The present appeals arise out of the common impugnedjudgment and order dated 06.10.2007 in Criminal AppealNos. 698, 716 and 781 of 2004 and Criminal Appeal No. 685of 2005 passed by ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 403 OF 2010
SOMASUNDARAM @ SOMU ………… APPELLANT
Vs.
STATE REP. BY DY. COMM. OF POLICE ………… RESPONDENT
WITH
Criminal Appeal No. 827 of 2013
and
Criminal Appeal No. 828 of 2013
J U D G M E N T
V. GOPALA GOWDA, J.
The present appeals arise out of the common impugned
judgment and order dated 06.10.2007 in Criminal Appeal
Nos. 698, 716 and 781 of 2004 and Criminal Appeal No. 685
of 2005 passed by the High Court of Judicature at Madras,
whereby the conviction and sentences awarded to the
accused-appellants by the Additional District and
Sessions Judge, (Fast Track Court-I), Chennai were upheld
for the offences punishable under different sections of
the Indian Penal Code, 1860 (hereinafter referred to as
“IPC”), for the abduction and murder of one M.K. Balan
(hereinafter referred to as the “deceased”).
2.The following table outlines the conviction and sentences
awarded to each of the accused by the Trial Court:
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Senthil Kumar (A-1)
·Section 120-B IPC: Imprisonment for life and
fine of Rs. 50,000/-
·Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 1 year.
·Section 387 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 5,000/-, in default of
payment, rigorous imprisonment for 1 year.
·Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs.
50,000/-, in default of payment, rigorous
imprisonment for 1 year.
·Section 347 IPC read with Section 109 IPC:
Rigorous Imprisonment for 3 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 6 months.
·Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for 10 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 2 years.
Hariharan (A-2)
·Section 120-B IPC: Imprisonment for life.
·Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 1 year.
·Section 387 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 5,000/-, in default of
payment, rigorous imprisonment for 1 year.
·Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs.
50,000/-, in default of payment, rigorous
imprisonment for 1 year.
·Section 347 IPC read with Section 109 IPC:
Rigorous Imprisonment for 3 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 6 months.
·Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for 10 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 2 years.
Poonga Nagar Manickam (A-3)
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·Section 120-B IPC: Acquitted under Section
235(1) of Code of Criminal Procedure,
1973(hereinafter referred to as the “CrPC”).
·Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 1 year.
·Section 387 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 5,000/-, in default of
payment, rigorous imprisonment for 1 year.
·Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs.
50,000/-, in default of payment, rigorous
imprisonment for 1 year.
·Section 347 IPC read with Section 109 IPC:
Rigorous Imprisonment for 3 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 6 months.
·Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for 10 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 2 years.
·Section 201 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 10,000/-, in default
of payment, rigorous imprisonment for 1
year.
Somasundaram (A-4)
·Section 120-B IPC: Acquitted under Section
235(1) of CrPC.
·Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 1 year.
·Section 387 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 5,000/-, in default of
payment, rigorous imprisonment for 1 year.
·Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs.
50,000/-, in default of payment, rigorous
imprisonment for 1 year.
·Section 347 IPC read with Section 109 IPC:
Rigorous Imprisonment for 3 years and fine
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of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 6 months.
·Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for 10 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 2 years.
Balamurugan (A-5)
·Section 120-B IPC: Acquitted under Section
235(1) of CrPC.
·Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 1 year.
·Section 387 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 5,000/-, in default of
payment, rigorous imprisonment for 1 year.
·Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs.
50,000/-, in default of payment, rigorous
imprisonment for 1 year.
·Section 347 IPC read with Section 109 IPC:
Rigorous Imprisonment for 3 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 6 months.
·Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for 10 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 2 years.
·Section 201 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 10,000/-, in default
of payment, rigorous imprisonment for 1
year.
Shankar Ganesh (A-6)
·Section 120-B IPC: Acquitted under Section
235(1) of CrPC.
·Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 1 year.
·Section 387 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 5,000/-, in default of
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payment, rigorous imprisonment for 1 year.
·Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs.
50,000/-, in default of payment, rigorous
imprisonment for 1 year.
·Section 347 IPC read with Section 109 IPC:
Rigorous Imprisonment for 3 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 6 months.
·Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for 10 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 2 years.
·Section 201 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 10,000/-, in default
of payment, rigorous imprisonment for 1
year.
Irudhayaraj (A-7)
·Section 120-B IPC: Acquitted under Section
235(1) of CrPC.
·Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 1 year.
·Section 387 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 5,000/-, in default of
payment, rigorous imprisonment for 1 year.
·Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs.
50,000/-, in default of payment, rigorous
imprisonment for 1 year.
·Section 347 IPC read with Section 109 IPC:
Rigorous Imprisonment for 3 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 6 months.
·Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for 10 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 2 years.
·Section 201 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 10,000/-, in default
of payment, rigorous imprisonment for 1
year.
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Jaibeam Anbu (A-8)
·Section 120-B IPC: Acquitted under Section
235(1) of CrPC.
·Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 1 year.
·Section 387 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 5,000/-, in default of
payment, rigorous imprisonment for 1 year.
·Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs.
50,000/-, in default of payment, rigorous
imprisonment for 1 year.
·Section 347 IPC read with Section 109 IPC:
Rigorous Imprisonment for 3 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 6 months.
·Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for 10 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 2 years.
·Section 201 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 10,000/-, in default
of payment, rigorous imprisonment for 1
year.
Udhayam Kumar (A-9)
·Section 120-B IPC: Acquitted under Section
235(1) of CrPC.
·Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 1 year.
·Section 387 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 5,000/-, in default of
payment, rigorous imprisonment for 1 year.
·Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs.
50,000/-, in default of payment, rigorous
imprisonment for 1 year.
·Section 347 IPC read with Section 109 IPC:
Rigorous Imprisonment for 3 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 6 months.
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·Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for 10 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 2 years.
Leela Shankar (A-10)
·Section 120-B IPC: Acquitted under Section
235(1) of CrPC.
·Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 1 year.
·Section 387 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 5,000/-, in default of
payment, rigorous imprisonment for 1 year.
·Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs.
50,000/-, in default of payment, rigorous
imprisonment for 1 year.
·Section 347 IPC read with Section 109 IPC:
Rigorous Imprisonment for 3 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 6 months.
·Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for 10 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 2 years.
·Section 201 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 10,000/-, in default
of payment, rigorous imprisonment for 1
year.
Sampath (A-11)
·Section 120-B IPC: Acquitted under Section
235(1) of CrPC.
·Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 1 year.
·Section 387 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 5,000/-, in default of
payment, rigorous imprisonment for 1 year.
·Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs.
50,000/-, in default of payment, rigorous
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imprisonment for 1 year.
·Section 347 IPC read with Section 109 IPC:
Rigorous Imprisonment for 3 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 6 months.
·Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for 10 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 2 years.
·Section 201 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 10,000/-, in default
of payment, rigorous imprisonment for 1
year.
Romita Mary (A-12)
·Section 120-B IPC: Acquitted under Section
235(1) of CrPC.
Swamikannu (A-13)
·Section 120-B IPC: Acquitted under Section
235(1) of CrPC.
·Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 1 year.
·Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs.
50,000/-, in default of payment, rigorous
imprisonment for 1 year.
·Section 347 IPC read with Section 109 IPC:
Rigorous Imprisonment for 3 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 6 months.
·Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for 10 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 2 years.
·Section 201 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 10,000/-, in default
of payment, rigorous imprisonment for 1
year.
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Sori Ramesh (A-14)
·Section 120-B IPC: Acquitted under Section
235(1) of CrPC.
·Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 1 year.
·Section 387 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 5,000/-, in default of
payment, rigorous imprisonment for 1 year.
·Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs.
50,000/-, in default of payment, rigorous
imprisonment for 1 year.
·Section 347 IPC read with Section 109 IPC:
Rigorous Imprisonment for 3 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 6 months.
·Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for 10 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 2 years.
·Section 201 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 10,000/-, in default
of payment, rigorous imprisonment for 1
year.
Bomb Selvam (A-15)
·Section 120-B IPC: Acquitted under Section
235(1) of CrPC.
·Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 1 year.
·Section 387 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 5,000/-, in default of
payment, rigorous imprisonment for 1 year.
·Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs.
50,000/-, in default of payment, rigorous
imprisonment for 1 year.
·Section 347 IPC read with Section 109 IPC:
Rigorous Imprisonment for 3 years and fine
of Rs. 5,000/-, in default of payment,
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rigorous imprisonment for 6 months.
·Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for 10 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 2 years.
·Section 201 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 10,000/-, in default
of payment, rigorous imprisonment for 1
year.
Jagadeesan (A-16)
·Section 120-B IPC: Acquitted under Section
235(1) of CrPC.
·Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 1 year.
·Section 387 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 5,000/-, in default of
payment, rigorous imprisonment for 1 year.
·Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs.
50,000/-, in default of payment, rigorous
imprisonment for 1 year.
·Section 347 IPC read with Section 109 IPC:
Rigorous Imprisonment for 3 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 6 months.
·Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for 10 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 2 years.
·Section 201 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 10,000/-, in default
of payment, rigorous imprisonment for 1
year.
Gunasekar (A-17)
·Section 120-B IPC: Acquitted under Section
235(1) of CrPC.
·Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 1 year.
·Section 387 IPC: Rigorous Imprisonment for 7
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years and fine of Rs. 5,000/-, in default of
payment, rigorous imprisonment for 1 year.
·Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs.
50,000/-, in default of payment, rigorous
imprisonment for 1 year.
·Section 347 IPC read with Section 109 IPC:
Rigorous Imprisonment for 3 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 6 months.
·Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for 10 years and fine
of Rs. 5,000/-, in default of payment,
rigorous imprisonment for 2 years.
·Section 201 IPC: Rigorous Imprisonment for 7
years and fine of Rs. 10,000/-, in default
of payment, rigorous imprisonment for 1
year.
Naraimudi Ganesan (A-18)
·Section 120-B IPC: Acquitted under Section
235(1) of CrPC.
3.The aforesaid sentences imposed upon each one of the
accused persons were ordered to run concurrently.
4.Out of all the accused persons who were tried by the
Sessions Court, only three, i.e., Manickam @ Poonga Nagar
Manickam (hereinafter referred to as “A-3”), Somasundaram
(hereinafter referred to as “A-4”) and Bomb Selvam
(hereinafter referred to as “A-15”) are in appeal before
us. Since we are only required to examine the correctness
of the conviction and sentences as against these three
accused persons, we shall restrict to the appreciation of
facts and evidence relevant to these three accused
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persons only. The facts of the incident leading up to the
case, the arrest of the accused persons followed by their
trial and conviction are stated as under:
The case of the prosecution is that on 30.12.2001,
at about 5:30 a.m., the deceased went for morning walk,
but did not return home. As a result, his son, B.
Manimaran (PW-1) lodged a missing person complaint at the
Pattinapakkam Police Station at 11.00 a.m. The same was
registered as Crime No. 986 of 2001. PW-66, the Inspector
started the investigation. The statements of various
witnesses were recorded. The breakthrough came on
21.02.2002, when the Investigating Officer came to know
of the involvement of Balamurugan (A-5) in the case
through an informant. A-5 was arrested on 18.03.2002 by
PW-67, who also recorded his statement, produced as Ex.
P-43. On the basis of the statement of A-5, the FIR was
altered and the offences under Sections 120B read with
Sections 364, 365, 302 and 201 of IPC were added to the
same. Subsequently, the rest of the accused persons were
arrested on the basis of the statements of the witnesses.
A-3 was arrested on 25.03.2002 and his statement was
recorded, which is produced as Ex. P-20. On the basis of
the evidence of A-3, M.O. 12- Maruti Zen Car, under
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mahazar Ex. P-6 was recovered on the same day. On
01.04.2002, A-3 and A-1 were remanded to police custody
as per the order of the Magistrate for a period of ten
days. A-4 was arrested on 09.04.2002 from Chrompet
Railway Station. His statement was recorded as Ex.P-34 in
the presence of PW-9. On the basis of the disclosure made
in the statement, M.O.-6, Ford Escort Car bearing
Registration No. TN-10-F-5555 was recovered, which has
been produced as Ex. P-19. A-15 was arrested on
25.04.2002 from near the Egmore Railway Station, from
where he was taken to the office of the CBCID. On the
basis of the disclosure made in the statement of A-15, a
‘Tiruvalluvar Hero Honda 6475’, marked as M.O.-10 and a
black coloured Reebok shoe, marked as M.O.- 1, kept
inside the side box of that motor cycle were recovered.
5. On 14.06.2002, the final report under Section 173(2)
of CrPC was filed in PRC No. 55 of 2002 before the XXIII
Metropolitan Magistrate, Chennai, against A-1 to A-17 and
one unknown person. Pursuant to further investigation and
apprehension of A-18, final report was filed on
10.01.2003 under Section 120-B read with Sections 364,
365, 419, 437,387,302,402 and 201 of IPC.
6. During the course of the trial, the prosecution
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examined 67 Prosecution Witnesses to establish the guilt
of the accused persons.
7. The Trial Court, after examining the evidence produced
on record, convicted and sentenced A-1 to A-11 and A-13
to A-17, as specified in the table referred to supra.
A-12 and A-18 were acquitted of all charges. The accused
persons preferred appeals against their conviction and
the State preferred an appeal against the acquittal of
A-12 and A-18 before the High Court. The High Court,
after consideration of the evidence placed on record,
upheld the order of conviction and sentence passed by the
learned Sessions Judge against all the accused, except
A-10. A-10 was acquitted of all the charges by the High
Court. The appeals filed were accordingly, dismissed. The
High Court, in the impugned judgment and order relied on
the testimony of PW-1, the son of the deceased, who spoke
about the fact that his father went on his usual morning
walk but did not return and the testimony of PW-13, who
saw the deceased walking. The next crucial link,
according to the High Court is provided from the evidence
of Venugopal (PW-10) and Newton (PW-11), who saw some of
the accused bringing the deceased into the vermicelli
manufacturing factory premises at Mudichur on the morning
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of 30.12.2001. Both PW-10 and PW-11 also deposed as to
the prior arrangements made by them on the direction of
the accused persons, including the arrangement of the
premises of the vermicelli factory, vehicles and food.
PW-11 also deposed that he saw four of the accused
persons carrying the dead body of the deceased. PW-32,
the Doctor, deposed that at the instance of A-3, he had
issued a death certificate to PW-33, which was needed to
cremate the body of the deceased. He also stated that he
had done so without actually seeing the body of the
deceased as he had known PW-33 for a long time and
trusted him. Both the Trial Court and the High Court
treated PW-10 and PW-11 as accomplices, keeping in view
their role in the entire incident. The High Court then
went on to examine the case law with regard to the
reliability of the evidence of the accomplice. On this
aspect, the High Court held as under:
“An accomplice is undoubtedly a competent
witness under the Indian Evidence Act.
There can be, however, no doubt that the
very fact that he has participated in the
commission of the offence introduces a
serious stain in his evidence and Courts
are naturally reluctant to act on such
tainted evidence unless it is corroborated
in material particulars by other
independent evidence.
It would not be right to expect that such
independent corroboration should cover the
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whole of the prosecution story on even all
the material particulars. If such a view
is adopted, it would render the evidence
of the accomplice wholly superfluous……
……the appreciation of an approver’s
evidence has to satisfy a double test. His
evidence must show that he is a reliable
witness and that is a test which is common
to all witnesses. If this test is
satisfied the second test which still
remains to be applied is that the
approver’s evidence must receive
sufficient corroboration.”
The High Court accordingly, came to the conclusion that
the evidence of PW-10 and PW-11 was reliable and could be
considered while examining the guilt of the appellants.
It was held as under:
“PW-10 and PW-11 are accomplices and they
were present at all stages along with the
accused and aided them in very many ways,
we have analysed their evidence with
great care and caution. It is true that
both of them had not informed the
occurrence to anybody and were not to be
seen for more than a period of months.
For their conduct they have given
acceptable explanation. Both the
witnesses have spoken that as they came
to that A-3 and A-9 had indulged in an
act of serious offence, they were
threatened by the accused that if they
reveal what had happened, they and their
family members would be in danger.
