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TMI Blog2020 (6) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... ls filed by the third, fourth and fifteenth Accused came to be heard by a Bench of two learned Judges. There was a cleavage of opinion among the learned Judges. One learned Judge (Justice V. Gopala Gowda), by his Judgment, proceeded to acquit the Accused while Justice Arun Mishra dismissed the appeals. The judgment rendered by the two learned Judges is reported in Somasundaram alias Somu v. State Represented by Deputy Commissioner of Police (2016) 16 SCC 355. After the judgment was rendered, it is that the other appeals came to be filed by the other Accused. They are as follows: a. A5 and A8 have filed Criminal Appeal Nos. 2008 of 2017; b. A6 has filed Criminal Appeal No. 1504 of 2017; c. A7, A11, A14, A16 and A17 have together filed Criminal Appeal No. 2006 of 2017; d. Though Criminal Appeal No. 2007 of 2017 and Criminal Appeal No. 2009 of 2017 were also filed, subsequent to the hearing, applications have been filed seeking to withdraw the aforesaid two appeals and they are liable to be dismissed as withdrawn. THE PROSECUTION CASE 3. On M.K. Balan (hereinafter referred to as 'the deceased', for short), who was an Ex. M.L.A., was reported to be missing by his son- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given by A12, apparently mimicking the voice of the AIADMK leader, A3 acts. A9 contacted PW10 and PW11. It is alleged that PW10 and PW11 were persuaded to search for houses. Not satisfied with many of the houses shown to A3 and A9, they finally found favour with the factory premises which is located in Mudichur. It is the further case of the prosecution that after he was murdered, the body of the deceased came to be cremated at the Corporation cremation ground on 01.01.2002 and, in order to accomplish the same, PW33-an employee working in a Government Hospital, was roped in by A3 to procure a false death certificate. Accordingly, PW33, it was alleged, approached PW32-a Medical Practitioner. The Medical Practitioner gives a death certificate wherein the name of a person is indicated in the certificate, and allegedly residing at an address, which, the Police, on investigation, found, was not the abode of the person. In other words, the name of a non-existing and a fictional person was used to concoct a death certificate and, under the cover of the same, the body of the deceased came to be cremated. 4. On the basis of the charge-sheet and after complying with the formalities, the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m and come along with Senthil and meet me and Senthil would tell you everything later, thereby the said Accused have been framed charges Under Section 419, 420 and 387 Indian Penal Code read with 109 Indian Penal Code. Fifthly in order to fulfil the object of the said conspiracy and consequent upon the said occurrence on 1.1.02 night at about 9:00 p.m. the Accused 3, 4, 6 to 8, 10, 11 and 14 to 18 committed the murder of M.K. Balan who refused to pay any money or to execute any documents in respect of his properties, by tying a rope around the neck and tightened, thereby all the above said Accused persons had committed the offence punishable Under Section 302 Indian Penal Code. Likewise the Accused 1, 2, 5, 9, 12 and 13 were charged Under Section 302 read with Section 109 Indian Penal Code for having committed the offence of abetment for the act of committing the murder. Sixthly, consequent upon the same on the same day in the said occurrence, with an object of extracting the property from the deceased M.K. Balan, he was kidnapped thereby Accused 3 to 11 and 13 to 18 were framed charge Under Section 347 and 364 Indian Penal Code and for being abetment for the said offence, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with Section 109 of the Indian Penal Code, Section 347 of the Indian Penal Code, Section 364 of the Indian Penal Code and Section 201 of the Indian Penal Code. He was, however, acquitted Under Section 120B of the Indian Penal Code. (v) A6 was found guilty Under Section 365 read with Section 109 of the Indian Penal Code, Section 387 of the Indian Penal Code, Section 302 of the Indian Penal Code, Section 347 of the Indian Penal Code, Section 364 of the Indian Penal Code and Section 201 of the Indian Penal Code. He stood acquitted Under Section 120B of the Indian Penal Code; (vi) A7 was found guilty Under Section 365 of the Indian Penal Code, Section 387 of the Indian Penal Code, Section 302 of the Indian Penal Code, Section 347 of the Indian Penal Code, Section 364 of the Indian Penal Code and Section 201 of the Indian Penal Code. He stood acquitted Under Section 120B of the Indian Penal Code; (vii) A8 was found guilty Under Section 365 read with Section 109 of the Indian Penal Code, Section 387 of the Indian Penal Code, Section 302 read with Section 109 of the Indian Penal Code, Section 347 of the Indian Penal Code, Section 364 of the Indian Penal Code and Section 201 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aram, committed the offence Under Section 365 read with 109 Indian Penal Code and for having made an attempt to extract money or property from the said M.K. Balan, former MLA, committed the offence Under Section 387 Indian Penal Code and when it was not able to get the same, by committing the murder of the said M.K. Balan, committed the offence Under Section 302 Indian Penal Code and before committing murder him, for having kept him in a secret place unlawfully and illegally, committed the offence Under Section 347 Indian Penal Code and for having kidnapped him for the purpose of murdering him, committed the offence Under Section 364 Indian Penal Code conspiracy of the Accused 1 and 2, the 4th Accused has been charged for the above said offences. 213. The 5th Accused is found guilty of the offences for having fulfilled the conspiracy of the Accused 1 and 2 on 30.12.01 at about 5:30 a.m. the former M.L.A.M.K. Balan was kidnapped and kept in a secret place at Vermicelli factory at Mudichur road, Tambaram, committed the offence Under Section 365 read with 109 Indian Penal Code and for having made an attempt to extract money or property from the said M.K. Balan, former MLA, committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 365 read with 109 Indian Penal Code and for having made an attempt to extract money or property from the said M.K. Balan, former M.L.A., committed the offence Under Section 387 Indian Penal Code and when it was not able to get the same, by committing the murder of the said M.K. Balan, committed the offence Under Section 302 Indian Penal Code and before committing murder him, for having kept him in a secret place unlawfully and illegally, committed the offence Under Section 347 Indian Penal Code and for having kidnapped him for the purpose of murdering him, committed the offence Under Section 364 Indian Penal Code and accordingly they were found guilty of the above said offences. 7. The sentencing is as follows: 220. Further the Accused 3, 6 and 8 are convicted for the offence Under Section 365 read with 109 Indian Penal Code and sentenced to undergo 7 years RI and to pay fine of Rs. 5000/- each in default to undergo one year RI each; convicting them for the offence Under Section 387 Indian Penal Code and sentencing them to undergo 7 years RI and to pay fine of Rs. 5000/- in default to undergo one year RI each and that convincing them for the offence Under Section 302 Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 347 Indian Penal Code and sentencing him to undergo 3 years RI and to pay fine of Rs. 5000/- in default to undergo six months RI and convicting him for the offence Under Section 364 Indian Penal Code and sentencing him to undergo 10 years RI and to pay fine of Rs. 5000/- in default to undergo two years RI; convicting him for the offence Under Section 201 Indian Penal Code and sentencing him to undergo 7 years RI and to pay fine of Rs. 10,000/- in default to undergo one year RI and that total fine imposed on this Accused is Rs. 80,000/- (Rupees eighty thousand only) and that all the sentences imposed on this Accused shall run concurrently; 223. The 9th Accused is convicted for the offence Under Section 365 read with 109 Indian Penal Code and sentenced to undergo 7 years RI and to pay fine of Rs. 5000/- in default to undergo one year RI, convicting him for the offence Under Section 387 Indian Penal Code and sentencing him to undergo 7 years RI and to pay fine of Rs. 5000/- in default to undergo one year RI; convicting him for the offence Under Section 302 read with 109 Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs. 50,000/- and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enal Code and sentencing them to undergo 3 years RI and to pay fine of Rs. 5000/- in default to undergo six months RI each; convicting them for the offence Under Section 364 Indian Penal Code and sentencing them to undergo 10 years RI and to pay fine of Rs. 5000/- in default to undergo two years each; convicting them for the offence Under Section 201 Indian Penal Code and sentencing them to undergo 7 years RI and to pay fine of Rs. 10,000/- in default to undergo one year RI each as decided. (The total fine amount being Rs. 80,000/- each) All the sentences imposed on these Accused shall run concurrently as ordered. 