his evidence that he has been well acquainted with him
(Manickam) for the past 16 years and that he went to the doctor Anbarasan
(PW-32) and obtained a certificate from him in his English letter pad to
the effect that one watchman of a company at Kolathur died due to chest
pain and that certificate has been marked as Ex. P.27. That Doctor
Anbarasu PW-32 has been examined as a witness in this case and he has
deposed in his evidence that he has issued the certificate Ex.P.27 and that
as requested by PW-33 Kamaraj, he has issued the said certificate Ex.P.27
as deposed by him. As per his evidence only on the compulsion of PW-23,
the certificate Ex.P.27 has been issued and in the certificate issued by
him in Ex.P.27 it has been mentioned by him that ‘Rajamani Chettiar, aged
about 61 years died due to chest pain’. Investigation was done to prove
the fact that no such person in the name of Rajamani Chettiar on the side
of the prosecution, and to that effect one Damodharan has been examined as
PW-38. He has deposed in his evidence that ‘I am residing at No.11/18 4th
street, Anjuham Nagar, Kulathur, Chennai and that this is my own house and
that my wife is Lalaitha and my father is Ramasamy and that I have one
daughter and two sons and that they are Prahbaharan and Sudhakaran aged
about 29 and 27 respectively. Both Prabaharan and Sudhakaran have no other
names; that I am working in Sharp Motor company for the past 5 years. In
one portion of my house Auto driver Devaraj is residing and that no person
in the name of Rajamani chettiar, aged about 61 years was residing in my
house ever before. Either on 1.1.02 or on 2.1.02 no person in the name of
Rajamani chettiar, aged about 61 years was residing either in our house or
in any portion of our house; that like wise no person in the name of
Rajamani chettiar, son of Chinthamani chettiar, aged about 61 years died
either on 31.12.01 or 1.1.2002 in the above said house and that no dead
body of that person was also brought to that house, as deposed. It is seen
from these evidences and documents that the 3rd accused Manickam sent the
13th accused Samikannu, asking him to meet PW-33 Kamaraj and through the
said Kamaraj, a forged document (doctor’s certificate) marked as Ex.P.27
has been obtained in the name of one Rajamani chettiar, aged about 61 years
from PW-32 and that the evidence of PW-36 has to be analysed to find out
the fact as to where that certificate has been given. PW-36 is Kannan and
he has deposed in his evidence that ‘I am residing at No. 371, Sanjan
Nagar, Melpatti Ponnambala street, Vyasarpadi, Chennai-39. I am working as
Office Assistant in the Corporation of Chennai on compassionate ground
from 1979 onwards. I joined in service during 1998 as incharge of Hindu
Grave yard at Melpattu Ponnappa Mudali street, Chennai belonging to Chennai
Corporation; that my immediate superior officer is the Assistant Health
Officer’. He has further deposed in his evidence that ‘on 2.1.02 as usual
I came to grave yard at about 7.30 a.m. and that at that time Harikrishnan
who was present there told me that after I left that place one dead body
had come and that doctor’s certificate would be given today by the party
for cremating the body’. He has further deposed in his evidence that
‘Ex.P.27 was given to me by a person who accompanied with the said
Harikrishnan on 2.1.02 morning at about 8.15 a.m’. He has further deposed
in his evidence that I registered this Ex.P.27 in Form.2. This is the said
Form.2 marked as Ex.P.29. That death has been registered in the Death
Register as 1st row of the date 1.1.02 and that portion has been marked as
Ex.P.30 and that in that connection death report of the grave yard has been
prepared and a copy of the same has been given to the person who came along
with the said Harikrishnan and the other copy is marked as Ex. P.31. In
that regard I filed a Despatch note book which is marked as Ex.P.32 (the
entry made in the said Despatch Note Book is marked as Ex.32). The person
who came along with Harikrishnan signed in Ex.P.31 and Ex.P.29 and that for
the seizure of these documents the DSP attached to CB CID had prepared a
magazar and obtained my signature therein. That magazar has been marked as
Ex.P.33. He has deposed evidence now that there is no necessity to produce
the doctor certificate to cremate the body of a person who is aged more
than 60 years. While that being so it is the case of the accused that this
Ex.P.27 has been fabricated falsely for the purpose of the case. The body
of the deceased M.K. Balan was taken to the grave yard and tried to cremate
the body by saying that the deceased was the age of 61 years. But PW-12
asked for the production of doctor certificate by saying that the age of
the person would be 48 to 50 yrs. Therefore Ex.P.27 has been created as if
that deceased person would be aged about more than 60 years and the same
has been issued by PW-36 and the same has been recorded which has to be
taken into consideration. In that manner also the contention of the
accused could not be acceptable one. Now we have to peruse the evidence of
PW-45 Dr. Prabhavathi (Health officer) and that as per her statement it has
been stated by her that ‘a letter dated 20.3.02 was shown to me and that
Medical Certificate (Ex.P.27) and death report (Form II) Ex. P.29 were
given by me to the DSP, CB CID. The letter given by me to the DSP has been
marked as Ex.P.52’. Now even as per this evidence also, it has been
established on the side of the prosecution that the body of M.K. Balan was
cremated.”
(emphasis
supplied by me)
From the aforesaid discussion made by the trial court and evidence
it is apparent that Kamaraj PW-33 on 2.1.2002 went to the house of Manickam
A-3 who had informed him that one Rajamani Chettiar aged about 61 years had
died and a doctor’s certificate was required. PW-33 had stated that he knew
A-3 for the last 5 years and as such on his request went to Dr. Anbarasan
PW-32 and obtained death certificate Ex. P-27 from him with respect to
death of Rajamani Chettiar. Dr. Anbarasan PW-32 had deposed that he issued
the certificate Ex. P27 in the aforesaid circumstances to Kamaraj PW-33.
Damodharan PW-38 has stated that no such person Rajamani Chettiar resided
in House No.11/18, 4th Street, Anjuham Nagar, Kulathur, Chennai. Thus it is
apparent that the death certificate related to non-existent person and dead
body of M.K. Balan was cremated under the guise and at the instance of
Manickam A-3; false certificate Ex. P-27 was prepared and produced at
cremation ground on next day showing cremation of Rajamani Chettiar. Kannan
PW-36, Office Assistant in the Corporation of Chennai has deposed that Ex.
P-27 was given to him in the morning at about 8.15 a.m. He had made the
entry Ex.P-27 in Form 2 in the death register as 1st row of 1.1.2002 and
that portion is marked as Ex. P-30. The dispatch book Ex. P-32 has also
been proved by the witness along with memo Ex. P-33. Thus, the involvement
of Manickam A-3 is proved to the hilt by the aforesaid evidence also.
37. The trial court has rightly found that the accused A-3, A-4 and A-15
had acted upon the conspiracy of A-1 and A-2 and have been found guilty of
offences under sections 365, 387, 302, 347, 364, 109 and 201 IPC.
In re: confessions and recoveries from accused
38. Witnesses as to police confessions of various accused persons have
been furnished by : Sahul Hameed PW-44 with respect to A-5; Tulasirangan PW-
22 with respect to A-1, Pasupathy PW-23 with respect to A-1, Jagannathan PW-
24 with respect to A-6; Siva PW-26 with respect to A-3; Seetha PW-29 with
respect to A-12, Francis Arpudham PW-39 with respect to A-4; Prasad PW-42
with respect to A-7; Raja Masilamani PW-46 with respect to A-10 and A-11;
and Sahul Hameed PW-47 with respect to A-16 etc.
39. The seizure of articles has been proved by TMT Geetha PW-17 of green
cot MO-11; Sriramulu PW-25 of Ford Escort car MO-6; Babu PW-40 of audio-
cassettes MO-33; Raja Masilamani PW-46 of tape recorder MO-2; Kuteeswaran
PW-41 of golden colour Maruti van and Tata Sumo van MOs. 9 and 13 etc.
Similarly, seizure of other articles has been proved.
40. The accused persons’ confessional statements and recoveries based
thereon support the version of PW-10 and PW-11. A-5 was arrested on
18.3.2002 at Perambur Railway Station. Kaha Sahul Hameed PW-44 has proved
the confessional statement of A-5. It is stated that he identified the
Maruti omni van and also the cremation ground where the body was burnt and
also disclosed the name of A-3 and the Maruti van which was used for
abducting and that on instructions of A-3, dead body was burnt in the
cremation ground. The witness has also proved the spot map of factory Ex. P-
44 signed by Selvaraj also. At the instance of A-5, Maruti van MO-9 has
been seized from one Jayaprakash vide Ex. P-25. As stated by PW-3, M.K.
Balan was abducted in the said van. It has been established that the place
of occurrence is vermicelli factory at Mudichur. Samundeeswari PW-31 and
Krishnapandi PW-34 have proved the said facts. PW-30 has also stated that A-
9 studied with him and one Somu of Chitlapakkam had entrusted a Maruti van
bearing Regn. No. TSI 7484 and A-9 had asked him to lend the said car, and
he had given the same to A-9 who told him to return the same on the next
day. On receiving the van, its tape recorder and speaker were found missing
and there were liquor bottles in the same and seats were burnt with fire.
Then he went upstairs in the house of Udayakumar A-9 and asked about the
said condition of vehicle, and A-9 assured him to compensate for the loss
but did not give any amount. Thereafter, CBCID came to PW-30 and seized the
vehicle and prepared Ex. P-25. Thus it is apparent that MO-9 was in custody
of A-9 and the vehicle was used in commission of offence. This also lends
corroboration to statements of PW-10 and PW-11.
41. Sankar Ganesh A-6 was arrested on 19.3.2002 who identified Maruti
Omni van No. TN-0343 and his confessional statement Ex. P-16 had been
recorded in the presence of PW-24. At his instance said Maruti van was
recovered in front of the house of John Kennedy, PW-37 at 11.30 a.m. under
Ex. P-17. Said Maruti van is MO-8. PW-37 has owned a signature on the memo.
At the instance of A-7, cot which was used to keep M.K. Balan in the
factory had been recovered. Cot had been identified also. This lends
further support to versions of PWs. 10 and 11.
42. A-3 was arrested on 25.3.2002. His confessional statement was
recorded by CB CID in the presence of Premkumar. PW-26 has deposed as to
seizure of Maruti zen TN-02-Z-99. He was taken to the residence of PW-16.
On being identified by A-3, said Maruti zen car had been seized from PW-16.
Ex. P-20 is the admissible portion of the confessional statement of A-3.
Seizure memo Ex. P-6 of Maruti zen car, MO-12, was drawn. PW-16 has stated
that he had given the car for marriage of said Manickam as his office is
near to his house so he could identify Manickam A-3. A-3 had taken MO-12
Maruti car in November, 2001 and was returned to him during the month of
February, 2002. The police seized the car from him on 25.3.2002 as per Ex.
P-6. Use of this car in offence is established by evidence on record.
43. PW-26 who is an Administrative Officer, has also proved the
confessional statement of A-3. The witness has proved his signature on the
same. A-3 had identified the Maruti zen car of maroon colour. PW-11 has
stated that the Maruti zen car came to the vermicelli factory along with
Ford car and Tata Sumo car. It is apparent from PWs.10 and 11 that Maruti
zen car was used for committing the offence. Maruti van was also recovered
on 30.3.2002 at the instance of A-9 from PW-18. At the instance of A-9,
bedpan was also recovered. Maruti omni van MO-7 of golden colour, bearing
Regn. No. TN-22-B-8853 and Tata Sumo car were also recovered. PWs.10 and 11
have deposed about bedpan, Tata Sumo and Maruti van. As instructed by A-3,
bedpan was kept at vermicelli factory, Maruti van MO-8, had been used for
taking the dead body of the deceased, Tata Sumo car was also used by the
accused persons. PW-18 has deposed that he had given Maruti van to A-9. On
31.12.2001 at about 10 a.m., he had taken the van and returned it in the
night itself and on 1.1.2002 he took the same at about 10 a.m. but did not
return as usual on the night of 1.1.2002 but returned it only on 2.1.2002
at about 11 p.m. i.e. after M.K. Balan was killed and body cremated.
Thereafter on 30.3.2002 CB CID seized his Maruti car MO-7, vide Ex. P-8.
The statement of PW-18 corroborates the versions of PW-10 and PW-11.
44. Manickam’s confession was recorded on 5.4.2002 in the presence of
Purushothaman and Babu-PW-40. PW-40 deposed that on the direction of the
Tehsildar, he along with one Purushothaman went to the CB CID Office on
05.04.2002, where one Manickam was being investigated with regard to the
M.K. Balan murder case and he along with Purushothaman signed the
confession statement. Based on the confessional statement the TTK 90
Cassette along with a piece of paper kept in the back of the photo of the
Accused No.3 was seized by CB CID and the same were marked as MO28 and MO33
respectively. The Mahazar was prepared and they signed the same. The
admitted portion Ex. P-35 of the confessional statement given by Manickam
was also signed by them as witnesses.
45. The bit of paper MO-33, which had been seized from A-3 and also bit
of paper MO-31 regarding extortion of money seized from A-12 in order to
establish the fact that both had been written by A-1. As mentioned above
the High Court has ignored it as the articles were not kept in a sealed
condition, we also leave it out of consideration.
46. On 9.4.2002 accused Somasundaram A-4 was arrested at about 6 a.m.
near Chromepet police station. His confessional statement Ex. P-34 was
recorded in the presence of Francis Arpudham PW-39. On the basis thereof
Ford white colour car bearing Regn. No. TN-10-F-5555 was recovered as per
memo Ex. P-19. PW-39 has proved his signatures on the confessional
statement. Use of car is corroborated by PWs.10 and 11. The car had been
entrusted to accused A-9. Recovery of the car also implicates Somu A-4 and
supports the versions of PWs.10 and 11.
47. Bomb Selvam A-15 was arrested near Egmore Railway Station on
25.4.2002 at about 12.30 p.m. in the presence of Muthurakku and Kaha Sahul
Hameed PW-44. His confessional statement Ex. P-51 came to be recorded. As
per his statement Hero Honda 6475 and black colour Reebok shoes were
recovered as per Ex. P-51. Motorcycle was article MO-10, and shoes were
marked as MO-1. Samundeeswari, PW-31, has stated that at about 11.30 a.m.,
a person came and went upstairs and took along with him Reebok shoe, MO-1.
At that time he came in a car and took an object in a gunny bag. Even if we
discard recovery of Reebok shoes it is apparent that motorcycle used by the
accused had been recovered at the instance of A-15. This lends additional
support to versions of PWs.10 and 11.
In re: Commission of offence under section 387 IPC
48. On the basis of statement of PW-11, it is established that A-4 was
present when M.K. Balan was brought to the vermicelli factory after
abduction and after about half an hour, Bomb Selvam A-15 also came there
along with A-5 to provide tiffin. PW-10 has also stated that M.K. Balan was
tied with iron chain on 31.12.2001, his eyes were shut and he was sitting
on a green colour cot and was wearing a black colour pant and a T-shirt.
Thus it is apparent that A-3, A-4 and A-15 along with other accused persons
were involved in the abduction of ex-MLA M.K. Balan. PW-10 has deposed that
driver of Manickam namely Viji told that he wanted a chain to tie M.K.
Balan. A-9 had taken out Rs.100/- from his shirt pocket to buy one chain.
However, Viji PW-49 turned hostile. He was confronted with his statement
under section 164 Cr.PC. He admitted that he had given a statement before
the Magistrate but under fear. Be that as it may. We ignore the version of
Viji PW-49. There is nothing to doubt the aforesaid statement of PW-10
regarding purchase of chain. The trial court with respect to commission of
offence under section 387 IPC has rightly given the finding in para 166
that the prosecution has established its case to the effect that the
accused 1 to 11 and 14 to 17 have committed the offence punishable under
section 387 IPC beyond all reasonable doubt.
Effect of acquittal under section 120B
49. Now I take up effect of acquittal of appellants under section 120B
IPC. The accused appellants have been convicted for commission of offence
under section 365 read with section 109 IPC, under sections 387, 302 read
with section 109, under section 347 read with section 109; under section
364 read with section 109 and section 201 IPC. In the facts and
circumstances of the case when charge under section 109 has been found
established, mere their acquittal under section 120B is of no avail to
them. Charges which were framed were specific ingredients of section 109
have been rightly found to proceed by both the courts below. Their
acquittal under section 120B of IPC cannot help them as offences of both
sections are separate. Section 120B found established against A-1 and A-2
and other charges against accused/appellants.
50. This Court has considered the abduction under section 109 and the
conspiracy and the explanation thereof and compared with the same under
section 120B. This Court held that under section 109 the abettor is liable
to the same punishment which may be inflicted on the principal offender if
the act of the latter is committed in consequence of the abetment. The
offence of conspiracy under section 120B is different. Section 120A is bare
agreement to commit an offence which has been made punishable under section
120B. The punishment for these two categories of crimes is also quite
different. Section 109 IPC is concerned only with punishment of abetment
for which no express provision has been made in the IPC. An offence of
criminal conspiracy on the other hand is an independent offence which is
made punishable under section 120B IPC for which a charge under section 109
is unnecessary and inappropriate. In Ranganayaki v. State by Inspector of
Police (2004) 12 SCC 521, this Court has held thus :
“10. Motive for doing a criminal act is generally a difficult area for
prosecution. One cannot normally see into the mind of another. Motive is
the emotion which impels a man to do a particular act. Such impelling cause
need not necessarily be proportionally grave to do grave crimes. Many a
murder has been committed without any known or prominent motive. It is
quite possible that the aforesaid impelling factor would remain
undiscoverable. Lord Chief Justice Campbell struck a note of caution in Red
v. Palmer [Shorthand Report at p. 308, May 1856] thus:
“But if there be any motive which can be assigned, I am bound to tell you
that the adequacy of that motive is of little importance. We know, from
experience of criminal courts that atrocious crimes of this sort have been
committed from very slight motives; not merely from malice and revenge, but
to gain a small pecuniary advantage, and to drive off for a time pressing
difficulties.”
Though, it is a sound presumption that every criminal act is done with a
motive, it is unsound to suggest that no such criminal act can be presumed
unless motive is proved. After all, motive is a psychological phenomenon.
Mere fact that prosecution failed to translate that mental disposition of
the accused into evidence does not mean that no such mental condition
existed in the mind of the assailants. In Atley v. State of U.P. AIR 1955
SC 807 it was held: (AIR p. 810, para 6)
“That is true, and where there is clear proof of motive for the crime, that
lends additional support to the finding of the court that the accused was
guilty, but absence of clear proof of motive does not necessarily lead to
the contrary conclusion.”
In some cases it may be difficult to establish motive through direct
evidence, while in some other cases inferences from circumstances may help
in discerning the mental propensity of the person concerned. There may also
be cases in which it is not possible to disinter the mental transaction of
the accused which would have impelled him to act. No proof can be expected
in all cases as to how the mind of the accused worked in a particular
situation. Sometimes it may appear that the motive established is a weak
one. That by itself is insufficient to lead to an inference adverse to the
prosecution. Absence of motive, even if it is accepted, does not come to
the aid of the accused. These principles have to be tested on the
background of factual scenario.
11. Under Section 109 the abettor is liable to the same punishment which
may be inflicted on the principal offender: (1) if the act of the latter is
committed in consequence of the abetment, and (2) no express provision is
made in IPC for punishment for such an abetment. This section lays down
nothing more than that if IPC has not separately provided for the
punishment of abetment as such then it is punishable with the punishment
provided for the original offence. Law does not require instigation to be
in a particular form or that it should only be in words. The instigation
may be by conduct. Whether there was instigation or not is a question to be
decided on the facts of each case. It is not necessary in law for the
prosecution to prove that the actual operative cause in the mind of the
person abetting was instigation and nothing else, so long as there was
instigation and the offence has been committed or the offence would have
been committed if the person committing the act had the same knowledge and
intention as the abettor. The instigation must be with reference to the
thing that was done and not to the thing that was likely to have been done
by the person who is instigated. It is only if this condition is fulfilled
that a person can be guilty of abetment by instigation. Further the act
abetted should be committed in consequence of the abetment or in pursuance
of the conspiracy as provided in the Explanation to Section 109. Under the
Explanation an act or offence is said to be committed in pursuance of
abetment if it is done in consequence of (a) instigation, (b) conspiracy,
or (c) with the aid constituting abetment. Instigation may be in any form
and the extent of the influence which the instigation produced in the mind
of the accused would vary and depend upon facts of each case. The offence
of conspiracy created under Section 120-A is bare agreement to commit an
offence. It has been made punishable under Section 120-B. The offence of
abetment created under the second clause of Section 107 requires that there
must be something more than mere conspiracy. There must be some act or
illegal omission in pursuance of that conspiracy. That would be evident by
Section 107 (secondly), “engages … in any conspiracy for the doing of that
thing, if an act or illegal omission takes place in pursuance of that
conspiracy”. The punishment for these two categories of crimes is also
quite different. Section 109 IPC is concerned only with the punishment of
abetment for which no express provision has been made in IPC. The charge
under Section 109 should, therefore, be along with charge for murder which
is the offence committed in consequence of abetment. An offence of criminal
conspiracy is, on the other hand, an independent offence. It is made
punishable under Section 120-B for which a charge under Section 109 is
unnecessary and inappropriate. [See Kehar Singh v. State (Delhi Admn.)
