TMI Blog2020 (6) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence. There is no direct evidence that deceased is murdered by strangulating him. However, it is equally true that on the basis of recovery made at the instance of A16 a nylon rope and chain was recovered which undoubtedly strengthens the prosecution case. There cannot be medical evidence relating to murder in a case where the body stood cremated - there are no hesitation in ignoring the evidence relating to recovery of certain parts of the body of the deceased but that is not sufficient for the Accused to persuade us to throw out the prosecution case. A carefully thought out criminal plan has led to the cruel snuffing out of precious life. The players thought it through meticulously by destroying the corpus delicti by cremation. The abduction followed by murder in appropriate cases can enable a court to presume that the abductor is the murderer. Now the principle is that after abduction, the abductor would be in a position to explain what happened to his victim and if he failed to do so, it is only natural and logical that an irresistible inference may be drawn that he has done away with the hapless victim. Section 106 of the Evidence Act would come to the assistance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no scope for either 120B or 149 - it is found that that the accomplice witnesses, who have been relied upon by two courts, are to be treated as credible witnesses and, even in the absence of corroborative evidence, in the facts and circumstances of this case, we see no reason to disturb that conviction. If that is so, even in the absence of any direct evidence relating to murder, the presumption of murder, being committed by the Appellants before us, would apply. In fact, the courts below have drawn a presumption about murder being committed. This is a presumption which cannot be said to be drawn without any basis. Having regard to the facts and circumstances before us, we are of the view that it cannot be contended that no case is made out against the Appellants. Appeal disposed off. - CRIMINAL APPEAL NOS. 403 OF 2010, 827, 828 OF 2013, 1504, 2006-2007 AND 2008-2009 OF 2017 - - - Dated:- 3-6-2020 - ROHINTON FALI NARIMAN, K.M. JOSEPH AND V. RAMASUBRAMANIAN, JJ. For Appearing Parties: P.V. Yogeswaran, Ashish Kumar Upadhyay, Y. Lokesh, V. Susheatha, Babul Kumar, P. Abinesh Karthik, Arun Singh, V. Keerthana, B. Karunakaran, M. Tabish Zia, Anirudh J., S. Gowtham ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a large number of witnesses. It is, as noted, on 12.01.2002, further investigation was taken over by PW67-Deputy Superintendent of CBCID. The evidence of PW67 would show that from 13.01.2002, the Officer has examined several witnesses. According to the prosecution, the breakthrough came on the basis of information, as per which, the A5 (fifth Accused) came to be arrested on 18.03.2002. On the very next day, A6 came to be arrested. Still, within the space of twenty-four hours, viz., on 20.03.2002, A7 came to be arrested. A8 was arrested on 22.03.2003. A1 was arrested on 23.03.2002. A3 was arrested on 25.03.2002. A4 came to be arrested on 09.04.2002. A15 was arrested on 25.04.2002. It is the prosecution case that the Accused made confessional statements within the meaning of Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as 'the Evidence Act', for short) yielding information leading to recoveries. It is the case of the prosecution that the deceased had been abducted (though it is shown as kidnapped) on 30.01.2002, taken and kept in a factory premises which belonged to PW34-Krishna Pandi with whom PW10 and PW11 had become partners. A huge sum, running ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t upon such conspiracy on 30.12.01 early morning, he was kidnapped near MRC Nagar and he was illegally kept at T.K.P. Vermicelli factory at Mudichur and on account of committing him murder on 1.1.02 night at about 9:00 p.m., thereby a charge Under Section 120B Indian Penal Code has been framed as against the Accused 1 to 18 in this case. Secondly for the purpose fulfilling the object of such conspiracy, while the said Ex. M.L.A.M.K. Balan was walking in the morning on 30.12.01 near MRC Nagar, at the knife point he was kidnapped near Iyyapan temple at about 5.30 am by the Accused 4, 7, 10, 11, 14, 15, 16 and 17 in the Maruti van bearing Regn. No.: TN-A-7484 and at that time the 15th Accused went in front of that van in a Hero Honda to show the route for them and lastly the said M.K. Balan was kept illegally at Vermicelli factory belonging to one Krishnapandi at Mudichur road, thereby the said Accused have been charged Under Section 365 Indian Penal Code and for abetment of the said offence the Accused 1, 2, 3, 5, 6, 8, 9 and 13 to 18 Accused in going in a car bearing Regn. No.: TN-10-F-5555 have been charged Under Section 365 read with Section 109 Indian Penal Code. Thirdl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 201 Indian Penal Code. 5. The prosecution has sought to discharge its burden by examining 67 witnesses. It has also produced and proved a large number of documents (P1 to P86) and also material objects (MO1 to MO39). Five witnesses were examined by the Accused. D1 to D8 were proved on their behalf. The Trial Court, on appreciation of the evidence, found merit in the case of the prosecution, except in regard to the A12 and A18. Resultantly, the Trial Court convicted the Accused as follows: (i) A1 and A2 were found guilty of the offences Under Sections 120B of The Indian Penal Code, 1860 (hereinafter referred to as 'the IPC', for short), Section 365 read with Section 109 of the Indian Penal Code, Section 387 of the Indian Penal Code, Section 302 read with Section 109 of the Indian Penal Code, Section 347 read with 109 of the Indian Penal Code and Under Section 364 read with Section 109 of the Indian Penal Code. (ii) A3 is found to have acted upon the conspiracy of A1 and A2. He was found guilty of the offences Under Section 365 read with Section 109 of the Indian Penal Code, Section 387 of the Indian Penal Code, Section 302 of the Indian Penal Code, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as acquitted of all the charges; (x) A14, A15, A16 and A17 were convicted 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 and the charge Under Section 120B of the Indian Penal Code was found not proved against them and they stood acquitted. 6. It is necessary to notice the details of the findings against each of the Accused (Appellants): 211. The Accused 3, 6 and 8 for having abetted the crime of conspiracy of the Accused 1 and 2, on 30.12.01 at about 5:30 a.m. the former M.L.A.M.K. Balan was kidnapped and kept in a secret place at Vermicelli factory at Mudichur road, Tambaram, committed the offence Under Section 365 read with 109 Indian Penal Code and for having made an attempt to extract money or property from the said M.K. Balan, former MLA, committed the offence Under Section 387 Indian Penal Code and when it was not able to get the same, by committing the murder of the said M.K. Balan, committed the offence Under Section 302 Indian Penal Code and before committing murder him, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 364 Indian Penal Code and after the murder of the said M.K. Balan, former MLA, the body was cremated at the crematorium at Erukkancherry, Perambur and with a view to screen the traces and giving false information, committed the offence Under Section 201 Indian Penal Code and accordingly he is found guilty of the above said offences. 