Afraiding such danger, they had hided
themselves and therefore, they had not
disclosed to anyone, only fearing not
only to their lives but also to their
family members……”
Page 17 17
8. The High Court held that the case of the prosecution,
as sought to be proved by the evidence of PW-10 and
PW-11, is that PW-10 was a business associate of A-9. A-9
informed PW-10 that A-3 would get him in a post in a
political party if he completed a task that was assigned
to him. A-9 asked PW-10 to help him finish the same. At
the request of A-9, PW-10 had arranged the vermicelli
manufacturing factory premises belonging to PW-34 for a
week. Further, A-9 informed A-3 of the place that had
been chosen to carry out the task. PW-10, A-3 and A-9
then visited the places to inspect the suitability of the
premises. After the same had been approved by A-3, PW-10
at the request of A-3, arranged a Maruti van, table,
chair, cot, bedpan etc. and kept the same in the said
premises of the vermicelli manufacturing factory. PW-10
and PW-11 also made arrangements for procuring cash as
and when A-3 and A-9 needed them. PW-10 and PW-11 also
arranged rooms at Hotel Henkala, Tambaram for A-9. PW-10
also heard the driver of A-3 asking him for a chain to
tie the deceased. A-3 also asked PW-10 to provide food
for those who are staying in the vermicelli factory
premises. PW-10 and PW-11 also saw four of the accused
persons bringing down the body of the deceased, which was
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loaded in the van and taken out of the place. PW-10 was
also informed by A-13 that the body of the deceased had
been burnt in the Erukancheri cremation ground. PW-10
then left for Bangalore and stayed there till he was
informed by his wife on 18.03.2002 that A-5 was arrested
by CBCID police in connection with the murder of the
deceased.
9. The High Court further observed that PW-10 has
implicated A-1 to A-11 and A-14. He also identified A-4,
A-5, A-6, A-7, A-8, A-11 and A-15 on three occasions as
spoken to by PW-60, the Magistrate who conducted the
identification parade. On the issue of delay in test
identification parade, the High Court held that:
“In a complicated investigation like this,
where there was no clue for the
involvement of any of the accused till A-5
was arrested on 18.03.2002, the delay in
holding the test identification parade, if
at all from the last arrest of A-16, i.e.,
on 22.05.2002 would not in our view render
the same inconsequence and consequently it
would not affect the test on the ground of
delay.”
10. The High Court placed reliance on the decision of
this Court in the case of Daya Singh v. State of Haryana
1
for the same. The High Court further held that the common
1
(2001) 3 SCC 468
Page 19 19
object for the offence was to collect some money from the
deceased, and in case the money did not come through, to
do away with the deceased. The High Court held that to
achieve the common object, they had conspired together.
11. Further, on the contention that the body which was
cremated was not identified by anybody, the High Court
held that the man who was abducted on the morning of
30.12.2001, was kept in the vermicelli factory premises
by the accused persons, and was murdered there. His body
was cremated in the Perambur crematorium. It was held
that the circumstances adequately point to the same.
12. The High Court, therefore, held that the conviction
and sentence imposed by the Trial Court in respect of all
the accused persons is liable to be confirmed as the same
does not suffer from any infirmity in law.
13. The correctness of the impugned judgment and order
passed by the High Court is under challenge in these
appeals by three of the accused–appellants, i.e. A-3, A-4
and A-15 in support of which they have urged various
facts and legal contentions before this Court.
14. The rival legal contentions urged on behalf of the
accused persons and the prosecution are stated hereunder:
Contentions urged on behalf of the accused-appellants:
Page 20 20
15. Mr. Siddharth Luthra, learned senior counsel
appearing on behalf of A-4 in Criminal Appeal No. 403 of
2010, contends that the conviction of the appellant is
wholly erroneous and is liable to be set aside.
16. The learned senior counsel contends that the recovery
of the Ford Car (M.O.-6) was not done in accordance with
law, and thus, the same is vitiated. According to the
statement given by A-4 to the Police [Ex. P- 34], he had
stated as under:
“If I am taken, I will identify the
house, in Chrompet, wherein we were
staying and the Muddichur Vermicelli
Factory, wherein we had detained M.K.
Balan and the cars which were used by us
for the kidnapping of Balan.”
17. The Ford Car in question, M.O-6 was recovered from
the house of PW-10 on 09.04.2002. In the evidence of
PW-10, he had deposed that he had purchased M.O.6 Ford
Car for Rs.3,60,000/-. He had bought the same from one
Advocate Duraipandi. He further stated that M.O.6 was not
registered in his name. It was registered in the name of
one Ranjit Kumar. The learned senior counsel contends
that in the absence of the proof of ownership of the
vehicle, the only evidence of the use of the vehicle on
30.12.2001 is the testimony of PW-10, and the same cannot
Page 21 21
be used against A-4.
18. The learned senior counsel further contends that
since the accused A-4 has been acquitted of the charge
under Section 120-B of IPC, Section 10 of the Indian
Evidence Act, 1872 (hereinafter referred to as the
“Evidence Act”) has no application either. Section 10 of
the Evidence Act reads as under:
“10. Things said or done by conspirator
in reference to common design. Where
there is reasonable round to believe
that two or more persons have conspired
together to commit an offence or an
actionable wrong, anything said, done or
written by any one of such persons in
reference to their common intention,
after the time when such intention was
first entertained by any one of them, is
a relevant fact as against each of the
persons believed to be so conspiring, as
well for the purpose of proving the
existence of the conspiracy as for the
purpose of showing that any such person
was a party to it.”
19. The learned senior counsel places reliance on the
decision of this Court in the case of State v. Nalini
2
,
wherein the scope of Section 10 of the Evidence Act was
discussed as under:
“The first condition which is almost
the opening lock of that provision is
the existence of "reasonable ground to
believe" that the conspirators have
conspired together. This condition will
be satisfied even when there is some
2
(1999) 5 SCC 253
Page 22 22
prima facie evidence to show that there
was such a criminal conspiracy. If the
aforesaid preliminary condition is
fulfilled then anything said by one of
the conspirators becomes substantive
evidence against the other, provided
that should have been a statement "in
reference to their common intention".
Under the corresponding provision in the
English Law the expression used is "in
furtherance of the common object". No
doubt, the words "in reference to their
common intention" are wider than the
words used in English Law……
…………We cannot overlook that the basic
principle which underlies in Section 10
of the Evidence Act is the theory of
agency. Every conspirator is an agent of
his associate in carrying out the object
of the conspiracy. Section 10, which is
an exception to the general rule, while
permitting the statement made by one
conspirator to be admissible as against
another conspirator restricts it to the
statement made during the period when
the agency subsisted. Once it is shown
that a person became snapped out of the
conspiracy, any statement made
subsequent thereto cannot be used as
against the other conspirators under
Section 10.”
20. The learned senior counsel contends that since A-4
has been acquitted of the charge of conspiracy, no
statement made by any witness or accused which seeks
to prescribe any sort of common intention can be used
against A-4.
21. The learned senior counsel further contends that
the only relevant testimonies as far as A-4 is
Page 23 23
concerned are that of Manimaran (PW-1), Sudhakar
(PW-3), Venugopal (PW-10), Newton (PW-11),
Krishnapandi (PW-34) and the Investigating Officer
(PW-67). PW-3, who is one of the eyewitnesses to the
kidnapping of the deceased, deposed in his evidence
as under:
“……On 30.12.2001, at about 5.30 A.M. as
usual I started to run. By that time, I
heard a sound. I saw that 3 persons were
forcing a person to get into a van at a
distance of about 75 metres. Thereafter,
all of them went in the same van. It’s
an Omni Van. A motor cycle followed that
van. Thereafter, my friend Selvam came
there. I told this to him. I told
Selvaraj Master. Selvaraj Master told me
“Why should we bother about others”……”
22. The learned senior counsel further contends that
PW-3 thus, neither names, nor identifies nor prescribes
any specific role to A-4 in kidnapping of the deceased on
30.12.2001. The learned senior counsel further contends
that according to the evidence of PW-3, the deceased was
kidnapped in an Omni Van, which was followed by a
motorcycle. However, even if the alleged confession of
A-4 is taken to be true, what was recovered at his
direction was a Ford Escort Car (M.O.6).
23. The learned senior counsel further contends that
during the trial, the prosecution has not arrayed PW-10
Page 24 24
and PW-11 as accused, nor have they been made approver in
the case. Thus, the testimonies of PW-10 and PW-11 cannot
be relied upon in absence of corroboration from
independent sources, as the same are in the nature of
accomplice evidence in terms of Section 133 of the
Evidence Act. The learned senior counsel places reliance
on the decision of this Court in the case of Rameshwar v.
State of Haryana
3
:
“……The rule, which according to the cases
has hardened into one of law, is not that
corroboration is essential before there can
be a conviction but that the necessity of
corroboration, as a matter of prudence,
except where the circumstances make it safe
to dispense with it, must be present to the
mind of the judge, and in jury cases, must
find place in the charge, before a
conviction without, corroboration can, be
sustained……”
24.The learned senior counsel further places reliance on
the three judge bench decision of this Court in the
case of Bhiva Dolu Patil v. State of Maharashtra
4
:
“……the provisions of s. 133 of the Evidence
Act which reads:-
S. 133 "An accomplice shall be a competent
witness against an accused person; and a
conviction is not illegal merely because it
proceeds upon the uncorroborated testimony
of an accomplice".
It cannot be doubted that under that
3
AIR 1952 SC 54
4
AIR 1963 SC 599
Page 25 25
section a conviction based merely on the
uncorroborated testimony of an accomplice
may not be illegal, the courts nevertheless
cannot lose sight of the rule of prudence
and practice which in the words of Martin B
in Res. v. Boyes (1861) 9 CCC. 32 "has
become so hallowed as to be deserving of
respect" and in the words of Lord Abinger
"it deserves to have all the reverence of
the law". This rule of guidance is to be
found in illustration (b) to s. 114 of the
Evidence which is as follows :-
"The court may presume that an accomplice
is unworthy of credit unless he is
corroborated in material particulars"………”
25. The learned senior counsel contends that PW-10 and
PW-11 were witnesses to the entire conspiracy and does
not prescribe any role to A-4 after the meeting on
05.12.2001 at the house of A-9. Nor does he prescribe any
specific role to A-4 for the kidnapping of the deceased
on 30.12.2001. The learned senior counsel further places
reliance on the cross examination of PW-10 which reads as
under:
“When I and Newton had gone to the house
of the 3
rd
accused Manickam, 3
rd
accused
Manickam said to the persons available
there that the Ex M.L.A. Balan has to be
brought and that some money has to be
collected from him. After hearing this it
was not struck to me that it could be
violence act. After Manickam said as such
I and the witness Newton came out of the
house. I do not know what they had spoken
and decided thereafter. Thereafter I did
not see the accused Somasundaram ………”
(emphasis laid by this
Page 26 26
Court)
26. The learned senior counsel contends that PW-10 does
not place A-4 on the spot at the vermicelli factory at
any of the days from 30.12.2001 till 01.01.2002. Further,
in his cross examination he admits the fact of not having
seen A-4 after 05.12.2001. According to PW-10, A-4 was
not even one of the four persons who carried the body of
the deceased out of the premises of the vermicelli
factory.
27. The learned senior counsel further contends that
since A-3 to A-11 and A-13 to A-17 have been acquitted by
the Trial Court of the offence punishable under Section
120-B of IPC, the conviction under Section 107 of IPC
cannot be sustained. Reliance has been placed on the
decision of this Court in the case of Pramatha Nath
Talukdar v. Saroj Ranjan Sarkar
5
, wherein it was held as
under:
“Furthermore, it appears to me that though
the expression "criminal conspiracy"
occurs in para. 5 of the complaint, the
facts alleged in the petition of complaint
essentially disclose an offence of
abetment by conspiracy. This brings us to
the distinction between the offence of
criminal conspiracy as defined in s. 120A
and the offence of abetment by conspiracy
5
AIR 1962 SC 876
Page 27 27
as defined in s. 107 of the Indian Penal
Code. Section 120A which defines the
offence of criminal conspiracy and s. 120B
which punishes the offence are in Ch. VA
of the Indian Penal Code. This Chapter
introduced into the criminal law of India
a new offence, namely, the offence of
criminal conspiracy. It was introduced by
the criminal Law Amendment Act, 1913 (VIII
of 1913). Before that, the sections of the
Indian Penal Code which directly dealt
with the subject of conspiracy were these
contained in Ch. V and s. 121 (Ch. VI) of
the Code. The present case is not
concerned with the kind of conspiracy
referred to in s. 121A. The point before
us is the distinction between the offence
of abetment as defined in s. 107 (Ch. V)
and the offence of criminal conspiracy as
defined in s. 120A (Ch. VA). Under s. 107,
second clause, a person abets the doing of
a thing, who engages with one or more
other person or persons in any conspiracy
for the doing of that thing, if an act or
illegal omission takes place in pursuance
of that conspiracy, and an order to the
doing of that thing. Therefore, in order
to constitute the offence of abetment by
conspiracy, there must first be a
combining together of two or more persons
in the conspiracy; secondly, an act or
illegal omission must take place in
pursuance of that conspiracy, and in order
to the doing of that thing. It is not
necessary that the abettor should concert
the offence with the person who commits
it. It is sufficient if he engages in the
conspiracy in pursuance of which the
offence is committed. It is worthy of note
that a mere conspiracy or a combination of
persons for the doing of a thing does not
amount to an abetment. Something more is
necessary, namely, an act or illegal
omission must take place in pursuance of
the conspiracy and in order to the doing
Page 28 28
of the thing for which the conspiracy was
made. Before the introduction of Ch. VA
conspiracy, except in cases provided by
Sections 121A, 311, 400, 401 and 402 of
the Indian Penal Code, was a mere species
of abetment where an act or an illegal
omission took place in pursuance of that
conspiracy, and amounted to a distinct
offence. Chapter VA, however, introduced a
new offence defined by s. 120A. That
offence is called the offence of criminal
conspiracy and consists in a mere
agreement by two or more persons to do or
cause to be done an illegal act or an act
which is not illegal by illegal means;
there is a proviso to the section which
says that no agreement except an agreement
to commit an offence shall amount to a
criminal conspiracy unless some act
besides the agreement is done by one or
more parties to such agreement in
pursuance thereof. The position, therefore
comes to this. The gist of the offence of
criminal conspiracy is in the agreement to
do an illegal act or an act which is not
illegal by illegal means. When the
agreement is to commit an offence, the
agreement itself becomes the offence of
criminal conspiracy. Where, however, the
agreement is to do an illegal act which is
not an offence or an act which is not
illegal by illegal means, some act besides
the agreement is necessary. Therefore, the
distinction between the offence of
abetment by conspiracy and the offence of
criminal conspiracy, so far as the
agreement to commit an offence is
concerned, lies in this. For abetment by
conspiracy mere agreement is not enough.
An act or illegal omission must take place
in pursuance of the conspiracy and in
order to the doing of the thing conspired
for. But in the offence of criminal
conspiracy the very agreement or plot is
an act in itself and is the gist of the
Page 29 29
offence.”
(emphasis laid by this Court)
28.The learned senior counsel submits that the language
of the charge is that of abetment for fulfilling the
conspiracy against the accused persons. As the charge
under Section 120-B of IPC has not been proved,
Section 107 of IPC cannot be attracted in this case
as the distinction between the offence of abetment by
conspiracy and offence of criminal conspiracy is that
in the former, a mere agreement among persons is not
enough.
29.Mr. Basant R., the learned senior counsel appearing
on behalf of A-3 submits that A-3 has been acquitted
of the offence under Section 120-B of IPC. The
learned senior counsel further submits that A-3 was
never charged with the offences under Sections 34 and
149 of IPC. He was only charged with the offence
under Section 109 of IPC, which by itself was a vague
charge, making it impossible to defend. The learned
senior counsel contends that the inclusion of the
charge under Section 109 of IPC would indicate that
A-3 was in fact not involved in the actual murder of
the deceased. It is further contended that once the
Page 30 30
charge under Section 120B of IPC fails to be
established, the prosecution has to show the exact
manner in which the abetment of an offence was done
by A-3. The learned senior counsel contends that this
did not happen in the instant case.