8. The High Court confirmed the judgment of the Trial Court except as regards A10 who was acquitted. 9. We heard the learned Counsel for the Appellants. 10. We have also heard the learned Counsel appearing for the Respondent-State in all the appeals. 11. Learned Counsel for A3 would submit that the case of the prosecution was based on the theory of conspiracy. It is accordingly that the charge Under Section 120B was framed against the Accused including A3. The case of the prosecution in this regard was, A12, who was married to A2, made phone calls to A3. A3 was told o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence of Shashikala having made a public speech. Though A3 may be familiar with her voice being a party functionary, it hardly suffices as there is no evidence to conclude that A12 was familiar with her voice without which it is incredible that she could mimic Shashikala. 13. He would further contend that in this case once the prosecution case relating to conspiracy Under Section 120B of the Indian Penal Code failed, reliance placed on Section 109 of the Indian Penal Code, which contemplates a conspiracy and something more would have no legs to stand on. Leave alone any illegal act or omission based on a conspiracy, no conspiracy itself is proved. Therefore, Section 109 of the Indian Penal Code can have no play. Regarding the recovery of Maruti Zen car at the instance of A3, it is pointed out that A3 is not the owner of the car. PW10 and PW11 were active participants. They were not tendered pardon Under Section 306 of The Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code of Criminal Procedure' for short). He would further contend that the evidence of PW3 does not establish involvement of A3. PW3 has merely stated that at 05.30 A.M., he saw three pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the matter of securing conviction Under Section 302 of the Indian Penal Code, the prosecution ought to have proved the case as set out by it. A chain was allegedly used to commit murder of the deceased. A14 and A16 were in jail. The chain and the nylon rope were recovered on the basis of the statements given by them. He would point out that however the said recoveries cannot be used against the other Accused. He reminds the court of the backdrop in which the investigation proceeded following the missing of a high-profile person, as the deceased was an Ex-MLA. A Habeas Corpus Petition was filed in the Madras High Court. There was much pressure. The matter engaged the attention of the media also. This forced the Investigating Officers to manufacture the version indeed in order to cater to the general public. PW 21 and PW35 are Police Officers. They are alleged to have identified some of the Accused as loitering in a public road after midnight on 01.01.2002, which was immediately after the alleged commission of the crimes including murder. But this cannot result in conviction of A3. PW12 and PW19 are prosecution witnesses produced to prove the case Under Section 201 of the Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence would show that the owner of the said car had given MO12 to A3 in November, 2001 and A3 has given back the car in February, 2002. There is no particular role which is attributed to the Maruti Zen Car. 18. Regarding audio evidence, it is submitted that it did not satisfy the requirements of Section 3 of the Evidence Act. MO33 is a bit of paper on which, in the alleged handwriting of A1, the message from A12 to A3 was written [it will be remembered that it is the case of the prosecution that A12, imitating the voice of Shashikala, had commanded A3, a party functionary, to oblige A1 and A2 and this set in motion the chain of events culminating in the gruesome murder of the deceased]. It is the acquittal of A12 who allegedly messaged to A3, which is the subject matter of MO33, which is pressed before us to remove any importance it may otherwise have had. Till 10.04.2002, the evidence of PW67 would show that it was not sealed thus robbing the material object of any legal efficacy it may have otherwise had, it is contended. It is further contended that the voice of the deceased, is not proved through PW1. Learned Counsel would submit that if statement Under Section 27 is made and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ously, this judgment is invoked against the court relying upon the evidence of PW19. 20. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Ors. (1976) 2 SCC 17, is relied on to point out that while taking record of speeches as documents Under Section 3 of the Evidence Act, the admissibility would depend upon the following conditions being fulfilled: (a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it. (b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to Rule out possibilities of tampering with the record. (c) The subject-matter recorded had to be shown to be relevant according to Rules of relevancy found in the Evidence Act. 21. He also pointed out that if the photograph of the Accused is shown to the witnesses and the witnesses then depose about identifying the Accused, it would deprive the identification of any value it would have otherwise. He relied on the judgment of this Court in Vijayan v. State of Kerala (1999) 3 SCC 54: 8. Another circumstance sought to be establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted arguments in Criminal Appeal No. 2006 of 2017 where he appeared for A7, A11, A14, A16 and A17 about PW10 and PW11 and other submissions. CRIMINAL APPEAL NO. 403 OF 2010 APPEAL BY ACCUSED NO. 4 (A4) 24. The learned Counsel would submit that no value can be given to the Test Identification Parade (TIP) conducted insofar as A4 is concerned. He would point out that PW10 and PW11 are proved to be familiar with A4 by having seen him on a number of occasions prior to the TIP. This would deprive the alleged identification of any value it would have. MO6 is the Ford Escort Car, which is recovered from A4 on the basis of the statement given Under Section 27 of the Evidence Act. The recovery is attacked by the learned Counsel on the basis that it is planted evidence. He took us through the deposition of PW25 to impugn the recovery. According to PW67, he points out that car was parked outside. He would complain that the courts have relied on PW10 and PW11 as if they were reliable witnesses, which they were not. He would also emphasise that being accomplices, they should not only be reliable but their evidence must stand the test of corroboration. He points out that the prosecution has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh PW19 identified A6. Identification by PW19 is unreliable as he did not mention about physical features of A6. He would complain that PW19 would have seen photographs in the media, a complaint which is being echoed on behalf of the other Accused, also. Next, the circumstance used against A6 is deposition of PW21 and PW35, Police Head Constable and Constable, respectively. He would, in fact, submit that even accepting their deposition, it would prove nothing more than the fact A6 was there on the public road on the midnight of 01.01.2002. It would not connect A6 with the crime. He would further point out that the deposition of PW35 would show that contrary to the usual practice in the Beat Note, there is nothing noted about A6 though he has deposed that along with three others, A6 presence was noted. The identification of A6 by the Police Officers is not reliable, it is contended. It is pointed out that the Police Officer would have visited the jail and also been in the court premises where he would have seen A6. Therefore, the identification of A6 by the Police Officers loses all meaning. 