214. The 7th, 10th, 11th and 14th Accused were charged for the offences for having colluded with the Accused 1 and 2 in fulfilling their conspiracy by stating that on 30.12.01 at about 5.30 a.m. the former M.L.A.M.K. Balan was kidnapped and kept in a secret place at Vermicelli factory at Mudichur road, Tambaram, committed the offence Under Section 365 read with 109 Indian Penal Code and for having made an attempt to extract money or property from the said M.K. Balan, former MLA, committed the offence Under Section 387 Indian Penal Code and when it was not able to get the same, by committing the murder of the said M.K. Balan, committed the offence Under Section 302 Indian Penal Code and before committing murder him, for having kept him in a secret place unlawfully and illegally, committed the offence Under Section 347 Indian Penal Code and for h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- in default to undergo two years RI 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. 10000/- in default to undergo one year RI each and that the total fine amount imposed on them each Rs. 80000/- (Rupees eighty thousand only) and that it is ordered that all the sentences imposed on these Accused shall run concurrently. 221. The 4th Accused is convicted for the offence Under Section 365 Indian Penal Code and sentenced to undergo 7 years RI and to pay fine of Rs. 5000/- and in default to undergo one year RI and convicting him for the offence Under Section 387 Indian Penal Code and sentenced to undergo 7 years RI and to pay fine of Rs. 5000/- in default to undergo one year RI; that convicting him for the offence Under Section 302 Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs. 50,000/- convicting him for the offence Under Section 347 Indian Penal Code and sentencing him to undergo 3 years and to pay fine of Rs. 5000/- in default to undergo six months RI; convicting him to undergo 10 years RI and to pay fine of Rs. 5000/- in default to undergo 2 yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on him in this case shall run concurrently (total fine amount is Rs. Seventy thousand only). 224. Further the 13th Accused is convicted for the offence Under Section 365 read with 109 Indian Penal Code and sentenced to undergo 7 years RI and to pay fine of Rs. 5000/- in default to undergo one year RI; convicting the Accused for the offence Under Section 302 read with 109 Indian Penal Code and sentencing him to undergo life imprisonment and to pay fine of Rs. 50000/- and also convicting him for the offence Under Section 347 Indian Penal Code and sentencing him to undergo 3 years RI and to pay fine of Rs. 5000/- in default to undergo six months RI; convicting him for the offence Under Section 364 Indian Penal Code and sentencing him to undergo 10 years RI and to pay fine of Rs. 5000/- in default to undergo two years RI; convicting him for the offence Under Section 201 Indian Penal Code and sentencing him to undergo 7 years RI and to pay fine of Rs. 10000/- in default to undergo one year RI as ordered. All the sentences imposed on him shall run concurrently. (Total fine amount imposed on this Accused is Rs. Seventy five only). It is further ordered that this 13th Accused shall un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had contracted an inter-religious marriage with A12. They hit upon the idea of abducting the deceased and to compel him to part with a large sum of money (Rs. 16 crores) and, in case he refused, to do away with him. It is pointed out that the Trial Court has disbelieved the case of the prosecution relating to criminal conspiracy which culminated in the court acquitting A12 of the charge against her. The Appellant also stood acquitted Under Section 120B of the Indian Penal Code. The entire edifice of the prosecution case was built on the alleged criminal conspiracy which involved A12. Once this edifice was knocked out by the acquittal of A12, the superstructure sought to be built by the prosecution must necessarily fall to the ground. 12. Next, it is pointed out that the prosecution case is otherwise based on the testimony of PW10 and PW11. He would point out that PW10 and PW11 were unreliable witnesses. It is clear that PW10 and PW11 were accomplices. They were untrustworthy witnesses. It is pointed out that it is settled law that the court would not act on the deposition of accomplices unless they are found reliable and, furthermore, there is corroboration of their testimony ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identified. The Motorcycle, which was recovered, again was not identified. The recovery was also not proved, he contends. The prosecution has failed to prove that A3 brought the deceased to the factory. PW34, on whose testimony prosecution has placed considerable reliance, is also an accomplice. He drew our attention to the judgment (2016) 16 SCC 355 of Justice Arun Mishra in paragraph 115, which reads as follows: 115. With respect to charge of murder against A-3 and A-4 it is apparent that MO 31 is in the handwriting of A-1. It was read out by A-12 and heard by A-3 and was acted accordingly. Evidence of Sahul Hameed, PW 47 also proves recovery of chain with which M.K. Balan was tied and that of other articles. It is apparent that M.K. Balan was abducted. There was an attempt to extract money when it was not possible, he was murdered in factory premises. The Appellants were charged for committing the murder by putting nylon rope around his neck and tightening it. Though there is no direct evidence with respect to that but it can be inferred in the circumstances that they committed the offence of murder also. Once they had abducted M.K. Balan it was for them to explain how the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d submit that the body of the deceased itself is not found or not produced, and therefore, the case of the prosecution cannot be accepted. There is evidence to show that for a person above 60 years, a death certificate is not required for conducting cremation. This is the submission made in the context of evidence relied on by both the courts and also a learned Single Judge of this Court to conclude that A3 was involved in procuring a false death certificate. According to the prosecution, PW32-Doctor was approached by PW33 at the instance of A3. It was mentioned to the Doctor that another person had passed away. Believing PW33, PW32-Doctor has deposed that he gave a death certificate. According to PW19, the dead body was cremated in the night on 01.01.2002. The death certificate is, no doubt, dated 02.01.2002. [But what weighed with the courts is the role played by A3 in setting up a false case that a person, other than deceased, involved in this case, had passed away and securing a death certificate which paved the way for cremation of the body of the deceased resulting in the destruction of the evidence relating to the body of the deceased]. 