30.The learned senior counsel further contends that as
far as the charge of offence under Section 302 of IPC
is concerned, even that has not been proved by the
prosecution satisfactorily. At the outset, the
learned senior counsel contests the factum of the
death of the deceased itself. It is contended that no
prosecution witness has identified the dead body that
was burnt on the night of 01.01.2002. No DNA tests
have been conducted to conclusively verify the
identity of the body that was allegedly burnt on
01.01.2002. It is submitted that the reliance placed
by the courts below on the evidence of PW-32 and
PW-33 is also misplaced. PW-33 stated in his
testimony that A-3 had told him to procure a death
certificate for one Rajamani Chettiar who had died.
PW-33 then asked PW-32, a doctor he knew for the last
fifteen years to issue the same. There is nothing to
actually connect A-3 to the death certificate except
Page 31 31
the spoken word of PW-33. It is contended that it was
in fact PW-32 and PW-33 who created the false
evidence, and are now conveniently pinning it
squarely on A-3. The learned senior counsel further
contends that the specific role of A-3 in the murder
of the deceased has not been proven, which makes it
erroneous in law to convict him of the offence under
Section 302 read with Section 109 of IPC.
31.The learned senior counsel further contends that the
testimony of PW-10 and PW-11 should not be relied
upon, as their evidence is not corroborated by other
material evidence. The learned senior counsel further
contends that the fact that PW-10 and PW-11 have not
been termed as ‘accomplices’ by the courts below and
their evidence has no bearing on the reliability to
record the finding of guilt. The fact that the term
‘accomplice’ has not been used to describe them is
irrelevant, as if the evidence on record points to
them being accomplices, then PW-10 and PW-11 are in
fact, accomplices. The learned senior counsel further
submits that the term accomplice has not been defined
in any statute. He places reliance on the definition
of the term ‘accomplice’ in Black’s Law Dictionary,
Page 32 32
in which it has been defined as under:
“One who is in some way concerned or
associated in commission of crime, a
partaker of guilt, one who aids or
assists, or is an accessory.”
Ramanatha Aiyar’s Law Dictionary defines ‘accomplice’ as:
“There is some authority for using the
word ‘accomplice’ to include all
principals and all accessories, but the
preferred usage is to include all
principals and accessories before the
fact, but to exclude accessories after
the fact. If this limitation is adopted,
the word ‘accomplice’ will embrace all
perpetrators, abettors and inciters.
The term in it fullness includes in its
meaning all persons, who have been
concerned in the commission of a crime,
all participles criminis , whether they
are considered in strict legal property
as principals in the first or second
degree or merely as accessories before
or after the fact.”
32. The learned senior counsel submits that the burden
upon the accused to show that someone is an accomplice is
only to the extent that the term accomplice is commonly
understood. The burden on the accused is not to show the
guilt of the witness beyond reasonable doubt.
33. The learned senior counsel contends that it becomes
clear from a perusal of the testimony of PW-10 and PW-11
(extracted in the earlier part of this judgment) that
they were actively involved in the preparation of the
Page 33 33
crime. The learned senior counsel further contends that
the testimony also clearly shows that both the PWs had
full knowledge of the purpose for which they were making
the preliminary preparations, i.e., for the abduction of
the deceased and keeping him in the premises of the
vermicelli factory. The learned senior counsel further
submits that PW-10 and PW-11 can by no stretch of
imagination be said to be approvers, as no court has
granted them pardon and made them as approvers.
34. On the question of the role prescribed by PW-10 and
PW-11 to A-3, the learned senior counsel submits that
there is no evidence which suggests that A-3 came in
contact with the deceased while he was at the vermicelli
factory premises. PW-10 had deposed as under:
“On 30.12.2001 at 8:30 A.M., Udaykumar
called me over my cell phone. Asked me
to come to Henkala Hotel. I also went
there. After sometime Accused Manickam
came by Uno car. After coming to the
room, he asked Udaykumar that he need a
Maruti Van. Manickam took myself,
Udaykumar and Senthilkumar in that
Maruti Van and went to the vermicelli
factory at Mudichur. When we went to the
company, Manickam alone got down and was
standing there. One person came down
from upstairs and took me and
Senthilkumar to upstairs. There were
about 5 or 6 persons. Ex. M.L.A. Balan
was tied up with chain and his eyes were
also closed with a cloth and he had been
Page 34 34
made to sit on the green steel cot which
was provided by us already………”
Further, PW-10 identifies four accused who brought down
the dead body of the deceased and A-3 is not one of these
four accused.
35. The learned senior counsel contends that even if
the evidence of PW-10 and PW-11 are accepted in toto, it
does not at all suggest that A-3 was present in the
vermicelli factory, which is the alleged scene of crime
when the death occurred. Hence, the charge of the offence
under Section 302 read with Section 109 IPC cannot be
sustained against A-3 at all.
36. Mr. P.V. Yogeswaran, the learned counsel appearing
on behalf of A-15 contends that there is nothing in the
evidence to directly implicate A-15 except M.O.1, the
Reebok shoes produced by the prosecution on record which
allegedly belonged to the deceased. PW-1 however, in his
testimony stated that M.O.1 showed to him in court, did
not belong to his father. PW-2, the driver of the
deceased has also denied that those shoes belonged to the
deceased. The learned counsel further submits that the
testimony of PW-10 and PW-11 cannot be relied upon, as
the proper procedure as required under Section 164 of
Page 35 35
CrPC has not been followed by the Court while recording
their evidence.
Contentions urged on behalf of the prosecution:
37. On the other hand, Mr. Yogesh Kanna, the learned
counsel appearing on behalf of the State of Tamil Nadu
contends that there is no infirmity in the impugned
judgment and order passed by the High Court, upholding
the conviction and sentence passed against the
accused-appellants by the Trial Court, and the same need
not be interfered with by this Court in exercise of its
jurisdiction under Article 136 of the Constitution of
India.
38. The learned counsel places reliance on the evidence
of Venugopal (PW-10). PW-10, in his deposition mentions
the scouting for locations that had taken place, to
carry out the most suitable location where the crime
could be carried out. He deposed as under:
“In the second week of November, 2001,
this Accused Udayakumar called me over
telephone and came to my office. At that
time he asked me whether the houses are
ready. I replied him that I have made
them ready. Next day, Udaykumar called
me once again and asked me and Newton to
be in the office. He also told me that
Poonga Nagar Manickam of Perambur is
coming to my office. Around 2 P.M. on
Page 36 36
that day Udaykumar and Poonga Nagar
Manickam came to my office. I and Newton
were present in our office. Myself and
Newton took Poonga Nagar Manickam and
Udaykumar for the purpose of showing the
houses. First we went from Tambaram to
Camp Road and in a considerable distance
from there to Mahalakshmi Nagar and
showed my friend Mr. Choudry’s house.
Besides that, we showed 4 or 5 houses in
that place. At last, they saw my house
also. Then Manickam told Udaykumar that
he don’t like the houses shown by us
including my house. Then, Udaykumar
asked to show the Vermicelli factory in
Mudhichur Road. Myself and Newton took
Poonga Nagar Manickam and Udayakumar and
showed the Vermicelli factory in
Mudichur Road. Witness Krishnapandi was
also there. Manickam saw the factory.
After seeing the factory, Manickam told
Udayakumar that this place is the
correct place for the work to be done by
us.”
38. The learned counsel further contends that apart from
explaining the meetings between the accused persons to
hatch the conspiracy to abduct the deceased, PW-10 has
also spoken about the Maruti Van that was used to carry
the dead body of the deceased after the crime had been
committed. PW-10 has deposed as follows:
“On 30.12.2001 at 8:30 A.M., Udaykumar
called me over my cell phone. Asked me
to come to Henkala Hotel. I also went
there. After sometime Accused Manickam
came by Uno Car. After coming to room,
he asked Udayakumar that he needed a
Maruti Van. He went outside and brought
one sandal colour Maruti Van. Manickam
Page 37 37
took myself, Udayakumar and Senthilkumar
in that Maruti Van and went to the
vermicelli factory at Mudichur. When we
went to the company, Manickam alone got
down and was standing there. One person
came down from upstairs and took me and
Senthilkumar to upstairs. There were
about 5-6 persons. Even Ex MLA M.K.
Balan was tied up with chain and his
eyes were also closed with a cloth and
he had been made to sit on the green
steel cot which was provided by us
already. He was wearing black pant and
sandal colour T-shirt……”
The learned counsel further submits that PW-10 in
fact also saw the accused carrying the body of the
deceased out of the vermicelli factory premises. The
relevant portion of his evidence is extracted hereunder:
“On 1.1.2002 morning, I came back to my
house. By 10:30 a.m. Udayakumar called
up over phone and asked me to come to
Henkala Hotel. I also went there. After
sometime Manickam came there. Manickam
asked Udayakumar to provide an ambulance
to him. Udayalumar took me with him and
went to 2,3 places in search of an
ambulance. He could not find ambulance.
Then Manickam told him that if ambulance
is not there it does not matter, but to
arrange one Maruti Van and fix one Lumax
light as fixed in ambulance vehicle. By
that time, Manickam’s driver Viji came
there……After sometime Manickam called
Udayakumar over phone. Then Udayakumar
told me that Manickam asked me to
arrange for a Maruti Van. Udayakumar
asked me to wait there and went out and
came back with a Maruti Car. That Maruti
Van is of gold colour……I came to a tea
shop with Newton by his motor cycle.
Page 38 38
Newton told me that lunch was not
supplied in the afternoon to the
Vermicelli factory and they have told
over phone that they do not need dinner
also. I also told Newton about their
requirement of ambulance. Also I told
him that they are arranging for a
vehicle like ambulance. I told him about
Udayakumar sending the Maruti van by
8.00 P.M. and also about my fear on
seeing all these. Newton was also very
much scared. Both of us suspected that
something is going on in the company.
Then, both of us started around 8:45
P.M. from Tambaram and reached the
Mudichur company by 9.00 P.M. There the
gate in the ground floor was closed……The
Golden colour Maruti sent from Henkala
Hotel was standing there……Then 4 persons
came from upstairs carrying on Mr. M.K.
Balan’s body. Among that four persons, 2
persons were holding his legs and the
other 2 persons were holding his hands.
By that time also M.K. Balan was wearing
black colour pant, and sandal colour T
shirt. After coming from the upper
steps, there is a slab like place. They
kept the body there. They took a cloth
from the bag brought by Balamurugan and
tied around M.K. Balan’s body, like
doing a dead body. There is no movement
in the body.”
39. The learned counsel thus, submits that PW-10 has
explicitly mentioned seeing the dead body of the
deceased by some of the accused, and has also spoken
about the Maruti Van which was recovered from the
accused-appellants. His testimony is crucial in placing
the accused-appellants at the scene of the crime, and
Page 39 39
their involvement in the same. It thus, establishes
their guilt beyond reasonable doubt.
40. The learned counsel further places reliance on
the testimony of Newton (PW-11). PW-11 has also spoken
about making the preparations on the instruction of
Poonga Nagar Manickam, A-3. Significantly, PW-11 also
mentions seeing the dead body of the deceased being
carried down the vermicelli factory premises. The
relevant portion of his evidence is extracted as under:
“……As per that, both of us went to the
vermicelli company by the motor cycle.
By that time, 2 persons were near the
gate. Then both of them told us that we
do not have any work there and we can go
from there. Then I left the bike
adjacent to the company and when I and
Venugopal crossed the company gate, we
saw Balamurgan going into the vermicelli
factory. At that time, 4 persons came
from upstairs of the vermicelli factory,
carrying M.K. Balan, who was wearing
Black colour pant and T shirt (sandal
colour) and they left him on the floor.
They tied up M.K. Balan with the dhoti
brought by Balamurugan and carried him
to the van and the van started from
there……I and Venugopal were scared and
came back to home. PW-10 Venugopal told
me that he was called by Poonga Nagar
Manickam and told by him that if this
matter is leaked out anywhere he will
kill him and his family.”
41. The learned counsel further places reliance on the
testimony of PW-33, Kamaraj, who had procured the death
Page 40 40
certificate, which was shown as that of the deceased in
order to cremate him. PW-33 stated that he had procured
the death certificate at the instance of A-3. The
relevant portion of his evidence is extracted hereunder:
“……At that time Sami told me that
Manickam asked me to come by 6 am in the
morning. Next day I went to Manickam’s
house by 6 am and when he enquired about
my conveyance and I told him that I had
come by Auto and he gave me Rs 50/- for
expenses. Further he told that watchman
working in a Kolathur company had died;
and one Rajamani Chettiar expired and
asked me to get a certificate. I
immediately told about PW-32, Dr.
Anbarasu known to me for the past 15
years; and went to his place by auto.
The Doctor was there. I told him that a
watchman in a Kolathur Company had died.
He believed me and gave it in writing in
a letterhead. I gave it to Manickam in
Perambur and came back to my house……”
42. The learned counsel further relies on the evidence
of Dr. K.V. Chinnaswamy, PW-32, who had stated that
PW-33 had asked him for a death certificate in the name
of one Rajamani Chettiar. PW-32 stated that he had no
reason to suspect PW-33, whom he had known for about
fifteen years, and thus, issued the death certificate
without even looking at the dead body of the deceased.
43. The learned counsel further submits that after
considering the evidence of PW-1 and PW-3 and after
Page 41 41
perusal of the First Information Report, that according
to the circumstantial evidence, it can be seen that it
was indeed the deceased who had been kidnapped from MRC
Nagar on 30.12.2001 at about 5:30 a.m by the accused
appellants.
44. The learned counsel further contends that PW-10
and PW-11 are not accomplices, and thus, their evidence
can be safely relied upon, in light of the fact that
they corroborate each other on all material aspects in
relation to the charges. The learned counsel places
reliance on the decision of the High Court of Lahore,
in the case of Ismail s/o Hassan Ali v. Emperor
6
,
wherein an accomplice was defined as:
“The expression 'accomplice' has not
been defined in the Evidence Act, but
there can be little doubt that it means
a person who knowingly or voluntarily
cooperates with or aids and assists
another in the commission of a crime.
The expression obviously includes
principals in the first and second
degree. In the case in ('36) 23 A.I.R.
1936 P.C. 242 : 163 I.C. 681 (P.C.),
Mahadeo v. The King their Lordships of
the Privy Council held that the
expression is wide enough to include
persons who are known to the English law
as accessories after the fact. An
accessory after the fact is one who,
knowing a felony to have been committed,
6
AIR 1947 Lah 220
Page 42 42
receives, relieves, comforts or assists
the felon. Three conditions must unite
to render one an accessory after the
fact: (1) the felony must be complete;
(2) the accessory must have knowledge
that the principal committed the felony;
and (3) the accessory must harbour or
assist the principal felon. Mere acts of
charity which relieve or comfort a
felon, but do not hinder his
apprehension and conviction nor aid his
escape, do not render one an accessory
after the fact (4 Blackstone's
commentaries p. 38). He must be proved
to have done some act to assist the
felon personally (1823-41) 9 C.P. 355).
The mere fact, that one had knowledge
that a crime had been committed, and
that he concealed or failed to disclose
such knowledge, does not render him an
accomplice. If, for example, the
concealment is due to the witness's
anxiety for his own safety rather than
to any desire to shield the criminal, he
would not be an accomplice. Nor would a
person who remains passively silent
after obtaining knowledge of the
commission of the crime be an accessory
or an accomplice within the rule as to
the testimony of accomplices. To render
a person an accomplice his participation
in the crime must be criminally
corrupt.”
(emphasis laid by this Court)
45. The learned counsel further contends that PW-10
and PW-11 only did the things they were told to do, like
scouting for the location and arranging the necessary
items needed to keep the deceased at the vermicelli
factory premises at the instance of the
Page 43 43
accused-appellants. PW-10 and PW-11 were also threatened
with harm to themselves and to their families if they
did not comply with the instructions given to them by
the accused-appellants. The learned counsel further
contends that mere knowledge of a crime does not make a
person an accomplice. Reliance has been placed on the
decision of the Calcutta High Court in the case of
Narain Chandra Biswas v. Emperor
7
, wherein it was held
as under:
“ It may further be noticed that where a
witness is not concerned with the
commission of the crime for which the
accused is charged, he cannot be said to
be an accomplice in the crime, as it is
well settled that all accessories before
the fact, if they participate in the
preparation for the crime are
accomplices, but if their participation
is limited to the knowledge that crime
is to be committed, they are not
accomplices. "Whether therefore a person
is or is not an accomplice depends upon
the facts in each particular case
considered in connexion with the nature
of the crime; and persons to be
accomplices must participate in the
commission of the same crime as the
accused persons in a trial are charged.