(1988) 3 SCC 609] Intentional aiding and active complicity is the gist of
the offence of abetment.”
51. Thus commission of offence under section 109 has been established
along with other sections. The conviction and the sentence imposed by the
trial court and the High Court is absolutely proper and no benefit can be
obtained by acquittal under section 120B IPC. That does not adversely
impinge upon the ingredients of section 109 IPC and other sections for
which he has been found guilty. Thus I find no force in submission of
appellants that once appellants have been acquitted under section 120B the
entire case falls down.
In re: evidence of accomplices
52. Several decisions were cited which are referred to by esteemed
brother which indicate that accomplice version requires corroboration, same
cannot be rejected outrightly. It was submitted that PW-10 and PW-11 are
not reliable being accomplices and there is no corroboration of their
version. Submission is too tenuous to be accepted. Though only their help
was taken as discussed above. In my opinion even if PW-10 and PW-11 are
taken as accomplices their depositions are corroborated by overwhelming
evidence on record on each and every aspect. The accused persons have been
found guilty under section 109 IPC also. All convicted accused persons
including appellants acted together. Entire gamut of evidence discussed
above, admissible portions of confessional statements of various accused
persons including appellants, recovery of articles of offence also lends
credence to versions of PWs. 10 and 11.
In re : Holding T.I./recording statement under section 164 Cr.PC
53. Holding test identification parade has been proved by Krishnasamy-PW-
60. Recording of statement under section 164 Cr.PC has been proved by
Thangamariyappan PW-59; Karunanidhi PW-61 for A-12, PW-32 and PW-33,
Vijayakanth PW-62 recorded the statements of Vettiyans PW-12 and PW-19.
Junath Sherif PW-64 has recorded the statement under section 164 of PWs.10
and 11.
In re : Cell phones/cassettes/forensic evidence
54. Evidence discloses that cell phone was given to A-2 by PW-7.
Cassettes were recovered with suitcase MO3 from A-1 which is supported by
PW-43 Accountant of Butts Paradise Hotel where suitcase was left and for
stay money was paid by Venu. Forensic evidence is furnished by Kasi PW-63
and Dr. C.P. Singh PW-65. PW-63 has deposed that he had compared the
documents MO31 and MO33 with the specimen handwritings and signature of
Senthil Kumar and submitted his report Ex. P-55 dated 24.7.2002 by
concluding that both the handwritings were of the same person. PW-65 had
deposed that he had received four video cassettes and two audio cassettes
which are marked as MOs.27 and 28. After analyzing he found both the voices
to be same and marked the report as Ex. P-83. However, the High Court has
not relied upon forensic evidence relating to cassettes and MOs. 31 and 33
and also regarding voice comparison, for the reason that the said articles
were not kept in a sealed condition. We also ignore this evidence but
ignoring this evidence also does not further the case of the appellants in
any way as their guilt stands established by other overwhelming evidence.
55. It was also contended that recovery of Ford car at the instance of A-
4 is of no value. In my opinion, in whose name car was registered is
immaterial as its use in offence and recovery is material aspect. The
registration of car is in name of Ranjit Kumar who paid money for its
purchase is a matter inter se between PW-10 and Ranjit Kumar. PW-10 may
have purchased the car in the name of Ranjit Kumar. However, the evidence
clearly disclosed that the car was in possession of PW-10 and was given by
him to accused. Total six cars were used in offence including Ford Escort
car and one motorcycle. They were used by one or other accused persons at
one or other time while committing offence thus which vehicle was used at
particular time by which accused would not create any circumstance in
favour of an accused person when it has been proved that various vehicles
seized have been used in offence their recovery at the instance of accused
persons cannot be ignored.
56. Coming to submission that remains recovered from cremation ground are
not proved to be of deceased M.K. Balan. As per the case of prosecution the
body of the deceased was fully burnt as such the recovery of certain
remains which was made after several months from the cremation ground was
of no utility. Remains would not have been at cremation ground after 2 ½
months when everyday bodies are cremated. Their seizure and the forensic
science report regarding that are of no value.
57. Thus in my opinion the appeals preferred by appellants sans merits
hence, liable to be dismissed. The appeals are hereby dismissed. The
conviction and sentence imposed by the Trial Court as affirmed by the High
Court calls for no interference in the appeals.
New Delhi; ……………………..J.
September 28, 2016. (Arun Mishra)
-----------------------
[1]
[2] (2001) 3 SCC 468
[3]
[4] (1999) 5 SCC 253
[5]
[6] AIR 1952 SC 54
[7]
[8] AIR 1963 SC 599
[9]
[10] AIR 1962 SC 876
[11]
[12] AIR 1947 Lah 220
[13]
[14] AIR 1936 Cal 101
[15]
[16] (2005) 1 SCC 237
[17]
[18] AIR 1968 SC 938
[19]
[20] (2011) 5 SCC 161
[21]
[22] AIR 1957 SC 637
[23]
[24] AIR 1968 SC 832
[25]
[26] (1975) 3 SCC 742
[27]
[28] [1916] 2 KB 658
[29]
[30] (1969) 3 SCC 429
[31]
[32] (1979) 4 SCC 312
[33]
[34] AIR 1970 SC 1330
[35]
[36] (1988)3 SCC 609
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 403 OF 2010
SOMASUNDARAM @ SOMU ………… APPELLANT
Vs.
STATE REP. BY DY. COMM. OF POLICE ………… RESPONDENT
WITH
Criminal Appeal No. 827 of 2013
and
Criminal Appeal No. 828 of 2013
J U D G M E N T
V. GOPALA GOWDA, J.
The present appeals arise out of the common impugned judgment and
order dated 06.10.2007 in Criminal Appeal Nos. 698, 716 and 781 of 2004 and
Criminal Appeal No. 685 of 2005 passed by the High Court of Judicature at
Madras, whereby the conviction and sentences awarded to the accused-
appellants by the Additional District and Sessions Judge, (Fast Track Court-
I), Chennai were upheld for the offences punishable under different
sections of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”),
for the abduction and murder of one M.K. Balan (hereinafter referred to as
the “deceased”).
The following table outlines the conviction and sentences awarded to each
of the accused by the Trial Court:
| Senthil Kumar (A-1) |
|Section 120-B IPC: Imprisonment for life and fine of Rs. 50,000/- |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Hariharan (A-2) |
|Section 120-B IPC: Imprisonment for life. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
| |
|Poonga Nagar Manickam (A-3) |
| |
|Section 120-B IPC: Acquitted under Section 235(1) of Code of Criminal |
|Procedure, 1973(hereinafter referred to as the “CrPC”). |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Somasundaram (A-4) |
| |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
| |
| |
|Balamurugan (A-5) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Shankar Ganesh (A-6) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Irudhayaraj (A-7) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Jaibeam Anbu (A-8) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Udhayam Kumar (A-9) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
| |
|Leela Shankar (A-10) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Sampath (A-11) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
| |
|Romita Mary (A-12) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
| |
|Swamikannu (A-13) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Sori Ramesh (A-14) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Bomb Selvam (A-15) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Jagadeesan (A-16) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Gunasekar (A-17) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
|Section 365 IPC read with Section 109 IPC: Rigorous Imprisonment for 7 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 1 year. |
|Section 387 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|5,000/-, in default of payment, rigorous imprisonment for 1 year. |
|Section 302 IPC read with Section 109 IPC: Imprisonment for life and fine|
|of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year.|
|Section 347 IPC read with Section 109 IPC: Rigorous Imprisonment for 3 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 6 months. |
|Section 364 IPC read with Section 109 IPC: Rigorous Imprisonment for 10 |
|years and fine of Rs. 5,000/-, in default of payment, rigorous |
|imprisonment for 2 years. |
|Section 201 IPC: Rigorous Imprisonment for 7 years and fine of Rs. |
|10,000/-, in default of payment, rigorous imprisonment for 1 year. |
| |
|Naraimudi Ganesan (A-18) |
|Section 120-B IPC: Acquitted under Section 235(1) of CrPC. |
The aforesaid sentences imposed upon each one of the accused persons were
ordered to run concurrently.
Out of all the accused persons who were tried by the Sessions Court, only
three, i.e., Manickam @ Poonga Nagar Manickam (hereinafter referred to as
“A-3”), Somasundaram (hereinafter referred to as “A-4”) and Bomb Selvam
(hereinafter referred to as “A-15”) are in appeal before us. Since we are
only required to examine the correctness of the conviction and sentences as
against these three accused persons, we shall restrict to the appreciation
of facts and evidence relevant to these three accused persons only. The
facts of the incident leading up to the case, the arrest of the accused
persons followed by their trial and conviction are stated as under:
The case of the prosecution is that on 30.12.2001, at about 5:30 a.m.,
the deceased went for morning walk, but did not return home. As a result,
his son, B. Manimaran (PW-1) lodged a missing person complaint at the
Pattinapakkam Police Station at 11.00 a.m. The same was registered as Crime
No. 986 of 2001. PW-66, the Inspector started the investigation. The
statements of various witnesses were recorded. The breakthrough came on
21.02.2002, when the Investigating Officer came to know of the involvement
of Balamurugan (A-5) in the case through an informant. A-5 was arrested on
18.03.2002 by PW-67, who also recorded his statement, produced as Ex. P-43.
On the basis of the statement of A-5, the FIR was altered and the offences
under Sections 120B read with Sections 364, 365, 302 and 201 of IPC were
added to the same. Subsequently, the rest of the accused persons were
arrested on the basis of the statements of the witnesses. A-3 was arrested
on 25.03.2002 and his statement was recorded, which is produced as Ex. P-
20. On the basis of the evidence of A-3, M.O. 12- Maruti Zen Car, under
mahazar Ex. P-6 was recovered on the same day. On 01.04.2002, A-3 and A-1
were remanded to police custody as per the order of the Magistrate for a
period of ten days. A-4 was arrested on 09.04.2002 from Chrompet Railway
Station. His statement was recorded as Ex.P-34 in the presence of PW-9. On
the basis of the disclosure made in the statement, M.O.-6, Ford Escort Car
bearing Registration No. TN-10-F-5555 was recovered, which has been
produced as Ex. P-19. A-15 was arrested on 25.04.2002 from near the Egmore
Railway Station, from where he was taken to the office of the CBCID. On the
basis of the disclosure made in the statement of A-15, a ‘Tiruvalluvar Hero
Honda 6475’, marked as M.O.-10 and a black coloured Reebok shoe, marked as
M.O.- 1, kept inside the side box of that motor cycle were recovered.
5. On 14.06.2002, the final report under Section 173(2) of CrPC was filed
in PRC No. 55 of 2002 before the XXIII Metropolitan Magistrate, Chennai,
against A-1 to A-17 and one unknown person. Pursuant to further
investigation and apprehension of A-18, final report was filed on
10.01.2003 under Section 120-B read with Sections 364, 365, 419,
437,387,302,402 and 201 of IPC.
6. During the course of the trial, the prosecution examined 67 Prosecution
Witnesses to establish the guilt of the accused persons.
7. The Trial Court, after examining the evidence produced on record,
convicted and sentenced A-1 to A-11 and A-13 to A-17, as specified in the
table referred to supra. A-12 and A-18 were acquitted of all charges. The
accused persons preferred appeals against their conviction and the State
preferred an appeal against the acquittal of A-12 and A-18 before the High
Court. The High Court, after consideration of the evidence placed on
record, upheld the order of conviction and sentence passed by the learned
Sessions Judge against all the accused, except A-10. A-10 was acquitted of
all the charges by the High Court. The appeals filed were accordingly,
dismissed. The High Court, in the impugned judgment and order relied on the
testimony of PW-1, the son of the deceased, who spoke about the fact that
his father went on his usual morning walk but did not return and the
testimony of PW-13, who saw the deceased walking. The next crucial link,
according to the High Court is provided from the evidence of Venugopal (PW-
10) and Newton (PW-11), who saw some of the accused bringing the deceased
into the vermicelli manufacturing factory premises at Mudichur on the
morning of 30.12.2001. Both PW-10 and PW-11 also deposed as to the prior
arrangements made by them on the direction of the accused persons,
including the arrangement of the premises of the vermicelli factory,
vehicles and food. PW-11 also deposed that he saw four of the accused
persons carrying the dead body of the deceased. PW-32, the Doctor, deposed
that at the instance of A-3, he had issued a death certificate to PW-33,
which was needed to cremate the body of the deceased. He also stated that
he had done so without actually seeing the body of the deceased as he had
known PW-33 for a long time and trusted him. Both the Trial Court and the
High Court treated PW-10 and PW-11 as accomplices, keeping in view their
role in the entire incident. The High Court then went on to examine the
case law with regard to the reliability of the evidence of the accomplice.
On this aspect, the High Court held as under:
“An accomplice is undoubtedly a competent witness under the Indian Evidence
Act. There can be, however, no doubt that the very fact that he has
participated in the commission of the offence introduces a serious stain in
his evidence and Courts are naturally reluctant to act on such tainted
evidence unless it is corroborated in material particulars by other
independent evidence.
It would not be right to expect that such independent corroboration should
cover the whole of the prosecution story on even all the material
particulars. If such a view is adopted, it would render the evidence of the
accomplice wholly superfluous……
……the appreciation of an approver’s evidence has to satisfy a double test.
His evidence must show that he is a reliable witness and that is a test
which is common to all witnesses. If this test is satisfied the second test
which still remains to be applied is that the approver’s evidence must
receive sufficient corroboration.”
The High Court accordingly, came to the conclusion that the evidence of PW-
10 and PW-11 was reliable and could be considered while examining the guilt
of the appellants. It was held as under:
“PW-10 and PW-11 are accomplices and they were present at all stages along
with the accused and aided them in very many ways, we have analysed their
evidence with great care and caution. It is true that both of them had not
informed the occurrence to anybody and were not to be seen for more than a
period of months. For their conduct they have given acceptable explanation.
Both the witnesses have spoken that as they came to that A-3 and A-9 had
indulged in an act of serious offence, they were threatened by the accused
that if they reveal what had happened, they and their family members would
be in danger. Afraiding such danger, they had hided themselves and
therefore, they had not disclosed to anyone, only fearing not only to their
lives but also to their family members……”
8. The High Court held that the case of the prosecution, as sought to be
proved by the evidence of PW-10 and PW-11, is that PW-10 was a business
associate of A-9. A-9 informed PW-10 that A-3 would get him in a post in a
political party if he completed a task that was assigned to him. A-9 asked
PW-10 to help him finish the same. At the request of A-9, PW-10 had
arranged the vermicelli manufacturing factory premises belonging to PW-34
for a week. Further, A-9 informed A-3 of the place that had been chosen to
carry out the task. PW-10, A-3 and A-9 then visited the places to inspect
the suitability of the premises. After the same had been approved by A-3,
PW-10 at the request of A-3, arranged a Maruti van, table, chair, cot,
bedpan etc. and kept the same in the said premises of the vermicelli
manufacturing factory. PW-10 and PW-11 also made arrangements for procuring
cash as and when A-3 and A-9 needed them. PW-10 and PW-11 also arranged
rooms at Hotel Henkala, Tambaram for A-9. PW-10 also heard the driver of A-
3 asking him for a chain to tie the deceased. A-3 also asked PW-10 to
provide food for those who are staying in the vermicelli factory premises.
PW-10 and PW-11 also saw four of the accused persons bringing down the body
of the deceased, which was loaded in the van and taken out of the place. PW-
10 was also informed by A-13 that the body of the deceased had been burnt
in the Erukancheri cremation ground. PW-10 then left for Bangalore and
stayed there till he was informed by his wife on 18.03.2002 that A-5 was
arrested by CBCID police in connection with the murder of the deceased.
9. The High Court further observed that PW-10 has implicated A-1 to A-11
and A-14. He also identified A-4, A-5, A-6, A-7, A-8, A-11 and A-15 on
three occasions as spoken to by PW-60, the Magistrate who conducted the
identification parade. On the issue of delay in test identification parade,
the High Court held that:
“In a complicated investigation like this, where there was no clue for the
involvement of any of the accused till A-5 was arrested on 18.03.2002, the
delay in holding the test identification parade, if at all from the last
arrest of A-16, i.e., on 22.05.2002 would not in our view render the same
inconsequence and consequently it would not affect the test on the ground
of delay.”
10. The High Court placed reliance on the decision of this Court in the
case of Daya Singh v. State of Haryana[1] for the same. The High Court
further held that the common object for the offence was to collect some
money from the deceased, and in case the money did not come through, to do
away with the deceased. The High Court held that to achieve the common
object, they had conspired together.
11. Further, on the contention that the body which was cremated was not
identified by anybody, the High Court held that the man who was abducted on
the morning of 30.12.2001, was kept in the vermicelli factory premises by
the accused persons, and was murdered there. His body was cremated in the
Perambur crematorium. It was held that the circumstances adequately point
to the same.
12. The High Court, therefore, held that the conviction and sentence
imposed by the Trial Court in respect of all the accused persons is liable
to be confirmed as the same does not suffer from any infirmity in law.
13. The correctness of the impugned judgment and order passed by the High
Court is under challenge in these appeals by three of the
accused–appellants, i.e. A-3, A-4 and A-15 in support of which they have
urged various facts and legal contentions before this Court.
14. The rival legal contentions urged on behalf of the accused persons and
the prosecution are stated hereunder:
Contentions urged on behalf of the accused-appellants:
Mr. Siddharth Luthra, learned senior counsel appearing on behalf of A-4 in
Criminal Appeal No. 403 of 2010, contends that the conviction of the
appellant is wholly erroneous and is liable to be set aside.
The learned senior counsel contends that the recovery of the Ford Car (M.O.-
6) was not done in accordance with law, and thus, the same is vitiated.
According to the statement given by A-4 to the Police [Ex. P- 34], he had
stated as under:
“If I am taken, I will identify the house, in Chrompet, wherein we were
staying and the Muddichur Vermicelli Factory, wherein we had detained M.K.
Balan and the cars which were used by us for the kidnapping of Balan.”
The Ford Car in question, M.O-6 was recovered from the house of PW-10 on
09.04.2002. In the evidence of PW-10, he had deposed that he had purchased
M.O.6 Ford Car for Rs.3,60,000/-. He had bought the same from one Advocate
Duraipandi. He further stated that M.O.6 was not registered in his name. It
was registered in the name of one Ranjit Kumar. The learned senior counsel
contends that in the absence of the proof of ownership of the vehicle, the
only evidence of the use of the vehicle on 30.12.2001 is the testimony of
PW-10, and the same cannot be used against A-4.
The learned senior counsel further contends that since the accused A-4 has
been acquitted of the charge under Section 120-B of IPC, Section 10 of the
Indian Evidence Act, 1872 (hereinafter referred to as the “Evidence Act”)
has no application either. Section 10 of the Evidence Act reads as under:
“10. Things said or done by conspirator in reference to common design.
Where there is reasonable round to believe that two or more persons have
conspired together to commit an offence or an actionable wrong, anything
said, done or written by any one of such persons in reference to their
common intention, after the time when such intention was first entertained
by any one of them, is a relevant fact as against each of the persons
believed to be so conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose of showing that any such
person was a party to it.”