16. Learned Counsel for the A3 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 52. He pointed out that Justice Arun Mishra, has proceeded on the basis that a confession Under Section 164 of the Code of Criminal Procedure is a substantive piece of evidence, which, it is not. In this regard, our attention is drawn to the judgments of this Court. In George and Ors. v. State of Kerala and Anr. (1998) 4 SCC 605, it was held as follows: 36. We may now turn to the evidence of PW 50, detailed earlier. From the judgment of the trial court we notice that the substantial parts of its comments, (quoted earlier) are based on his statement recorded Under Section 164 Code of Criminal Procedure and not his evidence in court. The said statement was treated as substantive evidence; as would be evident from the following, amongst other observations made by the learned trial court: If Ext. P-42 (the statement recorded Under Section 164 Code of Criminal Procedure) is found to be a genuine statement it can be used as an important piece of evidence to connect the Accused with the crime. In making the above and similar comments the trial court again ignored a fundamental Rule of criminal jurisprudence that a statement of a witness recorded Under Section 164 Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vijayan in the test identification parade but for the reasons already advanced while discussing the evidence of PWs 3 and 9, the identification of the Accused in the test identification parade cannot be relied upon. The High Court unfortunately appears to have taken a view that the identification of the Accused by PW 4 in the test identification parade should be relied upon. We are unable to agree with this conclusion particularly when it is apparent from the prosecution material that much before the holding of the test identification parade, the photograph of the Accused Vijayan had been published in the newspaper and because of a certain sensation in the locality, it had a lot of publicity and there was sufficient opportunity for the witnesses being shown the Accused person. In this view of the matter, in our considered opinion, the High Court erroneously interfered with the conclusion of the learned Sessions Judge in this regard and came to hold that the identification of Vijayan by PW 4 could be relied upon. We have examined the evidence of the said PW 4 in great detail and we are unable to subscribe to the view the High Court has taken on the evidence of the aforesaid witness. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem from approaching the law enforcement authorities. Their evidence, therefore, should not inspire the confidence of the court. He would point out that PW10 and PW11 were in police custody for about more than two months. They would have bargained with the police and their testimony is suspect. The TIP was held after 45 days on 24.05.2002. He would point out contradiction between the testimony of PW10 and PW11. In other words, he would point out that leave alone corroboration from other evidence available on record, there is no corroboration of evidence of PW10 even from the evidence of PW11 as their deposition reveal contradictions. The learned Counsel otherwise adopts arguments of A3. 25. Substantially, similar arguments are addressed in regard to A5 as in respect of A3. It is also contended that PW67 was aware of the involvement of all and the evidence of PW10 and PW11 was unreliable. CRIMINAL APPEAL NO. 1504 OF 2017 26. Herein the Appellant is A6. The learned Counsel for the Appellant would address the following submissions. He would submit that there are four circumstances used against A6. It is first sought to be contended by the prosecution that A6 was seen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gating Officers consequent upon the fact that the case attracted considerable publicity as a result of the Habeas Corpus Petition being filed in the High Court. He would submit that PW67-Investigating Officer, after the arrest of A5 on 18.03.2002, was completely aware of involvement of all the persons. 28. It is also the case of the Appellant-A15 that no reliance could be placed on the recovery of the shoe when PW1-son of the deceased, has himself deposed that the shoe which is recovered was not the one which was worn by his father. It is also the contention that PW31 has not been able to identify the person who took away allegedly the shoe from the factory. 29. Per contra, the learned Counsel appearing on behalf of the State would begin by submitting that PW10 and PW11 were not accomplices. Their evidence would, therefore, not require corroboration. He tried to make good this submission by pointing out that qua the offence Under Section 302 of the Indian Penal Code, PW10 and PW11 had no involvement and the mere fact that they were familiar with the developments leading to the murder and other acts of the Accused, they could not be treated as accomplices. He would point o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at is sought to be espoused by the learned Counsel for the State. SECTIONS 120A, 107, 108, 109, 141 AND 149 OF THE INDIAN PENAL CODE 30. Section 120A of the Indian Penal Code defines criminal conspiracy , which reads as follows: 120A. Definition of criminal conspiracy.-- When two or more persons agree to do, or cause to be done,-- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. 31. Section 141 of the Indian Penal Code falls under Chapter VIII, viz., offences against the public tranquillity. Section 141 defines unlawful assembly as assembly of five or more persons, the common object of the persons being any one of the five mentioned thereunder. It includes the common object to commit any mischief or criminal trespass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not itself provide for the punishment, this Court held as follows: 7. ... There is a clear distinction between the provisions of Sections 34 and 149 of the Indian Penal Code and the two Sections are not to be confused. The principal element in Section 34 of the Indian Penal Code is the common intention to commit a crime. In furtherance of the common intention several acts may be done by several persons resulting in the commission of that crime. In such a situation Section 34 provides that each one of them would be liable for that crime in the same manner as if all the acts resulting in that crime had been done by him alone. There is no question of common intention in Section 149 of the Indian Penal Code. An offence may be committed by a member of an unlawful assembly and the other members will be liable for that offence although there was no common intention between that person and other members of the unlawful assembly to commit that offence provided the conditions laid down in the Section are fulfilled. Thus if the offence committed by that person is in prosecution of the common object of the unlawful assembly or such as the members of that assembly knew to be likely to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, that a person charged with an offence read with Section 149 cannot be convicted of the substantive offence without a specific charge being framed as required by Section 233 Code of Criminal Procedure. 36. Section 107 falls in Chapter V of the Indian Penal Code. It reads as follows: 107. Abetment of a thing.--A person abets the doing of a thing, who-- (First) -- Instigates any person to do that thing; or (Secondly) --Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly) -- Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation I.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession. 'A' induces 'B' to believe that the property belongs to 'A'. 'B' takes the property out of Z's possession, in good faith, believing it to be A's property. 'B', acting under this misconception, does not take dishonestly, and therefore does not commit theft. But 'A' is guilty of abetting theft, and is liable to the same punishment as if 'B' had committed theft. 41. Thus, Explanation (3) constitutes an exception to the main provisions of Section 108 of the Indian Penal Code. 42. Abetment of an offence being an offence, the abetment of such abetment is also an offence under Explanation IV. Explanation V makes it clear that it is not necessary to the commission of offence of abetment by conspiracy that the abettor should concert the offence with the person who commits and it is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. The illustration under Explanation V is as follows: 'A' concerts with 'B' a plan for poisoning 'Z'. 'A' was to under the agreement administer the poison. 