All persons coming; technically within
the category of accomplices cannot also
be treated as on precisely the same
footing.”
46. The learned counsel submits that there is nothing
7
AIR 1936 Cal 101
Page 44 44
on record to prove that PW-10 and PW-11 had prior
knowledge that the deceased would be murdered at the
hands of the accused-appellants. The only knowledge
they had was that the factory premises was needed for
some work by the accused appellants.
47. The learned counsel further contends that even if
PW-10 and PW-11 were taken to be accomplices, their
testimony can still be safely relied upon, for the
reason that they corroborate each other, as well as
corroborated by other independent witnesses,
including PW-1, the son of the deceased, as well as
PW-13, who is an eyewitness to the kidnapping of the
deceased. The learned counsel places reliance on the
decision of this Court in the case of K Hashim v.
State of Tamil Nadu
8
, wherein it was held that:
“First, it is not necessary that there
should be independent confirmation of
every material circumstance in the sense
that the independent evidence in the case,
apart from the testimony of the
complainant or the accomplice, should in
itself be sufficient to sustain
conviction. As Lord Readings says -
'Indeed, if it were required that the
accomplice should be confirmed in every
detail of the crime, his evidence would
not be essential to the case, it would be
merely confirmatory of other and
8
(2005) 1 SCC 237
Page 45 45
independent testimony.'
38. All that is required is that there
must be some additional evidence rendering
it probable that the story of the
accomplice (or complainant) is true and
that it is reasonably safe to act upon it.
39. Secondly, the independent evidence
must not only make it safe to believe that
the crime was committed but must in some
way reasonably connect or tend to connect
the accused with it by confirming in some
material particular the testimony of the
accomplice or complainant that the accused
committed the crime. This does not meant
that the corroboration as to identify must
extend to all the circumstances necessary
to identify the accused with the offence.
Again, all that is necessary is that there
would be independent evidence which will
make it reasonably safe to believe the
witness's story that the accused was the
one, or among those, who committed the
offence. The reason for this part of the
rule is that -
"a man who has been guilty of a crime
himself will always be able to relate the
facts of the case, and if the confirmation
be only on the truth of that history,
without identifying the persons, that is
really no corroboration at all ...... It
would not at all tend to show that the
party accused participated in it."
40. Thirdly, the corroboration must come
from independent sources and thus
ordinarily the testimony of one accomplice
would not be sufficient to corroborate
that of another. But of course the
circumstances may be such as to make it
safe to dispense with the necessity of
corroboration and in those special
circumstances a conviction so based would
not be illegal. I say this because it was
contended that the mother in this case was
not an Independent source.
41. Fourthly, the corroboration need not
Page 46 46
be direct evidence that the accused
committed the crime. It is sufficient if
it is merely circumstantial evidence of
his connection with the crime. Were it
otherwise, "many crimes which are usually
committed between accomplices in secret,
such as incest, offences with females' (or
unnatural offences) could never be brought
to justice". [See M.O. Shamsudhin v. State
of Kerala.]”
48. The learned counsel contends that the Trial Court
and the High Court were correct in placing reliance on
the testimony of PW-10 and PW-11 and convicting and
sentencing the accused-appellants for kidnapping and
murder of the deceased and the same does not warrant
any interference by this Court in exercise of its
appellate power under Article 136 of the Constitution.
49. We have heard the learned counsel appearing on
behalf of all the parties and have appreciated the
evidence on record. The essential question that would
arise for our consideration is whether the High Court
was justified in upholding the conviction and sentence
imposed on A-3 and A-4 by the Trial Court. At the cost
of reiteration, since the only appellants before us in
the present appeals are A-3, A-4 and A-15, we shall
restrict our examination of the evidence on record only
to their role in the crime as has been alleged by the
Page 47 47
prosecution.
50. From a perusal of the evidence on record, it
becomes clear that the case of the prosecution as far
as A-3 and A-4 are concerned rests heavily on the
evidence of PW-10 and PW-11, whose evidence is
supported by the evidence of PW-33 and PW-34.
51. At the outset, it is crucial for me to examine
the evidence of PW-10 and PW-11, as this forms the
backbone of the case of the prosecution against A-3 and
A-4.
52. PW-10 has admitted to making preparations for the
crime, albeit on the instructions of the accused. PW-10
stated that he had shown various houses to the accused,
including his own, before settling in on the vermicelli
factory premises as the place where the deceased would
be brought and kept. PW-10 was also present in the
alleged meeting held on 05.12.2001 at the residence of
A-3 at Perambur. In that meeting, PW-10 stated that A-3
told everyone present there that the deceased had to be
abducted and money recovered from him. It is further
evident from the evidence of PW-10 that he arranged
money and vehicles, as and when needed. What becomes
further clear from the evidence of PW-10 is that he has
Page 48 48
squarely kept himself out of the actual abduction and
murder of the deceased. According to PW-10, on
31.12.2001, the day that the deceased was abducted, A-9
Udayakumar called PW-10 to a hotel, from where A-3,
A-9, A-1 went in a Maruti Van to the vermicelli factory
at Mudichur. It was after reaching the vermicelli
factory that PW-10 was taken to the room where the
deceased was tied up in chains. PW-10 was then asked by
A-3 to arrange for an ambulance or a vehicle like an
ambulance. On 01.01.2002, at about 9:00 P.M., he saw
the body of the deceased being carried downstairs by
four persons. A-3 and A-4 were not among them.
53. Newton, PW-11, in his deposition states that at
the request of A-9, he and PW-10 showed houses to A-3
and A-9. PW-11 was also present at the meeting on
05.12.2001 and saw A-4, A-6 and A-11 there. On the day
of the abduction, PW-11 saw the deceased being brought
into the vermicelli factory premises. He stated as
under:
“……After half an hour, Udayakumar called
me over the phone and told me to open
the gate of the vermicelli factory.
Then, the Tata Sumo car came first,
followed by the Ford Escort Car and a
Maruti Zen Car. 4 persons got down from
the Ford Car. Those 4 persons brought
Page 49 49
M.K. Balan by closing his eyes, mouth
and tying his hands and took him to the
1
st
floor. M.K. Balan was wearing black
colour pant, sandal colour T shirt and
shoes. 3 persons came out of the zen
car. Udayakumar came to me and asked me
whether I know that he is M.K. Balan and
he also threatened me that if I disclose
the same to anybody Poonga Nagar
Manickam will kill me and my family
members. Then all the three cars went
from the company. I can identify the 4
persons, who brought M.K. Balan in the
Ford Car, if I see them. They are 4
th
accused, 11
th
Accused, 16
th
Accused and
17
th
Accused………………The next day around
6.00 A.M. when Udayakumar came there, I
went from there. Thereafter, Udayakumar
called me over phone and asked me to buy
tiffin for 10 persons and gve the same
to Balamurugan in the vermicelli
factory. By 12.00 noon, Udayakumar
called again and asked me to buy lunch
for 10 persons, B.P. tablets and head
ache tablet and to handover the same to
Balamurugan in Mudichur vermicelli
factory. I gave them the same and went
home……”
54. PW-11 also speaks about seeing the dead body of
the deceased. He also identified the Ford Escort Car,
M.O. 7, whose registration number is T.T.N.
10-F-5555. As far as A-15 is concerned, only PW-11
identifies him at the vermicelli factory premises on
30.12.2001, when he states that A-15 was one of the
four persons who came with accused Balamurugan with
the tiffin parcel.
Page 50 50
55. From a perusal of the evidence of PW-10 and
PW-11, it becomes clear that they are accomplice
witnesses. It is also clear that the case of the
prosecution heavily rests on their evidence. Before
we proceed to examine the culpability of A-3 and A-4,
it is important for us to examine the reliability of
the evidence of the above accomplices. Section 133 of
the Indian Evidence Act, 1872, which deals with the
testimony of accomplice witness, reads as under:
“an accomplice shall be a competent
witness against an accused person;
and a conviction is not illegal
merely because it proceeds upon the
uncorroborated testimony of an
accomplice.”
56. The High Court, in the impugned judgment and
order also considered this aspect at some length.
After adverting to judgments of both the Privy
Council as well as this Court, the High Court
concluded as under:
“ A deep study on the above approach in
law as to the evidentiary value of the
deposition of an accomplice, the
following settled principles culminate;
that an evidence of an accomplice need
not necessarily be rejected, that the
evidence requires corroboration in
material particulars as well as the
corroboration of the evidence connecting
or tend to connect the accused with the
Page 51 51
crime, that such accomplice witness is
reliable. If the above tests are
satisfied, the evidence of an accomplice
can be safely relied upon to hold the
accused guilty of the offence. Keeping
the above principle in mind, the
evidence of PW-10 and PW-11 should be
considered.”
57. In the instant case, PW-10 and PW-11 have not
been granted pardon by any Court and have been
arrayed as prosecution witnesses. This Court has
held that the mere fact that pardon has not been
tendered by a court of law does not make an
accomplice cease being an accomplice. The learned
senior counsel Mr. Basant R. has aptly placed
reliance upon the case of Laxmipat Choraria v. State
of Maharashtra
9
, this Court held as under :
“The word accomplice is ordinarily used in
connection with the law of evidence and
rarely under the substantive law of crimes.
Accomplice evidence denotes evidence of a
participant in crime with others.
Section 133 of the Evidence Act makes the
accomplice a competent witness against an
accused person.
The witness was, of course, treated as an
accomplice. The evidence of such an
accomplice was received with necessary
caution in those cases. These cases have
all been mentioned in In re Kandaswami
Gounder AIR1957Mad727, and it is not
necessary to refer to them in detail here.
The leading cases are : Queen Emperor v.
9
AIR 1968 SC 938
Page 52 52
Mona Puna I.L.R. 16 Bom. 661, Banu Singh v.
Emperor I.L.R. 33 Cal. 1353, Keshav Vasudeo
Kortikar v. Emperor I.L.R. 59 Bom. 355,
Empress v. Durant I.L.R. 23 Bom. 213, Akhoy
Kumar Mookerjee v. Emperor I.L.R. 45 Cal.
720, A.V. Joseph v. Emperor I.L.R. 3 Rang.
11, Amdumiyan and others v. Crown I.L.R.
1937 Nag. 315, Gallagher v. Emperor I.L.R.
54 Cal. 52, and Emperor v. Har Prasad,
Bhargava I.L.R. 45 All. 226. In these cases
(and several others cited and relied upon
in them) it has been consistently held that
the evidence of an accomplice may be read
although he could have been tried jointly
with the accused. In some of these cases
the evidence was received although the
procedure of s. 337, Criminal Procedure
Code was applicable but was not followed.
It is not necessary to deal with this
question any further because the consensus
of opinion in India is that the competency
of an accomplice is not destroyed because
he could have been tried jointly with the
accused but was not and was instead made to
give evidence in the case .”
(emphasis laid by this Court)
58. The same view has been reiterated by this Court
more recently in the case of Chandran @ Maniyan v.
State of Kerala
10
.
59. Thus, PW-10 and PW-11 being accomplice witnesses,
their evidence must be treated as such, and subject
to the same test of reliability of the evidence of an
accomplice or approver are subject to.
60. As far as how much reliance can be placed upon
10
(2011) 5 SCC 161
Page 53 53
the evidence of such witnesses is concerned, in this
regard this Court has laid down the well settled
position of law. In support of the above legal
submission, the learned senior counsel Mr. Basant R.
relied upon the case of Sarwan Singh v. State of
Punjab
11
, a three judge bench of this Court held as
under:
“An accomplice is undoubtedly a competent
witness under the Indian Evidence Act .
There can be, however, no doubt that the
very fact that he has participated in ,the
commission of the offence introduces a
serious stain in his evidence and courts
are naturally reluctant to act on such
tainted evidence unless it is corroborated
in material particulars by other
independent evidence. It would not be right
to expect that such independent
corroboration should cover the whole of the
prosecution story -or even all the material
particulars. If such a view is adopted it
would render the evidence of the accomplice
wholly superfluous. On the other hand, it
would not be safe to act upon such evidence
merely because it is corroborated in minor
particulars or incidental details because,
in such a case, corroboration does not
afford the necessary assurance that the
main story disclosed by the approver can be
reasonably and safely accepted as true. But
it must never be forgotten that before the
court reaches the stage of considering the
question of corroboration and its adequacy
or otherwise, the first initial and
essential question to consider is whether
even as an accomplice the approver is a
11
AIR 1957 SC 637
Page 54 54
reliable witness. If the answer to this
question is against the approver then there
is an end of the matter, and no question as
to whether his evidence is corroborated or
not falls to be considered. In other words,
the appreciation of an approver's evidence
has to satisfy a double test. His evidence
must show that he is a reliable witness and
that is a test which is common to all
witnesses. If this test is satisfied the
second test which still remains to be
applied is that the approver's evidence
must receive sufficient corroboration. This
test is special to the cases of weak or
tainted evidence like that of the
approver. ”
(emphasis laid by this Court)
The above principle was reiterated in the case of Haroom
Haji Abdulla v. State of Maharashtra
12
, as under:
“8. ...... The Evidence Act in Section 133
provides that an accomplice is a competent
witness against an accused person and that
a conviction is not illegal merely because
it proceeds upon the uncorroborated
testimony of an accomplice. The effect of
this provision is that the court trying an
accused may legally convict him on the
single evidence, of an accomplice. To this
there is a rider in Illustration (b) to
Section 114 of the Act which provides that
the Court may presume that an accomplice is
unworthy of credit unless he is
corroborated in material particulars. This
cautionary provision incorporates a rule of
prudence because an accomplice, who betrays
his associates, is not a fair witness and
it is possible that he may, to please the
prosecution, weave false details into those
which are true and his whole story
12
AIR 1968 SC 832
Page 55 55
appearing true, there may be no means at
hand to sever the false from that which is
true. It is for this reason that courts,
before they act on accomplice evidence,
insist on corroboration in material
respects as to the offence itself and also
implicating in some satisfactory way,
however small, each accused named by the
accomplice. In this way the commission of
the offence is confirmed by some competent
evidence other than the single or
unconfirmed testimony of the accomplice and
the inclusion by the accomplice of an
innocent person is defeated. This rule of
caution or prudence has become so ingrained
in the consideration of accomplice evidence
as to have almost the standing of a rule of
law.
9. The argument here is that the cautionary
rule applies, whether there be one
accomplice or more and that the confessing
co-accused cannot be placed higher than an
accomplice. Therefore, unless there is some
evidence besides these implicating the
accused in some material respect,
conviction cannot stand. Reliance is placed
in this connection upon the observations of
the Judicial Committee in Bhuboni Sahu v.
Emperor a case in which a conviction was
founded upon the evidence of an accomplice
supported only by the confession of a
co-accused. The Judicial Committee
acquitting the accused observed:
"...... Their Lordships whilst not
doubting that such a conviction is
justified in law under s. 133,
Evidence Act, and whilst
appreciating that the coincidence of
a number of confessions of
co-accused all implicating the
particular accused given
independently, and without an
opportunity of previous concert,
might be entitled to great weight,
would nevertheless observe that
Page 56 56
Courts should be slow to depart from
the rule of prudence, based on long
experience, which requires some
independent evidence implicating the
particular accused. The danger of
acting upon accomplice evidence is
not merely that the accomplice is on
his own admission a man of bad
character who took part in the
offence and afterwards to save
himself betrayed his former
associates, and how has placed
himself in a position in which he
can hardly fail to have a strong
bias in favour of the prosecution;
the real danger is that he is
telling a story which in its general
outline is true, and it is easy for
him to work into the story matter
which is untrue....."”
(emphasis laid by this Court)
In the case of Ravinder Singh v. State of Haryana
13
, a
three judge bench of this Court held as under:
“12. An approver is a most unworthy friend,
if at all, and he, having bargained for his
immunity, must prove his worthiness for
credibility in court. This test is
fulfilled, firstly, if the story he relates
involves him in the crime and appears
intrinsically to be a natural and probable
catalogue of events that had taken place.