The learned senior counsel places reliance on the decision of this Court in
the case of State v. Nalini[2], wherein the scope of Section 10 of the
Evidence Act was discussed as under:
“The first condition which is almost the opening lock of that provision is
the existence of "reasonable ground to believe" that the conspirators have
conspired together. This condition will be satisfied even when there is
some prima facie evidence to show that there was such a criminal
conspiracy. If the aforesaid preliminary condition is fulfilled then
anything said by one of the conspirators becomes substantive evidence
against the other, provided that should have been a statement "in reference
to their common intention". Under the corresponding provision in the
English Law the expression used is "in furtherance of the common object".
No doubt, the words "in reference to their common intention" are wider than
the words used in English Law……
…………We cannot overlook that the basic principle which underlies in Section
10 of the Evidence Act is the theory of agency. Every conspirator is an
agent of his associate in carrying out the object of the conspiracy.
Section 10, which is an exception to the general rule, while permitting the
statement made by one conspirator to be admissible as against another
conspirator restricts it to the statement made during the period when the
agency subsisted. Once it is shown that a person became snapped out of the
conspiracy, any statement made subsequent thereto cannot be used as against
the other conspirators under Section 10.”
The learned senior counsel contends that since A-4 has been acquitted of
the charge of conspiracy, no statement made by any witness or accused which
seeks to prescribe any sort of common intention can be used against A-4.
The learned senior counsel further contends that the only relevant
testimonies as far as A-4 is concerned are that of Manimaran (PW-1),
Sudhakar (PW-3), Venugopal (PW-10), Newton (PW-11), Krishnapandi (PW-34)
and the Investigating Officer (PW-67). PW-3, who is one of the eyewitnesses
to the kidnapping of the deceased, deposed in his evidence as under:
“……On 30.12.2001, at about 5.30 A.M. as usual I started to run. By that
time, I heard a sound. I saw that 3 persons were forcing a person to get
into a van at a distance of about 75 metres. Thereafter, all of them went
in the same van. It’s an Omni Van. A motor cycle followed that van.
Thereafter, my friend Selvam came there. I told this to him. I told
Selvaraj Master. Selvaraj Master told me “Why should we bother about
others”……”
The learned senior counsel further contends that PW-3 thus, neither names,
nor identifies nor prescribes any specific role to A-4 in kidnapping of the
deceased on 30.12.2001. The learned senior counsel further contends that
according to the evidence of PW-3, the deceased was kidnapped in an Omni
Van, which was followed by a motorcycle. However, even if the alleged
confession of A-4 is taken to be true, what was recovered at his direction
was a Ford Escort Car (M.O.6).
The learned senior counsel further contends that during the trial, the
prosecution has not arrayed PW-10 and PW-11 as accused, nor have they been
made approver in the case. Thus, the testimonies of PW-10 and PW-11 cannot
be relied upon in absence of corroboration from independent sources, as the
same are in the nature of accomplice evidence in terms of Section 133 of
the Evidence Act. The learned senior counsel places reliance on the
decision of this Court in the case of Rameshwar v. State of Haryana[3]:
“……The rule, which according to the cases has hardened into one of law, is
not that corroboration is essential before there can be a conviction but
that the necessity of corroboration, as a matter of prudence, except where
the circumstances make it safe to dispense with it, must be present to the
mind of the judge, and in jury cases, must find place in the charge, before
a conviction without, corroboration can, be sustained……”
The learned senior counsel further places reliance on the three judge bench
decision of this Court in the case of Bhiva Dolu Patil v. State of
Maharashtra[4]:
“……the provisions of s. 133 of the Evidence Act which reads:-
S. 133 "An accomplice shall be a competent witness against an accused
person; and a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice".
It cannot be doubted that under that section a conviction based merely on
the uncorroborated testimony of an accomplice may not be illegal, the
courts nevertheless cannot lose sight of the rule of prudence and practice
which in the words of Martin B in Res. v. Boyes (1861) 9 CCC. 32 "has
become so hallowed as to be deserving of respect" and in the words of Lord
Abinger "it deserves to have all the reverence of the law". This rule of
guidance is to be found in illustration (b) to s. 114 of the Evidence which
is as follows :-
"The court may presume that an accomplice is unworthy of credit unless he
is corroborated in material particulars"………”
The learned senior counsel contends that PW-10 and PW-11 were witnesses to
the entire conspiracy and does not prescribe any role to A-4 after the
meeting on 05.12.2001 at the house of A-9. Nor does he prescribe any
specific role to A-4 for the kidnapping of the deceased on 30.12.2001. The
learned senior counsel further places reliance on the cross examination of
PW-10 which reads as under:
“When I and Newton had gone to the house of the 3rd accused Manickam, 3rd
accused Manickam said to the persons available there that the Ex M.L.A.
Balan has to be brought and that some money has to be collected from him.
After hearing this it was not struck to me that it could be violence act.
After Manickam said as such I and the witness Newton came out of the house.
I do not know what they had spoken and decided thereafter. Thereafter I did
not see the accused Somasundaram………”
(emphasis laid by this Court)
The learned senior counsel contends that PW-10 does not place A-4 on the
spot at the vermicelli factory at any of the days from 30.12.2001 till
01.01.2002. Further, in his cross examination he admits the fact of not
having seen A-4 after 05.12.2001. According to PW-10, A-4 was not even one
of the four persons who carried the body of the deceased out of the
premises of the vermicelli factory.
The learned senior counsel further contends that since A-3 to A-11 and A-
13 to A-17 have been acquitted by the Trial Court of the offence punishable
under Section 120-B of IPC, the conviction under Section 107 of IPC cannot
be sustained. Reliance has been placed on the decision of this Court in the
case of Pramatha Nath Talukdar v. Saroj Ranjan Sarkar[5], wherein it was
held as under:
“Furthermore, it appears to me that though the expression "criminal
conspiracy" occurs in para. 5 of the complaint, the facts alleged in the
petition of complaint essentially disclose an offence of abetment by
conspiracy. This brings us to the distinction between the offence of
criminal conspiracy as defined in s. 120A and the offence of abetment by
conspiracy as defined in s. 107 of the Indian Penal Code. Section 120A
which defines the offence of criminal conspiracy and s. 120B which punishes
the offence are in Ch. VA of the Indian Penal Code. This Chapter introduced
into the criminal law of India a new offence, namely, the offence of
criminal conspiracy. It was introduced by the criminal Law Amendment Act,
1913 (VIII of 1913). Before that, the sections of the Indian Penal Code
which directly dealt with the subject of conspiracy were these contained in
Ch. V and s. 121 (Ch. VI) of the Code. The present case is not concerned
with the kind of conspiracy referred to in s. 121A. The point before us is
the distinction between the offence of abetment as defined in s. 107 (Ch.
V) and the offence of criminal conspiracy as defined in s. 120A (Ch. VA).
Under s. 107, second clause, a person abets the doing of a thing, who
engages with one or more other person or persons in any conspiracy for the
doing of that thing, if an act or illegal omission takes place in pursuance
of that conspiracy, and an order to the doing of that thing. Therefore, in
order to constitute the offence of abetment by conspiracy, there must first
be a combining together of two or more persons in the conspiracy; secondly,
an act or illegal omission must take place in pursuance of that conspiracy,
and in order to the doing of that thing. It is not necessary that the
abettor should concert the offence with the person who commits it. It is
sufficient if he engages in the conspiracy in pursuance of which the
offence is committed. It is worthy of note that a mere conspiracy or a
combination of persons for the doing of a thing does not amount to an
abetment. Something more is necessary, namely, an act or illegal omission
must take place in pursuance of the conspiracy and in order to the doing of
the thing for which the conspiracy was made. Before the introduction of Ch.
VA conspiracy, except in cases provided by Sections 121A, 311, 400, 401 and
402 of the Indian Penal Code, was a mere species of abetment where an act
or an illegal omission took place in pursuance of that conspiracy, and
amounted to a distinct offence. Chapter VA, however, introduced a new
offence defined by s. 120A. That offence is called the offence of criminal
conspiracy and consists in a mere agreement by two or more persons to do or
cause to be done an illegal act or an act which is not illegal by illegal
means; there is a proviso to the section which says that no agreement
except an agreement to commit an offence shall amount to a criminal
conspiracy unless some act besides the agreement is done by one or more
parties to such agreement in pursuance thereof. The position, therefore
comes to this. The gist of the offence of criminal conspiracy is in the
agreement to do an illegal act or an act which is not illegal by illegal
means. When the agreement is to commit an offence, the agreement itself
becomes the offence of criminal conspiracy. Where, however, the agreement
is to do an illegal act which is not an offence or an act which is not
illegal by illegal means, some act besides the agreement is necessary.
Therefore, the distinction between the offence of abetment by conspiracy
and the offence of criminal conspiracy, so far as the agreement to commit
an offence is concerned, lies in this. For abetment by conspiracy mere
agreement is not enough. An act or illegal omission must take place in
pursuance of the conspiracy and in order to the doing of the thing
conspired for. But in the offence of criminal conspiracy the very agreement
or plot is an act in itself and is the gist of the offence.”
(emphasis laid by this Court)
The learned senior counsel submits that the language of the charge is that
of abetment for fulfilling the conspiracy against the accused persons. As
the charge under Section 120-B of IPC has not been proved, Section 107 of
IPC cannot be attracted in this case as the distinction between the offence
of abetment by conspiracy and offence of criminal conspiracy is that in the
former, a mere agreement among persons is not enough.
Mr. Basant R., the learned senior counsel appearing on behalf of A-3
submits that A-3 has been acquitted of the offence under Section 120-B of
IPC. The learned senior counsel further submits that A-3 was never charged
with the offences under Sections 34 and 149 of IPC. He was only charged
with the offence under Section 109 of IPC, which by itself was a vague
charge, making it impossible to defend. The learned senior counsel contends
that the inclusion of the charge under Section 109 of IPC would indicate
that A-3 was in fact not involved in the actual murder of the deceased. It
is further contended that once the charge under Section 120B of IPC fails
to be established, the prosecution has to show the exact manner in which
the abetment of an offence was done by A-3. The learned senior counsel
contends that this did not happen in the instant case.
The learned senior counsel further contends that as far as the charge of
offence under Section 302 of IPC is concerned, even that has not been
proved by the prosecution satisfactorily. At the outset, the learned senior
counsel contests the factum of the death of the deceased itself. It is
contended that no prosecution witness has identified the dead body that was
burnt on the night of 01.01.2002. No DNA tests have been conducted to
conclusively verify the identity of the body that was allegedly burnt on
01.01.2002. It is submitted that the reliance placed by the courts below on
the evidence of PW-32 and PW-33 is also misplaced. PW-33 stated in his
testimony that A-3 had told him to procure a death certificate for one
Rajamani Chettiar who had died. PW-33 then asked PW-32, a doctor he knew
for the last fifteen years to issue the same. There is nothing to actually
connect A-3 to the death certificate except the spoken word of PW-33. It is
contended that it was in fact PW-32 and PW-33 who created the false
evidence, and are now conveniently pinning it squarely on A-3. The learned
senior counsel further contends that the specific role of A-3 in the murder
of the deceased has not been proven, which makes it erroneous in law to
convict him of the offence under Section 302 read with Section 109 of IPC.
The learned senior counsel further contends that the testimony of PW-10 and
PW-11 should not be relied upon, as their evidence is not corroborated by
other material evidence. The learned senior counsel further contends that
the fact that PW-10 and PW-11 have not been termed as ‘accomplices’ by the
courts below and their evidence has no bearing on the reliability to record
the finding of guilt. The fact that the term ‘accomplice’ has not been used
to describe them is irrelevant, as if the evidence on record points to them
being accomplices, then PW-10 and PW-11 are in fact, accomplices. The
learned senior counsel further submits that the term accomplice has not
been defined in any statute. He places reliance on the definition of the
term ‘accomplice’ in Black’s Law Dictionary, in which it has been defined
as under:
“One who is in some way concerned or associated in commission of crime, a
partaker of guilt, one who aids or assists, or is an accessory.”
Ramanatha Aiyar’s Law Dictionary defines ‘accomplice’ as:
“There is some authority for using the word ‘accomplice’ to include all
principals and all accessories, but the preferred usage is to include all
principals and accessories before the fact, but to exclude accessories
after the fact. If this limitation is adopted, the word ‘accomplice’ will
embrace all perpetrators, abettors and inciters.
The term in it fullness includes in its meaning all persons, who have been
concerned in the commission of a crime, all participles criminis, whether
they are considered in strict legal property as principals in the first or
second degree or merely as accessories before or after the fact.”
The learned senior counsel submits that the burden upon the accused to show
that someone is an accomplice is only to the extent that the term
accomplice is commonly understood. The burden on the accused is not to show
the guilt of the witness beyond reasonable doubt.
The learned senior counsel contends that it becomes clear from a perusal of
the testimony of PW-10 and PW-11 (extracted in the earlier part of this
judgment) that they were actively involved in the preparation of the crime.
The learned senior counsel further contends that the testimony also clearly
shows that both the PWs had full knowledge of the purpose for which they
were making the preliminary preparations, i.e., for the abduction of the
deceased and keeping him in the premises of the vermicelli factory. The
learned senior counsel further submits that PW-10 and PW-11 can by no
stretch of imagination be said to be approvers, as no court has granted
them pardon and made them as approvers.
On the question of the role prescribed by PW-10 and PW-11 to A-3, the
learned senior counsel submits that there is no evidence which suggests
that A-3 came in contact with the deceased while he was at the vermicelli
factory premises. PW-10 had deposed as under:
“On 30.12.2001 at 8:30 A.M., Udaykumar called me over my cell phone. Asked
me to come to Henkala Hotel. I also went there. After sometime Accused
Manickam came by Uno car. After coming to the room, he asked Udaykumar that
he need a Maruti Van. Manickam took myself, Udaykumar and Senthilkumar in
that Maruti Van and went to the vermicelli factory at Mudichur. When we
went to the company, Manickam alone got down and was standing there. One
person came down from upstairs and took me and Senthilkumar to upstairs.
There were about 5 or 6 persons. Ex. M.L.A. Balan was tied up with chain
and his eyes were also closed with a cloth and he had been made to sit on
the green steel cot which was provided by us already………”
Further, PW-10 identifies four accused who brought down the dead body of
the deceased and A-3 is not one of these four accused.
The learned senior counsel contends that even if the evidence of PW-10 and
PW-11 are accepted in toto, it does not at all suggest that A-3 was present
in the vermicelli factory, which is the alleged scene of crime when the
death occurred. Hence, the charge of the offence under Section 302 read
with Section 109 IPC cannot be sustained against A-3 at all.
Mr. P.V. Yogeswaran, the learned counsel appearing on behalf of A-15
contends that there is nothing in the evidence to directly implicate A-15
except M.O.1, the Reebok shoes produced by the prosecution on record which
allegedly belonged to the deceased. PW-1 however, in his testimony stated
that M.O.1 showed to him in court, did not belong to his father. PW-2, the
driver of the deceased has also denied that those shoes belonged to the
deceased. The learned counsel further submits that the testimony of PW-10
and PW-11 cannot be relied upon, as the proper procedure as required under
Section 164 of CrPC has not been followed by the Court while recording
their evidence.
Contentions urged on behalf of the prosecution:
On the other hand, Mr. Yogesh Kanna, the learned counsel appearing on
behalf of the State of Tamil Nadu contends that there is no infirmity in
the impugned judgment and order passed by the High Court, upholding the
conviction and sentence passed against the accused-appellants by the Trial
Court, and the same need not be interfered with by this Court in exercise
of its jurisdiction under Article 136 of the Constitution of India.
The learned counsel places reliance on the evidence of Venugopal (PW-10).
PW-10, in his deposition mentions the scouting for locations that had taken
place, to carry out the most suitable location where the crime could be
carried out. He deposed as under:
“In the second week of November, 2001, this Accused Udayakumar called me
over telephone and came to my office. At that time he asked me whether the
houses are ready. I replied him that I have made them ready. Next day,
Udaykumar called me once again and asked me and Newton to be in the office.
He also told me that Poonga Nagar Manickam of Perambur is coming to my
office. Around 2 P.M. on that day Udaykumar and Poonga Nagar Manickam came
to my office. I and Newton were present in our office. Myself and Newton
took Poonga Nagar Manickam and Udaykumar for the purpose of showing the
houses. First we went from Tambaram to Camp Road and in a considerable
distance from there to Mahalakshmi Nagar and showed my friend Mr. Choudry’s
house. Besides that, we showed 4 or 5 houses in that place. At last, they
saw my house also. Then Manickam told Udaykumar that he don’t like the
houses shown by us including my house. Then, Udaykumar asked to show the
Vermicelli factory in Mudhichur Road. Myself and Newton took Poonga Nagar
Manickam and Udayakumar and showed the Vermicelli factory in Mudichur Road.
Witness Krishnapandi was also there. Manickam saw the factory. After seeing
the factory, Manickam told Udayakumar that this place is the correct place
for the work to be done by us.”
38. The learned counsel further contends that apart from explaining the
meetings between the accused persons to hatch the conspiracy to abduct the
deceased, PW-10 has also spoken about the Maruti Van that was used to carry
the dead body of the deceased after the crime had been committed. PW-10 has
deposed as follows:
“On 30.12.2001 at 8:30 A.M., Udaykumar called me over my cell phone. Asked
me to come to Henkala Hotel. I also went there. After sometime Accused
Manickam came by Uno Car. After coming to room, he asked Udayakumar that he
needed a Maruti Van. He went outside and brought one sandal colour Maruti
Van. Manickam took myself, Udayakumar and Senthilkumar in that Maruti Van
and went to the vermicelli factory at Mudichur. When we went to the
company, Manickam alone got down and was standing there. One person came
down from upstairs and took me and Senthilkumar to upstairs. There were
about 5-6 persons. Even Ex MLA M.K. Balan was tied up with chain and his
eyes were also closed with a cloth and he had been made to sit on the green
steel cot which was provided by us already. He was wearing black pant and
sandal colour T-shirt……”
The learned counsel further submits that PW-10 in fact also saw the
accused carrying the body of the deceased out of the vermicelli factory
premises. The relevant portion of his evidence is extracted hereunder:
“On 1.1.2002 morning, I came back to my house. By 10:30 a.m. Udayakumar
called up over phone and asked me to come to Henkala Hotel. I also went
there. After sometime Manickam came there. Manickam asked Udayakumar to
provide an ambulance to him. Udayalumar took me with him and went to 2,3
places in search of an ambulance. He could not find ambulance. Then
Manickam told him that if ambulance is not there it does not matter, but to
arrange one Maruti Van and fix one Lumax light as fixed in ambulance
vehicle. By that time, Manickam’s driver Viji came there……After sometime
Manickam called Udayakumar over phone. Then Udayakumar told me that
Manickam asked me to arrange for a Maruti Van. Udayakumar asked me to wait
there and went out and came back with a Maruti Car. That Maruti Van is of
gold colour……I came to a tea shop with Newton by his motor cycle. Newton
told me that lunch was not supplied in the afternoon to the Vermicelli
factory and they have told over phone that they do not need dinner also. I
also told Newton about their requirement of ambulance. Also I told him that
they are arranging for a vehicle like ambulance. I told him about
Udayakumar sending the Maruti van by 8.00 P.M. and also about my fear on
seeing all these. Newton was also very much scared. Both of us suspected
that something is going on in the company. Then, both of us started around
8:45 P.M. from Tambaram and reached the Mudichur company by 9.00 P.M. There
the gate in the ground floor was closed……The Golden colour Maruti sent from
Henkala Hotel was standing there……Then 4 persons came from upstairs
carrying on Mr. M.K. Balan’s body. Among that four persons, 2 persons were
holding his legs and the other 2 persons were holding his hands. By that
time also M.K. Balan was wearing black colour pant, and sandal colour T
shirt. After coming from the upper steps, there is a slab like place. They
kept the body there. They took a cloth from the bag brought by Balamurugan
and tied around M.K. Balan’s body, like doing a dead body. There is no
movement in the body.”
The learned counsel thus, submits that PW-10 has explicitly mentioned
seeing the dead body of the deceased by some of the accused, and has also
spoken about the Maruti Van which was recovered from the accused-
appellants. His testimony is crucial in placing the accused-appellants at
the scene of the crime, and their involvement in the same. It thus,
establishes their guilt beyond reasonable doubt.