'B' then explains the plan to 'C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ace in pursuance of the conspiracy and in order to the doing of the thing conspired for. But in the offence of criminal conspiracy the very agreement or plot is an act in itself and is the gist of the offence. Willes, J. observed in Mulcahy v. Queen [(1868) LR 3 HL 306 at 317]: When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means. Put very briefly, the distinction between the offence of abetment under the second Clause of Section 107 and that of criminal conspiracy Under Section 120-A is this. In the former offence a mere combination of persons or agreement between them is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for; in the latter offence the mere agreement is enough, if the agreement is to commit an offence. 45. Section 109 of the Indian Penal Code provided for the punishment of abetment if the act abetted is committed and where there is no express provision made for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conspiracy for the doing of that thing provided an act or illegal omission takes place in pursuance of the conspiracy. 49. As far as the last part of the Explanation to Section 109 of the Indian Penal Code is concerned, which speaks about an act or offence being committed in consequence of abetment being committed with the aid which constitutes abetment, it is relatable to thirdly Under Section 107 of the Indian Penal Code. Section 107 of the Indian Penal Code under this head requires intentional aiding by the act or illegal omission. Instigation takes place in terms of Explanation I to Section 107 of the Indian Penal Code when (i) a person by wilful representation; (ii) by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures or attempts to causes or procure a thing to be done and he would be guilty of instigating the doing of that thing. Explanation (2) to Section 107 declares that whoever, either prior to or at the time of the commission of the act, does anything in order to facilitate the commission of that act and thereby facilitate its commission, is said to aid the doing of that act. Thus, anything done which facilitates th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ... 53. Thus, to sum-up, abetment, as defined is a substantive offence. The punishment for it varies according to different circumstances. If the act which is abetted is done in pursuance to the abetment, the punishment is graver, as can been seen from Section 109 of the Indian Penal Code, as the punishment is for the offence which is committed based on the abetment. The offence of abetment is punishable even if the act which is abetted is not committed. As noted, Sections 115 and 116 provide for punishment in such cases. There are several other aspects relating to offences including Section 114 of the Indian Penal Code which provides cumulative punishment for the act abetted and also for the act done. 54. At the heart of the offence of abetment, however, is the presence of any of the three requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegal, by illegal means. It differs from other offences in that mere agreement is made an offence even if no step is taken to carry out that agreement. Though there is close association of conspiracy with incitement and abetment the substantive offence of criminal conspiracy is somewhat wider in amplitude than abetment by conspiracy as contemplated by Section 107 Indian Penal Code...... THE APPROACH OF THE TWO LEARNED JUDGES THE APPROACH OF JUSTICE V. GOPALA GOWDA 56. The learned Judge proceeds to find that PWs 10 and 11 are accomplice witnesses. The two tests to test accomplice evidence are referred to, viz., that the evidence must be credible and, secondly, there must be corroboration of accomplice evidence. The learned Judge noted that PWs 10 and 11 have not been granted pardon by any court but further notes that the mere fact that pardon was not tendered, did not make the accomplice cease to be an accomplice. It was further found that it was a well-settled position of law that the evidence of two accomplices cannot be used to corroborate with each other as laid in R.V. Baskerville 1916 (2) KB 658. Support in this regard was sought from precedent in India in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was recovered, was brushed aside by noticing that the courts had failed to consider that PW31-a worker in the factory, has stated that she could not remember the person who came to get it as there is lapse of more than two years. Therefore, PW31 cannot be used against A15. PWs 1 and 2 in their testimony (the son and driver, respectively, of the deceased) stated that the Reebok Shoes did not belong to the deceased. Evidence of PWs 10 and 11 was not found reliable. Finding the Accused not guilty Under Section 120B of the Indian Penal Code, the learned Judge noted that it was the duty of the Trial Court to establish the involvement of each of the Accused persons individually for each offence for which they have been charged. Reference was made to Section 107 of the Indian Penal Code, and thereafter, to the judgment of this Court in Kehar Singh and Ors. v. State (Delhi Administration) (1988) 3 SCC 609 that something more than a mere conspiracy, viz., some act or illegal omission in pursuance of the conspiracy, is required to be established for abetment by conspiracy. Once a charge Under Section 120B of the Indian Penal Code fails, what was needed to convict the Appellants was the ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the abduction of the deceased has been made and money remains to be collected. Thereafter, the learned Judge discusses evidence relating to taking of the deceased to the factory premises. In this regard, apart from PWs 10 and 11, the learned Judge refers to the evidence of PW56 also. In regard to the commission of offence Under Section 302 of the Indian Penal Code, it is found that abduction is proved and the deceased was murdered soon after abduction in two days and the body cremated under the name of a fictitious person. The learned Judge finds that in the aforesaid circumstances, it is for the Accused person to satisfy the Court how the abducted victim was dealt with by them. Undoubtedly, he noted that there is no direct evidence with respect to the murder by putting nylon rope around the neck and tightening it but it can be inferred, in the circumstances, that they committed the offence of murder also. There is evidence which clearly indicated that the dead body of the deceased was taken from the factory. Thereafter, the Court discusses again evidence of PWs 10, 11, 21 and 35 in regard to the removal of the dead body from the factory premises. Next, the learned Judge discusse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were used in the offence including the Ford Escort Car and one motorcycle. As regards the recovery of the remains from the cremation ground not being proved to be that of the deceased, it was found that as the case of the prosecution, the body was fully burnt, their seizure and forensic report was of no value. This broadly is the basis for the learned Judge to uphold the conviction. ACCOMPLICE EVIDENCE 59. Section 133 of the Evidence Act declares that an accomplice is a competent witness and further that a conviction based on the uncorroborated testimony of an accomplice is not illegal only on account of it being so. Section 133 reads as follows: 133. Accomplice.- An accomplice shall be a competent witness against an Accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. 60. It is apposite to notice Section 114 of the Evidence Act, Illustration 'b', the Court may presume: (b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars. 61. Thus, there appears to be a contradiction between these provisions. The matter is no longer res integr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing says: Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case; it would be merely confirmatory of other and independent testimony. (Baskerville case [(1916) 2 KB 658 : (1916-17) All ER Rep 38 (CA)], All ER p. 42 B-C) 39. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it. 40. Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the Accused with it by confirming in some material particular the testimony of the accomplice or complainant that the Accused committed the crime. This does not mean that the corroboration as to identification must extend to all the circumstances necessary to identify the Accused with the offence. Again, all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness's story that the Accused was the one, or among those, who committed the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r convicting an Accused. 66. As laid down by this Court, every material circumstance against the Accused need not be independently confirmed. Corroboration must be such that it renders the testimony of the approver believable in the facts and circumstances of each case. The testimony of one accomplice cannot be, ordinarily, be supported by the testimony of another approver. We have used the word 'ordinarily' inspired by the statement of the law in paragraph-4 in K. Hashim (supra) wherein in this Court, did contemplate special and extraordinary cases where the principle embedded in Section 133 would literally apply. In other words, in the common run of cases, the Rule of prudence which has evolved into a principle of law is that an accomplice, to be believed, he must be corroborated in material particulars of his testimony. The evidence which is used to corroborate an accomplice need not be a direct evidence and can be in the form of circumstantial evidence. ACCOMPLICE AND APPROVER 67. An accomplice is in many cases, pardoned and he becomes what is known as an approver. An elaborate procedure for making a person an approver, has been set out in Section 306 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted through the State and the police machinery would have custody of the person. Though, Section 164 does provide for safeguards to ensure that the statement or a confession is a voluntary affair it may turn out to be otherwise. We may advert to statements of law enunciated by this Court over time. 69. As to the importance of the evidence of the statement recorded Under Section 164 and as to whether it constitutes substantial evidence, we may only to advert to the following judgment, i.e., in George and Ors. v. State of Kerala and Anr. AIR 1998 SC 1376: In making the above and similar comments the trial Court again ignored a fundamental Rule of criminal jurisprudence that a statement of a witness recorded Under Section 164, Code of Criminal Procedure, cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him. 70. What is the object of recording the statement, ordinarily of witnesses Under Section 164 has been expounded by this Court in R. Shaji v. State of Kerala AIR 2013 SC 651: 15. So far as the statement of witnesses recorded Under Section 164 is concerned, the object is two fold; in the first place, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence by this Court in a criminal appeal by special leave may be summarised as follows: (1) that this Court would not interfere with the concurrent finding of fact based on pure appreciation of evidence even if it were to take a different view on the evidence; (2) that the Court will not normally enter into a reappraisement or review of the evidence, unless the assessment of the High Court is vitiated by an error of law or procedure or is based on error of record, misreading of evidence or is inconsistent with the evidence, for instance, where the ocular evidence is totally inconsistent with the medical evidence and so on; (3) that the Court would not enter into credibility of the evidence with a view to substitute its own opinion for that of the High Court; (4) that the Court would interfere where the High Court has arrived at a finding of fact in disregard of a judicial process, principles of natural justice or a fair hearing or has acted in violation of a mandatory provision of law or procedure resulting in serious prejudice or injustice to the Accused; (5) this Court might also interfere where on the proved facts wrong inferences of law have been drawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 imprisonment for a term which may extend to ten years, and shall also be liable to fine. 76. The offence of abduction is described in Section 362 of the Indian Penal Code and it reads as follows: Abduction.- Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. It is to be distinguished from kidnapping which is of two kinds as stated in Section 359 of the Indian Penal Code, viz., kidnapping from India and kidnapping from lawful guardianship. Both kidnapping and abducting, are referred to in Sections 364 and 365 of the Indian Penal Code. 77. Section 365 of the Indian Penal Code reads as follows: 365. Kidnapping or abducting with intent secretly and wrongfully to confine person. --Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the deceased. He has deposed, inter alia, as follows: His father is an MLA of Saidapet Constituency. He is Director of Mahilapur Hindu Saswatha Nidhi Limited for a period of ten years. He used to go walking in the morning as he was suffering from diabetes. He used to leave the house at 05.30 A.M. in the morning for walking in MRC Nagar near Ayyapan Temple and return home at about 07.30 A.M.. He also used to go for walking in the morning along with one Ramesh residing near their house. On 30.12.2001, his father went for walking at about 05.30 A.M.. Normally, his father used to wear t-shirt, black track pant and black shoes. The shoes were of one Reebok company. He did not return home on 30.12.2001. He went in search of his father. He contacted his friends. Then, he went and lodged a complaint marked as Exhibit PSEI. In cross-examination, PW1 deposed that he did not state that his father used to walk by using the Reebok shoes. The shirt and the pant were not shown to him by the Crime Branch who investigated him. The Police asked him to remove certain averments made by him in his complaint. The complaint, after removal of the averments, is PSE1. He went, at 08.00 P.M., to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deceased informed him that her husband has not returned home after he had gone for walking. He says, to his knowledge, he did not know about the fact that deceased went for walking on that day. After 29.12.2001, he has not seen the deceased. 