The story if given, of minute details
according with reality is likely to save it
from being rejected. Secondly, once that
hurdle is crossed, the story given by an
approver so far as the accused on trial is
concerned, must implicate him in such a
manner as to give rise to a conclusion of
guilt beyond reasonable doubt. In a rare
case taking into consideration all the
13
(1975) 3 SCC 742
Page 57 57
factors, circumstances and situations
governing a particular case, conviction
based on the uncorroborated evidence of an
approver confidently held to be true and
reliable by the court may be permissible.
Ordinarily, however, an approver's statement
has to be corroborated in material
particulars bridging closely the distance
between the crime and the criminal. Certain
clinching features of involvement disclosed
by an approver appertaining directly to an
accused, if reliable, by the touchstone of
other independent credible evidence, would
give the needed assurance for acceptance of
his testimony on which a conviction may be
based.”
(emphasis laid by this Court)
61. It becomes clear from a perusal of the
abovementioned case law that while the evidence of an
accomplice can be used to convict an accused, as a
rule of prudence, the Court must first ensure that
the testimony of the accomplice is corroborated in
material particulars by adducing independent
evidence. It is also a well settled position of law
that the evidence of two accomplices cannot be used
to corroborate with each other, as held in the case
of R v. Baskerville
14
. The same position of law has
been reiterated and adopted in India in a catena of
cases. In this regard, the learned senior counsel Mr.
Basant R. has placed reliance upon the case of
14
[1916] 2 KB 658
Page 58 58
Mohd. Hussain Kochra v. K.S. Dalipsinghji & Ors.
15
, a
three judge bench of this Court held as under:
“The combined effect of Sections 133 and
114 Illustration (b) is that though a
conviction based upon accomplice evidence
is legal the Court will not accept such
evidence unless it is corroborated in
material particulars. The corroboration
must connect the accused with the crime. It
may be direct or circumstantial. It is not
necessary that the corroboration should
confirm all the circumstances of the crime.
It is sufficient if the corroboration is in
material particulars. The corroboration
must be from an independent source. One
accomplice cannot corroborate another. ”
(emphasis laid by this Court)
62.The said position of law was reiterated by this Court
in the case of Chonampara Chellapan v. State of
Kerala
16
as under:
“The law is well settled that the Court
looks with some amount of suspicion on
the evidence of an accomplice witness
which is tainted evidence and even
Section 133 of the Evidence Act clearly
provides that the evidence of an
accomplice witness should not be
accepted unless corroborated. At the
same time, it must be remembered that
corroboration must be in respect to
material particulars and not with
respect of each and every item however
minor or insignificant it may be.
Actually the requirement of
15
(1969) 3 SCC 429
16
(1979) 4 SCC 312
Page 59 59
corroboration is a rule of prudence
which the courts have followed for
satisfying the test of the reliability
of an approver and has now been
crystallized into a rule of law. It is
equally well settled that one tainted
evidence cannot corroborate another
tainted evidence because if this is
allowed to be done then the very
necessity of corroboration is
frustrated.”
(emphasis laid by this Court)
63. Further, the independent evidence must be such
that it corroborates with the testimony of the
accomplice in material particulars, that is, the
corroboration must be both in respect of the crime as
well as the identity of the accused. This particular
test assumes significance when there is more than one
accused in a case, as is the case here. In the case
of Sheshanna Bhumanna Yadav v. State of Maharashtra
17
,
this Court held as under:
“The law with regard to appreciation of
approver's evidence is based on the effect
of Sections 133 and 114 illustration (b) of
the Evidence Act, namely, that an
accomplice is competent to depose but as a
rule of caution it will be unsafe to
convict upon his testimony alone. The
warning of the danger of convicting on
uncorroborated evidence is therefore given
when the evidence is that of an accomplice.
The primary meaning of accomplice is any
party to the crime charged and someone who
17
AIR 1970 SC 1330
Page 60 60
aids and abets the commission of crime. The
nature of corroboration is that it is
confirmatory evidence and it may consist of
the evidence of second witness or of
circumstances like the conduct of the
person against whom it is required.
Corroboration must connect or tend to
connect the accused with the time. When it
is said that the corroborative evidence
must implicate the accused in material
particulars it means that it is not enough
that a piece of evidence tends to confirm
the truth of a part of the testimony to be
corroborated. That evidence must confirm
that part of the testimony which suggests
that the crime was committed by the
accused. If a witness says that the
accused, and he stole the sheep and he put
the skins in a certain place, the discovery
of the skins in that place would not
corroborate the evidence of the witness as
against the accused. But if the skins were
found in the accused's house, this would
corroborate because it would tend to
confirm the statement that the accused had
some hand in the theft.
This Court stated the law of corroboration
of accomplice evidence in several
decisions. One of the earlier decision is
Sarwan Singh v. State of Punjab and the
recent decision is Lachi Ram v. State of
Punjab. In Sarwan Singh's case this Court
laid down that before the court would look
into the corroborative evidence it was
necessary to find out whether the approver
or accomplice was a reliable witness. This
Court in Lachi Ram's case said that the
first test of reliability of approver and
accomplice evidence was for the court to be
satisfied that there was nothing inherently
impossible in evidence. After, that
conclusion is reached as to reliability
corroboration is required. The rule as to
corroboration is based on the reasoning
that there must be sufficient corroborative
Page 61 61
evidence in material particulars to connect
the accused with the crime.”
64. The accused before us are A-3, A-4 and A-15. What
is crucial to consider at this stage is that the
Trial Court acquitted all the above accused of the
charge of conspiracy under Section 120-B of IPC. They
have however, been convicted for, among others, the
offences under Section 302 read with Section 109 and
Section 364 read with Section 109 of IPC. There is
nothing on record to show the direct involvement of
the accused – appellants in either the abduction of
the deceased or his murder. The Ford Escort Car
(M.O.12) recovered at the instance of PW-10, from the
house of A-3, does not trace back its ownership to
A-4. The requirement of corroboration from
independent sources in material particulars has not
been met in the instant case. This makes it
impossible for the accused to be convicted of the
offences under Sections 302 and 364 of IPC. Neither
PW-10 nor PW-11 are witnesses to the abduction of the
deceased. PW-13, who witnessed the abduction, also
did not mention the above three accused at the site
of the abduction. PW-10 places A-3 and A-4 at the
Page 62 62
meeting on 05.12.2001. But this fact loses
significance in view of the fact that they have been
acquitted of the offence of conspiracy under Section
120B of IPC. PW-10 and PW-11 also saw the body of the
deceased being brought down in the vermicelli factory
premises on the night of 01.01.2002. But neither of
them places any of the three accused at the site at
that time. Further, what comes to light from the
testimony of PW-10 and PW-11 is that even at the
vermicelli factory premises, A-3 stayed downstairs,
while it was PW-11 who went upstairs and actually saw
the deceased tied to chains and the room where he was
kept. PW-11 only saw A-15 at the site on the night of
30.12.2001, carrying a tiffin parcel. A-4 has not
been mentioned anywhere at the vermicelli factory at
all. Further, as far as A-3 is concerned, another
evidence used against him is the testimony of PW-32
and PW-33 who have admitted to creating the evidence
of the death certificate, which was allegedly
required by A-3 to produce at the crematorium in
order to cremate the deceased. In light of the fact
that PW-32 has admitted to issuing the death
certificate without even seeing the dead body of the
Page 63 63
deceased at the request of PW-33. PW-33 has stated
that he only did so at the instance of A-3. There is
no other evidence on record to connect A-3 to the
death certificate. Even if the death certificate is
taken to be genuine, it does not in any way connect
A-3 to the deceased, thus rendering the claim of the
prosecution doubtful and shaky.
65. As far as A-15 is concerned, the crucial evidence
on which reliance was placed upon by both the courts
below to convict him was the recovery of M.O. 1,
reebok shoes on his direction. PW-31, Samundeswari, a
supervisor at the vermicelli factory, in her
deposition stated that she saw a person at the
vermicelli factory premises on the next day, i.e.
01.01.2002, who stated that he had come to take
something. He took a Reebok shoe from the factory.
Both the courts below, however, failed to notice that
PW-31 had explicitly stated in her testimony that:
“On 18
th
March, one person was brought by
the police that I only shouted him and
that if it is asked me whether I could
be able to identify the said person, I
could say that as it is a lapse of more
than 2 years, I could not remember that
person.”
(emphasis laid by this Court)
Page 64 64
Thus, the evidence of PW-31 cannot be used against A-15,
which has erroneously been done by the courts below.
Further, PW-1 and PW-2 have both stated in their
testimony that the particular reebok shoe did not belong
to the deceased. Thus, there is nothing on record which
connects A-15 either to the crime, or to the deceased.
66.Thus, the evidence of PW-10 and PW-11 is not
reliable for recording the finding of guilt on the
charges against the accused appellants. Even if it is
placed reliance upon, A-3, A-4 and A-15 cannot be
convicted of the offences of kidnapping and murder,
more so in light of the fact that they had been
acquitted of the charge of criminal conspiracy under
Section 120-B of IPC by the courts below. There was
no basis for convicting them under the other Sections
like 302 and 365 of IPC. After having found that the
accused persons were not guilty under Section 120-B
of IPC, it was the duty of the Trial Court to
establish the involvement of each of the accused
persons individually in each offence for which they
had been charged to hold them guilty under the same.
67.The accused appellants in the instant case have
also been convicted under Section 109 of IPC (Section
Page 65 65
302 read with 109 and 365 read with 109 IPC), which
prescribes the punishment for the offence of
abetment. Section 107 of IPC provides for the offence
of abetment as under:
“107. Abetment of a thing — A person abets the
doing of a thing, who—
(First)— Instigates any person to do that
thing; or
(Secondly)— Engages with one or more other
person or persons in any conspiracy for the
doing of that thing, if an act or illegal
omission takes place in pursuance of that
conspiracy, and in order to the doing of that
thing; or
(Thirdly)— Intentionally aids, by any act or
illegal omission, the doing of that thing.
Explanation 1— A person who, by wilful
misrepresentation, or by wilful concealment
of a material fact which he is bound to dis -
close, voluntarily causes or procures, or
attempts to cause or procure, a thing to be
done, is said to instigate the doing of that
thing. ……”
Mr. Siddharth Luthra, the learned senior counsel
appearing on behalf of appellant A-4 rightly places
reliance on the decision of this Court in the case of
Pramatha Nath Talukdar (supra), wherein this Court
discussed the distinction between the offence of
criminal conspiracy under Section 120A of IPC and that
of abetment by conspiracy under clause second of Section
107 of IPC. The view taken in that case was reiterated
by a three judge bench of this Court in the case of
Page 66 66
Kehar Singh & Ors v. State (Delhi Administration)
18
as
under:
“……For the present, it may be
sufficient to state that the gist of
the offence of criminal conspiracy
created under Section 120-A is a bare
agreement to commit an offence. It has
been made punishable under Section
120-B. The offence of abetment created
under the second clause of Section 107
requires that there must be something
more than a mere conspiracy. There
must be some act or illegal omission
in pursuance of that conspiracy. That
would be evident by the wordings of
Section 107 (Secondly)…… ”
(emphasis laid by this Court)
Thus, for Section 109 of IPC, it is not enough to show a
conspiracy. It has to be taken a step further. What
needs to be proved is an act committed in furtherance of
that conspiracy. In the instant case, both the courts
below did not find sufficient evidence to convict the
accused appellants of the charge under Section 120B of
IPC. Once the charge under Section 120B of IPC falls, in
order to convict the accused appellants under Section
302 read with Section 109 IPC, or Section 365 read with
Section 109 IPC, what was needed to be established was
the happening of some overt act on the part of the
accused appellants. From the evidence on record which
18
(1988)3 SCC 609
Page 67 67
has already been appreciated in detail in the preceding
part of this judgment, there is no evidence except the
testimony of PW-10 and PW-11 which links the accused
appellants to the crime. For the reasons stated supra, I
have already come to the conclusion that the testimony
of PW-10 and PW-11 is untrustworthy and cannot be relied
upon to convict the accused appellants in the instant
case. Thus, the charge under Section 109 of IPC also
cannot sustain.
68.Thus, for the reasons stated supra, the Trial
Court erred in convicting the accused appellants,
more so, after having acquitted them of the offence
of criminal conspiracy punishable under Section 120B
of IPC. Even the High Court adopted the same
erroneous approach while re-appreciating the
evidence against the accused appellants and
attempting to look for a complete link, as if the
accused persons had been convicted for the charge of
criminal conspiracy as well. This shows a gross non-
application of mind on the part of the courts below,
which certainly cannot be allowed to sustain by this
Court, as the same is wholly erroneous in law.
Therefore, these criminal appeals must be allowed in
Page 68 68
exercise of the power of this Court under Article 136
of the Constitution of India and the accused
appellants are entitled for acquittal from the
charges.
69.For the reasons recorded supra, I set aside the
impugned judgment and order dated 06.10.2007 passed
by the High Court in upholding the judgment and order
passed by the Trial Court convicting A-3, A-4 and
A-15. The prosecution has not proved its case beyond
reasonable doubt against the accused appellants.
Hence, I acquit A-3, A-4 and A-15 of all charges.
They may be released forthwith if they are not
required in any other case.
………………………………………………………… J.
[V. GOPALA GOWDA]
New Delhi,
September 28, 2016
Page 69 69
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.403 OF 2010
Somasundaram @ Somu … Appellant(s)
Vs.
State represented by Deputy
Commissioner of Police … Respondent
With
Criminal Appeal No.827/2013; and
Criminal Appeal No.828/2013.
J U D G M E N T
ARUN MISHRA, J.
1.I have gone through the opinion of my esteemed Brother but I find myself
unable to agree with the same. In my opinion judgment-order of conviction of Trial
Court affirmed by the High Court deserves to be upheld.
2.The appellants are aggrieved by their conviction. They have been convicted and
sentenced, as noted by my learned Brother, for commission of abduction and murder
of one Shri M.K. Balan, former Member of Legislative Assembly. In all, 18 accused
were put to trial. The trial court acquitted Romita Mary accused No.12 and Ganesan
accused No.18 and convicted the remaining accused. The appeal filed by accused
Page 70 70
No.10, namely, Leela Shankar, has been allowed by the High Court and with respect
to remaining 15 appellants, the same has been dismissed; thereby maintaining the
conviction and sentence imposed by the trial court. Out of the convicted accused, only
three accused Manickam @ Poonga Nagar Manickam A-3; Somasundaram A-4; and
Bomb Selvam A-15 are in appeal before us. Senthil Kumar A-1 and Manickam were
highly influential figures and the murder is a high profile political murder involving
various personalities.
3.As per the prosecution case, on 30.12.2001 one M.K. Balan went for a morning
walk at about 5.30 a.m. but did not return home. Hence, a complaint was lodged by
his son Manimaran PW-1. Complaint Ex. P1 was filed at Pattinpakkam P.S. at about
11 a.m. Photo of deceased Shri M.K. Balan was published in the newspaper and sent
to the Police Stations. The case was transferred to CBCID, Chennai on 12.1.2002.
Initially, the investigation was done by John Joseph, PW-66. Later on, it was taken
over by PW-67, the Deputy Superintendent of Police, CB CID. On 21.2.2002, the
Investigating Officer (IO) came to know of the involvement of accused A-5,
Balamurugan, in the offence through an informant. On 18.3.2002, at about 5.30 a.m.
Investigating Officer PW-67 arrested A-5 and recorded his confessional statement Ex.
P-43 who identified T.K.P. Food Products Company i.e. vermicelli factory at
Mudichur as place where deceased was kept after abduction. A-5 also took the IO to a
cremation ground at Perambur where body was cremated, the IO prepared a memo Ex.
A-47, sketch Ex. P-48 and recorded statements of PWs. 12 and 19, two vettiyans, who
identified MO 14, the photograph of the deceased M.K. Balan whose body was
Page 71 71
cremated. Identification memo Ex. P-46 was prepared in the presence of PW-44.