The learned counsel further places reliance on the testimony of Newton (PW-
11). PW-11 has also spoken about making the preparations on the instruction
of Poonga Nagar Manickam, A-3. Significantly, PW-11 also mentions seeing
the dead body of the deceased being carried down the vermicelli factory
premises. The relevant portion of his evidence is extracted as under:
“……As per that, both of us went to the vermicelli company by the motor
cycle. By that time, 2 persons were near the gate. Then both of them told
us that we do not have any work there and we can go from there. Then I left
the bike adjacent to the company and when I and Venugopal crossed the
company gate, we saw Balamurgan going into the vermicelli factory. At that
time, 4 persons came from upstairs of the vermicelli factory, carrying M.K.
Balan, who was wearing Black colour pant and T shirt (sandal colour) and
they left him on the floor. They tied up M.K. Balan with the dhoti brought
by Balamurugan and carried him to the van and the van started from there……I
and Venugopal were scared and came back to home. PW-10 Venugopal told me
that he was called by Poonga Nagar Manickam and told by him that if this
matter is leaked out anywhere he will kill him and his family.”
The learned counsel further places reliance on the testimony of PW-33,
Kamaraj, who had procured the death certificate, which was shown as that of
the deceased in order to cremate him. PW-33 stated that he had procured the
death certificate at the instance of A-3. The relevant portion of his
evidence is extracted hereunder:
“……At that time Sami told me that Manickam asked me to come by 6 am in the
morning. Next day I went to Manickam’s house by 6 am and when he enquired
about my conveyance and I told him that I had come by Auto and he gave me
Rs 50/- for expenses. Further he told that watchman working in a Kolathur
company had died; and one Rajamani Chettiar expired and asked me to get a
certificate. I immediately told about PW-32, Dr. Anbarasu known to me for
the past 15 years; and went to his place by auto. The Doctor was there. I
told him that a watchman in a Kolathur Company had died. He believed me and
gave it in writing in a letterhead. I gave it to Manickam in Perambur and
came back to my house……”
The learned counsel further relies on the evidence of Dr. K.V. Chinnaswamy,
PW-32, who had stated that PW-33 had asked him for a death certificate in
the name of one Rajamani Chettiar. PW-32 stated that he had no reason to
suspect PW-33, whom he had known for about fifteen years, and thus, issued
the death certificate without even looking at the dead body of the
deceased.
The learned counsel further submits that after considering the evidence of
PW-1 and PW-3 and after perusal of the First Information Report, that
according to the circumstantial evidence, it can be seen that it was indeed
the deceased who had been kidnapped from MRC Nagar on 30.12.2001 at about
5:30 a.m by the accused appellants.
The learned counsel further contends that PW-10 and PW-11 are not
accomplices, and thus, their evidence can be safely relied upon, in light
of the fact that they corroborate each other on all material aspects in
relation to the charges. The learned counsel places reliance on the
decision of the High Court of Lahore, in the case of Ismail s/o Hassan Ali
v. Emperor[6], wherein an accomplice was defined as:
“The expression 'accomplice' has not been defined in the Evidence Act, but
there can be little doubt that it means a person who knowingly or
voluntarily cooperates with or aids and assists another in the commission
of a crime. The expression obviously includes principals in the first and
second degree. In the case in ('36) 23 A.I.R. 1936 P.C. 242 : 163 I.C. 681
(P.C.), Mahadeo v. The King their Lordships of the Privy Council held that
the expression is wide enough to include persons who are known to the
English law as accessories after the fact. An accessory after the fact is
one who, knowing a felony to have been committed, receives, relieves,
comforts or assists the felon. Three conditions must unite to render one an
accessory after the fact: (1) the felony must be complete; (2) the
accessory must have knowledge that the principal committed the felony; and
(3) the accessory must harbour or assist the principal felon. Mere acts of
charity which relieve or comfort a felon, but do not hinder his
apprehension and conviction nor aid his escape, do not render one an
accessory after the fact (4 Blackstone's commentaries p. 38). He must be
proved to have done some act to assist the felon personally (1823-41) 9
C.P. 355). The mere fact, that one had knowledge that a crime had been
committed, and that he concealed or failed to disclose such knowledge, does
not render him an accomplice. If, for example, the concealment is due to
the witness's anxiety for his own safety rather than to any desire to
shield the criminal, he would not be an accomplice. Nor would a person who
remains passively silent after obtaining knowledge of the commission of the
crime be an accessory or an accomplice within the rule as to the testimony
of accomplices. To render a person an accomplice his participation in the
crime must be criminally corrupt.”
(emphasis laid by this Court)
The learned counsel further contends that PW-10 and PW-11 only did the
things they were told to do, like scouting for the location and arranging
the necessary items needed to keep the deceased at the vermicelli factory
premises at the instance of the accused-appellants. PW-10 and PW-11 were
also threatened with harm to themselves and to their families if they did
not comply with the instructions given to them by the accused-appellants.
The learned counsel further contends that mere knowledge of a crime does
not make a person an accomplice. Reliance has been placed on the decision
of the Calcutta High Court in the case of Narain Chandra Biswas v.
Emperor[7], wherein it was held as under:
“ It may further be noticed that where a witness is not concerned with the
commission of the crime for which the accused is charged, he cannot be said
to be an accomplice in the crime, as it is well settled that all
accessories before the fact, if they participate in the preparation for the
crime are accomplices, but if their participation is limited to the
knowledge that crime is to be committed, they are not accomplices. "Whether
therefore a person is or is not an accomplice depends upon the facts in
each particular case considered in connexion with the nature of the crime;
and persons to be accomplices must participate in the commission of the
same crime as the accused persons in a trial are charged. All persons
coming; technically within the category of accomplices cannot also be
treated as on precisely the same footing.”
The learned counsel submits that there is nothing on record to prove that
PW-10 and PW-11 had prior knowledge that the deceased would be murdered at
the hands of the accused-appellants. The only knowledge they had was that
the factory premises was needed for some work by the accused appellants.
The learned counsel further contends that even if PW-10 and PW-11 were
taken to be accomplices, their testimony can still be safely relied upon,
for the reason that they corroborate each other, as well as corroborated by
other independent witnesses, including PW-1, the son of the deceased, as
well as PW-13, who is an eyewitness to the kidnapping of the deceased. The
learned counsel places reliance on the decision of this Court in the case
of K Hashim v. State of Tamil Nadu[8], wherein it was held that:
“First, it is not necessary that there should be independent confirmation
of every material circumstance in the sense that the independent evidence
in the case, apart from the testimony of the complainant or the accomplice,
should in itself be sufficient to sustain conviction. As Lord Readings says
-
'Indeed, if it were required that the accomplice should be confirmed in
every detail of the crime, his evidence would not be essential to the case,
it would be merely confirmatory of other and independent testimony.'
38. All that is required is that there must be some additional evidence
rendering it probable that the story of the accomplice (or complainant) is
true and that it is reasonably safe to act upon it.
39. Secondly, the independent evidence must not only make it safe to
believe that the crime was committed but must in some way reasonably
connect or tend to connect the accused with it by confirming in some
material particular the testimony of the accomplice or complainant that the
accused committed the crime. This does not meant that the corroboration as
to identify must extend to all the circumstances necessary to identify the
accused with the offence. Again, all that is necessary is that there would
be independent evidence which will make it reasonably safe to believe the
witness's story that the accused was the one, or among those, who committed
the offence. The reason for this part of the rule is that -
"a man who has been guilty of a crime himself will always be able to relate
the facts of the case, and if the confirmation be only on the truth of that
history, without identifying the persons, that is really no corroboration
at all ...... It would not at all tend to show that the party accused
participated in it."
40. Thirdly, the corroboration must come from independent sources and thus
ordinarily the testimony of one accomplice would not be sufficient to
corroborate that of another. But of course the circumstances may be such as
to make it safe to dispense with the necessity of corroboration and in
those special circumstances a conviction so based would not be illegal. I
say this because it was contended that the mother in this case was not an
Independent source.
41. Fourthly, the corroboration need not be direct evidence that the
accused committed the crime. It is sufficient if it is merely
circumstantial evidence of his connection with the crime. Were it
otherwise, "many crimes which are usually committed between accomplices in
secret, such as incest, offences with females' (or unnatural offences)
could never be brought to justice". [See M.O. Shamsudhin v. State of
Kerala.]”
The learned counsel contends that the Trial Court and the High Court were
correct in placing reliance on the testimony of PW-10 and PW-11 and
convicting and sentencing the accused-appellants for kidnapping and murder
of the deceased and the same does not warrant any interference by this
Court in exercise of its appellate power under Article 136 of the
Constitution.
We have heard the learned counsel appearing on behalf of all the parties
and have appreciated the evidence on record. The essential question that
would arise for our consideration is whether the High Court was justified
in upholding the conviction and sentence imposed on A-3 and A-4 by the
Trial Court. At the cost of reiteration, since the only appellants before
us in the present appeals are A-3, A-4 and A-15, we shall restrict our
examination of the evidence on record only to their role in the crime as
has been alleged by the prosecution.
From a perusal of the evidence on record, it becomes clear that the case of
the prosecution as far as A-3 and A-4 are concerned rests heavily on the
evidence of PW-10 and PW-11, whose evidence is supported by the evidence of
PW-33 and PW-34.
At the outset, it is crucial for me to examine the evidence of PW-10 and
PW-11, as this forms the backbone of the case of the prosecution against A-
3 and A-4.
PW-10 has admitted to making preparations for the crime, albeit on the
instructions of the accused. PW-10 stated that he had shown various houses
to the accused, including his own, before settling in on the vermicelli
factory premises as the place where the deceased would be brought and kept.
PW-10 was also present in the alleged meeting held on 05.12.2001 at the
residence of A-3 at Perambur. In that meeting, PW-10 stated that A-3 told
everyone present there that the deceased had to be abducted and money
recovered from him. It is further evident from the evidence of PW-10 that
he arranged money and vehicles, as and when needed. What becomes further
clear from the evidence of PW-10 is that he has squarely kept himself out
of the actual abduction and murder of the deceased. According to PW-10, on
31.12.2001, the day that the deceased was abducted, A-9 Udayakumar called
PW-10 to a hotel, from where A-3, A-9, A-1 went in a Maruti Van to the
vermicelli factory at Mudichur. It was after reaching the vermicelli
factory that PW-10 was taken to the room where the deceased was tied up in
chains. PW-10 was then asked by A-3 to arrange for an ambulance or a
vehicle like an ambulance. On 01.01.2002, at about 9:00 P.M., he saw the
body of the deceased being carried downstairs by four persons. A-3 and A-4
were not among them.
Newton, PW-11, in his deposition states that at the request of A-9, he and
PW-10 showed houses to A-3 and A-9. PW-11 was also present at the meeting
on 05.12.2001 and saw A-4, A-6 and A-11 there. On the day of the abduction,
PW-11 saw the deceased being brought into the vermicelli factory premises.
He stated as under:
“……After half an hour, Udayakumar called me over the phone and told me to
open the gate of the vermicelli factory. Then, the Tata Sumo car came
first, followed by the Ford Escort Car and a Maruti Zen Car. 4 persons got
down from the Ford Car. Those 4 persons brought M.K. Balan by closing his
eyes, mouth and tying his hands and took him to the 1st floor. M.K. Balan
was wearing black colour pant, sandal colour T shirt and shoes. 3 persons
came out of the zen car. Udayakumar came to me and asked me whether I know
that he is M.K. Balan and he also threatened me that if I disclose the same
to anybody Poonga Nagar Manickam will kill me and my family members. Then
all the three cars went from the company. I can identify the 4 persons, who
brought M.K. Balan in the Ford Car, if I see them. They are 4th accused,
11th Accused, 16th Accused and 17th Accused………………The next day around 6.00
A.M. when Udayakumar came there, I went from there. Thereafter, Udayakumar
called me over phone and asked me to buy tiffin for 10 persons and gve the
same to Balamurugan in the vermicelli factory. By 12.00 noon, Udayakumar
called again and asked me to buy lunch for 10 persons, B.P. tablets and
head ache tablet and to handover the same to Balamurugan in Mudichur
vermicelli factory. I gave them the same and went home……”
PW-11 also speaks about seeing the dead body of the deceased. He also
identified the Ford Escort Car, M.O. 7, whose registration number is T.T.N.
10-F-5555. As far as A-15 is concerned, only PW-11 identifies him at the
vermicelli factory premises on 30.12.2001, when he states that A-15 was one
of the four persons who came with accused Balamurugan with the tiffin
parcel.
From a perusal of the evidence of PW-10 and PW-11, it becomes clear that
they are accomplice witnesses. It is also clear that the case of the
prosecution heavily rests on their evidence. Before we proceed to examine
the culpability of A-3 and A-4, it is important for us to examine the
reliability of the evidence of the above accomplices. Section 133 of the
Indian Evidence Act, 1872, which deals with the testimony of accomplice
witness, reads as under:
“an accomplice shall be a competent witness against an accused person; and
a conviction is not illegal merely because it proceeds upon the
uncorroborated testimony of an accomplice.”
The High Court, in the impugned judgment and order also considered this
aspect at some length. After adverting to judgments of both the Privy
Council as well as this Court, the High Court concluded as under:
“ A deep study on the above approach in law as to the evidentiary value of
the deposition of an accomplice, the following settled principles
culminate; that an evidence of an accomplice need not necessarily be
rejected, that the evidence requires corroboration in material particulars
as well as the corroboration of the evidence connecting or tend to connect
the accused with the crime, that such accomplice witness is reliable. If
the above tests are satisfied, the evidence of an accomplice can be safely
relied upon to hold the accused guilty of the offence. Keeping the above
principle in mind, the evidence of PW-10 and PW-11 should be considered.”
In the instant case, PW-10 and PW-11 have not been granted pardon by any
Court and have been arrayed as prosecution witnesses. This Court has held
that the mere fact that pardon has not been tendered by a court of law does
not make an accomplice cease being an accomplice. The learned senior
counsel Mr. Basant R. has aptly placed reliance upon the case of Laxmipat
Choraria v. State of Maharashtra[9], this Court held as under:
“The word accomplice is ordinarily used in connection with the law of
evidence and rarely under the substantive law of crimes. Accomplice
evidence denotes evidence of a participant in crime with others.
Section 133 of the Evidence Act makes the accomplice a competent witness
against an accused person.
The witness was, of course, treated as an accomplice. The evidence of such
an accomplice was received with necessary caution in those cases. These
cases have all been mentioned in In re Kandaswami Gounder AIR1957Mad727,
and it is not necessary to refer to them in detail here. The leading cases
are : Queen Emperor v. Mona Puna I.L.R. 16 Bom. 661, Banu Singh v. Emperor
I.L.R. 33 Cal. 1353, Keshav Vasudeo Kortikar v. Emperor I.L.R. 59 Bom. 355,
Empress v. Durant I.L.R. 23 Bom. 213, Akhoy Kumar Mookerjee v. Emperor
I.L.R. 45 Cal. 720, A.V. Joseph v. Emperor I.L.R. 3 Rang. 11, Amdumiyan and
others v. Crown I.L.R. 1937 Nag. 315, Gallagher v. Emperor I.L.R. 54 Cal.
52, and Emperor v. Har Prasad, Bhargava I.L.R. 45 All. 226. In these cases
(and several others cited and relied upon in them) it has been consistently
held that the evidence of an accomplice may be read although he could have
been tried jointly with the accused. In some of these cases the evidence
was received although the procedure of s. 337, Criminal Procedure Code was
applicable but was not followed. It is not necessary to deal with this
question any further because the consensus of opinion in India is that the
competency of an accomplice is not destroyed because he could have been
tried jointly with the accused but was not and was instead made to give
evidence in the case.”
(emphasis laid by this Court)
The same view has been reiterated by this Court more recently in the case
of Chandran @ Maniyan v. State of Kerala[10].
Thus, PW-10 and PW-11 being accomplice witnesses, their evidence must be
treated as such, and subject to the same test of reliability of the
evidence of an accomplice or approver are subject to.
As far as how much reliance can be placed upon the evidence of such
witnesses is concerned, in this regard this Court has laid down the well
settled position of law. In support of the above legal submission, the
learned senior counsel Mr. Basant R. relied upon the case of Sarwan Singh
v. State of Punjab[11], a three judge bench of this Court held as under:
“An accomplice is undoubtedly a competent witness under the Indian Evidence
Act. There can be, however, no doubt that the very fact that he has
participated in ,the commission of the offence introduces a serious stain
in his evidence and courts are naturally reluctant to act on such tainted
evidence unless it is corroborated in material particulars by other
independent evidence. It would not be right to expect that such independent
corroboration should cover the whole of the prosecution story -or even all
the material particulars. If such a view is adopted it would render the
evidence of the accomplice wholly superfluous. On the other hand, it would
not be safe to act upon such evidence merely because it is corroborated in
minor particulars or incidental details because, in such a case,
corroboration does not afford the necessary assurance that the main story
disclosed by the approver can be reasonably and safely accepted as true.
But it must never be forgotten that before the court reaches the stage of
considering the question of corroboration and its adequacy or otherwise,
the first initial and essential question to consider is whether even as an
accomplice the approver is a reliable witness. If the answer to this
question is against the approver then there is an end of the matter, and no
question as to whether his evidence is corroborated or not falls to be
considered. In other words, the appreciation of an approver's evidence has
to satisfy a double test. His evidence must show that he is a reliable
witness and that is a test which is common to all witnesses. If this test
is satisfied the second test which still remains to be applied is that the
approver's evidence must receive sufficient corroboration. This test is
special to the cases of weak or tainted evidence like that of the
approver. ”
(emphasis laid by this Court)
The above principle was reiterated in the case of Haroom Haji Abdulla v.
State of Maharashtra[12], as under:
“8. ...... The Evidence Act in Section 133 provides that an accomplice is a
competent witness against an accused person and that a conviction is not
illegal merely because it proceeds upon the uncorroborated testimony of an
accomplice. The effect of this provision is that the court trying an
accused may legally convict him on the single evidence, of an accomplice.
To this there is a rider in Illustration (b) to Section 114 of the Act
which provides that the Court may presume that an accomplice is unworthy of
credit unless he is corroborated in material particulars. This cautionary
provision incorporates a rule of prudence because an accomplice, who
betrays his associates, is not a fair witness and it is possible that he
may, to please the prosecution, weave false details into those which are
true and his whole story appearing true, there may be no means at hand to
sever the false from that which is true. It is for this reason that courts,
before they act on accomplice evidence, insist on corroboration in material
respects as to the offence itself and also implicating in some satisfactory
way, however small, each accused named by the accomplice. In this way the
commission of the offence is confirmed by some competent evidence other
than the single or unconfirmed testimony of the accomplice and the
inclusion by the accomplice of an innocent person is defeated. This rule of
caution or prudence has become so ingrained in the consideration of
accomplice evidence as to have almost the standing of a rule of law.
9. The argument here is that the cautionary rule applies, whether there be
one accomplice or more and that the confessing co-accused cannot be placed
higher than an accomplice. Therefore, unless there is some evidence besides
these implicating the accused in some material respect, conviction cannot
stand. Reliance is placed in this connection upon the observations of the
Judicial Committee in Bhuboni Sahu v. Emperor a case in which a conviction
was founded upon the evidence of an accomplice supported only by the
confession of a co-accused. The Judicial Committee acquitting the accused
observed:
"...... Their Lordships whilst not doubting that such a conviction is
justified in law under s. 133, Evidence Act, and whilst appreciating that
the coincidence of a number of confessions of co-accused all implicating
the particular accused given independently, and without an opportunity of
previous concert, might be entitled to great weight, would nevertheless
observe that Courts should be slow to depart from the rule of prudence,
based on long experience, which requires some independent evidence
implicating the particular accused. The danger of acting upon accomplice
evidence is not merely that the accomplice is on his own admission a man of
bad character who took part in the offence and afterwards to save himself
betrayed his former associates, and how has placed himself in a position in
which he can hardly fail to have a strong bias in favour of the
prosecution; the real danger is that he is telling a story which in its
general outline is true, and it is easy for him to work into the story
matter which is untrue....."”
(emphasis laid by this Court)
In the case of Ravinder Singh v. State of Haryana[13], a three judge bench
of this Court held as under:
“12. An approver is a most unworthy friend, if at all, and he, having
bargained for his immunity, must prove his worthiness for credibility in
court. This test is fulfilled, firstly, if the story he relates involves
him in the crime and appears intrinsically to be a natural and probable
catalogue of events that had taken place. The story if given, of minute
details according with reality is likely to save it from being rejected.