27. He also relied on deposition of PW1 that the Reebok Shoes did not belong to his father ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e drew our attention to the deposition of PW60. He referred us to the recoveries which have led to relevant evidence believed in by two courts, and what is more, a learned Single Judge of this Court. He would further point out to the deposition of PW19. He points out that both PW12 and PW19 had made statements Under Section 164 of the Code of Criminal Procedure. Statement Under Section 164 of the Code of Criminal Procedure could be used for the purpose of corroborating though it could not be used as a substantive evidence by itself. He also drew considerable support from deposition of PW32 read with PW33. The hand of A6 in the murder of a public man is clearly made out, runs the argument. He fairly does not dispute the contention of A6 in regard to MOs 28 and 33. He assures the Court that the Court can eschew the said items of evidence but he would submit that even dehors the same, there is sufficient material before the Court to confirm the conviction of the Appellants. Learned Counsel for A3, in reply, would point out that in fact, even A1 and A2 have also been convicted with the aid of Section 109 of the Indian Penal Code. In other words, it is his case that even A1 and A2 are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence. 33. In Nanak Chand v. State of Punjab AIR 1955 SC 274, the Court had to deal with a contention on behalf of the prosecution that Section 149 of the Indian Penal Code did not create any offence at all and hence a separate charge, was not obligatory. This Court, therefore, found it necessary to decide a question whether Section 149 of the Indian Penal Code creates a specific offence. The Court held, inter alia, as follows: 6. ... Under this Section a person, who is a member of an unlawful assembly is made guilty of the offence committed by another member of the same assembly, in the circumstances mentioned in the section, although he had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly. Without the provisions of this Section a member of an unlawful assembly could not have been made liable for the offence committed not by him but by another member of that assembly. Therefore when the Accused are acquitted of riot and the charge for being members of an unlawful assembly fails, there can be no conviction of any one of them for an offence which he had not himself committed. ... 34. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject and intention, for although the object may be common, the intentions of the several members of the unlawful assembly may differ and indeed may be similar only in respect that they are all unlawful, while the element of participation in action, which is the leading feature of Section 34, was replaced in Section 149 by membership of the assembly at the time of the committing of the offence. It was argued, however, that these observations of Lord Sumner were obiter dicta. Assuming though not conceding that may be so, the observations of a Judge of such eminence must carry weight particularly if the observations are in keeping with the provisions of the Indian Penal Code. It is, however, to be remembered that the observations of Lord Sumner did directly arise on the argument made before the Privy Council, the Privy Council reviewing as a whole the provisions of Sections 34, 114 and 149 Indian Penal Code. 35. Further, this Court proceeded to hold that a person charged with an offence Under Section 149 of the Indian Penal Code cannot be convicted of the substantive offence without there being a specific charge framed as required Under Section 233 of the Code of Criminal Procedure, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e should be caused. The Illustration(a) under Explanation II provides as follows: (a) 'A' Instigates 'B' to murder 'C'. 'B' refuses to do so. 'A' is guilty of abetting 'B' to commit murder. 38. The second limb of the Explanation (II) is illumined by the illustration(b) and it reads as follows: (b) 'A' instigates 'B' to murder 'D', 'B' in pursuance of the instigation stabs 'D'. 'D' recovers from the wound. 'A' is guilty of instigating 'B' to commit murder. 39. Explanation (3) declares that it is not necessary that the person abetted should be capable by law of committing an offence or that he should have the same guilty intention or knowledge as that of the abettor or any guilty intention or knowledge. The first illustration is as follows: (a) 'A', with a guilty intention, abets a child or a lunatic to commit an act which would be an offence, if committed by a person capable by law of committing an offence, and having the same intention as 'A'. Here 'A', whether the act be committed or not, is guilty of abetting an offence. 40. Another illu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing. Finally, there is abetment when a person intentionally aids, by an act or omission, the doing of that act. At this juncture, we may have to take a deeper look at the concept of abetment by engaging in a conspiracy resulting in abetment and conspiracy as provided in Section 120A of the Indian Penal Code. 44. In Pramatha Nath Talukdar v. Saroj Ranjan Sarkar AIR 1962 SC 876, this Court spoke about the distinction between the offence of abetment by conspiracy and the offence of criminal conspiracy (Section 120A of Indian Penal Code): 16. ... The gist of the offence of criminal conspiracy is in the agreement to do an illegal act or an act which is not illegal by illegal means. When the agreement is to commit an offence, the agreement itself becomes the offence of criminal conspiracy. Where, however, the agreement is to do an illegal act which is not an offence or an act which is not illegal by illegal means, some act besides the agreement is necessary. Therefore, the distinction between the offence of abetment by conspiracy and the offence of criminal conspiracy, so far as the agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is abetment and the act abetted is committed, and what is furthermore, it is committed as a result of the abetment. Should these ingredients be present and if there is no express provision under the Indian Penal Code for the punishment of the act of such abetment, the person renders himself liable for being punished with the punishment for that offence which stands committed in consequence of the abetment by the Accused. 47. In order that the act or offence, be committed within the meaning of Section 109 of the Indian Penal Code, in consequence of the abetment, it must be as a consequence of the instigation or in pursuance of the conspiracy or with the aid which constitutes the abetment. Explanation to Section 109 of the Indian Penal Code must be read in conjunction with Section 107 of the Indian Penal Code which creates the offence of abetting. As far as instigating any person to do an act, it is relatable to the first part of Section 107 which declares that abetment is done when the person who abets instigates any person to do that thing. 48. As far as conspiracy within the meaning of Explanation to Section 109 of the Indian Penal Code is concerned, it deals with secondly Und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave seen or known, by face or otherwise, one or more persons who are privy to the conspiracy. Thus, based on their involvement constituting abetment, a person or any number of persons without even knowing the identity of all the principal participants to the conspiracy, can be prosecuted with the aid of Section 107 read with Section 108 of the Indian Penal Code. 51. In order to attract Section 109 of the Indian Penal Code, the act abetted must be committed in consequence of the abetment. Sections 115 and 116 of the Indian Penal Code deal with punishments for abetment of offences when the offence is not committed in consequence of the abetment and where no express provision is made in the Indian Penal Code for the punishment of such abetment. 52. In Arjun Singh v. State of Himachal Pradesh AIR 2009 SC 1568, this Court held as follows: 11. ... Law does not require instigation to be in a particular form or that it should only be in words. The instigation may be by conduct. Whether there was instigation or not is a question to be decided on the facts of each case. It is not necessary in law for the prosecution to prove that the actual operative cause in the mind of the person abett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 55. In Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra (1970) 1 SCC 696, this Court had an occasion to deal with Sections 34, 107 and 120B of the Indian Penal Code and this is what this Court lay down: 7. So far as Section 34 Indian Penal Code is concerned, it embodies the principle of joint liability in the doing of a criminal act, the essence of that liability being the existence of a common intention. Participation in the commission of the offence in furtherance of the common intention invites its application. Section 109 Indian Penal Code on the other hand may be attracted even if the abettor is not present when the offence abetted is committed, provided that he has instigated the commission of the offence or has engaged with one or more other persons in a conspiracy to commit an offence and pursuant to that conspiracy some act or illegal omission takes place or has intentionally aided the commission of an offence by an act or illegal omission. Turning to the charge Under Section 120-B Indian Penal Code criminal conspiracy was made a substantive offence in 1913 by the introduction of Chapter