85. PW3 is another key witness produced by the prosecution to prove the aspect of abduction. He is a native of Sri Lanka. He came to Chennai in 1991. In 2001, he used to practice wrestling. He would do skipping and running along with others at MRC Nagar. His wrestling master is Selvaraj. On 30.12.2001, at about 05.30 A.M., as usual, he started to run. At that time, at a distance of about 75 meters, he saw three persons forcing a person to get into a van. Thereafter, all of them went in the same van. It was an Omni Van. A motorcycle followed that van. Thereafter, his friend Selvam came there. He told this to him. He told Selvaraj Master. Selvaraj Master told him why should we bother about others. He has stood by his statement in the cross-examination. He, no doubt, inter alia says that in December, the sunrise will be late and that 05.30 A.M. will be dark. He saw the incident at a distance of 75 meters as there was street light. No d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und 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, A7, A8, A10, A11 and A14, who were present. Still further, he says that A3 threatened him that he would kill him and his family members if he discloses anything about the matter. He further stated that we had kidnapped ex-MLA Balan itself, you are nothing to me . Unless PW10 and PW11, PW3 and PW13 are disbelieved, the conclusion is inevitable that the deceased was indeed abducted. The trial court finds that no one else was kidnapped on the same day. The Trial Court finds that A3, A4 to A8, A10, A11 and A14 to A17 kidnapped the deceased (A10 stands acquitted by the High Court). THE CIRCUMSTANCES RELATING TO OBTAINING OF FALSE DEATH CERTIFICATE 89. PW32-a Medical Practitioner has proved Exhibit-P27-Death Certificate. He has deposed that PW33-Kamaraj, who was working in the Government General Hospital, Chennai and acquainted with him for fifteen years, came to him. He deposed that PW33 told that one person known to him, viz., Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Chettiar had indeed passed away and whether he was residing at the place reported? PW38 has deposed that no person, as shown in the Certificate, died. Then, PW36-Office Assistant In-Charge also supported the prosecution version. It is to be noted that going by the evidence of PW32 and PW33, A3 wanted such a certificate. The evidence of PW19 does support the prosecution case though he may not have identified the '8' persons who came. The Trial Court, noted that he had identified them in the Test Identification Parade. It is clear as daylight that the person cremated on 01.01.2002 by PW19 and PW12 late in night was the deceased under a fake name though. THE EVIDENCE RELATING TO VEHICLES USED THE VEHICLES RECOVERED 92. The evidence relating to vehicles used is as follows: i. M09 is van bearing No. TNA 7484. A5 made a statement to the Police. PW30 has spoken about the vehicle being given to A9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed that A9 went to him for buying the Tata Sumo and gave advance of Rs. 15,000/- in September, 2001 and sold his Maruti Zen and took the Sumo. Later, he came, he left the Tata Sumo saying that it was not auspicious and took away the car. The Tata Sumo makes its appearance along with the Ford Escort on 30.12.2001. The link is undeniable. vi. A4 has given statement leading to the recovery of the Ford Escort White Car having No. TN-10F-5555. It was marked as MO6. It was entrusted to A3 through A9 by PW10 for the car. On the basis of statement given by A4, the said car came to be recovered. We notice that Justice Arun Mishra has correctly rejected the contention that since the car stood registered in the name of another person, and therefore, it could not be relied upon. It is to be noticed that the connection of the car with the crime is that the deceased is brought to the factory in the Ford Escort car, according to evidence (PW10). vii. A15 has given P51-statement pursuant to which MO10-Hero Honda Motorcycle and the black colour Reebok shoe (the shoe which the prosecution alleges was worn by the deceased and kept in the side pocket of the motorcycle, were recovered). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the house of ninth Accused and bedpan were kept in the factory by PW10, A9 and PW11. Screen for the windows was put. Third Accused told PW34 to give a weeks' leave for the company. Believing that he would get rent, PW10, upon being asked for his Ford Escort car, sent the car to the house of the ninth Accused. There is reference to what happened on 05.12.2001. On the said day, he was called by the ninth Accused to come over to the residence of the third Accused. There were two or three other persons. PWs 10 and 11 followed the ninth Accused who went inside the house. Third Accused was telling the persons and the ninth Accused that the deceased had to be brought and some money to be collected from him. PW10 identifies A4, A6 and A11 as persons who were present at the residence of A3 and who followed them in another car. There is reference to the involvement of A1, A2 and A12. PW10 has identified A5 as the person who came along with A3, A9 and A1 by his Ford Escort car. A1 was shown and he was talked about as a VIP, a very big VIP. PWs 10 and 11 were to get food for him and to do other works. PW10 has spoken about Rs. 1,10,000/- being given, as requested by Uday Kumar-A9, as mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out 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 to me . He speaks about being very much frightened. Around 07.30 p.m., on 30.12.2001, A9 called over phone and asked him to stay in the hotel. 01.01.2002 98. He went at 10.30 a.m. to the hotel after coming back from the hotel in the morning from the hotel to his house. After some time, A3 came there. A3 asked A9 for an ambulance. PW10 and A9 went in search for an ambulance. Not finding one, and on being told so, A3 told A9 to arrange for one Maruti van and to fix an Alumax light as fixed in an ambulance. There is reference to driver Vigi of A3 pointing out that shops were closed as it was a holiday (being the New Year Day). By 08.00 p.m., a Maruti van was taken away by two persons from the ninth Accused. PW10 identifies these persons as sixth Accused and Accused-Sampath (A11). PW10 speaks with PW11 about the ambulance being requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accurately aware of the incident that had happened in the factory from 31.12.2001, he did not know. About 15-20 days before 5.12.2001 he had seen A3. He saw A4 for the first time on 5.12.2001 at the house of the 3rd Accused. He says after hearing A3 telling the persons available there that the Ex. MLA M.K. Balan had to be brought and some money had to be collected from him, it did not strike that it could be a violent act. He further says in cross that all the Accused were not to known him earlier. He denies having identified A10 and A14 after they were identified by the Police to him. He says that he had finally shown his house also. His house was also shown to them as he could get commission. There is toilet facility in the Vermicilli factory. (In the re-examination he states that toilet is in the ground floor. The significance of this aspect is that a bedpack was also used when the deceased was kept in the first floor) He further states that he did not ask Krishan Pandi (PW34) how long it is to let out and what is the monthly rent and what is the advance amount and what is the commission for the same, he also did not tell him. He does not know how many workers were working in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he gate of the company. The Tata Sumo came first, followed by Ford Escort and Maruti Zen. Four persons got down from Ford car. Those four persons brought the deceased by closing his eyes, mouth and tying his hands and took him to the first floor. The deceased was wearing black colour pant, sandalwood colour t-Shirt and shoes. Three persons came out of the Zen. A9 came to him and asked him whether he knew that he is N.K. Balan (deceased) and he also threatened him that if he discloses the same to anybody A3 will kill him and his family members. He identified the four persons who brought the deceased in the Ford Escort car as A4, A11, A16 and A17. He speaks about further details, like three more persons coming with the tiffin parcels and that he could identify them, viz., A6, A15 and A7. He went to his house. The same day after PW10 called him over phone and asked him to go Hotel Henkala. In Room No. 207, he saw A9, PW10 and A1. He stayed with A1 during that night. The next day, viz., on 31.12.2001 at 6.00 A.M., he went from the Hotel where he stayed in the night on 30.12.2001. He speaks about buying lunch for 10 persons in the factory. By 12 noon he was asked to buy lunch for 10 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the