Secondly, once that hurdle is crossed, the story given by an approver so
far as the accused on trial is concerned, must implicate him in such a
manner as to give rise to a conclusion of guilt beyond reasonable doubt. In
a rare case taking into consideration all the factors, circumstances and
situations governing a particular case, conviction based on the
uncorroborated evidence of an approver confidently held to be true and
reliable by the court may be permissible. Ordinarily, however, an
approver's statement has to be corroborated in material particulars
bridging closely the distance between the crime and the criminal. Certain
clinching features of involvement disclosed by an approver appertaining
directly to an accused, if reliable, by the touchstone of other independent
credible evidence, would give the needed assurance for acceptance of his
testimony on which a conviction may be based.”
(emphasis laid by this Court)
It becomes clear from a perusal of the abovementioned case law that while
the evidence of an accomplice can be used to convict an accused, as a rule
of prudence, the Court must first ensure that the testimony of the
accomplice is corroborated in material particulars by adducing independent
evidence. It is also a well settled position of law that the evidence of
two accomplices cannot be used to corroborate with each other, as held in
the case of R v. Baskerville[14]. The same position of law has been
reiterated and adopted in India in a catena of cases. In this regard, the
learned senior counsel Mr. Basant R. has placed reliance upon the case of
Mohd. Hussain Kochra v. K.S. Dalipsinghji & Ors.[15], a three judge bench
of this Court held as under:
“The combined effect of Sections 133 and 114 Illustration (b) is that
though a conviction based upon accomplice evidence is legal the Court will
not accept such evidence unless it is corroborated in material particulars.
The corroboration must connect the accused with the crime. It may be direct
or circumstantial. It is not necessary that the corroboration should
confirm all the circumstances of the crime. It is sufficient if the
corroboration is in material particulars. The corroboration must be from an
independent source. One accomplice cannot corroborate another.”
(emphasis laid by this Court)
The said position of law was reiterated by this Court in the case of
Chonampara Chellapan v. State of Kerala[16] as under:
“The law is well settled that the Court looks with some amount of suspicion
on the evidence of an accomplice witness which is tainted evidence and even
Section 133 of the Evidence Act clearly provides that the evidence of an
accomplice witness should not be accepted unless corroborated. At the same
time, it must be remembered that corroboration must be in respect to
material particulars and not with respect of each and every item however
minor or insignificant it may be. Actually the requirement of corroboration
is a rule of prudence which the courts have followed for satisfying the
test of the reliability of an approver and has now been crystallized into a
rule of law. It is equally well settled that one tainted evidence cannot
corroborate another tainted evidence because if this is allowed to be done
then the very necessity of corroboration is frustrated.”
(emphasis laid by this Court)
Further, the independent evidence must be such that it corroborates with
the testimony of the accomplice in material particulars, that is, the
corroboration must be both in respect of the crime as well as the identity
of the accused. This particular test assumes significance when there is
more than one accused in a case, as is the case here. In the case of
Sheshanna Bhumanna Yadav v. State of Maharashtra[17], this Court held as
under:
“The law with regard to appreciation of approver's evidence is based on the
effect of Sections 133 and 114 illustration (b) of the Evidence Act,
namely, that an accomplice is competent to depose but as a rule of caution
it will be unsafe to convict upon his testimony alone. The warning of the
danger of convicting on uncorroborated evidence is therefore given when the
evidence is that of an accomplice. The primary meaning of accomplice is any
party to the crime charged and someone who aids and abets the commission of
crime. The nature of corroboration is that it is confirmatory evidence and
it may consist of the evidence of second witness or of circumstances like
the conduct of the person against whom it is required. Corroboration must
connect or tend to connect the accused with the time. When it is said that
the corroborative evidence must implicate the accused in material
particulars it means that it is not enough that a piece of evidence tends
to confirm the truth of a part of the testimony to be corroborated. That
evidence must confirm that part of the testimony which suggests that the
crime was committed by the accused. If a witness says that the accused, and
he stole the sheep and he put the skins in a certain place, the discovery
of the skins in that place would not corroborate the evidence of the
witness as against the accused. But if the skins were found in the
accused's house, this would corroborate because it would tend to confirm
the statement that the accused had some hand in the theft.
This Court stated the law of corroboration of accomplice evidence in
several decisions. One of the earlier decision is Sarwan Singh v. State of
Punjab and the recent decision is Lachi Ram v. State of Punjab. In Sarwan
Singh's case this Court laid down that before the court would look into the
corroborative evidence it was necessary to find out whether the approver or
accomplice was a reliable witness. This Court in Lachi Ram's case said that
the first test of reliability of approver and accomplice evidence was for
the court to be satisfied that there was nothing inherently impossible in
evidence. After, that conclusion is reached as to reliability corroboration
is required. The rule as to corroboration is based on the reasoning that
there must be sufficient corroborative evidence in material particulars to
connect the accused with the crime.”
The accused before us are A-3, A-4 and A-15. What is crucial to consider at
this stage is that the Trial Court acquitted all the above accused of the
charge of conspiracy under Section 120-B of IPC. They have however, been
convicted for, among others, the offences under Section 302 read with
Section 109 and Section 364 read with Section 109 of IPC. There is nothing
on record to show the direct involvement of the accused – appellants in
either the abduction of the deceased or his murder. The Ford Escort Car
(M.O.12) recovered at the instance of PW-10, from the house of A-3, does
not trace back its ownership to A-4. The requirement of corroboration from
independent sources in material particulars has not been met in the instant
case. This makes it impossible for the accused to be convicted of the
offences under Sections 302 and 364 of IPC. Neither PW-10 nor PW-11 are
witnesses to the abduction of the deceased. PW-13, who witnessed the
abduction, also did not mention the above three accused at the site of the
abduction. PW-10 places A-3 and A-4 at the meeting on 05.12.2001. But this
fact loses significance in view of the fact that they have been acquitted
of the offence of conspiracy under Section 120B of IPC. PW-10 and PW-11
also saw the body of the deceased being brought down in the vermicelli
factory premises on the night of 01.01.2002. But neither of them places any
of the three accused at the site at that time. Further, what comes to light
from the testimony of PW-10 and PW-11 is that even at the vermicelli
factory premises, A-3 stayed downstairs, while it was PW-11 who went
upstairs and actually saw the deceased tied to chains and the room where he
was kept. PW-11 only saw A-15 at the site on the night of 30.12.2001,
carrying a tiffin parcel. A-4 has not been mentioned anywhere at the
vermicelli factory at all. Further, as far as A-3 is concerned, another
evidence used against him is the testimony of PW-32 and PW-33 who have
admitted to creating the evidence of the death certificate, which was
allegedly required by A-3 to produce at the crematorium in order to cremate
the deceased. In light of the fact that PW-32 has admitted to issuing the
death certificate without even seeing the dead body of the deceased at the
request of PW-33. PW-33 has stated that he only did so at the instance of A-
3. There is no other evidence on record to connect A-3 to the death
certificate. Even if the death certificate is taken to be genuine, it does
not in any way connect A-3 to the deceased, thus rendering the claim of the
prosecution doubtful and shaky.
As far as A-15 is concerned, the crucial evidence on which reliance was
placed upon by both the courts below to convict him was the recovery of
M.O. 1, reebok shoes on his direction. PW-31, Samundeswari, a supervisor at
the vermicelli factory, in her deposition stated that she saw a person at
the vermicelli factory premises on the next day, i.e. 01.01.2002, who
stated that he had come to take something. He took a Reebok shoe from the
factory. Both the courts below, however, failed to notice that PW-31 had
explicitly stated in her testimony that:
“On 18th March, one person was brought by the police that I only shouted
him and that if it is asked me whether I could be able to identify the said
person, I could say that as it is a lapse of more than 2 years, I could not
remember that person.”
(emphasis laid by this Court)
Thus, the evidence of PW-31 cannot be used against A-15, which has
erroneously been done by the courts below. Further, PW-1 and PW-2 have both
stated in their testimony that the particular reebok shoe did not belong to
the deceased. Thus, there is nothing on record which connects A-15 either
to the crime, or to the deceased.
Thus, the evidence of PW-10 and PW-11 is not reliable for recording the
finding of guilt on the charges against the accused appellants. Even if it
is placed reliance upon, A-3, A-4 and A-15 cannot be convicted of the
offences of kidnapping and murder, more so in light of the fact that they
had been acquitted of the charge of criminal conspiracy under Section 120-B
of IPC by the courts below. There was no basis for convicting them under
the other Sections like 302 and 365 of IPC. After having found that the
accused persons were not guilty under Section 120-B of IPC, it was the duty
of the Trial Court to establish the involvement of each of the accused
persons individually in each offence for which they had been charged to
hold them guilty under the same.
The accused appellants in the instant case have also been convicted under
Section 109 of IPC (Section 302 read with 109 and 365 read with 109 IPC),
which prescribes the punishment for the offence of abetment. Section 107 of
IPC provides for the offence of abetment as under:
“107. Abetment of a thing— A person abets the doing of a thing, who—
(First)— Instigates any person to do that thing; or
(Secondly)— Engages with one or more other person or persons in any
conspiracy for the doing of that thing, if an act or illegal omission takes
place in pursuance of that conspiracy, and in order to the doing of that
thing; or
(Thirdly)— Intentionally aids, by any act or illegal omission, the doing of
that thing.
Explanation 1— A person who, by wilful misrepresentation, or by wilful
concealment of a material fact which he is bound to disclose, voluntarily
causes or procures, or attempts to cause or procure, a thing to be done, is
said to instigate the doing of that thing. ……”
Mr. Siddharth Luthra, the learned senior counsel appearing on behalf of
appellant A-4 rightly places reliance on the decision of this Court in the
case of Pramatha Nath Talukdar (supra), wherein this Court discussed the
distinction between the offence of criminal conspiracy under Section 120A
of IPC and that of abetment by conspiracy under clause second of Section
107 of IPC. The view taken in that case was reiterated by a three judge
bench of this Court in the case of Kehar Singh & Ors v. State (Delhi
Administration)[18] as under:
“……For the present, it may be sufficient to state that the gist of the
offence of criminal conspiracy created under Section 120-A is a bare
agreement to commit an offence. It has been made punishable under Section
120-B. The offence of abetment created under the second clause of Section
107 requires that there must be something more than a mere conspiracy.
There must be some act or illegal omission in pursuance of that conspiracy.
That would be evident by the wordings of Section 107 (Secondly)……”
(emphasis laid by this Court)
Thus, for Section 109 of IPC, it is not enough to show a conspiracy. It has
to be taken a step further. What needs to be proved is an act committed in
furtherance of that conspiracy. In the instant case, both the courts below
did not find sufficient evidence to convict the accused appellants of the
charge under Section 120B of IPC. Once the charge under Section 120B of IPC
falls, in order to convict the accused appellants under Section 302 read
with Section 109 IPC, or Section 365 read with Section 109 IPC, what was
needed to be established was the happening of some overt act on the part of
the accused appellants. From the evidence on record which has already been
appreciated in detail in the preceding part of this judgment, there is no
evidence except the testimony of PW-10 and PW-11 which links the accused
appellants to the crime. For the reasons stated supra, I have already come
to the conclusion that the testimony of PW-10 and PW-11 is untrustworthy
and cannot be relied upon to convict the accused appellants in the instant
case. Thus, the charge under Section 109 of IPC also cannot sustain.
Thus, for the reasons stated supra, the Trial Court erred in convicting the
accused appellants, more so, after having acquitted them of the offence of
criminal conspiracy punishable under Section 120B of IPC. Even the High
Court adopted the same erroneous approach while re-appreciating the
evidence against the accused appellants and attempting to look for a
complete link, as if the accused persons had been convicted for the charge
of criminal conspiracy as well. This shows a gross non- application of mind
on the part of the courts below, which certainly cannot be allowed to
sustain by this Court, as the same is wholly erroneous in law. Therefore,
these criminal appeals must be allowed in exercise of the power of this
Court under Article 136 of the Constitution of India and the accused
appellants are entitled for acquittal from the charges.
For the reasons recorded supra, I set aside the impugned judgment and order
dated 06.10.2007 passed by the High Court in upholding the judgment and
order passed by the Trial Court convicting A-3, A-4 and A-15. The
prosecution has not proved its case beyond reasonable doubt against the
accused appellants. Hence, I acquit A-3, A-4 and A-15 of all charges.
They may be released forthwith if they are not required in any other case.
…………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi, September 28, 2016
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.403 OF 2010
Somasundaram @ Somu … Appellant(s)
Vs.
State represented by Deputy
Commissioner of Police … Respondent
With
Criminal Appeal No.827/2013; and
Criminal Appeal No.828/2013.
J U D G M E N T
ARUN MISHRA, J.
1. I have gone through the opinion of my esteemed Brother but I find
myself unable to agree with the same. In my opinion judgment-order of
conviction of Trial Court affirmed by the High Court deserves to be upheld.
2. The appellants are aggrieved by their conviction. They have been
convicted and sentenced, as noted by my learned Brother, for commission of
abduction and murder of one Shri M.K. Balan, former Member of Legislative
Assembly. In all, 18 accused were put to trial. The trial court acquitted
Romita Mary accused No.12 and Ganesan accused No.18 and convicted the
remaining accused. The appeal filed by accused No.10, namely, Leela
Shankar, has been allowed by the High Court and with respect to remaining
15 appellants, the same has been dismissed; thereby maintaining the
conviction and sentence imposed by the trial court. Out of the convicted
accused, only three accused Manickam @ Poonga Nagar Manickam A-3;
Somasundaram A-4; and Bomb Selvam A-15 are in appeal before us. Senthil
Kumar A-1 and Manickam were highly influential figures and the murder is a
high profile political murder involving various personalities.
3. As per the prosecution case, on 30.12.2001 one M.K. Balan went for a
morning walk at about 5.30 a.m. but did not return home. Hence, a complaint
was lodged by his son Manimaran PW-1. Complaint Ex. P1 was filed at
Pattinpakkam P.S. at about 11 a.m. Photo of deceased Shri M.K. Balan was
published in the newspaper and sent to the Police Stations. The case was
transferred to CBCID, Chennai on 12.1.2002. Initially, the investigation
was done by John Joseph, PW-66. Later on, it was taken over by PW-67, the
Deputy Superintendent of Police, CB CID. On 21.2.2002, the Investigating
Officer (IO) came to know of the involvement of accused A-5, Balamurugan,
in the offence through an informant. On 18.3.2002, at about 5.30 a.m.
Investigating Officer PW-67 arrested A-5 and recorded his confessional
statement Ex. P-43 who identified T.K.P. Food Products Company i.e.
vermicelli factory at Mudichur as place where deceased was kept after
abduction. A-5 also took the IO to a cremation ground at Perambur where
body was cremated, the IO prepared a memo Ex. A-47, sketch Ex. P-48 and
recorded statements of PWs. 12 and 19, two vettiyans, who identified MO 14,
the photograph of the deceased M.K. Balan whose body was cremated.
Identification memo Ex. P-46 was prepared in the presence of PW-44.
Thereafter, one Kannan, Office Assistant of Corporation of Chennai had been
examined and death report Ex. P-29 submitted in the name of fictitious
person to cremate deceased, was seized which related to one Rajamani
Chettiar son of Chindamani Chettiar, aged about 61 years. Ex. P-30 death
register, Ex. P-31 the counterfoil and Ex. P-32 despatch notebook were also
seized. Deceased was cremated on the basis of false death certificate Ex. P-
27. After two and half months on 19.3.2002, certain articles were recovered
from cremation ground and on the same day at about 11.30 p.m., Shankar
Ganesh A-6 was arrested near Perambur bus-stand, and I.O. recorded the
confessional statement of A-6 on 20.3.2002 in the presence of Jagannathan
PW-24 and other witnesses. Seizure of Maruti Omni van under memo Ex. P-17
was also made. Irudhayaraj A-7 was also arrested on the same day and his
confessional statement Ex. P-38 was recorded. Pursuant thereto, an iron
cot, used in factory premises of Mudichur, MO-11 was seized vide memo Ex. P-
7 in the presence of Geetha PW-17.
4. On 25.3.2002, at about 8.15 a.m., Manickam A-3, was arrested and his
confessional statement Ex. P-20 came to be recorded on the basis whereof MO-
12 Maruti zen car was seized vide memo Ex. P-6. On the same day the IO also
recorded the statement of PW-32 who was Lusker in the Corporation of
Chennai, and the proprietor of vermicelli factory T.K.P. Food Products,
Mudichur, namely, Krishnapandi PW-34. Accused No.9 was arrested and as per
his information furnished under section 27 of the Evidence Act, Maruti van
TN-22-B-8853 was recovered from V.R. Pandian PW-18, in the presence of
Sriramulu PW-25. On the basis of confessional statement of A-3 dated
5.4.2002, recovery of MOs. 28 to 33 vide memo Ex. P-36 was made. Somu @
Somasundaram A-4, had been arrested on 9.4.2002 at about 6 a.m. at Chrompet
Railway Station. His confessional statement Ex. P-34 had been recorded in
the presence of PW-9 and recovery of MO-6 Ford Escort car No. TN-10-F-5555
was made vide memo Ex. P-9. Bomb Selvam A-15, was arrested on 24.4.2002 and
his confessional statement Ex. P-50 was recorded in the presence of PW-44.
Pursuant to information furnished by him, recovery of MO-10 Hero Honda bike
was made vide memo Ex. P-51. Other accused persons were also arrested from
time to time. Their confessional statements were also recorded and
recoveries made. Ultimately, after investigation, final report was filed.
In the course of trial, the prosecution examined all the 67 witnesses.
Documents Ex.P-1 to P-86 were exhibited and articles MOs. 1 to 39 were
produced consisting of six cars : MO6 Ford Escort Car TN 10F 5555; MO7
Golden colour Maruti van TN 22P 8853, MO8 Maruti van TN 02 0343; MO9 Maruti
van TNA 7484; MO-12 Maruti Zen TN 02 Z99; Tata Sumo car TN-04 D 9657;
Motorcycle MO-10 – Hero Honda; tape-recorder; suitcase; bedpan; chain; iron
cot; photo of M.K. Balan; TTK cassettes; 2 pants, 2 shirts, one dhoti,
knife, charger, mobile phones etc. were recovered. Accused abjured their
guilt and pleaded innocence.
5. The arguments advanced and evidence produced by prosecution consists
of different sets which can be divided in the following heads :
(i) Prosecution case - Evidence of PWs. 10 and 11;
(ii) Prior relationship of accused;
(iii) Selection of premises where M.K. Balan was kept/and other
arrangements;
(iv) Abduction of deceased M.K.Balan on 30.12.2001 in white omni van;
(v) Taking of M.K.Balan to factory premises/meeting dated 30.12.2001 at
the residence of A-9;
(vi) Commission of offence under section 302 IPC;
(vii) Removal of dead body from factory premises;
(viii) Cremation of dead body;
(ix) Procurement of death certificate by A-3;
(x) Confessions and recoveries from accused;
(xi) Commission of offence under section 387 IPC;
(xii) Effect of acquittal under section 120B IPC;
(xiii) Evidence of accomplices;
(xiv) Holding TI/recording of statement under section 164 Cr.P.C.;
(xv) Cell phones/cassettes/forensic evidence
6. Evidence of PW-10 and PW-11 :
It appears that Venugopal PW-10 and Newton PW-11 helped the accused
persons for hiring of vermicelli factory at Mudichur, renting some of cars,
arranging for hotels, food, arrangement of fan, bedpan, cot, arrangement
for money, hiring of vermicelli factory which was hired twice firstly for a
week in the end of November/early December then again in end of December
to 1.1.2002 when incident took place.
7. Venugopal PW-10 is one of the main witnesses in the instant case. He
has deposed that he and Newton PW-11, are business partners. During 1999,
he and A-9 had obtained licence to quarry sand at Kulur, Tiruvallur
district. A-9 told him that one Krishnapandi PW-34 is running a Semiya
manufacturing company in the name of T.K.P. Food Products at Mudichur and
as the company was running at loss, and if they invested, they may earn
profit. Therefore, both, PW-10 and PW-11 invested Rs. 3 lakhs each in the
said company and gave money to Krishnapandi. That while PW-10 and PW-11
had gone to a polling booth in the election held during August 2001, A-9
met PW-10. A-9 told PW-10 that he will be joining a leading political
party and A-3 will help him and to reciprocate, he should do some favour
for A-3. A-9 also told him that A-3 has promised him to get him a post in
the party and therefore, he wanted a place to complete the job assigned to
him by A-3.