V-A in the Penal Code, 1860. Criminal conspiracy postulates an agreement b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not trace back its ownership to A4. Thereafter, it is stated that the requirement of corroboration from independent sources in material particulars, has not been met in the instant case and made it impossible for the Accused to be convicted Under Sections 302 and 364 of the Indian Penal Code. PWs 10 and 11 were not witnesses to the abduction of the deceased. PW3, who witnessed the abduction, it is stated, did not witness the Accused at the site of the abduction. Though, PW10 placed A3 and A4 in the meeting on 05.12.2001, significance of the same was lost in view of their acquittal Under Section 120B of the Indian Penal Code. PWs 10 and 11 have not placed any of the three Accused (A3, A4 and A15) at the site when the body of the deceased was brought down in the factory. A3, according to the deposition of the accomplices, was found staying downstairs while PW11, who went upstairs, actually saw the deceased tied to chains in the room where he was kept. PW11 only saw A5 at the site on the night of 30.12.2001 carrying a tiffin parcel. The death certificate of the deceased issued by PW32, which PW33 has stated was got at the instance of A3, was found, even if genuine, did not connect A3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Evidence of accomplices; (xiv) Holding TIP/recording of statement Under Section 164 Code of Criminal Procedure.; (xv) Cell phones/cassettes/forensic evidence. 58. The learned Judge proceeded to discuss the evidence of PWs 10 and 11 elaborately. Thereafter, the prior relationship between the Accused came to be discussed. The circumstance relating to selection of premises where the deceased was kept and other arrangements as also "abduction of the deceased" was discussed. The learned Judge referred to the deposition of PW1-son of the deceased. He also referred to evidence of PW3 and, at paragraph 20, it stated that PW3 has clearly stated that the former MLA was abducted at 05.30 A.M.. [Actually PW3 has stated that a person was put inside a van by three persons]. Thereafter, motorcycle followed the said van. That his friend Selvam also came there. PW13 has also stated that he has seen the deceased taking morning walk at about 05.45 A.M.. The learned Judge finds that it is apparent that the deceased in this case was abducted from M.R.C. Nagar. After abduction, the evidence discloses meeting at the residence of A9. He further finds that on 30.12.2001, PWs 10 and 11 have stated ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence Under Section 120B of the Indian Penal Code, a charge Under Section 109 of the Indian Penal Code was unnecessary and inappropriate. The commission of offence Under Section 109 of the Indian Penal Code was found established along with other offences. The acquittal Under Section 120B of the Indian Penal Code was found not to adversely impinge upon the ingredients of Section 109 of the Indian Penal Code. The evidence of PWs 10 and 11, even taken as accomplices, was found corroborated by overwhelming evidence on record on each and every aspect. Regarding holding of TI/Recording of Statement Under Section 164 of the Code of Criminal Procedure, it was proved by PWs 60, 59, 61, 32, 33, 62, 12 and 19. The last circumstance discussed was the cell phone/cassette/forensic evidence. Cassettes were recovered with suitcase-MO2 from A2 which was supported by PW43. Regarding the contention that no value is to be attached to the recovery of the Ford Car at the instance of A4 based on ownership, it was found that ownership was irrelevant. PW10 may have purchased the car in the name of Shri Ranjit Kumar. The evidence disclosed that the car in the possession of PW10 was given by him to the Accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 62. We may profitably also refer to the views expressed in Haroom Haji Abdulla v. State of Maharashtra AIR (1968) SC 832: 8. The law as to accomplice evidence is well settled. The Evidence Act in Section 133 provides that an accomplice is a competent witness against an Accused person and that a convic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the crime. When it is said that the corroborative evidence must implicate the Accused in material particulars it means that it is not enough that a piece of evidence tends to confirm 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. 64. We may finally advert to a recent pronouncement of this Court in K. Hashim v. State of Tamil Nadu (2005) 1 SCC 237: 38. First, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. As Lord Reading says: Indeed, if it were required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a [(1995) 3 SCC 351: 1995 SCC (Cri.) 509].) 65. To summarize, by way of culling out the principles which emerge on a conspectus of the aforesaid decisions, we would hold as follows: The combined result of Sections 133 read with illustration (b) to Section 114 of Evidence Act is that the Courts have evolved, as a Rule of prudence, the requirement that it would be unsafe to convict an Accused solely based on uncorroborated testimony of an accomplice. The corroboration must be in relation to the material particulars of the testimony of an accomplice. It is clear that an accomplice would be familiar with the general outline of the crime as he would be one who has participated in the same and therefore, indeed, be familiar with the matter in general terms. The connecting link between a particular Accused and the crime, is where corroboration of the testimony of an accomplice would assume crucial significance. The evidence of an accomplice must point to the involvement of a particular Accused. It would, no doubt, be sufficient, if his testimony in conjunction with other relevant evidence unmistakably makes out the case for convicting an Accused. 66. As laid down by this Court, every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 306. We would hold, that as between an accomplice and an approver, the latter would be more beholden to the version he has given having regard to the adverse consequences which await him as spelt out in Section 308 of the Code of Criminal Procedure. as explained by us. It is also settled principle that the competency of an accomplice is not impaired, though, he could have been tried jointly with the Accused and instead of so being tried, he has been made a witness for the prosecution. See the judgment of this Court reported in Chandran and Ors. v. State of Kerala (2011) 5 SCC 161. PURPORT AND VALUE OF SECTION 164 OF CODE OF CRIMINAL PROCEDURE 68. Section 164 of the Code of Criminal Procedure enables the recording of the statement or confession before the Magistrate. Is such statement substantive evidence? What is the purpose of recording the statement or confession Under Section 164? What would be the position if the person giving the statement resiles from the same completely when he is examined as a witness? These questions are not res integra. Ordinarily, the prosecution which is conducted through the State and the police machinery would have custody of the person. Though, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 164 is not substantial evidence then what would be the position? The substantive evidence is the evidence rendered in the Court. Should there be no other evidence against the Accused, it would be impermissible to convict the Accused on the basis of the statement Under Section 164. CONTOURS OF JURISDICTION IN APPEAL BY SPECIAL LEAVE 72. Before we embark upon a consideration of the contentions, we think it is necessary to remind ourselves of the contours of this Court's jurisdiction in an appeal generated by Special Leave Under Article 136 of the Constitution of India. This question, far from being res integra, is the subject matter of a large number of decisions of this Court. We would only advert to one out of many decisions, rendered by one of us (K.M. Joseph, J.), in Jagjit Singh v. State of Punjab (2018) 10 SCC 593. Therein, the Court noted the principles laid down by this Court in Dalbir Kaur v. State of Punjab (1976) 4 SCC 158 wherein this Court culled out the principles in paragraph-8 as follows: 8. Thus the principles governing interference by this Court in a criminal appeal by special leave may be summarised as follows: (1) that this Court would not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false. 74. Section 347 of the Indian Penal Code reads as follows: 347. Wrongful confinement to extort property, or constrain to illegal act.-- Whoever wrongfully confines any person for the purpose of extorting from the person confined, or from any person interested in the person confined, any property or valuable security or of constraining the person confined or any person interested in such person to do anything illegal or to give any information which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. 