factory was known to PW10 and PW11 alone. He speaks about the cot being purchased from Nirmala industries on Shanmugham Road. He, A9 and PW10 has purchased the same. Three cots were purchased. The cot is of green colour and he could identify it. He reiterates that on 5.12.2001 he had been to the house of A3. The identification marks of the three persons seen in the home of A3 and age was mentioned during police investigators. He mentions A4, A11 and A17 as among the four. He also says another person came. He says he did not remember. In the identification parade he did not say that he did not tell him that he has seen three persons in the house of A3-Manickam. He has identified nine persons at the time of identification parade. He had only given the tiffin and meals to the Accused in the factory. He does not know whether on the 1st deceased was upstairs. He says that we went from there after 9.00 P.M. on the 1st. PW34 did not give the interest to him in January. Till date he has not given the interest to him. He knew the Accused already. He saw A3 only on 05.12.2001 for the first time. Thereafter he had seen him on the 30th. He did not see him thereafter. A3 was not identified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced 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 him (PW34) to vacate the company. When he told that they have kept semai for drying and ladies are working and it will go waste, they told the meeting is set and asked him to contact A9 who said he would compensate the loss for the semai. PW34 sent the employees and announced leave. At 05.00 P.M., he came to the company for collecting wet semiya with company employees Chandru, Venu, Driver Karuppia. At that time, PW11 and A5 were standing downstairs. They loaded the semiya in the van and PW11 and A5 helped them to gather it. They took the semiya and went away. He speaks about taking the semiya to Ezhichur and dried the semiya and sent it to the market. The employees were asked to come early and on 01.01.2002, the company was on holiday. He called PW10 on the 1st and he told him to call on the next da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW34 to go to Ezhichur to dry up the vermicelli and to pack the same and on the 1st January the company was on leave. On 2nd January, PW 31, Nagarathinam and PW34 went and saw the company. The main gate was found locked. While returning after making a phone call, the owner found that the gate was not locked and only chain along with was put. When they went upstairs, the cot was found smashed and the lights were burning and the bottles and the bits of cigarette were found in an ugly scene and about 11.30 A.M. one person came upstairs saying that he has come to take a thing from there and he has taken Rebook shoe marked as MOI and for the second time, the same person came in a car and taken away something in a gunny bag. At the same time at about 02.30 P.M., one person came in a motorcycle and asked whether it is cleaned and at that time she told him as to why you are making the place ugly where the ladies are working. She states further that on 18th March, one person was brought by the police to the company and enquired from her and at that time on seeing that person, told the police that she only shouted him and that if it is asked her whether she could identify the said person sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son 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 P27. The certificate was, apparently, produced in view of what was requested by PW19, a licence in the cremation ground, PW12 has become hostile but even PW12 has deposed about a person being cremated, on 01.01.2002, in the night and his role along with PW19 in it. The certificate was procured at the instance of A3. It was meant to facilitate the cremation of the dead body on the date of the death. Going by the testimony of PW1, the deceased was around 52 years. We say this because an attempt is made to contend that for a person above 60 years, no certificate is insisted upon to cremate as deposed by PW6. It may be that the age is shown as above 60. The circumstance of A3 creating the document for which purpose A13 was an emissary (A13 has not filed any appeal), g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appearance when he speaks about A3 telling A9 to be at the Woodlands Hotel and going along with A1 and A2 in the car. He again speaks about A3 coming alone to the Woodlands Hotel by the same car. Again around 07.00 P.M., A3, A9 and A1 came along with one more person by the same car. That other person is none other than A5. Thereafter, he says, on 30.12.2001, at 05.00 P.M., the driver of A3 had left the car in his office. In his cross-examination, PW10 has deposed that he bought the car for Rs. 3,60,000/- from one Advocate Durai Pandi. He, no doubt, admits that it is not in his name. 108. Passing on to PW11 in connection with the vehicle, PW11 has noted the Ford Escort car on 30.12.2001 as the car from which four persons got down and those persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at A1 is a VIP and only A5 will do everything for him and that they should not do anything (apparently directly). He notices presence of A5 along with PW10 on 30.12.2001 at the factory. A3 asked A5 whether the company is ready. A3 and A5 told that they were going to the house of A9 and went from there. He speaks about A5 going by the Zen car on 30.12.2001. Thereafter, about half-an-hour later, the Tata Sumo car came. In the same, A5 and three more persons came with the tiffin parcel. These persons have been identified as A6, A15 and A7. On 31.12.2001, by 12 Noon, on being asked by A9, he purchases lunch and medicine and handed over to A5. On 01.01.2002, A5 told PW11 that there was no need for getting dinner in the night. PW11 has also seen A5 going into the company. He also speaks about dhoti brought by A5 used to tie-up the deceased and A5 leaving on a motorcycle. A5, who was arrested on 18.03.2002[the first arrestee in this case], has, in fact, given statement under which he has identified the Maruti Omni Van MO9 bearing No. TN-A-7484, the place (factory) as also the cremation ground. The Maruti Omni Van-MO9 is the Van which was used for abduction of the deceased. PW3 has spoken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zure 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 and A11, inter alia, following them in another car. He has identified A11 as one among the four persons who brought M.K. Balan in the Ford car on 30.12.2001. He also identified A6 and A7 as among the persons as two out of the three persons who came with A5 in the Tata Sumo car which came again on 30.12.2001. 113. Now let us look at the other evidence available, pointing to the involvement of the aforesaid Accused. PW21 is a Head constable (Police). He has deposed to be on night duty on 01.01.2002. He speaks about being given beat tickets along with PW35. He speaks about a Maruti Omni van standing in the middle of the road. He and PW35 went to the van. He asked the occupants what they were doing at that hour. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 about the cot apart from PW10. The evidence of PW10 shows that when he went upstairs, he found that the deceased whose eyes were closed was tied with a chain and he was asked to sit in a green colour steel cot. He has been identified by PW21 and PW35 police officers as one of the four, present near the spot of cremation. 118. A8 was arrested on 22.03.2002. He gave a confession statement in the presence of PW23 and another witness, P14 is the admissible portion. PW35 police constable has identified him as one of the four found in MO7 van on 01.01.2002 near the cremation ground. 