8. Venugopal PW-10 has clearly stated that he had shown the house at
Mahalakshmi Nagar of his friend Mr. Chowdry but that was not liked by
Manickam and Udayakumar. The house of the witness was also not liked by
accused Manickam A-3 and Udayakumar A-9. A-9 had asked to show the
vermicelli factory at Mudichur Road then the said witness took A-3 and A-9
to vermicelli factory where Krishnapandi P-34 was also present. Manickam A-
3 told A-9 that place is suitable for the work to be done by them. Later
on, it was this factory where deceased M.K. Balan was kept after abduction.
Krishnapandi was told that they required the factory for one week and the
loss to be caused will be paid to him. The witness has identified A-3. The
said witness Venugopal PW-10. Newton PW-11, A-3 and A-9 travelled in the
same car to Tambaram, that is in the white Ambassador car PY-01-H-4046. The
witness has also stated that Manickam, A-3 told him that a screen was
required to be put on the windows of factory in the first floor in which
M.K. Balan was kept. The witness also arranged two cots on credit from M/s.
Nirmala Industries. On being asked by A-9 besides the chairs from his
house, fan from A-9’s house, bed pan was also kept in the vermicelli
factory at Mudichur. Venugopal PW-10, A-9 and his friend Newton PW-11 had
put them in the room. Screen over the windows was also fitted. Manickam A-3
and Udayakumar A-9 asked Krishnapandi to give one week off to the employees
of the factory but on and around 5.12.2001, no VIP came there as at that
time, M.K. Balan could not be abducted. In the end of November, A-9 asked
the witness for his Ford Escort car for 2-3 months to send it to A-9.
Vijayan PW-49, driver of A-3 took the car. On 5.12.2001, A-9 called
Venugopal PW-10 over phone and requested him and Newton PW-11 to reach the
house of Manickam A-3 at Perambur. On that day they went to the house of A-
3. In the house 2-3 persons were also there. They went inside the house.
Manickam A-3 was telling to the persons who were present there and
Udayakumar A-9 that ex-MLA M.K. Balan has to be brought as some money was
to be collected from him. After that PW-10 and PW-11 went and sat in the
car. After about half an hour A-9 came. Manickam A-3 also came out who went
out in Ford Escort car of Venugopal PW-10 which had been given by him on
rent. They followed the said car. Venugopal PW-10, Newton PW-11 and A-9
followed the said car of A-9. Other persons who were present in the meeting
at the residence of Manickam, came by another car. They were Somasundaram A-
4, Shankar A-6, and Sampath A-11. When they were travelling by a car,
Manickam A-3 called A-9 over phone and asked him to come to the temple at
N.S.C. Bose Road. Venugopal PW-10, Newton PW-11 and Udayakumar A-9 went to
the temple. After sometime Manickam A-3 brought two men and one woman in
the Ford Escort car. Four persons came in the car, went to a temple and
came out after worship. Thereafter Manickam travelled in the same car. They
followed them. The persons accompanying A-3 were Senthil Kumar A-1,
Hariharan A-2 and Romita A-12. A-12 was dropped at Chintadripet and the car
ultimately reached Woodlands Drive Hotel. Then PW-10 and PW-11 left for
their respective places. By that time Manickam A-3 told A-9 to follow and
went along with Senthil Kumar A-1 and Hariharan A-2 in the Ford Escort car.
A-3 came alone to the hotel by the car then Venugopal, Newton and
Udayakumar came by the car of A-9 to Tambaram. A-9 again contacted PW-10
over phone on the next day, and requested him to get the key of the house
belonging to one Chowdry of Mahalakshmi Nagar. Accordingly, PW-10 and PW-
11 collected the said key from Chowdry and waited in the house for A-9 to
come. At around 7 p.m., Manickam A-3, A-9 and A-1 came with one more
person by Ford Escort car along with A-5. A-3 introduced Venugopal and
Newton to A-1 by referring him as a big VIP known as Senthil Kumar and that
they should not talk to him. A-3 also asked Venugopal PW-10 to arrange food
for Senthil Kumar and to do other works for him. Balamurugan A-5 served the
food to A-1. Since mobile connection was not available for Senthil Kumar A-
1 at the said place, he was made to stay in the house of A-9, Cell No. used
by Senthil Kumar A-1 was 9840230709.
9. PW-10 has further stated that on 08.10.2001, A-1 informed PW-10 that
A-3 requires Rs.1,10,000/- and it will be returned in two to three days.
On 10.12.2001, PW-10 pledged jewels belonging to him and obtained
Rs.1,10,000/- and took the said amount to A-9’s house as per his
instruction. Thereafter A-9 took PW-10 to Hotel Excellency in T.Nagar
where A-9 handed over the said amount to A-2. As factory at Mudichur was
selected to keep abductee. That at the request of A-9 and A-3, PW-10 had
arranged the Semiya manufacturing factory belonging to PW-34 for a week.
On 30.12.2001, after getting the keys of Semiya manufacturing factory from
him, A-3 handed over the said keys to A-5 and A-3 returned to A-9’s house
along with PW-10, where PW-10 saw A-1 and A-2 were staying and PW-10 heard
A-3 telling them that M.K. Balan was brought (abducted) and the money alone
remains to be collected. On 31.12.2001, A-1 asked A-9 to collect the
recorded cassettes from A-2 and bring a tape recorder and empty cassettes.
A-3 also directed A-9 to collect the same from A-2, A-9 collected two audio
cassettes.
10. PW-10 has stated that PW-11 had provided food to A-1 on 30.12.2001
and 31.12.2001. Again A-3 requested PW-10 to arrange a Maruti Van, but he
expressed his inability to provide Maruti Van. That thereafter, on the
request PW-10 and PW-11 had arranged rooms in Hotel Henkala, Tambaram for
A-9. He heard A-3 asking A-9 as to where they have disposed the Maruti Van
on that A-9 replied that the Maruti van was just in front of Vasantha
Bhavan Hotel. PW-10 also heard the driver of A-3 asking him for a chain
to tie M.K. Balan. He also saw A-9 handed over Rs.100/- to the driver Viji
PW-49 for purchasing a chain. He also saw A-3 informing PW-10 to provide
food for those who are staying in the Semiya factory. On 31.12.2001 at
about 8.30 p.m., both PW-10 and PW-11 saw M.K. Balan tied in a chain, his
eyes also tied and was sitting on the green colour steel cot which PW-10
and PW-11 had purchased. He also saw M.K. Balan wearing the T-shirt and
dark pant and also the Reebok shoes lying just some distance away from the
cot. PW-10 made arrangement to buy the audio cassettes and he also
arranged the two-in-one tape recorder which was used for recording.
Thereafter, PW-10 heard A-3 saying A-9 that he wants one Ambassador car
and A-9 replied that in spite of the best effort, he could not get an
Ambassador car. Thereafter, he also heard that if no Ambassador car was
available, if he could get one Maruti van and to fix one Lummox light on it
to look like ambulance. As PW-10 and PW-11 had suspected something was
going on, they again went to the Semiya factory at 8.45 p.m. on 1.1.2002,
and saw four persons bringing down the body of M.K. Balan and A-5 covered
the body with a cloth brought by him. Both of them saw no movements in the
body, it was the dead body and they also saw the body was loaded in the van
and taken out from the place. PW-10 had paid the room hiring charges to
Henkala Hotel, Tambaram. He was also informed by one Sami A-13 that M.K.
Balan was murdered and his body was burnt in cremation ground and
therefore, he requested PW-10 to perform pooja in the factory premises but
PW-10 did not do. He also saw the fan, bedpan, chair, cot etc., were
removed from the premises on 01.01.2002. On 03.01.2002, he made
arrangements for taking a room as told by A-9 for A-1, A-2 and A-12 to
stay. Thereafter he left for Bangalore and stayed there till he was
informed by his wife on 18.03.2002 that A-5 was arrested by CBCID Police in
connection with the murder of M.K. Balan and the police had enquired her.
He contacted his wife on 25th or 26th of April, 2002, and at the request of
his wife, he came to CBCID Office on 01.05.2002 and narrated as to what had
happened.
11. Newton PW-11 is another witness in the instant case. He has fully
supported the version given by Venugopal PW-10. He has deposed that
Venugopal and Udayakumar were partners in Sand Quarry business. If he
happens to see Udayakumar A-9, he could identify him. A-9 was same person
produced before the court. In August, 2001, Venugopal PW-10 purchased a
Ford Escort car bearing Regn. No.TN 10-F-5555. By the end of August,
Corporation election was held. He along with PW-10 went to the Polling
Booth in the said car. At Udayakumar’s A-9 request, he and Venugopal showed
some houses to Udayakumar A-9 and Manickam A-3. Venugopal PW-10 showed his
house and some other houses to Udayakumar and Manickam, as they had asked.
In 1999, Udayakumar A-9 told him and Venugopal PW-10 to invest money in
vermicelli factory which had been run by Krishnapandi PW-34, since he had
faced losses in business. Accordingly he and Venugopal became partners in
the said company. Manickam A-3 told Udayakumar that vermicelli factory was
the correct place for the works to be done by him as it was away from other
buildings. He also told that the said place is needed by them for a week
and that company should be given leave for a week and also he was ready to
pay the amount towards the loss of income during that period. He has
totally supported the other version of Venugopal PW-10 with regard to
other facts also.
12. In addition he has deposed that M.K. Balan was brought to Mudichur
Semiya facory on 30.12.2001. He has also stated that he saw four persons
bringing body of M.K. Balan from upstairs and put the same in a Maruti van
and also saw the van leaving the said place. He had also stated that even
on 5.12.2001 he travelled with accused Manickam in his car along with other
accused persons.
In re: Prior relationship of accused
13. With regard to prior relationship of accused persons, prosecution has
examined Mohan Babu PW-4, Ganeshan @ Vethilai Ganesan PW-5, Nehru PW6;
Kamal Anand PW7; Deivanayaki PW8; and Lalitha PW14. PW-4 has stated in
respect of meeting of deceased M.K. Balan with Senthil Kumar – A1. PW 5
Ganeshan alias Vethilai has stated that he knew M.K. Balan. Mohan Babu PW-4
has also deposed that Senthil Kumar came with him. PW-4 deposed that one
Lalitha helped him in getting the job in the financial institution
belonging to deceased. Lalitha asked him to arrange for a loan of
Rs.2,50,000 for lesser interest and she stated that she would return the
amount by lending the said amount for higher rate of interest but she paid
interest for the first month only and was avoiding further payment. That he
met A-1 on road when he took lift from him. Thereafter he even sought help
of A-1 in getting the money back from Lalitha. It is stated that deceased
M.K.Balan told PW-4 that he wanted to meet A-1. Both the deceased and A-1
met each other. Nehru PW-6 has stated that he knew Manickam A-3. He also
met Hariharan A-2. Kamal Anand PW-7 has deposed that Deivanayaki PW-8 had
asked for his cell phone for two days. He gave her cell phone
No.9840053887. After two days he asked the cell phone back for which she
told that she requires the cell phone for one more week and he told that he
will procure another cell phone from one Muttu. As told to her he got one
cell phone from Muttu with No.9840133368 and gave it to her and got back
Mobile No. 9840053887 from her. PW-8, sister in law of A-2 has stated that
her brother-in-law had asked for the cell phone for the purpose of party
work for two days which she obtained from Kamal Anand PW-7 who in the
meantime procured the cell phone from his friend Muttu. A-2 returned the
cell phone in the first week of December and she handed over the same to
Kamal Anand PW-7. Christopher PW-9 has stated that he knew A-1 and A-2.
Durai Swami PW-15 had stated that he knew Udayakumar A-9 and sold Tata Sumo
car No. TN 04T-9657 - MO-13 to A-9 for Rs.1,75,000/-. Udayakumar also sold
Maruti zen car to him. In January, 2002, Udayakumar A-9 left the car
stating that the car was not auspicious and took his old Maruti zen back
from him. Laxminiwas Chaudhary PW-16 gave Zen car MO-12 to Manickam A-3.
Danasekar PW-27 was known to A-1. Jayaprakash PW-28 was in the company of
deceased M.K. Balan. Soundarajan PW-30 knew Udayakumar A-9 and owner of van
MO-9. Samundeswari PW-31 worked with T.K.P. Food Products factory where the
deceased was kept after abduction. John Kennedy PW-37 is the owner of
Maruti van MO-8. He had given the same to Venugopal PW-10. Syed Akbar PW-48
is the owner of motorcycle, Viji @ Vijayan PW-49 is the Driver of A-3
Manickam. Suresh PW-57 is stated to be driver of Somasundaram A-4. Evidence
as to prior relationship has also been furnished by Venugopal PW-10, Newton
PW-11, Krishnapandi PW-34, owner of vermicelli factory; Lalitha PW-14,
mother of kept of deceased; and Ramesh PW-2, driver of the deceased.
14. The happenings in-between 5.12.2001 and 30.12.2001 regarding
preparation are apparent from the statements of PW-10, PW-11, statements of
PW-49, PW-7, PW-8, A-2, Laxminiwas Chaudhary PW-16 about Maruti van MO-12,
PW-18 V.R. Pandian, Velmayal PW-20 and Krishnapandi PW-34 etc. on record.
In re : Selection of premises where M.K. Balan was kept/and other
arrangements
15. It is proved that selection of premises T.K.P. vermicelli factory at
Mudichur near Tambaram where M.K. Balan was kept after abduction, had been
done by A-3 amd A-9. It is stated by PWs.10, 11 and 34 that accused A-3 and
A-9 had selected the same. PW-10 and PW-11 were partners for some time
with proprietor Krishnapandi PW-34. A-9 met and told PW-10 that he would
join an important political party for which Manickam, A-3 will help him,
and for that some obligations have to be done to him. Manickam was one of
the secretaries of the Branch of an important political party. The evidence
also discloses that after inspecting vermicelli factory at Mudichur, A-3
and A-9 had asked to put fan, table, chair, cot, bedpan in the room in the
upstairs and screen cloth to cover the windows. The premises were earlier
too hired before a month in November and earlier part of December for about
a week. PW-34 has deposed that from 29th day of November, 2001 leave was
given for a period of one week. Same has been supported by PW-31 and PW-10
but as M.K. Balan could not be abducted at that time, no one came in the
factory. Statement of PWs.10 and 11 is corroborated by PWs.31 and 34.
16. Evidence also discloses that A-9 had called PW-10 and asked for his
Ford car MO-6 for 2-3 months on rent. The same was given by Viji to A-9. It
was taken by Viji who was driver of A-3. Use of said car is established
from evidence. There is nothing to doubt that PW-10 and PW-11 visited the
house of Manickam at Perambur along with A-9; and it is established that
Manickam had told A-9 in the presence of PWs.10 and 11 that M.K. Balan has
to be brought as some amount had to be collected from him. The involvement
of Manickam-A-3, A-4 and Bomb Selvam–A-15 is established at the relevant
time, and were part of the design to abduct M.K. Balan. It is unbelievable
that A-4 was present by chance but he had an active participation in the
commission of the offence. Ford car which was given was used by A-3. A-4
had followed them in another car along with 3 other persons; A-6 and A-11
etc. Venugopal PW-10 had arranged for a sum of Rs.1,10,000/- by pledging
his jewels and handed over the amount to accused Hari along with A-9 in the
Hotel Excellent. Evidence also discloses that on 24.12.2001, Udayakumar A-9
phoned to PW-10 and went to the house of A-3 and A-3 had asked PW-10 to
arrange for a Maruti van. As the charges for Ford car were not paid to him,
he replied in the negative. Udayakumar A-9 then informed PW-10 that he had
already made arrangements to get a Maruti van from one Kennedy PW-37 and
another Maruti van from one Jayaprakash, brother-in-law of Soundara Rajan
and sent them to the house of Manickam A-3.
17. Syed Akbar PW-48, owner of Hero Honda motorcycle has been examined.
PW-10 has stated that the said motorcycle was given through him. Thus PW-48
corroborates and confirms the evidence of Venugopal PW-10 and PW-11.
In re : Abduction of M.K. Balan on 30.12.2001
18. With respect to abduction of M.K. Balan on 30.12.2001 in white Maruti
van, statement of Sudhakar PW-3 is that he used to practice boxing,
skipping and running along with others at MRC Nagar from 5.30 to 7 a.m. On
30.12.2001 at about 5.30 a.m. he started to run and at that time he heard a
noise and saw that at a distance of 75 mtrs. a person was pushed down in
the van by the three persons and all the three persons went in the same
van. The van was an Omni Van and one motor cycle was chasing the said Van.
Nirmal Kumar PW-13 has stated that he used to go for walk in M.R.C. Nagar
everyday at about 5.30 a.m. On 30.12.2001 at about 5.45 a.m. in the morning
when he was walking in the Kasturi Estate, M.K. Balan came from opposite
direction. He was wearing bright shoes, sandal color T-Shirt and dark
pant. He crossed him and left.
19. Son of M.K. Balan, deceased, Manimaran PW-1, lodged a complaint about
missing of his father M.K. Balan stating that the deceased used to go for
morning walk everyday at about 5.30 a.m. He used to walk up to Ayappan
Temple M.R.C. Nagar and return by 7.30 a.m. On 30.12.2001 his father went
for walk but did not return back. He was informed about the same by his
mother at around 8.30 A.M. Since his father was not found anywhere he gave
a complaint E-5 to police station. He also filed a Habeas Corpus petition
before the High Court.
20. When we assess evidence, it becomes apparent that PW-3 has clearly
stated that the former MLA was abducted on 30.12.2001 at about 5.30 a.m.
Sudhakar PW-3 has stated that a person was put inside a van by three
persons. Thereafter motorcycle followed the said van. That his friend
Selvam A-15 also came there. PW-13 had also stated that he had seen M.K.
Balan taking morning walk at about 5.30 a.m. A person was pushed into a
Maruti van. It is apparent that M.K. Balan had been abducted from M.R.C.
Nagar.
21. After abduction was made in the morning at about 5.30 a.m. on
30.12.2001, the evidence discloses meeting at the residence of Udayakumar A-
9. On 30.12.2001 at 8.30 a.m. as unfolded by Venugopal PW-10 and Newton PW-
11, where A-3 stated that abduction of M.K. Balan has been made and money
remains to be collected.
In re : Taking of M.K. Balan to factory premises
22. On the day of abduction 30.12.2001 at about 8.30 a.m., A-9 phoned to
PW-10 asking him to come to the house of A-9. PW-10 asked PW-11 to come to
the house of A-9 and then he had taken Newton, PW-11 in a motorcycle which
belonged to a boy working in the office of PW-10 and left Newton, PW-11 at
the house of A-9. Udayakumar A-9 asked PW-10 to give the key of vermicelli
factory and as he had no vehicle to go to the vermicelli factory, he asked
him to take PW-10 on the motorcycle kept in his house. Accordingly he had
done so. PW-10 and Balamurugan A-5 were getting down at vermicelli factory
at that time A-9 contacted PW-10 on his cell phone and asked whether they
had reached the vermicelli factory to which PW-10 replied that they had
reached. A-9 further asked PW-10 whether he had received the key of the
factory. Cellphone was given for talking to Krishnapandi PW-34 by A-9.
Krishnapandi agreed to give the key to PW-10 and after some time the key
was entrusted by Krishnapandi to PW-10. Newton PW-11 and Manickam came
there in an auto-rickshaw and the key kept by PW-10 was given to Manickam A-
3. The key was entrusted by A-3 to A-5. A-3 asked Venugopal PW-10 how he
came to which he replied that he came on a motorcycle. Manickam A-3 asked
Venugopal to drive the motorcycle. He also sat on the motorcycle and went
to the house of A-9. While Manickam A-3 went upstairs, PW-10 followed him
where accused A-1 and A-2 were also present. At that time Manickam had told
those two accused persons that M.K. Balan was brought and the collection of
amount was to be made from him. These are the facts stated by PW-10.