Thereafter, one Kannan, Office Assistant of Corporation of Chennai had been
examined and death report Ex. P-29 submitted in the name of fictitious person to
cremate deceased, was seized which related to one Rajamani Chettiar son of
Chindamani Chettiar, aged about 61 years. Ex. P-30 death register, Ex. P-31 the
counterfoil and Ex. P-32 despatch notebook were also seized. Deceased was cremated
on the basis of false death certificate Ex. P-27. After two and half months on
19.3.2002, certain articles were recovered from cremation ground and on the same day
at about 11.30 p.m., Shankar Ganesh A-6 was arrested near Perambur bus-stand, and
I.O. recorded the confessional statement of A-6 on 20.3.2002 in the presence of
Jagannathan PW-24 and other witnesses. Seizure of Maruti Omni van under memo Ex.
P-17 was also made. Irudhayaraj A-7 was also arrested on the same day and his
confessional statement Ex. P-38 was recorded. Pursuant thereto, an iron cot, used in
factory premises of Mudichur, MO-11 was seized vide memo Ex. P-7 in the presence
of Geetha PW-17.
4.On 25.3.2002, at about 8.15 a.m., Manickam A-3, was arrested and his
confessional statement Ex. P-20 came to be recorded on the basis whereof MO-12
Maruti zen car was seized vide memo Ex. P-6. On the same day the IO also recorded
the statement of PW-32 who was Lusker in the Corporation of Chennai, and the
proprietor of vermicelli factory T.K.P. Food Products, Mudichur, namely,
Krishnapandi PW-34. Accused No.9 was arrested and as per his information furnished
under section 27 of the Evidence Act, Maruti van TN-22-B-8853 was recovered from
Page 72 72
V.R. Pandian PW-18, in the presence of Sriramulu PW-25. On the basis of
confessional statement of A-3 dated 5.4.2002, recovery of MOs. 28 to 33 vide memo
Ex. P-36 was made. Somu @ Somasundaram A-4, had been arrested on 9.4.2002 at
about 6 a.m. at Chrompet Railway Station. His confessional statement Ex. P-34 had
been recorded in the presence of PW-9 and recovery of MO-6 Ford Escort car No.
TN-10-F-5555 was made vide memo Ex. P-9. Bomb Selvam A-15, was arrested on
24.4.2002 and his confessional statement Ex. P-50 was recorded in the presence of
PW-44. Pursuant to information furnished by him, recovery of MO-10 Hero Honda
bike was made vide memo Ex. P-51. Other accused persons were also arrested from
time to time. Their confessional statements were also recorded and recoveries made.
Ultimately, after investigation, final report was filed. In the course of trial, the
prosecution examined all the 67 witnesses. Documents Ex.P-1 to P-86 were exhibited
and articles MOs. 1 to 39 were produced consisting of six cars : MO6 Ford Escort Car
TN 10F 5555; MO7 Golden colour Maruti van TN 22P 8853, MO8 Maruti van TN 02
0343; MO9 Maruti van TNA 7484; MO-12 Maruti Zen TN 02 Z99; Tata Sumo car
TN-04 D 9657; Motorcycle MO-10 – Hero Honda; tape-recorder; suitcase; bedpan;
chain; iron cot; photo of M.K. Balan; TTK cassettes; 2 pants, 2 shirts, one dhoti, knife,
charger, mobile phones etc. were recovered. Accused abjured their guilt and pleaded
innocence.
5.The arguments advanced and evidence produced by prosecution consists of
different sets which can be divided in the following heads :
(i)Prosecution case - Evidence of PWs. 10 and 11;
Page 73 73
(ii)Prior relationship of accused;
(iii) Selection of premises where M.K. Balan was kept/and other arrangements;
(iv)Abduction of deceased M.K.Balan on 30.12.2001 in white omni van;
(v)Taking of M.K.Balan to factory premises/meeting dated 30.12.2001 at the
residence of A-9;
(vi)Commission of offence under section 302 IPC;
(vii)Removal of dead body from factory premises;
(viii)Cremation of dead body;
(ix) Procurement of death certificate by A-3;
(x)Confessions and recoveries from accused;
(xi)Commission of offence under section 387 IPC;
(xii)Effect of acquittal under section 120B IPC;
(xiii) Evidence of accomplices;
(xiv) Holding TI/recording of statement under section 164 Cr.P.C.;
(xv) Cell phones/cassettes/forensic evidence
6.Evidence of PW-10 and PW-11 :
It appears that Venugopal PW-10 and Newton PW-11 helped the accused
persons for hiring of vermicelli factory at Mudichur, renting some of cars, arranging
for hotels, food, arrangement of fan, bedpan, cot, arrangement for money, hiring of
vermicelli factory which was hired twice firstly for a week in the end of
November/early December then again in end of December to 1.1.2002 when incident
took place.
Page 74 74
7.Venugopal PW-10 is one of the main witnesses in the instant case. He has
deposed that he and Newton PW-11, are business partners. During 1999, he and A-9
had obtained licence to quarry sand at Kulur, Tiruvallur district. A-9 told him that one
Krishnapandi PW-34 is running a Semiya manufacturing company in the name of
T.K.P. Food Products at Mudichur and as the company was running at loss, and if they
invested, they may earn profit. Therefore, both, PW-10 and PW-11 invested Rs. 3
lakhs each in the said company and gave money to Krishnapandi. That while PW-10
and PW-11 had gone to a polling booth in the election held during August 2001, A-9
met PW-10. A-9 told PW-10 that he will be joining a leading political party and A-3
will help him and to reciprocate, he should do some favour for A-3. A-9 also told him
that A-3 has promised him to get him a post in the party and therefore, he wanted a
place to complete the job assigned to him by A-3.
8.Venugopal PW-10 has clearly stated that he had shown the house at
Mahalakshmi Nagar of his friend Mr. Chowdry but that was not liked by Manickam
and Udayakumar. The house of the witness was also not liked by accused Manickam
A-3 and Udayakumar A-9. A-9 had asked to show the vermicelli factory at Mudichur
Road then the said witness took A-3 and A-9 to vermicelli factory where Krishnapandi
P-34 was also present. Manickam A-3 told A-9 that place is suitable for the work to be
done by them. Later on, it was this factory where deceased M.K. Balan was kept after
abduction. Krishnapandi was told that they required the factory for one week and the
loss to be caused will be paid to him. The witness has identified A-3. The said witness
Venugopal PW-10. Newton PW-11, A-3 and A-9 travelled in the same car to
Page 75 75
Tambaram, that is in the white Ambassador car PY-01-H-4046. The witness has also
stated that Manickam, A-3 told him that a screen was required to be put on the
windows of factory in the first floor in which M.K. Balan was kept. The witness also
arranged two cots on credit from M/s. Nirmala Industries. On being asked by A-9
besides the chairs from his house, fan from A-9’s house, bed pan was also kept in the
vermicelli factory at Mudichur. Venugopal PW-10, A-9 and his friend Newton PW-11
had put them in the room. Screen over the windows was also fitted. Manickam A-3
and Udayakumar A-9 asked Krishnapandi to give one week off to the employees of
the factory but on and around 5.12.2001, no VIP came there as at that time, M.K.
Balan could not be abducted. In the end of November, A-9 asked the witness for his
Ford Escort car for 2-3 months to send it to A-9. Vijayan PW-49, driver of A-3 took
the car. On 5.12.2001, A-9 called Venugopal PW-10 over phone and requested him
and Newton PW-11 to reach the house of Manickam A-3 at Perambur. On that day
they went to the house of A-3. In the house 2-3 persons were also there. They went
inside the house. Manickam A-3 was telling to the persons who were present there and
Udayakumar A-9 that ex-MLA M.K. Balan has to be brought as some money was to
be collected from him. After that PW-10 and PW-11 went and sat in the car. After
about half an hour A-9 came. Manickam A-3 also came out who went out in Ford
Escort car of Venugopal PW-10 which had been given by him on rent. They followed
the said car. Venugopal PW-10, Newton PW-11 and A-9 followed the said car of A-9.
Other persons who were present in the meeting at the residence of Manickam, came
by another car. They were Somasundaram A-4, Shankar A-6, and Sampath A-11.
Page 76 76
When they were travelling by a car, Manickam A-3 called A-9 over phone and asked
him to come to the temple at N.S.C. Bose Road. Venugopal PW-10, Newton PW-11
and Udayakumar A-9 went to the temple. After sometime Manickam A-3 brought two
men and one woman in the Ford Escort car. Four persons came in the car, went to a
temple and came out after worship. Thereafter Manickam travelled in the same car.
They followed them. The persons accompanying A-3 were Senthil Kumar A-1,
Hariharan A-2 and Romita A-12. A-12 was dropped at Chintadripet and the car
ultimately reached Woodlands Drive Hotel. Then PW-10 and PW-11 left for their
respective places. By that time Manickam A-3 told A-9 to follow and went along with
Senthil Kumar A-1 and Hariharan A-2 in the Ford Escort car. A-3 came alone to the
hotel by the car then Venugopal, Newton and Udayakumar came by the car of A-9 to
Tambaram. A-9 again contacted PW-10 over phone on the next day, and requested him
to get the key of the house belonging to one Chowdry of Mahalakshmi Nagar.
Accordingly, PW-10 and PW-11 collected the said key from Chowdry and waited in
the house for A-9 to come. At around 7 p.m., Manickam A-3, A-9 and A-1 came with
one more person by Ford Escort car along with A-5. A-3 introduced Venugopal and
Newton to A-1 by referring him as a big VIP known as Senthil Kumar and that they
should not talk to him. A-3 also asked Venugopal PW-10 to arrange food for Senthil
Kumar and to do other works for him. Balamurugan A-5 served the food to A-1. Since
mobile connection was not available for Senthil Kumar A-1 at the said place, he was
made to stay in the house of A-9, Cell No. used by Senthil Kumar A-1 was
9840230709.
Page 77 77
9.PW-10 has further stated that on 08.10.2001, A-1 informed PW-10 that A-3
requires Rs.1,10,000/- and it will be returned in two to three days. On 10.12.2001,
PW-10 pledged jewels belonging to him and obtained Rs.1,10,000/- and took the said
amount to A-9’s house as per his instruction. Thereafter A-9 took PW-10 to Hotel
Excellency in T.Nagar where A-9 handed over the said amount to A-2. As factory at
Mudichur was selected to keep abductee. That at the request of A-9 and A-3, PW-10
had arranged the Semiya manufacturing factory belonging to PW-34 for a week. On
30.12.2001, after getting the keys of Semiya manufacturing factory from him, A-3
handed over the said keys to A-5 and A-3 returned to A-9’s house along with PW-10,
where PW-10 saw A-1 and A-2 were staying and PW-10 heard A-3 telling them that
M.K. Balan was brought (abducted) and the money alone remains to be collected. On
31.12.2001, A-1 asked A-9 to collect the recorded cassettes from A-2 and bring a tape
recorder and empty cassettes. A-3 also directed A-9 to collect the same from A-2, A-9
collected two audio cassettes.
10.PW-10 has stated that PW-11 had provided food to A-1 on 30.12.2001 and
31.12.2001. Again A-3 requested PW-10 to arrange a Maruti Van, but he expressed
his inability to provide Maruti Van. That thereafter, on the request PW-10 and
PW-11 had arranged rooms in Hotel Henkala, Tambaram for A-9. He heard A-3
asking A-9 as to where they have disposed the Maruti Van on that A-9 replied that the
Maruti van was just in front of Vasantha Bhavan Hotel. PW-10 also heard the driver
of A-3 asking him for a chain to tie M.K. Balan. He also saw A-9 handed over
Rs.100/- to the driver Viji PW-49 for purchasing a chain. He also saw A-3 informing
Page 78 78
PW-10 to provide food for those who are staying in the Semiya factory. On
31.12.2001 at about 8.30 p.m., both PW-10 and PW-11 saw M.K. Balan tied in a
chain, his eyes also tied and was sitting on the green colour steel cot which PW-10
and PW-11 had purchased. He also saw M.K. Balan wearing the T-shirt and dark pant
and also the Reebok shoes lying just some distance away from the cot. PW-10 made
arrangement to buy the audio cassettes and he also arranged the two-in-one tape
recorder which was used for recording. Thereafter, PW-10 heard A-3 saying A-9 that
he wants one Ambassador car and A-9 replied that in spite of the best effort, he could
not get an Ambassador car. Thereafter, he also heard that if no Ambassador car was
available, if he could get one Maruti van and to fix one Lummox light on it to look
like ambulance. As PW-10 and PW-11 had suspected something was going on, they
again went to the Semiya factory at 8.45 p.m. on 1.1.2002, and saw four persons
bringing down the body of M.K. Balan and A-5 covered the body with a cloth brought
by him. Both of them saw no movements in the body, it was the dead body and they
also saw the body was loaded in the van and taken out from the place. PW-10 had
paid the room hiring charges to Henkala Hotel, Tambaram. He was also informed by
one Sami A-13 that M.K. Balan was murdered and his body was burnt in cremation
ground and therefore, he requested PW-10 to perform pooja in the factory premises
but PW-10 did not do. He also saw the fan, bedpan, chair, cot etc., were removed
from the premises on 01.01.2002. On 03.01.2002, he made arrangements for taking a
room as told by A-9 for A-1, A-2 and A-12 to stay. Thereafter he left for Bangalore
and stayed there till he was informed by his wife on 18.03.2002 that A-5 was arrested
Page 79 79
by CBCID Police in connection with the murder of M.K. Balan and the police had
enquired her. He contacted his wife on 25
th
or 26
th
of April, 2002, and at the request of
his wife, he came to CBCID Office on 01.05.2002 and narrated as to what had
happened.
11.Newton PW-11 is another witness in the instant case. He has fully supported the
version given by Venugopal PW-10. He has deposed that Venugopal and Udayakumar
were partners in Sand Quarry business. If he happens to see Udayakumar A-9, he
could identify him. A-9 was same person produced before the court. In August, 2001,
Venugopal PW-10 purchased a Ford Escort car bearing Regn. No.TN 10-F-5555. By
the end of August, Corporation election was held. He along with PW-10 went to the
Polling Booth in the said car. At Udayakumar’s A-9 request, he and Venugopal
showed some houses to Udayakumar A-9 and Manickam A-3. Venugopal PW-10
showed his house and some other houses to Udayakumar and Manickam, as they had
asked. In 1999, Udayakumar A-9 told him and Venugopal PW-10 to invest money in
vermicelli factory which had been run by Krishnapandi PW-34, since he had faced
losses in business. Accordingly he and Venugopal became partners in the said
company. Manickam A-3 told Udayakumar that vermicelli factory was the correct
place for the works to be done by him as it was away from other buildings. He also
told that the said place is needed by them for a week and that company should be
given leave for a week and also he was ready to pay the amount towards the loss of
income during that period. He has totally supported the other version of Venugopal
PW-10 with regard to other facts also.
Page 80 80
12.In addition he has deposed that M.K. Balan was brought to Mudichur Semiya
facory on 30.12.2001. He has also stated that he saw four persons bringing body of
M.K. Balan from upstairs and put the same in a Maruti van and also saw the van
leaving the said place. He had also stated that even on 5.12.2001 he travelled with
accused Manickam in his car along with other accused persons.
In re: Prior relationship of accused
13.With regard to prior relationship of accused persons, prosecution has examined
Mohan Babu PW-4, Ganeshan @ Vethilai Ganesan PW-5, Nehru PW6; Kamal Anand
PW7; Deivanayaki PW8; and Lalitha PW14. PW-4 has stated in respect of meeting of
deceased M.K. Balan with Senthil Kumar – A1. PW 5 Ganeshan alias Vethilai has
stated that he knew M.K. Balan. Mohan Babu PW-4 has also deposed that Senthil
Kumar came with him. PW-4 deposed that one Lalitha helped him in getting the job in
the financial institution belonging to deceased. Lalitha asked him to arrange for a loan
of Rs.2,50,000 for lesser interest and she stated that she would return the amount by
lending the said amount for higher rate of interest but she paid interest for the first
month only and was avoiding further payment. That he met A-1 on road when he took
lift from him. Thereafter he even sought help of A-1 in getting the money back from
Lalitha. It is stated that deceased M.K.Balan told PW-4 that he wanted to meet A-1.
Both the deceased and A-1 met each other. Nehru PW-6 has stated that he knew
Manickam A-3. He also met Hariharan A-2. Kamal Anand PW-7 has deposed that
Deivanayaki PW-8 had asked for his cell phone for two days. He gave her cell phone
No.9840053887. After two days he asked the cell phone back for which she told that
Page 81 81
she requires the cell phone for one more week and he told that he will procure another
cell phone from one Muttu. As told to her he got one cell phone from Muttu with
No.9840133368 and gave it to her and got back Mobile No. 9840053887 from her.