119. We have noticed that PW11 has identified A11 as one of the persons who brought the deceased in the Ford car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 statement to the police in the presence of PW44 and another (Mutthu Rekku). The admissible portion of the statement is P50. As per PW44, he stated that he will provide the fashion Hero Honda bearing No. TN-05-C-6475. PW44 says that he identified the motorcycle parked in front of a compound of a house at Gandhiji Street, Bharathi Nagar and also the shoe. PW67 has spoken about recovery of the motor cycle under P51 Mahazer. The motor cycle is MO10 while the shoe is MO1. Justice Arun Mishra confirmed his conviction even after eschewing MO1 shoes. [PW1 the son of the deceased deposed that the shoes showed by the CBCID did not belong to his father]. As regards the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly 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 the house at Villivakkam. P56 is marked as the admissible portion. On being so taken to the place at No. 110/57, Nehru Nagar, Villivakkam, he identified a Panasonic Cell Phone, sim card with charger, one black colour carry bag, nine feet long yellow colour nylon rope and two chains. This is besides knife and three locks. Therefore, it cannot be said that there was no corroboration for the role of A16. It is quite clear that A16 was amongst the Accused who brought the deceased. His role in the abduction becomes clear. It is also clear that the deceased is not only not alive but was undoubtedly done away by way of murder. Having abducted the dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 statement given by her Under Section 164 of The Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code of Criminal Procedure', for short), the Court found that anyone would come to the conclusion that she was living as per the Indian culture. She is a mother of twins and growing them well. The second Accused is her husband. The second Accused, as per P65 statement, was suffering a loss and facing financial problems. The second Accused fell into the cunning trap of first Accused. The second Accused forced the twelfth Accused to fall into the cunning trap of the first Accused. The first and twe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prosecution that the twelfth Accused did make the calls posing herself as Sasikala. 132. It is true that arguments have been addressed that there is no evidence to show that A12 knew the voice of Sasikala and contention is seen raised in Section 313 Code of Criminal Procedure Statement of A3 that A3 knew the voice of Sasikala. The prosecution would have to prove the negative if it is called upon to prove that A3 did not know the voice of Sasikala. Though it is the duty of the prosecution to prove the case, it may not extend to holding that a matter which could be proved by the defence as something within h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 framed against A12 Under Section 419, 420 and 387 of the Indian Penal Code read with Section 109 of the Indian Penal Code. The fifth charge was in order to fulfil the object of the said conspiracy, consequent upon the said occurrence, on 01.01.2002, A3, A4, A6 to A8, A10, A11 and A14 to A18 committed the murder of the deceased by tying a rope around the neck and tightening it. Likewise, A1, A2, A5, A9, A12 and A13 were charged Under Section 302 of the Indian Penal Code read with Section 109 of the Indian Penal Code for abetment of murder. There is a charge Under Sections 347 and 364 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea 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 Under Section 302 of the Indian Penal Code. The Trial Court has found that the plan was the brainchild essentially of A1 and A2 138. We have noticed that the trial Court has essentially proceeded on the basis that the Appellants were except A5, charged Under Section 302 under the 5th charge were guilty of the said charge (See paragraph-167 for the discussion). We have referred to the paragraphs in the judgment of the trial court wherein the trial court has found A3, A4, A6, A7, A8, A9, A10, A11, A14, A15, A16 and A17 guilty Under Section 302 Indian Penal Code. It must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey 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 Section 109 of the Indian Penal Code. The role of A5, particularly, having regard to the statement Under Section 27 of the Evidence Act, leading to recovery of the Van, the discovery of the site of the factory and the cremation ground besides other evidence, cannot be ignored. We have no hesitation in repelling the contention of the Appellants on this ground. It is clear that their acquittal Under Section 120B of the Indian Penal Code will not impact their conviction under the other provisions. CERTAIN CONTENTIONS OF A6 140. PW21 and PW35 have i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 in appropriate cases can enable a court to presume that the abductor is the murderer. Now the principle is that after abduction, the abductor would be in a position to explain what happened to his victim and if he failed to do so, it is only natural and logical that an irresistible inference may be drawn that he has done away with the hapless victim. Section 106 of the Evidence Act would come to the assistance of the prosecution. In this regard it is necessary to look at what this Court has laid down. In State of W.B. v. Mir Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that for the murder of such kidnapped there should necessarily be independent evidence apart from the circumstances enumerated above, we would be providing a safe jurisprudence for protecting such criminal activities. India cannot now afford to lay down any such legal principle insulating the marauders of their activities of killing kidnapped innocents outside the ken of others. 143. We would think that the aforesaid principle would also apply to those persons who illegally confine the person who stands abd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 credible witnesses when the whole circumstances are borne in mind. Their evidence may not be immaculate in character. By their very nature, that is being accomplices, any such claim would be incongruous. But the test is whether it is safe to convict the Accused believing such witnesses. We are of the view that as regards the crime and the Accused, their testimony brings home the truth, as regards Accused who are Appellants before us. There is no motive attributed to PW10 and PW11 to falsely imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 Appellants have been convicted also Under Section 364 of Indian Penal Code. 151. In this connection as regards the lack of a charge or defect in a charge is concerned, it is one which is essentially intertwined with the question of prejudice to the Accused. See in this regard the judgment of this Court in Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC 116. We do not think that prejudice is caused in this regard in the facts. 152. It must be noticed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apping), 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 meaning of Section 106 of the Evidence Act. In other words, while we would find A4, A11, A15, A16 and A17 guilty Under Section 364 which is already found by the courts below, we would support the conviction Under Section 364 of other Appellants on the basis that they have been actively aided the abduction. In other words they would be guilty Under Section 364 read with Section 109 Indian Penal Code. Also as far as A5, A6, A7, A8, A11 and A14 are concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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