23. The evidence of Newton, PW-11 indicates that on 30.12.2001 after
about half an hour, A-9 phoned to him to open the gate of vermicelli
factory. At that time firstly the Tata Sumo car and then Ford Escort car
followed by one Maruti zen car came there and four persons got down from
the said Ford car and they took M.K. Balan to upstairs of the said
vermicelli factory by shutting his eyes, mouth and hands. M.K. Balan was
wearing black colour pant, sandal colour T-shirt and shoes. At that time
Manickam A-3 and A-9 had asked him not to disclose it to anybody. The
persons who came in Ford car were Somasundaram @ Somu A-4, A-11, A-16 and A-
17. PW-11 has further stated that A-5 went in zen car and came back after
about 30 minutes in Tata Sumo car carrying tiffin to the factory. Along
with A-5 were other accused, namely, A-4, A-6, A-7 and Bomb Selvam A-15.
Thus presence and participation in abduction and at vermicelli factory of
accused Manickam A-3, Somasundaram A-4 and Bomb Selvam A-15 is established.
In addition presence of A-15 stands established at place of abduction also
as stated by PW-3. It is apparent from the evidence of PWs.10 and 11 that
when M.K. Balan was brought to the vermicelli factory at Mudichur, A-3 to A-
7, A-11 and A-15 to A-17 were present or came there. Thus, it is apparent
that all the three appellants along with other convicted accused persons
were involved in the abduction of deceased M.K. Balan. A-3 played an
important role in the entire episode. The finding recorded by the trial
court as affirmed by the High Court is that the appellants were involved in
the abduction stands established to the hilt.
24. On 31.12.2001 and 1.1.2002 when M.K. Balan was abducted, the meals
were supplied through Newton PW-11 and in order to establish the fact that
PW-56 has been examined where he has stated that on 31.12.2001 and 1.1.2002
he had taken the tiffin in the morning, meals in the afternoon and evening
tiffin, they carried the food for about 8 to 10 persons. The witness lends
support to evidence of Venugopal PW-10. PW-56 also supports version of PW-
11.
In re: commission of offence under section 302
25. With respect to charge of murder against A-3 and A-4 it is apparent
that MO-31 is in the handwriting of A-1. It was read out by A-12 and heard
by A-3 and was acted accordingly. Evidence of Sahul Hameed PW-47 also
proves recovery of chain with which M.K. Balan was tied and that of other
articles. It is apparent that M.K. Balan was abducted. There was an attempt
to extract money when it was not possible, he was murdered in factory
premises. The appellants were charged for committing the murder by putting
nylon rope around his neck and tightening it. Though there is no direct
evidence with respect to that but it can be inferred in the circumstances
that they committed the offence of murder also. Once they had abducted M.K.
Balan it was for them to explain how they dealt with him. The dead body of
M.K. Balan could not be found as it was cremated in the name of a
fictitious person – Rajamani Chettiar. His post mortem also could not be
conducted but the evidence clearly indicates that the dead body of M.K.
Balan was taken from the vermicelli factory. It gives an inference that the
accused persons had murdered the victim. It is not necessary for recording
a conviction that corpus delicti to be found. There is ample evidence
leading to an inescapable conclusion that M.K. Balan was done to death by
the appellants. His dead body was seen by the witnesses.
26. I find no force in the submission that at the time of murdering M.K.
Balan there is no evidence and appellants were not present when dead body
was taken out. In the instant case it is clear that abduction of the
deceased is proved and deceased had been murdered soon after his abduction
in two days and thereafter his body had been cremated under the name of a
fictitious person. In the aforesaid circumstances it was for the accused
persons to satisfy the court how the abducted victim was dealt with by
them. In the absence of such explanation it is open to the court to draw a
presumption that the abductor was the murderer also, as held by this Court
in State of M.P. v. Lattora (2003) 11 SCC 761 :
“4. Learned counsel for the appellant State contended that the High Court,
while rendering the impugned judgment, did not follow the correct legal
position. This Court in State of W.B. v. Mir Mohd. Omar (2000) 8 SCC 382
held that if the deceased was proved to have been abducted by the accused
and was found murdered soon thereafter it is for the abductors to satisfy
the court as to how else the abducted victim was dealt with by them. In the
absence of any such explanation it is open to the court to draw the
presumption that the abductor is the murderer also. The said view of this
Court was reconsidered subsequently in Sucha Singh v. State of Punjab
(2001) 4 SCC 375 and the legal position has been reiterated by this Court.
5. In the light of the legal position so adumbrated by this Court, we deem
it necessary, in the interest of justice, that the High Court should
consider the appeal filed by the respondent all over again. This is to
enable the respondent to canvass regarding the conviction under Section 364
of the Indian Penal Code also. If the conviction is to be maintained the
High Court has to consider how far the presumption mentioned above will
apply to the situation of this case. For enabling the High Court to
reconsider the appeal afresh we set aside the impugned judgment. The appeal
filed before the High Court shall stand remitted to the High Court.”
27. In Ram Gulam Chaudhary & Ors. v. State of Bihar (2001) 8 SCC 311,
this Court considered assaulting the victim by the accused persons and they
carried away the body, the victim was not seen alive thereafter. No
explanation was given by the accused as to what they did with the victim.
The accused abductor who had special knowledge in this regard, having
withheld the information, this Court held that an inference can be drawn
that they had murdered the victim. This Court has laid down thus :
“24. Even otherwise, in our view, this is a case where Section 106 of the
Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and
then a chhura-blow was given on the chest. Thus chhura-blow was given after
Bijoy Chaudhary had said “he is still alive and should be killed”. The
appellants then carried away the body. What happened thereafter to
Krishnanand Chaudhary is especially within the knowledge of the appellants.
The appellants have given no explanation as to what they did after they
took away the body. Krishnanand Chaudhary has not been since seen alive. In
the absence of an explanation, and considering the fact that the appellants
were suspecting the boy to have kidnapped and killed the child of the
family of the appellants, it was for the appellants to have explained what
they did with him after they took him away. When the abductors withheld
that information from the court, there is every justification for drawing
the inference that they had murdered the boy. Even though Section 106 of
the Evidence Act may not be intended to relieve the prosecution of its
burden to prove the guilt of the accused beyond reasonable doubt, but the
section would apply to cases like the present, where the prosecution has
succeeded in proving facts from which a reasonable inference can be drawn
regarding death. The appellants by virtue of their special knowledge must
offer an explanation which might lead the Court to draw a different
inference. We, therefore, see no substance in this submission of Mr
Mishra.”
In re: Removal of dead body from factory premises
28. With respect to the death of deceased M.K. Balan in the factory
premises and removal of his dead body from the same, the evidence of PW-10,
PW-11, Rajendran PW-21 and Head Constable on Beat Duty, and Arumugham, Head
Constable PW-35 are relevant.
29. PWs.10 and 11 both have stated that body of M.K. Balan was taken out
of the vermicelli factory on 1.1.2002. Both of them suspected that
something was going on in the factory and at about 8.40 p.m., they reached
the factory at Mudichur. At 9 p.m. the gate of the vermicelli factory was
closed. A-6 was standing there. A-5 came to the factory on a motorcycle. He
carried one cloth bag on the motorcycle. Four persons came down from
upstairs carrying body of M.K. Balan. Two persons were holding legs; two
others were holding the hands and the body was brought down and covered
like a dead body with cloth brought by A-5. There was no movement in the
body, it appeared to be a dead body. Body was taken in the Maruti van. The
Maruti van went away speedily. A-5 followed the same on motorcycle. One
person was sitting along with him on the motorcycle. Due to fear, PW-10 and
PW-11 came out of factory. Body of M.K. Balan was carried by A-6, A-7, A-8
and A-11. Version is supported by PW-21 and PW-35.
30. PW-21 deposed that he was the Head Constable of Sembiyam Crime Branch
Police Station. That on 01.01.2002 he was given beat tickets and appointed
for night rounds from 23 hours to 6 PM. At about 100 ft. away from
Melpatti Ponnappa Street a Maruti Van was standing in the middle of the
road and he went along with constable Arumugam to the Van and enquired 4
persons who were in the van. Then they left the place. MO-7 Golden Color
Maruti Van was identified by him, and 4 persons were identified as Accused
6, 7, 8 and 11.
PW-35 deposed that he was working as Head Constable. That on
01.01.2002 he was given beat tickets and appointed for night rounds from 23
hours to 6 PM. At about 100 ft. away from Melpatti Ponnappa Street a
Maruti Van was standing in the middle of the road and he went along with
the head constable Rajendran went to the Van and enquired 4 persons who
were in the van. Then they left the place. MO-7 Golden Color Maruti Van
was identified by him, the 4 persons were identified as Accused 6, 7, 8 and
11.
31. Driver Vijayan PW-49 was examined so as to prove attempt of
procurement of Dumax top light for the van to look like an ambulance.
However, the witness has turned hostile, resiled from his statement
recorded under section 164 Cr.PC. Even if his statement is ignored it is
apparent from other statements that the vehicle was procured and light was
fitted on it.
32. The van on which body was taken was bearing Regn. No. TN-22-B-8853
and was marked as MO-7. It is apparent that M.K. Balan was killed in
factory some time on 1.1.2002 and the fact that the appellants were not
persons who brought down body from upstairs is not enough to exonerate
appellants considering the established facts and circumstances in case they
have been rightly held guilty of murder also.
In re: cremation of dead body
33. Next set of evidence is with respect to the cremation ground. Ramu,
PW-12 was asked by Hari Krishnan PW-19 to lit pyre. He was declared hostile
as he resiled from part of his statement.
Ramu PW-12, who had cremated the body had deposed that he is a
Cemetery Keeper. That on 01.01.2002 he was told by Harikrishnan to light
the pyre. That they did not know who came in the vehicle and the vehicle
particulars. He further deposed that they did not know if the body was of
male or female.
Hari Krishnan PW-19, vettiyan in the cremation ground at Melpatti
Ponnappa Mudali Street, has stated on 1.1.2002 at about 6 p.m. two persons
came and told that a body has to be burnt and they would take the body from
the hospital to the cremation ground and paid the expenses for getting
woods, cow-dung cakes, kerosene and informed that the body would come at 8
p.m. in the night but the body came at 10 p.m. They carried the body and on
asking the death certificate of hospital, they told that they would bring
the same the next day. Body was cremated at night itself. It was deposed
that the CB CID had examined him and put his signature on the reverse of MO-
14, photo of M.K. Balan; and the test identification parade was conducted.
He was able to identify certain accused persons, out of 7-8 persons who
came for cremation. He had identified MO-14 the photo of M.K. Balan. He
stated that he under threat of police, had stated to the Magistrate in
statement under section 164 Cr.PC that accused Manickam came there and told
Hari Krishnan that he is an important person in the area and asked him to
cremate the body and told that he will produce the death certificate in the
next morning. Be that as it may. He also said that he did not identify the
accused before the Magistrate and was not aware whether A-3 was an
influential person of a political party. Be that as it may. We ignore the
part of statement under section 164 from which he has resiled.
34. Kannan PW-36, in-charge of the cremation ground has deposed that he
is working as Office Assistant in Chennai Corporation. That on 01.01.2002
he left early from the cremation ground. That when returned on the next
date then he was informed by Hariharan that one dead body came after he
left the office and that the dead body has been cremated and the person who
came along with the dead body assured that death certificate would be
produced in the morning. That at around 8.15 AM one person came along with
Hariharan who produced the death certificate in the name of Rajamani
Chettiar. That in the certificate the address and father’s name of the
deceased was not mentioned and he got the particulars from the person who
came with the death certificate. The same were recorded in the Death
Register.
In re: Procurement of death certificate by A-3
35. Next set of evidence is relating to procurement of death certificate
in the name of Rajamani Chettiar. For cremating a body in the cremation
ground, death certificate was required to accompany the dead body. Death
certificate in a fictitious name of Rajamani Chettiar was obtained from PW-
32 at the instance of Manickam A-3 through one Kamaraj PW-33.
Dr. Anbarasu PW-32 deposed that on 02.01.2002 at 6 AM in the morning
one Kamaraj who is working in the Government General Hospital and known to
him for the past 15 years came and requested to issue death certificate for
Rajamani Chettiar aged about 61 years. Kamaraj PW-33 submitted that
Rajamani Chettiar was the poor person and died due to chest pain. That
there was no one to perform his last rites. He believed the word of
Kamaraj PW-33 and issued the death certificate in question.
Damodaran PW-38 has been examined so as to prove that no person in
the name of Rajamani Chettiar ever resided in his house in question, the
particulars of which were falsely given in the death certificate.
Dr. Prabhavathi PW-45 deposed that she is working as Asst. Welfare
Officer in the Chennai Corporation. That she has given Medical Report
Ex.P27, Death Report Form 2 Ex. P29. That the letter given by him to DSP
is marked as Ex.P52. Medical certificate and death certificate have been
proved by PW-45.
36. With respect to obtaining of death certificate by A-3, the trial
court has given the following findings :
“171. Now we have to analyze whether there are any other evidences for that
and for that purpose, the evidence of PWs-32, 33, 36 and 38 have to be
perused. PW 32 is the Doctor Anbarasu and before analyzing the evidence of
PW-32, the evidence of PW-33 has to be analyzed. PW-33 has deposed in
his evidence that on 1.1.2002 while he was on bed due to illness in the
evening at about 5.00 p.m. one Samikannu came to him and told that Poonga
Nagar Manickam is calling him and that at that time he told that he was not
well and asked him as to what was the matter for which he said he did not
know anything about the same, then the said Samikannu took him along with
him and that Poonga Nagar Manickam was in his house and that at that time
he informed him that one watchman of a company at Kolathur expired and that
he asked him whether any trama car is available for taking the body for
that he had replied to him (Manickam) that to bring out the dead body no
such vehicle would be available and then he has informed me to try for the
same by saying so he has sent Samikannu to accompany him and that then he
has gone to Government General Hospital, Chennai from Perambur and after
finding out that no such vehicle was available there and informing the same
and when he was about to board a bus to go, Samy informed him that Poonga
Nagar Manickam asked him to come to his house at 6.00 am in the morning and
that accordingly on the next day morning i.e. on 2nd he went to the house
of Poonga Nagar Manickam and that this was the time for finding out car in
many ways for bringing the body of the deceased M.K. Balam as established
by the evidence of PW-32 and that in the said circumstances, on the next
day i.e. on 2.1.02 PW-33 went to the house of the said Poonga Nagar
Manickam and that at that time the 3rd accused Manickam informed him that
one Rajamani Chettiar, aged about 61 years died on the previous day for
which he asked him to get a doctor’s certificate, as deposed. He has
further deposed in his evidence that he has been well acquainted with him
(Manickam) for the past 16 years and that he went to the doctor Anbarasan
(PW-32) and obtained a certificate from him in his English letter pad to
the effect that one watchman of a company at Kolathur died due to chest
pain and that certificate has been marked as Ex. P.27. That Doctor
Anbarasu PW-32 has been examined as a witness in this case and he has
deposed in his evidence that he has issued the certificate Ex.P.27 and that
as requested by PW-33 Kamaraj, he has issued the said certificate Ex.P.27
as deposed by him. As per his evidence only on the compulsion of PW-23,
the certificate Ex.P.27 has been issued and in the certificate issued by
him in Ex.P.27 it has been mentioned by him that ‘Rajamani Chettiar, aged
about 61 years died due to chest pain’. Investigation was done to prove
the fact that no such person in the name of Rajamani Chettiar on the side
of the prosecution, and to that effect one Damodharan has been examined as
PW-38. He has deposed in his evidence that ‘I am residing at No.11/18 4th
street, Anjuham Nagar, Kulathur, Chennai and that this is my own house and
that my wife is Lalaitha and my father is Ramasamy and that I have one
daughter and two sons and that they are Prahbaharan and Sudhakaran aged
about 29 and 27 respectively. Both Prabaharan and Sudhakaran have no other
names; that I am working in Sharp Motor company for the past 5 years. In
one portion of my house Auto driver Devaraj is residing and that no person
in the name of Rajamani chettiar, aged about 61 years was residing in my
house ever before. Either on 1.1.02 or on 2.1.02 no person in the name of
Rajamani chettiar, aged about 61 years was residing either in our house or
in any portion of our house; that like wise no person in the name of
Rajamani chettiar, son of Chinthamani chettiar, aged about 61 years died
either on 31.12.01 or 1.1.2002 in the above said house and that no dead
body of that person was also brought to that house, as deposed. It is seen
from these evidences and documents that the 3rd accused Manickam sent the
13th accused Samikannu, asking him to meet PW-33 Kamaraj and through the
said Kamaraj, a forged document (doctor’s certificate) marked as Ex.P.27
has been obtained in the name of one Rajamani chettiar, aged about 61 years
from PW-32 and that the evidence of PW-36 has to be analysed to find out
the fact as to where that certificate has been given. PW-36 is Kannan and
he has deposed in his evidence that ‘I am residing at No. 371, Sanjan
Nagar, Melpatti Ponnambala street, Vyasarpadi, Chennai-39. I am working as
Office Assistant in the Corporation of Chennai on compassionate ground
from 1979 onwards. I joined in service during 1998 as incharge of Hindu
Grave yard at Melpattu Ponnappa Mudali street, Chennai belonging to Chennai
Corporation; that my immediate superior officer is the Assistant Health
Officer’. He has further deposed in his evidence that ‘on 2.1.02 as usual
I came to grave yard at about 7.30 a.m. and that at that time Harikrishnan
who was present there told me that after I left that place one dead body
had come and that doctor’s certificate would be given today by the party
for cremating the body’. He has further deposed in his evidence that
‘Ex.P.27 was given to me by a person who accompanied with the said
Harikrishnan on 2.1.02 morning at about 8.15 a.m’. He has further deposed
in his evidence that I registered this Ex.P.27 in Form.2. This is the said
Form.2 marked as Ex.P.29. That death has been registered in the Death
Register as 1st row of the date 1.1.02 and that portion has been marked as
Ex.P.30 and that in that connection death report of the grave yard has been
prepared and a copy of the same has been given to the person who came along
with the said Harikrishnan and the other copy is marked as Ex. P.31. In
that regard I filed a Despatch note book which is marked as Ex.P.32 (the
entry made in the said Despatch Note Book is marked as Ex.32). The person
who came along with Harikrishnan signed in Ex.P.31 and Ex.P.29 and that for
the seizure of these documents the DSP attached to CB CID had prepared a
magazar and obtained my signature therein. That magazar has been marked as
Ex.P.33. He has deposed evidence now that there is no necessity to produce
the doctor certificate to cremate the body of a person who is aged more
than 60 years. While that being so it is the case of the accused that this
Ex.P.27 has been fabricated falsely for the purpose of the case. The body
of the deceased M.K. Balan was taken to the grave yard and tried to cremate
the body by saying that the deceased was the age of 61 years. But PW-12
asked for the production of doctor certificate by saying that the age of
the person would be 48 to 50 yrs. Therefore Ex.P.27 has been created as if
that deceased person would be aged about more than 60 years and the same
has been issued by PW-36 and the same has been recorded which has to be
taken into consideration. In that manner also the contention of the
accused could not be acceptable one. Now we have to peruse the evidence of
PW-45 Dr. Prabhavathi (Health officer) and that as per her statement it has
been stated by her that ‘a letter dated 20.3.02 was shown to me and that
Medical Certificate (Ex.P.27) and death report (Form II) Ex. P.29 were
given by me to the DSP, CB CID. The letter given by me to the DSP has been
marked as Ex.P.52’. Now even as per this evidence also, it has been
established on the side of the prosecution that the body of M.K. Balan was
cremated.”
(emphasis
supplied by me)
From the aforesaid discussion made by the trial court and evidence
it is apparent that Kamaraj PW-33 on 2.1.2002 went to the house of Manickam
A-3 who had informed him that one Rajamani Chettiar aged about 61 years had
died and a doctor’s certificate was required. PW-33 had stated that he knew
A-3 for the last 5 years and as such on his request went to Dr. Anbarasan
PW-32 and obtained death certificate Ex. P-27 from him with respect to
death of Rajamani Chettiar. Dr. Anbarasan PW-32 had deposed that he issued
the certificate Ex. P27 in the aforesaid circumstances to Kamaraj PW-33.
Damodharan PW-38 has stated that no such person Rajamani Chettiar resided
in House No.11/18, 4th Street, Anjuham Nagar, Kulathur, Chennai. Thus it is
apparent that the death certificate related to non-existent person and dead
body of M.K. Balan was cremated under the guise and at the instance of
Manickam A-3; false certificate Ex. P-27 was prepared and produced at
cremation ground on next day showing cremation of Rajamani Chettiar. Kannan
PW-36, Office Assistant in the Corporation of Chennai has deposed that Ex.