PW-8, sister in law of A-2 has stated that her brother-in-law had asked for the cell
phone for the purpose of party work for two days which she obtained from Kamal
Anand PW-7 who in the meantime procured the cell phone from his friend Muttu. A-2
returned the cell phone in the first week of December and she handed over the same to
Kamal Anand PW-7. Christopher PW-9 has stated that he knew A-1 and A-2. Durai
Swami PW-15 had stated that he knew Udayakumar A-9 and sold Tata Sumo car No.
TN 04T-9657 - MO-13 to A-9 for Rs.1,75,000/-. Udayakumar also sold Maruti zen car
to him. In January, 2002, Udayakumar A-9 left the car stating that the car was not
auspicious and took his old Maruti zen back from him. Laxminiwas Chaudhary
PW-16 gave Zen car MO-12 to Manickam A-3. Danasekar PW-27 was known to A-1.
Jayaprakash PW-28 was in the company of deceased M.K. Balan. Soundarajan PW-30
knew Udayakumar A-9 and owner of van MO-9. Samundeswari PW-31 worked with
T.K.P. Food Products factory where the deceased was kept after abduction. John
Kennedy PW-37 is the owner of Maruti van MO-8. He had given the same to
Venugopal PW-10. Syed Akbar PW-48 is the owner of motorcycle, Viji @ Vijayan
PW-49 is the Driver of A-3 Manickam. Suresh PW-57 is stated to be driver of
Somasundaram A-4. Evidence as to prior relationship has also been furnished by
Venugopal PW-10, Newton PW-11, Krishnapandi PW-34, owner of vermicelli factory;
Lalitha PW-14, mother of kept of deceased; and Ramesh PW-2, driver of the deceased.
Page 82 82
14.The happenings in-between 5.12.2001 and 30.12.2001 regarding preparation are
apparent from the statements of PW-10, PW-11, statements of PW-49, PW-7, PW-8,
A-2, Laxminiwas Chaudhary PW-16 about Maruti van MO-12, PW-18 V.R. Pandian,
Velmayal PW-20 and Krishnapandi PW-34 etc. on record.
In re : Selection of premises where M.K. Balan was kept/and other arrangements
15.It is proved that selection of premises T.K.P. vermicelli factory at Mudichur
near Tambaram where M.K. Balan was kept after abduction, had been done by A-3
amd A-9. It is stated by PWs.10, 11 and 34 that accused A-3 and A-9 had selected the
same. PW-10 and PW-11 were partners for some time with proprietor Krishnapandi
PW-34. A-9 met and told PW-10 that he would join an important political party for
which Manickam, A-3 will help him, and for that some obligations have to be done to
him. Manickam was one of the secretaries of the Branch of an important political
party. The evidence also discloses that after inspecting vermicelli factory at Mudichur,
A-3 and A-9 had asked to put fan, table, chair, cot, bedpan in the room in the upstairs
and screen cloth to cover the windows. The premises were earlier too hired before a
month in November and earlier part of December for about a week. PW-34 has
deposed that from 29
th
day of November, 2001 leave was given for a period of one
week. Same has been supported by PW-31 and PW-10 but as M.K. Balan could not be
abducted at that time, no one came in the factory. Statement of PWs.10 and 11 is
corroborated by PWs.31 and 34.
16.Evidence also discloses that A-9 had called PW-10 and asked for his Ford car
MO-6 for 2-3 months on rent. The same was given by Viji to A-9. It was taken by Viji
Page 83 83
who was driver of A-3. Use of said car is established from evidence. There is nothing
to doubt that PW-10 and PW-11 visited the house of Manickam at Perambur along
with A-9; and it is established that Manickam had told A-9 in the presence of PWs.10
and 11 that M.K. Balan has to be brought as some amount had to be collected from
him. The involvement of Manickam-A-3, A-4 and Bomb Selvam–A-15 is established
at the relevant time, and were part of the design to abduct M.K. Balan. It is
unbelievable that A-4 was present by chance but he had an active participation in the
commission of the offence. Ford car which was given was used by A-3. A-4 had
followed them in another car along with 3 other persons; A-6 and A-11 etc. Venugopal
PW-10 had arranged for a sum of Rs.1,10,000/- by pledging his jewels and handed
over the amount to accused Hari along with A-9 in the Hotel Excellent. Evidence also
discloses that on 24.12.2001, Udayakumar A-9 phoned to PW-10 and went to the
house of A-3 and A-3 had asked PW-10 to arrange for a Maruti van. As the charges for
Ford car were not paid to him, he replied in the negative. Udayakumar A-9 then
informed PW-10 that he had already made arrangements to get a Maruti van from one
Kennedy PW-37 and another Maruti van from one Jayaprakash, brother-in-law of
Soundara Rajan and sent them to the house of Manickam A-3.
17.Syed Akbar PW-48, owner of Hero Honda motorcycle has been examined.
PW-10 has stated that the said motorcycle was given through him. Thus PW-48
corroborates and confirms the evidence of Venugopal PW-10 and PW-11.
In re : Abduction of M.K. Balan on 30.12.2001
Page 84 84
18.With respect to abduction of M.K. Balan on 30.12.2001 in white Maruti van,
statement of Sudhakar PW-3 is that he used to practice boxing, skipping and running
along with others at MRC Nagar from 5.30 to 7 a.m. On 30.12.2001 at about 5.30 a.m.
he started to run and at that time he heard a noise and saw that at a distance of 75 mtrs.
a person was pushed down in the van by the three persons and all the three persons
went in the same van. The van was an Omni Van and one motor cycle was chasing the
said Van. Nirmal Kumar PW-13 has stated that he used to go for walk in M.R.C.
Nagar everyday at about 5.30 a.m. On 30.12.2001 at about 5.45 a.m. in the morning
when he was walking in the Kasturi Estate, M.K. Balan came from opposite direction.
He was wearing bright shoes, sandal color T-Shirt and dark pant. He crossed him and
left.
19.Son of M.K. Balan, deceased, Manimaran PW-1, lodged a complaint about
missing of his father M.K. Balan stating that the deceased used to go for morning
walk everyday at about 5.30 a.m. He used to walk up to Ayappan Temple M.R.C.
Nagar and return by 7.30 a.m. On 30.12.2001 his father went for walk but did not
return back. He was informed about the same by his mother at around 8.30 A.M.
Since his father was not found anywhere he gave a complaint E-5 to police station.
He also filed a Habeas Corpus petition before the High Court.
20.When we assess evidence, it becomes apparent that PW-3 has clearly stated that
the former MLA was abducted on 30.12.2001 at about 5.30 a.m. Sudhakar PW-3 has
stated that a person was put inside a van by three persons. Thereafter motorcycle
followed the said van. That his friend Selvam A-15 also came there. PW-13 had also
Page 85 85
stated that he had seen M.K. Balan taking morning walk at about 5.30 a.m. A person
was pushed into a Maruti van. It is apparent that M.K. Balan had been abducted from
M.R.C. Nagar.
21.After abduction was made in the morning at about 5.30 a.m. on 30.12.2001, the
evidence discloses meeting at the residence of Udayakumar A-9. On 30.12.2001 at
8.30 a.m. as unfolded by Venugopal PW-10 and Newton PW-11, where A-3 stated that
abduction of M.K. Balan has been made and money remains to be collected.
In re : Taking of M.K. Balan to factory premises
22.On the day of abduction 30.12.2001 at about 8.30 a.m., A-9 phoned to PW-10
asking him to come to the house of A-9. PW-10 asked PW-11 to come to the house of
A-9 and then he had taken Newton, PW-11 in a motorcycle which belonged to a boy
working in the office of PW-10 and left Newton, PW-11 at the house of A-9.
Udayakumar A-9 asked PW-10 to give the key of vermicelli factory and as he had no
vehicle to go to the vermicelli factory, he asked him to take PW-10 on the motorcycle
kept in his house. Accordingly he had done so. PW-10 and Balamurugan A-5 were
getting down at vermicelli factory at that time A-9 contacted PW-10 on his cell phone
and asked whether they had reached the vermicelli factory to which PW-10 replied
that they had reached. A-9 further asked PW-10 whether he had received the key of
the factory. Cellphone was given for talking to Krishnapandi PW-34 by A-9.
Krishnapandi agreed to give the key to PW-10 and after some time the key was
entrusted by Krishnapandi to PW-10. Newton PW-11 and Manickam came there in an
auto-rickshaw and the key kept by PW-10 was given to Manickam A-3. The key was
Page 86 86
entrusted by A-3 to A-5. A-3 asked Venugopal PW-10 how he came to which he
replied that he came on a motorcycle. Manickam A-3 asked Venugopal to drive the
motorcycle. He also sat on the motorcycle and went to the house of A-9. While
Manickam A-3 went upstairs, PW-10 followed him where accused A-1 and A-2 were
also present. At that time Manickam had told those two accused persons that M.K.
Balan was brought and the collection of amount was to be made from him. These are
the facts stated by PW-10.
23.The evidence of Newton, PW-11 indicates that on 30.12.2001 after about half
an hour, A-9 phoned to him to open the gate of vermicelli factory. At that time firstly
the Tata Sumo car and then Ford Escort car followed by one Maruti zen car came
there and four persons got down from the said Ford car and they took M.K. Balan to
upstairs of the said vermicelli factory by shutting his eyes, mouth and hands. M.K.
Balan was wearing black colour pant, sandal colour T-shirt and shoes. At that time
Manickam A-3 and A-9 had asked him not to disclose it to anybody. The persons who
came in Ford car were Somasundaram @ Somu A-4, A-11, A-16 and A-17. PW-11 has
further stated that A-5 went in zen car and came back after about 30 minutes in Tata
Sumo car carrying tiffin to the factory. Along with A-5 were other accused, namely,
A-4, A-6, A-7 and Bomb Selvam A-15. Thus presence and participation in abduction
and at vermicelli factory of accused Manickam A-3, Somasundaram A-4 and Bomb
Selvam A-15 is established. In addition presence of A-15 stands established at place of
abduction also as stated by PW-3. It is apparent from the evidence of PWs.10 and 11
that when M.K. Balan was brought to the vermicelli factory at Mudichur, A-3 to A-7,
Page 87 87
A-11 and A-15 to A-17 were present or came there. Thus, it is apparent that all the
three appellants along with other convicted accused persons were involved in the
abduction of deceased M.K. Balan. A-3 played an important role in the entire episode.
The finding recorded by the trial court as affirmed by the High Court is that the
appellants were involved in the abduction stands established to the hilt.
24.On 31.12.2001 and 1.1.2002 when M.K. Balan was abducted, the meals were
supplied through Newton PW-11 and in order to establish the fact that PW-56 has
been examined where he has stated that on 31.12.2001 and 1.1.2002 he had taken the
tiffin in the morning, meals in the afternoon and evening tiffin, they carried the food
for about 8 to 10 persons. The witness lends support to evidence of Venugopal PW-10.
PW-56 also supports version of PW-11.
In re: commission of offence under section 302
25.With respect to charge of murder against A-3 and A-4 it is apparent that MO-31
is in the handwriting of A-1. It was read out by A-12 and heard by A-3 and was acted
accordingly. Evidence of Sahul Hameed PW-47 also proves recovery of chain with
which M.K. Balan was tied and that of other articles. It is apparent that M.K. Balan
was abducted. There was an attempt to extract money when it was not possible, he
was murdered in factory premises. The appellants were charged for committing the
murder by putting nylon rope around his neck and tightening it. Though there is no
direct evidence with respect to that but it can be inferred in the circumstances that they
committed the offence of murder also. Once they had abducted M.K. Balan it was for
them to explain how they dealt with him. The dead body of M.K. Balan could not be
Page 88 88
found as it was cremated in the name of a fictitious person – Rajamani Chettiar. His
post mortem also could not be conducted but the evidence clearly indicates that the
dead body of M.K. Balan was taken from the vermicelli factory. It gives an inference
that the accused persons had murdered the victim. It is not necessary for recording a
conviction that corpus delicti to be found. There is ample evidence leading to an
inescapable conclusion that M.K. Balan was done to death by the appellants. His dead
body was seen by the witnesses.
26.I find no force in the submission that at the time of murdering M.K. Balan there
is no evidence and appellants were not present when dead body was taken out. In the
instant case it is clear that abduction of the deceased is proved and deceased had been
murdered soon after his abduction in two days and thereafter his body had been
cremated under the name of a fictitious person. In the aforesaid circumstances it was
for the accused persons to satisfy the court how the abducted victim was dealt with by
them. In the absence of such explanation it is open to the court to draw a presumption
that the abductor was the murderer also, as held by this Court in State of M.P. v.
Lattora (2003) 11 SCC 761 :
“4. Learned counsel for the appellant State contended that the High
Court, while rendering the impugned judgment, did not follow the
correct legal position. This Court in State of W.B. v. Mir Mohd.
Omar (2000) 8 SCC 382 held that if the deceased was proved to
have been abducted by the accused and was found murdered soon
thereafter it is for the abductors to satisfy the court as to how else
the abducted victim was dealt with by them. In the absence of any
such explanation it is open to the court to draw the presumption
that the abductor is the murderer also. The said view of this Court
was reconsidered subsequently in Sucha Singh v. State of Punjab
Page 89 89
(2001) 4 SCC 375 and the legal position has been reiterated by this
Court.
5. In the light of the legal position so adumbrated by this Court,
we deem it necessary, in the interest of justice, that the High Court
should consider the appeal filed by the respondent all over again.
This is to enable the respondent to canvass regarding the
conviction under Section 364 of the Indian Penal Code also. If the
conviction is to be maintained the High Court has to consider how
far the presumption mentioned above will apply to the situation of
this case. For enabling the High Court to reconsider the appeal
afresh we set aside the impugned judgment. The appeal filed
before the High Court shall stand remitted to the High Court.”
27.In Ram Gulam Chaudhary & Ors. v. State of Bihar (2001) 8 SCC 311, this
Court considered assaulting the victim by the accused persons and they carried away
the body, the victim was not seen alive thereafter. No explanation was given by the
accused as to what they did with the victim. The accused abductor who had special
knowledge in this regard, having withheld the information, this Court held that an
inference can be drawn that they had murdered the victim. This Court has laid down
thus :
“24. Even otherwise, in our view, this is a case where Section
106 of the Evidence Act would apply. Krishnanand Chaudhary was
brutally assaulted and then a chhura-blow was given on the chest.
Thus chhura-blow was given after Bijoy Chaudhary had said “he is
still alive and should be killed”. The appellants then carried away
the body. What happened thereafter to Krishnanand Chaudhary is
especially within the knowledge of the appellants. The appellants
have given no explanation as to what they did after they took away
the body. Krishnanand Chaudhary has not been since seen alive. In
the absence of an explanation, and considering the fact that the
appellants were suspecting the boy to have kidnapped and killed
the child of the family of the appellants, it was for the appellants to
have explained what they did with him after they took him away.
When the abductors withheld that information from the court, there
is every justification for drawing the inference that they had
Page 90 90
murdered the boy. Even though Section 106 of the Evidence Act
may not be intended to relieve the prosecution of its burden to
prove the guilt of the accused beyond reasonable doubt, but the
section would apply to cases like the present, where the
prosecution has succeeded in proving facts from which a
reasonable inference can be drawn regarding death. The appellants
by virtue of their special knowledge must offer an explanation
which might lead the Court to draw a different inference. We,
therefore, see no substance in this submission of Mr Mishra.”
In re: Removal of dead body from factory premises
28.With respect to the death of deceased M.K. Balan in the factory premises and
removal of his dead body from the same, the evidence of PW-10, PW-11, Rajendran
PW-21 and Head Constable on Beat Duty, and Arumugham, Head Constable PW-35
are relevant.