75. Section 364 of the Indian Penal Code, inter alia, deals with abducting in order to murder. It reads as follows: 364. Kidnapping or abducting in order to murder.--Whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as to be put in danger of being murdered, shall be punished with 1[imprisonment for life] or rigorous i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen abduction, inter alia, is done with the intention to commit murder or that he is so disposed of so as to put the abducted person in danger of being murdered. Section 365 of the Indian Penal Code is attracted when the abduction takes place to cause the abducted person to be secretly and wrongfully confined. 81. It is true that in a given case, a person may be abducted to be secretly and wrongfully confined and also to commit murder. Such a situation may attract both Sections 364 and 365 of the Indian Penal Code. 82. As with any other offence, there could be the actual offender, who abducts. Any other person could be roped in with the aid of Section 120A of the Indian Penal Code or Section 109 of the Indian Penal Code (abetting). Also, principle of vicarious liability, Under Section 34 of the Indian Penal Code or a charge Under Section 149 of the Indian Penal Code, if proved, could visit another with criminal liability. ABDUCTION, THE EVIDENCE 83. PW1 is the son of the deceased. He has deposed, inter alia, as follows: His father is an MLA of Saidapet Constituency. He is Director of Mahilapur Hindu Saswatha Nidhi Limited for a period of ten years. He used to go walking in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udio cassette containing the voice of his father and played it before his mother and brother, he answers in the affirmative. He says there was no dispute between his father and A3 and other Accused. In answer to the question, whether the persons of ADMK had any grudge against his father for changing his party to DMK, he said, yes, there were serious disputes regarding this. He still believed that his father was alive. The prosecution conducted re-examination of PW1. He states that when the CBCID examined him on 06.04.2002, he has not stated that the voice in the audio cassette was of his father. Suggestion that he was purposefully deposing in favour of the Accused, was denied. 84. PW2-Ramesh deposes that he is a car driver by profession. He knew the deceased. He used to go to the house at 08.45 A.M. or 09.00 A.M.. He speaks about taking the deceased to the company of which he was the Director. He speaks about coming at about 09.00 A.M. on 30th and the wife of the deceased informed him that her husband has not returned home after he had gone for walking. He says, to his knowledge, he did not know about the fact that deceased went for walking on that day. After 29.12.2001, he has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . PW3 has indeed witnessed a person being pushed into Maruti Omni Van by three persons and the Van going away followed by the motorcycle. 88. These facts are established. The evidence of PW10 and PW11 is to be seen next in this regard. PW10 has, inter alia, stated that first and second Accused were there at the house of A9 on 30.12.2001. Both of them told A3 that they have brought the MLA [M.K. Balan (deceased)] and only money had to be collected from him. PW11 has stated that on 30.12.2001, he saw three cars at the factory led by a Tata Sumo (recovered at the instance of A9), a Ford Escort Car (recovered at the instance of A4) and finally came the Zen Car (recovered at the instance of A3). Four persons identified as A4, A11, A16 and A17 brought the deceased out of the Ford Car. This takes place within hours of abduction on the same day. PW11 also speaks of three persons coming out of the Zen Car. PW10 also says that on 31.12.2001, he found that the deceased was tied-up with chain and his eyes were covered with a cloth and he had been made to sit on a green steel cot provided by them already. He was wearing black pant and sandal colour t-shirt. He has deposed that it was A5, A6, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajamani Chettiar expired and asked him to get a certificate. PW33 told about PW32 being known to him for the last fifteen years. He went to his place by auto. PW32 was there and he told him that a watchman in Kollathur Company had died. PW32 believed PW33 and gave it in writing in a letterhead. He gave it to A3. He identifies P27 as the certificate. He also identifies A3 and A13 (Samikannu). He states that the certificate is dated 01.01.2002 as he had asked so. He says that he is giving the deposition like this because he will lose his job if he does not do so. He did not identify A13 to the Police or the Magistrate in the TI Parade. He also says, inter alia, that it is false to say that Accused-Samipannu did not call him or take him to A3. He also says it is not correct to state that he is giving false deposition in the fear of losing his job. We see no reason to take a different view. The irresistible inference would be as follows: A3 engaged A13, and at the behest of A3, a certificate is issued by PW32-medical practitioner certifying that one Rajamani Chettiar had passed away on 01.01.2002. 91. Now, the next question to be decided would be whether such a person as Rajamani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A9 gave P37 statement. PW41 is a witness. Pursuant to the same, MO7-Maruti Omni Van, having golden colour and bearing No. TN22B8853, was recovered. PW18 is acquainted with A9 since childhood. He has deposed to giving MO7-golden colour Maruti Omni van to A9 four times. He has deposed that the last time he gave was on 01.01.2002 and it was not returned on the same day, as was the case on the earlier occasions, but was returned only on 02.01.2002. It is this van which has been used to take the body of the deceased away after the murder at the factory building. The evidence of PW11 and, more appropriately PW35-Police Constable, clinches the issue as to its use. v. The statement of A9 has also led to the recovery of a Tata Sumo and it stood marked as MO13. The number of the vehicle is TN04D9657. PW15 is the Dealer in cars, inter alia. He has deposed that he knew A9 for 30 years. He further deposed that A9 went to him for buying the Tata Sumo and gave advance of Rs. 15,000/- in September, 2001 and sold his Maruti Zen and took the Sumo. Later, he came, he left the Tata Sumo saying that it was not auspicious and took away the car. The Tata Sumo makes its appearance along with the Ford E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accused turning sour. PW10 purchased a Ford Escort car though in the name of one Ranjit Singh with whom he had business connections. The registration number of the car was TN-10F-5555. He speaks about his reconciliation with Uday Kumar. In 2001, Uday Kumar approached him and told him that he was to join ADMK with the help of the A3 for which he had to do certain works. For the same, he needed some houses. A search was mounted for an appropriate house. The third Accused comes upon the scene. PWs 10 and 11, along with Uday Kumar-A9 and A3, finally, finalise the vermicelli factory at Mudichur Road. He identified the third Accused. Instructions were given by the third Accused for a screen to be put up on the windows of the factory building. As ninth Accused asked for two cots, PW10 asked for two cots from one Guru, his friend. Chairs from the house of PW10, fan from the house of ninth Accused and bedpan were kept in the factory by PW10, A9 and PW11. Screen for the windows was put. Third Accused told PW34 to give a weeks' leave for the company. Believing that he would get rent, PW10, upon being asked for his Ford Escort car, sent the car to the house of the ninth Accused. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and took him (PW10) and A1 upstairs. There were about five or six persons. The deceased was tied up with the chair and his eyes were also closed with cloth. He had been made to sit on the green steel cot which was provided by them already. He was wearing black pant and sandal colour t-shirt. Navy blue shoes were lying in the room somewhere far away from the steel cot. A1 asked A9 to go to his house to get the recorded cassettes (two in number) and two empty cassettes from A2. This is besides the tape recorder. A3 approached PW10 and A9 to get the things. PW10 speaks about the A9 getting Philips two-in-one tape recorder from his house and two recorded cassettes from A2. Also, two empty cassettes were purchased from a shop. One person came from upstairs and A3 told him to remove the cloth tied around the eyes of the deceased. PW10 speaks about feeling frightened. A3 came to him and told him that he suspected only PW10 and his suspicion was that he would tell to somebody. A3, it is deposed, threatened PW10 that if he disclosed anything about the matter, he would actually kill him and his family members. A3 further stated that "we have kidnapped Ex. MLA Balan itself, you are nothing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that on 30th at about 8.30 am he went to get the key, from there he went back at 9.30 am. He did not go thereafter [which makes it clear that that PW10 indeed did go on 30th] as deposed by him in his cross examination. He, no doubt, says that till he was there a person called M.K. Balan was not brought there. He further says in his cross examination that he had given a cheque for the room rent for the hotel from which he has vacated on 02.01.2002. He states that he did not tell anyone outside about the matter, he had mentioned the police for the first time what he has seen on 01.05.2002. It was due to fear he did not say. He further says that after seeing the Police, his fear had gone. He further states that he denies having met Nakkeran Gopal and discussed with him. He no doubt says that if it is asked whether he is accurately aware of the incident that had happened in the factory from 31.12.2001, he did not know. About 15-20 days before 5.12.2001 he had seen A3. He saw A4 for the first time on 5.12.2001 at the house of the 3rd Accused. He says after hearing A3 telling the persons available there that the Ex. MLA M.K. Balan had to be brought and some money had to be collect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old A9 that the deceased had to give money and the same had to be collected by bringing him. He speaks about A3 going before them in the Ford Escort Car. He speaks about A12. He identifies A5 as the person who assisted A1 Senthil Kr. On 30.12.2001, at round 8.30 A.M., PW10 called him and asked him to go to the house of A9. He went there and saw that PW10 was not there. A9 took him in Tata Sumo and they were waiting at Mudichur Road Junction. After half an hour, the Ford Escort car came and A3 came out of the car and was talking to A9. A9 told him to take A3 by an auto and go to the factory. PW 10 and A5 was there at the factory. A3 saw him and asked A5 whether the company is ready? Then he took the company key from PW10 and gave the same to A5. After about half an hour, A9 called him over phone and told him to open the gate of the company. The Tata Sumo came first, followed by Ford Escort and Maruti Zen. Four persons got down from Ford car. Those four persons brought the deceased by closing his eyes, mouth and tying his hands and took him to the first floor. The deceased was wearing black colour pant, sandalwood colour t-Shirt and shoes. Three persons came out of the Zen. A9 came t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -9657 (MO13). PW11 speaks about him and PW10 being scared and they went back home. PW10 told him that he was called by A3 and told him that if this matter is leaked out anywhere, he will kill him and his family. This, in substance is, what PW11 has spoken in his chief examination. No doubt, in cross he states inter alia as follows: He has TV in his house. He did not know of news that deceased was missing was announced on TV. He has seen that in the paper. He did not see the deceased on 30.12.2001 at 10.30 A.M. in the upstairs of the vermicelli company. He has seen the deceased but he did not have any contact with him. PW10 had left (MO6)-CAR in the travels for rent. The house being selected and arrangements in the factory at Mudichur Road were known to him, A9, A3, PW34 and Venugopal PW 10 and the arrangement at the factory was known to PW10 and PW11 alone. He speaks about the cot being purchased from Nirmala industries on Shanmugham Road. He, A9 and PW10 has purchased the same. Three cots were purchased. The cot is of green colour and he could identify it. He reiterates that on 5.12.2001 he had been to the house of A3. The identification marks of the three persons seen in the ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e factory and as per the prosecution case PW10 and PW11 came to invest in the business of PW34 when he was undergoing financial problems. He states, inter alia, as follows: In 1999, he approaches A9 owing to some problems. He accepted PW10 and PW11 as partners. He has the entire responsibility of the company. PW10 and PW11 used to come occasionally and go. On 29.11.2001 at 6.00 P.M. PW10 and PW11 asked for company premises to conduct a meeting. He refused. They insisted. He locked the articles of the company in a room and handed over room in the upstairs and went away. They asked him not to come till the meeting was over. On December 5 they told him the meeting was not over. When looked inside the office they saw cot, dining table, chair, pedestal fan. On 10th, PW10 and PW11 brought a person and introduced him as Poonga Nagar Manickam-A3 and told them that he was a big shot. (It is true that PW10 places the meeting with PW34 as having taken place earlier.) He was a Secretary at the same time for two Districts. He was organising meeting and went immediately. On 30.12.2001, at 08.30 A.M., PW 10 brought a person by name Balamurugan-A5 and told him that a meeting was called and asked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness and refused him the place for holding the meeting to which PW10 insisted again. In the records there was nothing to show that PW10 and PW 11 were shareholders. YET ANOTHER INDEPENDENT WITNESS PW31 103. In context would be the deposition of a worker of PW34, Samundeswari examined as PW31. She says, inter alia, as follows: PW34 is the proprietor of the company. PW10 and PW11 became partners during 1999 and 16 persons are working. She was the supervisor. She speaks about attendance being maintained. The company was closed for a period of one week from 29.11.2001 treating as leave. Then they came to the company on 6th December. They were informed that there were no meeting convened. On 30th December she did not go for duty as it was Sunday. On 31st December, they were asked by PW34 to go to Ezhichur to dry up the vermicelli and to pack the same and on the 1st January the company was on leave. On 2nd January, PW 31, Nagarathinam and PW34 went and saw the company. The main gate was found locked. While returning after making a phone call, the owner found that the gate was not locked and only chain along with was put. When they went upstairs, the cot was found smashed and the ligh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are A4, A11, A16 and A17. A5 went in the zen car which left the company. He had given further statement on 05.04.2002 wherein he stated that if taken to his office, he will surrender the cassette, and bit paper given by A1 from the near side of his wife's photograph which are marked as MO28 and MO33. 105. The next circumstance appearing against the third Accused which corroborates the testimony of PW10 and PW11, is the circumstance relating to the creation of a false death certificate of the deceased. In our view, the prosecution has, indeed, succeeded in proving the following: At the instance of A3, PW32 (medical practitioner) who was known to PW33 was persuaded to issue a false certificate. The certificate was got issued in the name of a fictional person which is proved by the evidence of PW38 who has deposed that no such person (Rajamani Chettiar) who has been certified to have died by PW32 lived in the residence as reported. PW36-Office Assistant In-Charge of the Burial Ground has deposed that on 02.01.2002, PW19 told him after he (PW36) left, (apparently on the previous day) a body came and the Doctor's Certificate would be given on that day. The Certificate is P2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ging of vehicles, confinement and cremation, is crystal clear and his role in the murder is established. It is in this context that evidence of PW10 and PW11 falls to be appreciated. The evidence of PW34 clearly confirms clinchingly the role of A3 and sufficiently corroborates PW10 and PW11. We would arrive at the conclusion even excluding MO28 and MO33 as agreed to by the Counsel for the State. ACCUSED NO. 4 (A4) 107. A4 was arrested on 09.04.2002. He made a confessional statement-P34 witnessed by PW39. It led to the recovery of Ford Escort White Car TN1075554. PW10 deposed that he bought the same car though in the name of one Ranjit Singh. He further deposes that by the end of November, 2001, A9 called him over phone and asked him for the said Ford car. A9 asked for two or three months. PW10 believing that he will pay the rent, sent the car to the house of A9. The driver of A3-Viji came and took that car. The use of the said car is mentioned by PW10 thereafter by deposing that on 05.12.2001, A3 went out in the said car which had been given by him for rent. He also identified A4 as one among the three persons who followed them on that day. Thereafter, the said car makes its appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further reference to the key being handed over by PW34 to PW10. The key was handed over by PW10 to A3 who came in the auto. PW10 deposed about the key being given to A5. On the fateful day, on 01.01.2002, when the murder took place, PW10 has named A5 as going in a motorcycle to the company. It went inside and was standing in the light. A cloth bag was there in the bike. The body of the deceased was brought from upstairs by four persons. PW10 then deposes that a cloth was taken from the bag brought by A5 and tied around the body of the deceased like doing for a dead body. A5 is cited by PW10 as going in his motorcycle. 