P-27 was given to him in the morning at about 8.15 a.m. He had made the
entry Ex.P-27 in Form 2 in the death register as 1st row of 1.1.2002 and
that portion is marked as Ex. P-30. The dispatch book Ex. P-32 has also
been proved by the witness along with memo Ex. P-33. Thus, the involvement
of Manickam A-3 is proved to the hilt by the aforesaid evidence also.
37. The trial court has rightly found that the accused A-3, A-4 and A-15
had acted upon the conspiracy of A-1 and A-2 and have been found guilty of
offences under sections 365, 387, 302, 347, 364, 109 and 201 IPC.
In re: confessions and recoveries from accused
38. Witnesses as to police confessions of various accused persons have
been furnished by : Sahul Hameed PW-44 with respect to A-5; Tulasirangan PW-
22 with respect to A-1, Pasupathy PW-23 with respect to A-1, Jagannathan PW-
24 with respect to A-6; Siva PW-26 with respect to A-3; Seetha PW-29 with
respect to A-12, Francis Arpudham PW-39 with respect to A-4; Prasad PW-42
with respect to A-7; Raja Masilamani PW-46 with respect to A-10 and A-11;
and Sahul Hameed PW-47 with respect to A-16 etc.
39. The seizure of articles has been proved by TMT Geetha PW-17 of green
cot MO-11; Sriramulu PW-25 of Ford Escort car MO-6; Babu PW-40 of audio-
cassettes MO-33; Raja Masilamani PW-46 of tape recorder MO-2; Kuteeswaran
PW-41 of golden colour Maruti van and Tata Sumo van MOs. 9 and 13 etc.
Similarly, seizure of other articles has been proved.
40. The accused persons’ confessional statements and recoveries based
thereon support the version of PW-10 and PW-11. A-5 was arrested on
18.3.2002 at Perambur Railway Station. Kaha Sahul Hameed PW-44 has proved
the confessional statement of A-5. It is stated that he identified the
Maruti omni van and also the cremation ground where the body was burnt and
also disclosed the name of A-3 and the Maruti van which was used for
abducting and that on instructions of A-3, dead body was burnt in the
cremation ground. The witness has also proved the spot map of factory Ex. P-
44 signed by Selvaraj also. At the instance of A-5, Maruti van MO-9 has
been seized from one Jayaprakash vide Ex. P-25. As stated by PW-3, M.K.
Balan was abducted in the said van. It has been established that the place
of occurrence is vermicelli factory at Mudichur. Samundeeswari PW-31 and
Krishnapandi PW-34 have proved the said facts. PW-30 has also stated that A-
9 studied with him and one Somu of Chitlapakkam had entrusted a Maruti van
bearing Regn. No. TSI 7484 and A-9 had asked him to lend the said car, and
he had given the same to A-9 who told him to return the same on the next
day. On receiving the van, its tape recorder and speaker were found missing
and there were liquor bottles in the same and seats were burnt with fire.
Then he went upstairs in the house of Udayakumar A-9 and asked about the
said condition of vehicle, and A-9 assured him to compensate for the loss
but did not give any amount. Thereafter, CBCID came to PW-30 and seized the
vehicle and prepared Ex. P-25. Thus it is apparent that MO-9 was in custody
of A-9 and the vehicle was used in commission of offence. This also lends
corroboration to statements of PW-10 and PW-11.
41. Sankar Ganesh A-6 was arrested on 19.3.2002 who identified Maruti
Omni van No. TN-0343 and his confessional statement Ex. P-16 had been
recorded in the presence of PW-24. At his instance said Maruti van was
recovered in front of the house of John Kennedy, PW-37 at 11.30 a.m. under
Ex. P-17. Said Maruti van is MO-8. PW-37 has owned a signature on the memo.
At the instance of A-7, cot which was used to keep M.K. Balan in the
factory had been recovered. Cot had been identified also. This lends
further support to versions of PWs. 10 and 11.
42. A-3 was arrested on 25.3.2002. His confessional statement was
recorded by CB CID in the presence of Premkumar. PW-26 has deposed as to
seizure of Maruti zen TN-02-Z-99. He was taken to the residence of PW-16.
On being identified by A-3, said Maruti zen car had been seized from PW-16.
Ex. P-20 is the admissible portion of the confessional statement of A-3.
Seizure memo Ex. P-6 of Maruti zen car, MO-12, was drawn. PW-16 has stated
that he had given the car for marriage of said Manickam as his office is
near to his house so he could identify Manickam A-3. A-3 had taken MO-12
Maruti car in November, 2001 and was returned to him during the month of
February, 2002. The police seized the car from him on 25.3.2002 as per Ex.
P-6. Use of this car in offence is established by evidence on record.
43. PW-26 who is an Administrative Officer, has also proved the
confessional statement of A-3. The witness has proved his signature on the
same. A-3 had identified the Maruti zen car of maroon colour. PW-11 has
stated that the Maruti zen car came to the vermicelli factory along with
Ford car and Tata Sumo car. It is apparent from PWs.10 and 11 that Maruti
zen car was used for committing the offence. Maruti van was also recovered
on 30.3.2002 at the instance of A-9 from PW-18. At the instance of A-9,
bedpan was also recovered. Maruti omni van MO-7 of golden colour, bearing
Regn. No. TN-22-B-8853 and Tata Sumo car were also recovered. PWs.10 and 11
have deposed about bedpan, Tata Sumo and Maruti van. As instructed by A-3,
bedpan was kept at vermicelli factory, Maruti van MO-8, had been used for
taking the dead body of the deceased, Tata Sumo car was also used by the
accused persons. PW-18 has deposed that he had given Maruti van to A-9. On
31.12.2001 at about 10 a.m., he had taken the van and returned it in the
night itself and on 1.1.2002 he took the same at about 10 a.m. but did not
return as usual on the night of 1.1.2002 but returned it only on 2.1.2002
at about 11 p.m. i.e. after M.K. Balan was killed and body cremated.
Thereafter on 30.3.2002 CB CID seized his Maruti car MO-7, vide Ex. P-8.
The statement of PW-18 corroborates the versions of PW-10 and PW-11.
44. Manickam’s confession was recorded on 5.4.2002 in the presence of
Purushothaman and Babu-PW-40. PW-40 deposed that on the direction of the
Tehsildar, he along with one Purushothaman went to the CB CID Office on
05.04.2002, where one Manickam was being investigated with regard to the
M.K. Balan murder case and he along with Purushothaman signed the
confession statement. Based on the confessional statement the TTK 90
Cassette along with a piece of paper kept in the back of the photo of the
Accused No.3 was seized by CB CID and the same were marked as MO28 and MO33
respectively. The Mahazar was prepared and they signed the same. The
admitted portion Ex. P-35 of the confessional statement given by Manickam
was also signed by them as witnesses.
45. The bit of paper MO-33, which had been seized from A-3 and also bit
of paper MO-31 regarding extortion of money seized from A-12 in order to
establish the fact that both had been written by A-1. As mentioned above
the High Court has ignored it as the articles were not kept in a sealed
condition, we also leave it out of consideration.
46. On 9.4.2002 accused Somasundaram A-4 was arrested at about 6 a.m.
near Chromepet police station. His confessional statement Ex. P-34 was
recorded in the presence of Francis Arpudham PW-39. On the basis thereof
Ford white colour car bearing Regn. No. TN-10-F-5555 was recovered as per
memo Ex. P-19. PW-39 has proved his signatures on the confessional
statement. Use of car is corroborated by PWs.10 and 11. The car had been
entrusted to accused A-9. Recovery of the car also implicates Somu A-4 and
supports the versions of PWs.10 and 11.
47. Bomb Selvam A-15 was arrested near Egmore Railway Station on
25.4.2002 at about 12.30 p.m. in the presence of Muthurakku and Kaha Sahul
Hameed PW-44. His confessional statement Ex. P-51 came to be recorded. As
per his statement Hero Honda 6475 and black colour Reebok shoes were
recovered as per Ex. P-51. Motorcycle was article MO-10, and shoes were
marked as MO-1. Samundeeswari, PW-31, has stated that at about 11.30 a.m.,
a person came and went upstairs and took along with him Reebok shoe, MO-1.
At that time he came in a car and took an object in a gunny bag. Even if we
discard recovery of Reebok shoes it is apparent that motorcycle used by the
accused had been recovered at the instance of A-15. This lends additional
support to versions of PWs.10 and 11.
In re: Commission of offence under section 387 IPC
48. On the basis of statement of PW-11, it is established that A-4 was
present when M.K. Balan was brought to the vermicelli factory after
abduction and after about half an hour, Bomb Selvam A-15 also came there
along with A-5 to provide tiffin. PW-10 has also stated that M.K. Balan was
tied with iron chain on 31.12.2001, his eyes were shut and he was sitting
on a green colour cot and was wearing a black colour pant and a T-shirt.
Thus it is apparent that A-3, A-4 and A-15 along with other accused persons
were involved in the abduction of ex-MLA M.K. Balan. PW-10 has deposed that
driver of Manickam namely Viji told that he wanted a chain to tie M.K.
Balan. A-9 had taken out Rs.100/- from his shirt pocket to buy one chain.
However, Viji PW-49 turned hostile. He was confronted with his statement
under section 164 Cr.PC. He admitted that he had given a statement before
the Magistrate but under fear. Be that as it may. We ignore the version of
Viji PW-49. There is nothing to doubt the aforesaid statement of PW-10
regarding purchase of chain. The trial court with respect to commission of
offence under section 387 IPC has rightly given the finding in para 166
that the prosecution has established its case to the effect that the
accused 1 to 11 and 14 to 17 have committed the offence punishable under
section 387 IPC beyond all reasonable doubt.
Effect of acquittal under section 120B
49. Now I take up effect of acquittal of appellants under section 120B
IPC. The accused appellants have been convicted for commission of offence
under section 365 read with section 109 IPC, under sections 387, 302 read
with section 109, under section 347 read with section 109; under section
364 read with section 109 and section 201 IPC. In the facts and
circumstances of the case when charge under section 109 has been found
established, mere their acquittal under section 120B is of no avail to
them. Charges which were framed were specific ingredients of section 109
have been rightly found to proceed by both the courts below. Their
acquittal under section 120B of IPC cannot help them as offences of both
sections are separate. Section 120B found established against A-1 and A-2
and other charges against accused/appellants.
50. This Court has considered the abduction under section 109 and the
conspiracy and the explanation thereof and compared with the same under
section 120B. This Court held that under section 109 the abettor is liable
to the same punishment which may be inflicted on the principal offender if
the act of the latter is committed in consequence of the abetment. The
offence of conspiracy under section 120B is different. Section 120A is bare
agreement to commit an offence which has been made punishable under section
120B. The punishment for these two categories of crimes is also quite
different. Section 109 IPC is concerned only with punishment of abetment
for which no express provision has been made in the IPC. An offence of
criminal conspiracy on the other hand is an independent offence which is
made punishable under section 120B IPC for which a charge under section 109
is unnecessary and inappropriate. In Ranganayaki v. State by Inspector of
Police (2004) 12 SCC 521, this Court has held thus :
“10. Motive for doing a criminal act is generally a difficult area for
prosecution. One cannot normally see into the mind of another. Motive is
the emotion which impels a man to do a particular act. Such impelling cause
need not necessarily be proportionally grave to do grave crimes. Many a
murder has been committed without any known or prominent motive. It is
quite possible that the aforesaid impelling factor would remain
undiscoverable. Lord Chief Justice Campbell struck a note of caution in Red
v. Palmer [Shorthand Report at p. 308, May 1856] thus:
“But if there be any motive which can be assigned, I am bound to tell you
that the adequacy of that motive is of little importance. We know, from
experience of criminal courts that atrocious crimes of this sort have been
committed from very slight motives; not merely from malice and revenge, but
to gain a small pecuniary advantage, and to drive off for a time pressing
difficulties.”
Though, it is a sound presumption that every criminal act is done with a
motive, it is unsound to suggest that no such criminal act can be presumed
unless motive is proved. After all, motive is a psychological phenomenon.
Mere fact that prosecution failed to translate that mental disposition of
the accused into evidence does not mean that no such mental condition
existed in the mind of the assailants. In Atley v. State of U.P. AIR 1955
SC 807 it was held: (AIR p. 810, para 6)
“That is true, and where there is clear proof of motive for the crime, that
lends additional support to the finding of the court that the accused was
guilty, but absence of clear proof of motive does not necessarily lead to
the contrary conclusion.”
In some cases it may be difficult to establish motive through direct
evidence, while in some other cases inferences from circumstances may help
in discerning the mental propensity of the person concerned. There may also
be cases in which it is not possible to disinter the mental transaction of
the accused which would have impelled him to act. No proof can be expected
in all cases as to how the mind of the accused worked in a particular
situation. Sometimes it may appear that the motive established is a weak
one. That by itself is insufficient to lead to an inference adverse to the
prosecution. Absence of motive, even if it is accepted, does not come to
the aid of the accused. These principles have to be tested on the
background of factual scenario.
11. Under Section 109 the abettor is liable to the same punishment which
may be inflicted on the principal offender: (1) if the act of the latter is
committed in consequence of the abetment, and (2) no express provision is
made in IPC for punishment for such an abetment. This section lays down
nothing more than that if IPC has not separately provided for the
punishment of abetment as such then it is punishable with the punishment
provided for the original offence. Law does not require instigation to be
in a particular form or that it should only be in words. The instigation
may be by conduct. Whether there was instigation or not is a question to be
decided on the facts of each case. It is not necessary in law for the
prosecution to prove that the actual operative cause in the mind of the
person abetting was instigation and nothing else, so long as there was
instigation and the offence has been committed or the offence would have
been committed if the person committing the act had the same knowledge and
intention as the abettor. The instigation must be with reference to the
thing that was done and not to the thing that was likely to have been done
by the person who is instigated. It is only if this condition is fulfilled
that a person can be guilty of abetment by instigation. Further the act
abetted should be committed in consequence of the abetment or in pursuance
of the conspiracy as provided in the Explanation to Section 109. Under the
Explanation an act or offence is said to be committed in pursuance of
abetment if it is done in consequence of (a) instigation, (b) conspiracy,
or (c) with the aid constituting abetment. Instigation may be in any form
and the extent of the influence which the instigation produced in the mind
of the accused would vary and depend upon facts of each case. The offence
of conspiracy created under Section 120-A is bare agreement to commit an
offence. It has been made punishable under Section 120-B. The offence of
abetment created under the second clause of Section 107 requires that there
must be something more than mere conspiracy. There must be some act or
illegal omission in pursuance of that conspiracy. That would be evident by
Section 107 (secondly), “engages … in any conspiracy for the doing of that
thing, if an act or illegal omission takes place in pursuance of that
conspiracy”. The punishment for these two categories of crimes is also
quite different. Section 109 IPC is concerned only with the punishment of
abetment for which no express provision has been made in IPC. The charge
under Section 109 should, therefore, be along with charge for murder which
is the offence committed in consequence of abetment. An offence of criminal
conspiracy is, on the other hand, an independent offence. It is made
punishable under Section 120-B for which a charge under Section 109 is
unnecessary and inappropriate. [See Kehar Singh v. State (Delhi Admn.)
(1988) 3 SCC 609] Intentional aiding and active complicity is the gist of
the offence of abetment.”
51. Thus commission of offence under section 109 has been established
along with other sections. The conviction and the sentence imposed by the
trial court and the High Court is absolutely proper and no benefit can be
obtained by acquittal under section 120B IPC. That does not adversely
impinge upon the ingredients of section 109 IPC and other sections for
which he has been found guilty. Thus I find no force in submission of
appellants that once appellants have been acquitted under section 120B the
entire case falls down.
In re: evidence of accomplices
52. Several decisions were cited which are referred to by esteemed
brother which indicate that accomplice version requires corroboration, same
cannot be rejected outrightly. It was submitted that PW-10 and PW-11 are
not reliable being accomplices and there is no corroboration of their
version. Submission is too tenuous to be accepted. Though only their help
was taken as discussed above. In my opinion even if PW-10 and PW-11 are
taken as accomplices their depositions are corroborated by overwhelming
evidence on record on each and every aspect. The accused persons have been
found guilty under section 109 IPC also. All convicted accused persons
including appellants acted together. Entire gamut of evidence discussed
above, admissible portions of confessional statements of various accused
persons including appellants, recovery of articles of offence also lends
credence to versions of PWs. 10 and 11.
In re : Holding T.I./recording statement under section 164 Cr.PC
53. Holding test identification parade has been proved by Krishnasamy-PW-
60. Recording of statement under section 164 Cr.PC has been proved by
Thangamariyappan PW-59; Karunanidhi PW-61 for A-12, PW-32 and PW-33,
Vijayakanth PW-62 recorded the statements of Vettiyans PW-12 and PW-19.
Junath Sherif PW-64 has recorded the statement under section 164 of PWs.10
and 11.
In re : Cell phones/cassettes/forensic evidence
54. Evidence discloses that cell phone was given to A-2 by PW-7.
Cassettes were recovered with suitcase MO3 from A-1 which is supported by
PW-43 Accountant of Butts Paradise Hotel where suitcase was left and for
stay money was paid by Venu. Forensic evidence is furnished by Kasi PW-63
and Dr. C.P. Singh PW-65. PW-63 has deposed that he had compared the
documents MO31 and MO33 with the specimen handwritings and signature of
Senthil Kumar and submitted his report Ex. P-55 dated 24.7.2002 by
concluding that both the handwritings were of the same person. PW-65 had
deposed that he had received four video cassettes and two audio cassettes
which are marked as MOs.27 and 28. After analyzing he found both the voices
to be same and marked the report as Ex. P-83. However, the High Court has
not relied upon forensic evidence relating to cassettes and MOs. 31 and 33
and also regarding voice comparison, for the reason that the said articles
were not kept in a sealed condition. We also ignore this evidence but
ignoring this evidence also does not further the case of the appellants in
any way as their guilt stands established by other overwhelming evidence.
55. It was also contended that recovery of Ford car at the instance of A-
4 is of no value. In my opinion, in whose name car was registered is
immaterial as its use in offence and recovery is material aspect. The
registration of car is in name of Ranjit Kumar who paid money for its
purchase is a matter inter se between PW-10 and Ranjit Kumar. PW-10 may
have purchased the car in the name of Ranjit Kumar. However, the evidence
clearly disclosed that the car was in possession of PW-10 and was given by
him to accused. Total six cars were used in offence including Ford Escort
car and one motorcycle. They were used by one or other accused persons at
one or other time while committing offence thus which vehicle was used at
particular time by which accused would not create any circumstance in
favour of an accused person when it has been proved that various vehicles
seized have been used in offence their recovery at the instance of accused
persons cannot be ignored.
56. Coming to submission that remains recovered from cremation ground are
not proved to be of deceased M.K. Balan. As per the case of prosecution the
body of the deceased was fully burnt as such the recovery of certain
remains which was made after several months from the cremation ground was
of no utility. Remains would not have been at cremation ground after 2 ½
months when everyday bodies are cremated. Their seizure and the forensic
science report regarding that are of no value.
57. Thus in my opinion the appeals preferred by appellants sans merits
hence, liable to be dismissed. The appeals are hereby dismissed. The
conviction and sentence imposed by the Trial Court as affirmed by the High
Court calls for no interference in the appeals.
New Delhi; ……………………..J.
September 28, 2016. (Arun Mishra)
-----------------------
[1]
[2] (2001) 3 SCC 468
[3]
[4] (1999) 5 SCC 253
[5]
[6] AIR 1952 SC 54
[7]
[8] AIR 1963 SC 599
[9]
[10] AIR 1962 SC 876
[11]
[12] AIR 1947 Lah 220
[13]
[14] AIR 1936 Cal 101
[15]
[16] (2005) 1 SCC 237
[17]
[18] AIR 1968 SC 938
[19]
[20] (2011) 5 SCC 161
[21]
[22] AIR 1957 SC 637
[23]
[24] AIR 1968 SC 832
[25]
[26] (1975) 3 SCC 742
[27]
[28] [1916] 2 KB 658
[29]
[30] (1969) 3 SCC 429
[31]
[32] (1979) 4 SCC 312
[33]
[34] AIR 1970 SC 1330
[35]
[36] (1988)3 SCC 609