110. PW11 has also spoken about A3 telling them about the person. He identified him. He also says that A3 told that A1 is a VIP and only A5 will do everything for him and that they should not do anything (apparently directly). He notices presence of A5 along with PW10 on 30.12.2001 at the factory. A3 asked A5 whether the company is ready. A3 and A5 told that they were going to the house of A9 and went from there. He speaks about A5 going by the Zen car on 30.12.2001. Thereafter, about half-an-hour later, the Tata Sumo car came. In the same, A5 and three more persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of the factory later on 01.01.2002. PW10 and PW11 were asked to go away. He speaks about PW10 and PW11 being scared after the threat by A6. He further identifies A6, A7 and A11 as among the persons who were present near the deceased when he was tied up in the first floor of the factory. He also identified A6, A7, A8 and A11 as the persons who carried the dead body of the deceased. They go in the van with the body. At this juncture, it is apposite to notice PW18 deposing that he is the owner of van bearing No. TN 22-8853. He has deposed to giving the van to A9 on earlier occasions. More importantly, he has deposed to it being taken by A9 on 01.01.2002 at about 10 A.M. and it being returned only on 2.01.2002 and its seizure by the police on 30.03.2002. 112. Turning to PW11, the other accomplice, this is what he has deposed about the involvement of the Accused in question. PW11, for whatever it is worth in law, has also identified A6 and A11 as two out of the three persons who were in conversation at the residence of A3 on 05.12.2001. He has also spoken about A3 telling A9 that the deceased had to give some money and it has to be collected by bringing him. He also speaks about A6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrying dead body of the deceased on the fateful day in the van and their presence near the place where the deceased came to be cremated. To overlook the testimony of PW10 and PW11 in a case based on circumstantial evidence, being about matters which could not possibly, have been witnessed by any other witnesses other than the accomplices will be asking for the impossible except perhaps concocted evidence. 116. A6 was arrested on 19.03.2002. He gave P16 which is the admissible portion of his confession statement within the meaning of Section 27 of the Evidence Act. He identified the Maruti omni van bearing No. TN-0343 which was parked in front of the house of PW37 and seized under P17. The Maruti van itself has been marked as MO8 but we would exclude the same from consideration for reasons which we have discussed. 117. A7 was arrested on 20.03.2002. He gave the admissible portion of confession statement which is P38. PW42 is a Village Administrative officer who has witnessed the statement. On the basis of the statement, the green colour steel cot was seized. It is marked as MO11. It was produced and seized under P38 which is also witnessed by PW42. PW34 and PW31 have also spoken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved. A14 122. With regard to A14, his involvement in the matter emerges as one of the persons who stood in the upstairs of the building with the deceased when the deceased was in the state of illegal confinement. This, no doubt, is based on the testimony of PW10. No doubt, as far as A14 is concerned, there is no recovery. It is true that there is no direct evidence that the Accused abducted or murdered the victim. The case, as already noticed, hinges on circumstantial evidence. We do notice that A10 has been acquitted by the High Court. A10 himself was also named by PW10 as present along with A14 at the time of the illegal confinement. The High Court has, in paragraph 33, assigned cogent reasons for acquitting A10, including, inter alia, that PW11 though had identified A10 in the Test Identification Parade, could not identify him in the Court. The evidence against A14 has been believed in by both the Courts. A15 123. A15 is the sole Appellant in Criminal Appeal No. 828 of 2013. 124. PW3, the witness to prove the abduction has spoken about a motor cycle following the Omni van. He earlier deposes that he saw three persons were forcing a person to get into the van. A15 gave a st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is the same vehicle and he does, no doubt, say that the registration number of the vehicle was not in the said motorcycle. This means that the vehicle marked as MO10 is, indeed, the vehicle belonging to PW48. He makes it over to PW10. As requested by A9, PW10 handed it over to A9. It would appear that the registration number, as was originally seen on the motorcycle, has been changed. It is the motorcycle which was apparently seen by PW3 and used at the time of abducting the deceased. The vehicle has been recovered at the instance of A15. Even ignoring the shoe which is recovered on the basis of the statement, we would think that the evidence sufficiently implicates A15. A16 126. PW11 has deposed that they were amongst the four persons who brought the deceased in the Ford car on the 30.12.2001. Moreover, no doubt, in cross, he is unable to remember A16 which he persevered with the names of other three. But he does speak of his presence at the factory. Regarding A16, he was taken into custody, and on questioning in the presence of PW47 and another witness, he gave a confessional statement. He stated that if he is taken, he would produce the black bag, cell phone and knife from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deceased refused to give the same. He was asked to tell what is his property, and thereafter on 01.01.2002, the twelfth Accused, spoke over phone in the voice of Sasikala to the third Accused saying that if it is possible to get the money or else finish the matter and to meet her with the first Accused and the rest of the matter would be informed by the first Accused himself and accordingly what was stated by him was recorded in a tape recorder. The Accused on the same day evening at about 09 P.M., by strangulation, murdered the deceased and to screen the crime, the Accused had taken the body in a vehicle and cremated the body for which purpose a false death certificate was brought from PW32. THE ACQUITTAL OF A12 (ACCUSED NO. 12) 129. It must be remembered that A12 came to be charged Under Sections 419, 420 and 387 Indian Penal Code read with 109 of the Indian Penal Code. There is also a charge Under Section 120B of the Indian Penal Code against her, as already noticed by us. The Trial Court discusses the case against A-12 in the following manner inter alia: It is found that the twelfth Accused was an Anglo-Indian lady. On a perusal of P65 which is the confessional stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that she had done anything wrong and she was doing anything only as to what was stated by her husband and then she has been arrayed as A12. The Court goes on to find that she cannot be held guilty under the fourth charge which is framed Under Sections 419, 420 and 387 read with Section 109 of the Indian Penal Code. However, the Court proceeds to find Accused Nos. 1 and 2 had committed offences Under Sections 419 and 420 of the Indian Penal Code. 130. A12 was not labouring under any disability. We may have our reservation about exonerating A12 on the reasoning that as it was perceived to be a part of the duty of the wife in the Indian culture to obey her husband even when the demand of the husband is to commit a criminal act. We notice, however, that not only A12 was acquitted by the Trial Court but the appeal by the State against her acquittal has been dismissed by the High Court. The State has also not challenged her acquittal before this Court. No doubt A12 would be criminally liable for only those acts done with the requisite mens rea. Hence, we say no more. 131. What is, however, important is that it is not a case where the Court has not believed the version of the prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to A18. The second charge is about actual kidnapping (it must be understood as abducting). The abduction is alleged to be done by A4, A7, A10, A11, A14, A15, A16 and A17 in a Maruti Van bearing Registration No. TNA7484. A15 went in a Hero Honda Motorcycle to show the route. The deceased was kept at the factory belonging to PW34. The aforesaid Accused were charged Under Section 365 of the Indian Penal Code. For abetment of the said offences, A1 to A3, A5, A6, A8, A9 and A13 to A18 were charged Under Section 365 of the Indian Penal Code read with Section 109 of the Indian Penal Code for going in a car bearing No. TN10F5555. All the Accused, except A12 and A13, were charged Under Section 387 for tying the deceased with iron chain and rope in a cot and he was threatened to part with Rs. 16 crores or else execute the documents in regard to his properties. The fourth charge is to the effect that in order to fulfil such conspiracy, and in pursuance to the same, at the instance and the instigation of A1 and A2, A12 spoke to A3 in the voice of Sashikala uttering the words, if possible, to get the amount or else close him and come along with A1 and meet her-A12. Charges were accordingly fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, there is a principal player and the abettor. The principal player would be guilty for the acts or omissions which amount to offences under the law. The abettor though does not trigger the gun, if we may use the expression, "is the moving force behind it and becomes liable as such". 137. In this case, the Trial Court has proceeded to find the Appellants (except A5) guilty of the fifth charge Under Section 302 Indian Penal Code whereas the A1 and A2 have been found guilty of the charge of conspiracy Under Section 120B of the Indian Penal Code. In other words, the idea to commit the offences came into being in the minds of A1 and A2. The other players have been roped in on the basis of their acts which was in tune with the conspiracy hatched by A1 and A2. The acquittal of A12, who has been charged Under Section 120B of the Indian Penal Code and also for offences Under Sections 419, 420 and 387 of the Indian Penal Code read with Section 109 of the Indian Penal Code would not detract from the criminality of the acts committed by the other Accused and, in the facts of this case, we would think that there is no illegality involved in convicting the Appellants in the manner done Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. 139. This means that since Accused 1 and 2 are held guilty Under Section 120B of the Indian Penal Code to commit the murder of the deceased, they are to be punished as if they have abetted the said offence. The judgment of the trial Court is to be understood in the said vein. It is true that abetment by conspiracy is only one form of abetment. There can be alternate charges. There can be abetment by instigation and intentional acting even when there is no conspiracy and, therefore, no abetment by conspiracy. The fifth charge against A1, A2, A5, A9, A12 and A13 would be in the form of an alternate charge. We say this as A5 (Appellant before us) in Criminal Appeal No. 2008 of 2017 is charged and found guilty of murder Under Section 302 of the Indian Penal Code read with Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2001. It is also established that he was confined illegally at the upstairs portion of the factory at Moudihur owned by PW34. It is clear from the evidence that it was the body of the deceased which was cremated and a fictitious name was used and a certificate issued at the instance of A3(P27) which circumstance is clinching in establishing the prosecution case. As far as the murder is concerned, there is no direct evidence. There is no direct evidence that deceased is murdered by strangulating him. However, it is equally true that on the basis of recovery made at the instance of A16 a nylon rope and chain was recovered which undoubtedly strengthens the prosecution case. There cannot be medical evidence relating to murder in a case where the body stood cremated. We have no hesitation in ignoring the evidence relating to recovery of certain parts of the body of the deceased but that is not sufficient for the Accused to persuade us to throw out the prosecution case. A carefully thought out criminal plan has led to the cruel snuffing out of precious life. The players thought it through meticulously by destroying the corpus delicti by cremation. 142. The abduction followed by murder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the court to draw a different inference. 20. We have seriously bestowed our consideration on the arguments addressed by the learned Senior Counsel. We only reiterate the legal principle adumbrated in State of W.B. v. Mir Mohd. Omar [(2000) 8 SCC 382: 2000 SCC (Cri.) 1516] that when more persons than one have abducted the victim, who is later murdered, it is within the legal province of the court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder. Section 34 Indian Penal Code could be invoked for the aid to that end, unless any particular abductor satisfies the court with his explanation as to what else he did with the victim subsequently, i.e., whether he left his associates en route or whether he dissuaded others from doing the extreme act etc. etc. 21. We are mindful of what is frequently happening during these days. Persons are kidnapped in the sight of others and are forcibly taken out of the sight of all others and later the kidnapped are killed. If a legal principle is to be laid down tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the inference is reasonably certain that the boy was killed by the kidnappers unless they explain otherwise. 36. In this context we may profitably utilise the legal principle embodied in Section 106 of the Evidence Act which reads as follows: "When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. 37. The Section is not intended to relieve the prosecution of its burden to prove the guilt of the Accused beyond reasonable doubt. But the Section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the Accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference. 144. The deceased was brought in a Ford Escort car. He was brought by A4, A11, A16 and A17. It is to be remembered that the case of the prosecution is that except A12, A4 to A18 were the henchmen of A3. We have referred to the evidence against A6, A11 and A16. There are material other than the deposition of PW11. We hold that the accomplices are credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titious name of the abducted person is clear. Not only there is evidence of PW10 and PW11 but other evidence which includes PW32, PW33, PW36 and PW8. 149. As far as A7 and A14 are concerned, they have also been convicted Under Section 365 and also Under Section 364. The involvement of A7 is clear. He makes his maiden appearance in the accomplice evidence as early as on 05.12.2001. PW10 has witnessed him standing along with certain other Accused by the side of the deceased who was then clearly in the state of illegal confinement. He further establishes his complicity by bringing down the body of the deceased on 01.01.2002 along with three others. His role is also corroborated by the testimony of PW21 and PW35, Police officers. 150. A7 and A14 we would think ought to have been convicted Under Section 365 read with Section 109 of the Indian Penal Code. We notice that A3, A5, A6 and A8 stood convicted Under Section 365 read with Section 109. We notice however that the charge as against A7 and A14 was Under Section 365. We further notice the charge as against A14 is concerned is also Under Section 365 read with Section 109 of the Indian Penal Code. As already noticed all the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bered, that essence of abduction is forced movement, inter alia, from any place. The offence would be committed by anyone who effects such abduction at any or all points of the route. We have already noticed that in a given case, an abduction may attract both Sections 364 and 365. The distinguishing feature between the two kinds of abduction, is the difference in the intent with which the abduction, inter alia (as Sections 364 and 365 also deal with kidnapping), is carried out. But so far as the intention attracts both provisions in a given case, conviction under both Sections is not impermissible. However, when some of the Appellants are convicted Under Section 365 simpliciter and others are convicted Under Section 365 read with Section 109, then the position of those Accused/Appellants in regard to conviction Under Section 364 must also be the same. However, this difference in our approach in the matter of conviction Under Section 364, cannot advance the case of the Appellants, as abduction whether it is with the aid of Section 109 or which is Under Section 364 simpliciter, enables the Court to raise the presumption of murder, in the absence of any explanation offered within the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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