29.PWs.10 and 11 both have stated that body of M.K. Balan was taken out of the
vermicelli factory on 1.1.2002. Both of them suspected that something was going on
in the factory and at about 8.40 p.m., they reached the factory at Mudichur. At 9 p.m.
the gate of the vermicelli factory was closed. A-6 was standing there. A-5 came to the
factory on a motorcycle. He carried one cloth bag on the motorcycle. Four persons
came down from upstairs carrying body of M.K. Balan. Two persons were holding
legs; two others were holding the hands and the body was brought down and covered
like a dead body with cloth brought by A-5. There was no movement in the body, it
appeared to be a dead body. Body was taken in the Maruti van. The Maruti van went
away speedily. A-5 followed the same on motorcycle. One person was sitting along
with him on the motorcycle. Due to fear, PW-10 and PW-11 came out of factory. Body
Page 91 91
of M.K. Balan was carried by A-6, A-7, A-8 and A-11. Version is supported by PW-21
and PW-35.
30.PW-21 deposed that he was the Head Constable of Sembiyam Crime Branch
Police Station. That on 01.01.2002 he was given beat tickets and appointed for night
rounds from 23 hours to 6 PM. At about 100 ft. away from Melpatti Ponnappa Street
a Maruti Van was standing in the middle of the road and he went along with constable
Arumugam to the Van and enquired 4 persons who were in the van. Then they left the
place. MO-7 Golden Color Maruti Van was identified by him, and 4 persons were
identified as Accused 6, 7, 8 and 11.
PW-35 deposed that he was working as Head Constable. That on 01.01.2002 he
was given beat tickets and appointed for night rounds from 23 hours to 6 PM. At
about 100 ft. away from Melpatti Ponnappa Street a Maruti Van was standing in the
middle of the road and he went along with the head constable Rajendran went to the
Van and enquired 4 persons who were in the van. Then they left the place. MO-7
Golden Color Maruti Van was identified by him, the 4 persons were identified as
Accused 6, 7, 8 and 11.
31.Driver Vijayan PW-49 was examined so as to prove attempt of procurement of
Dumax top light for the van to look like an ambulance. However, the witness has
turned hostile, resiled from his statement recorded under section 164 Cr.PC. Even if
his statement is ignored it is apparent from other statements that the vehicle was
procured and light was fitted on it.
Page 92 92
32.The van on which body was taken was bearing Regn. No. TN-22-B-8853 and
was marked as MO-7. It is apparent that M.K. Balan was killed in factory some time
on 1.1.2002 and the fact that the appellants were not persons who brought down body
from upstairs is not enough to exonerate appellants considering the established facts
and circumstances in case they have been rightly held guilty of murder also.
In re: cremation of dead body
33.Next set of evidence is with respect to the cremation ground. Ramu, PW-12 was
asked by Hari Krishnan PW-19 to lit pyre. He was declared hostile as he resiled from
part of his statement.
Ramu PW-12, who had cremated the body had deposed that he is a Cemetery
Keeper. That on 01.01.2002 he was told by Harikrishnan to light the pyre. That they
did not know who came in the vehicle and the vehicle particulars. He further deposed
that they did not know if the body was of male or female.
Hari Krishnan PW-19, vettiyan in the cremation ground at Melpatti Ponnappa
Mudali Street, has stated on 1.1.2002 at about 6 p.m. two persons came and told that a
body has to be burnt and they would take the body from the hospital to the cremation
ground and paid the expenses for getting woods, cow-dung cakes, kerosene and
informed that the body would come at 8 p.m. in the night but the body came at 10 p.m.
They carried the body and on asking the death certificate of hospital, they told that
they would bring the same the next day. Body was cremated at night itself. It was
deposed that the CB CID had examined him and put his signature on the reverse of
Page 93 93
MO-14, photo of M.K. Balan; and the test identification parade was conducted. He
was able to identify certain accused persons, out of 7-8 persons who came for
cremation. He had identified MO-14 the photo of M.K. Balan. He stated that he under
threat of police, had stated to the Magistrate in statement under section 164 Cr.PC that
accused Manickam came there and told Hari Krishnan that he is an important person
in the area and asked him to cremate the body and told that he will produce the death
certificate in the next morning. Be that as it may. He also said that he did not identify
the accused before the Magistrate and was not aware whether A-3 was an influential
person of a political party. Be that as it may. We ignore the part of statement under
section 164 from which he has resiled.
34.Kannan PW-36, in-charge of the cremation ground has deposed that he is
working as Office Assistant in Chennai Corporation. That on 01.01.2002 he left early
from the cremation ground. That when returned on the next date then he was
informed by Hariharan that one dead body came after he left the office and that the
dead body has been cremated and the person who came along with the dead body
assured that death certificate would be produced in the morning. That at around 8.15
AM one person came along with Hariharan who produced the death certificate in the
name of Rajamani Chettiar. That in the certificate the address and father’s name of
the deceased was not mentioned and he got the particulars from the person who came
with the death certificate. The same were recorded in the Death Register.
In re: Procurement of death certificate by A-3
Page 94 94
35.Next set of evidence is relating to procurement of death certificate in the name
of Rajamani Chettiar. For cremating a body in the cremation ground, death certificate
was required to accompany the dead body. Death certificate in a fictitious name of
Rajamani Chettiar was obtained from PW-32 at the instance of Manickam A-3 through
one Kamaraj PW-33.
Dr. Anbarasu PW-32 deposed that on 02.01.2002 at 6 AM in the morning one
Kamaraj who is working in the Government General Hospital and known to him for
the past 15 years came and requested to issue death certificate for Rajamani Chettiar
aged about 61 years. Kamaraj PW-33 submitted that Rajamani Chettiar was the poor
person and died due to chest pain. That there was no one to perform his last rites. He
believed the word of Kamaraj PW-33 and issued the death certificate in question.
Damodaran PW-38 has been examined so as to prove that no person in the name
of Rajamani Chettiar ever resided in his house in question, the particulars of which
were falsely given in the death certificate.
Dr. Prabhavathi PW-45 deposed that she is working as Asst. Welfare Officer in
the Chennai Corporation. That she has given Medical Report Ex.P27, Death Report
Form 2 Ex. P29. That the letter given by him to DSP is marked as Ex.P52. Medical
certificate and death certificate have been proved by PW-45.
36.With respect to obtaining of death certificate by A-3, the trial court has given
the following findings :
“171.Now we have to analyze whether there are any other
evidences for that and for that purpose, the evidence of PWs-32,
33, 36 and 38 have to be perused. PW 32 is the Doctor Anbarasu
Page 95 95
and before analyzing the evidence of PW-32, the evidence of
PW-33 has to be analyzed. PW-33 has deposed in his evidence
that on 1.1.2002 while he was on bed due to illness in the evening
at about 5.00 p.m. one Samikannu came to him and told that
Poonga Nagar Manickam is calling him and that at that time he
told that he was not well and asked him as to what was the matter
for which he said he did not know anything about the same, then
the said Samikannu took him along with him and that Poonga
Nagar Manickam was in his house and that at that time he
informed him that one watchman of a company at Kolathur
expired and that he asked him whether any trama car is
available for taking the body for that he had replied to him
(Manickam) that to bring out the dead body no such vehicle
would be available and then he has informed me to try for the
same by saying so he has sent Samikannu to accompany him and
that then he has gone to Government General Hospital, Chennai
from Perambur and after finding out that no such vehicle was
available there and informing the same and when he was about to
board a bus to go, Samy informed him that Poonga Nagar
Manickam asked him to come to his house at 6.00 am in the
morning and that accordingly on the next day morning i.e. on
2
nd
he went to the house of Poonga Nagar Manickam and that
this was the time for finding out car in many ways for bringing the
body of the deceased M.K. Balam as established by the evidence
of PW-32 and that in the said circumstances, on the next day i.e.
on 2.1.02 PW-33 went to the house of the said Poonga Nagar
Manickam and that at that time the 3
rd
accused Manickam
informed him that one Rajamani Chettiar, aged about 61 years
died on the previous day for which he asked him to get a
doctor’s certificate, as deposed. He has further deposed in his
evidence that he has been well acquainted with him (Manickam)
for the past 16 years and that he went to the doctor Anbarasan
(PW-32) and obtained a certificate from him in his English letter
pad to the effect that one watchman of a company at Kolathur died
due to chest pain and that certificate has been marked as Ex. P.27.
That Doctor Anbarasu PW-32 has been examined as a witness in
this case and he has deposed in his evidence that he has issued the
certificate Ex.P.27 and that as requested by PW-33 Kamaraj, he has
issued the said certificate Ex.P.27 as deposed by him. As per his
evidence only on the compulsion of PW-23, the certificate Ex.P.27
has been issued and in the certificate issued by him in Ex.P.27 it
has been mentioned by him that ‘Rajamani Chettiar, aged about 61
years died due to chest pain’. Investigation was done to prove the
fact that no such person in the name of Rajamani Chettiar on the
Page 96 96
side of the prosecution, and to that effect one Damodharan has
been examined as PW-38. He has deposed in his evidence that ‘I
am residing at No.11/18 4
th
street, Anjuham Nagar, Kulathur,
Chennai and that this is my own house and that my wife is Lalaitha
and my father is Ramasamy and that I have one daughter and two
sons and that they are Prahbaharan and Sudhakaran aged about 29
and 27 respectively. Both Prabaharan and Sudhakaran have no
other names; that I am working in Sharp Motor company for the
past 5 years. In one portion of my house Auto driver Devaraj is
residing and that no person in the name of Rajamani chettiar, aged
about 61 years was residing in my house ever before. Either on
1.1.02 or on 2.1.02 no person in the name of Rajamani chettiar,
aged about 61 years was residing either in our house or in any
portion of our house; that like wise no person in the name of
Rajamani chettiar, son of Chinthamani chettiar, aged about 61
years died either on 31.12.01 or 1.1.2002 in the above said house
and that no dead body of that person was also brought to that
house, as deposed. It is seen from these evidences and
documents that the 3
rd
accused Manickam sent the 13
th
accused
Samikannu, asking him to meet PW-33 Kamaraj and through
the said Kamaraj, a forged document (doctor’s certificate)
marked as Ex.P.27 has been obtained in the name of one
Rajamani chettiar, aged about 61 years from PW-32 and that the
evidence of PW-36 has to be analysed to find out the fact as to
where that certificate has been given. PW-36 is Kannan and he has
deposed in his evidence that ‘I am residing at No. 371, Sanjan
Nagar, Melpatti Ponnambala street, Vyasarpadi, Chennai-39. I am
working as Office Assistant in the Corporation of Chennai on
compassionate ground from 1979 onwards. I joined in service
during 1998 as incharge of Hindu Grave yard at Melpattu
Ponnappa Mudali street, Chennai belonging to Chennai
Corporation; that my immediate superior officer is the Assistant
Health Officer’. He has further deposed in his evidence that
‘on 2.1.02 as usual I came to grave yard at about 7.30 a.m. and
that at that time Harikrishnan who was present there told me
that after I left that place one dead body had come and that
doctor’s certificate would be given today by the party for
cremating the body’. He has further deposed in his evidence
that ‘Ex.P.27 was given to me by a person who accompanied
with the said Harikrishnan on 2.1.02 morning at about 8.15
a.m’. He has further deposed in his evidence that I registered
this Ex.P.27 in Form.2. This is the said Form.2 marked as
Ex.P.29. That death has been registered in the Death Register
as 1
st
row of the date 1.1.02 and that portion has been marked
Page 97 97
as Ex.P.30 and that in that connection death report of the grave
yard has been prepared and a copy of the same has been given to
the person who came along with the said Harikrishnan and the
other copy is marked as Ex. P.31. In that regard I filed a
Despatch note book which is marked as Ex.P.32 (the entry made in
the said Despatch Note Book is marked as Ex.32). The person
who came along with Harikrishnan signed in Ex.P.31 and Ex.P.29
and that for the seizure of these documents the DSP attached to CB
CID had prepared a magazar and obtained my signature therein.
That magazar has been marked as Ex.P.33. He has deposed
evidence now that there is no necessity to produce the doctor
certificate to cremate the body of a person who is aged more than
60 years. While that being so it is the case of the accused that this
Ex.P.27 has been fabricated falsely for the purpose of the case.
The body of the deceased M.K. Balan was taken to the grave
yard and tried to cremate the body by saying that the deceased
was the age of 61 years. But PW-12 asked for the production
of doctor certificate by saying that the age of the person would
be 48 to 50 yrs. Therefore Ex.P.27 has been created as if that
deceased person would be aged about more than 60 years and the
same has been issued by PW-36 and the same has been recorded
which has to be taken into consideration. In that manner also the
contention of the accused could not be acceptable one. Now we
have to peruse the evidence of PW-45 Dr. Prabhavathi (Health
officer) and that as per her statement it has been stated by her
that ‘a letter dated 20.3.02 was shown to me and that Medical
Certificate (Ex.P.27) and death report (Form II) Ex. P.29 were
given by me to the DSP, CB CID. The letter given by me to the
DSP has been marked as Ex.P.52’. Now even as per this evidence
also, it has been established on the side of the prosecution that
the body of M.K. Balan was cremated.”
(emphasis supplied by me)
From the aforesaid discussion made by the trial court and evidence it is
apparent that Kamaraj PW-33 on 2.1.2002 went to the house of Manickam A-3 who
had informed him that one Rajamani Chettiar aged about 61 years had died and a
doctor’s certificate was required. PW-33 had stated that he knew A-3 for the last 5
years and as such on his request went to Dr. Anbarasan PW-32 and obtained death
Page 98 98
certificate Ex. P-27 from him with respect to death of Rajamani Chettiar. Dr.
Anbarasan PW-32 had deposed that he issued the certificate Ex. P27 in the aforesaid
circumstances to Kamaraj PW-33. Damodharan PW-38 has stated that no such person
Rajamani Chettiar resided in House No.11/18, 4
th
Street, Anjuham Nagar, Kulathur,
Chennai. Thus it is apparent that the death certificate related to non-existent person
and dead body of M.K. Balan was cremated under the guise and at the instance of
Manickam A-3; false certificate Ex. P-27 was prepared and produced at cremation
ground on next day showing cremation of Rajamani Chettiar. Kannan PW-36, Office
Assistant in the Corporation of Chennai has deposed that Ex. P-27 was given to him in
the morning at about 8.15 a.m. He had made the entry Ex.P-27 in Form 2 in the death
register as 1
st
row of 1.1.2002 and that portion is marked as Ex. P-30. The dispatch
book Ex. P-32 has also been proved by the witness along with memo Ex. P-33. Thus,
the involvement of Manickam A-3 is proved to the hilt by the aforesaid evidence also.
37.The trial court has rightly found that the accused A-3, A-4 and A-15 had acted
upon the conspiracy of A-1 and A-2 and have been found guilty of offences under
sections 365, 387, 302, 347, 364, 109 and 201 IPC.
In re: confessions and recoveries from accused
38.Witnesses as to police confessions of various accused persons have been
furnished by : Sahul Hameed PW-44 with respect to A-5; Tulasirangan PW-22 with
respect to A-1, Pasupathy PW-23 with respect to A-1, Jagannathan PW-24 with respect
to A-6; Siva PW-26 with respect to A-3; Seetha PW-29 with respect to A-12, Francis
Arpudham PW-39 with respect to A-4; Prasad PW-42 with respect to A-7; Raja
Page 99 99
Masilamani PW-46 with respect to A-10 and A-11; and Sahul Hameed PW-47 with
respect to A-16 etc.
39.The seizure of articles has been proved by TMT Geetha PW-17 of green cot
MO-11; Sriramulu PW-25 of Ford Escort car MO-6; Babu PW-40 of audio-cassettes
MO-33; Raja Masilamani PW-46 of tape recorder MO-2; Kuteeswaran PW-41 of
golden colour Maruti van and Tata Sumo van MOs. 9 and 13 etc. Similarly, seizure of
other articles has been proved.
40.The accused persons’ confessional statements and recoveries based thereon
support the version of PW-10 and PW-11. A-5 was arrested on 18.3.2002 at Perambur
Railway Station. Kaha Sahul Hameed PW-44 has proved the confessional statement of
A-5. It is stated that he identified the Maruti omni van and also the cremation ground
where the body was burnt and also disclosed the name of A-3 and the Maruti van
which was used for abducting and that on instructions of A-3, dead body was burnt in
the cremation ground. The witness has also proved the spot map of factory Ex. P-44
signed by Selvaraj also. At the instance of A-5, Maruti van MO-9 has been seized
from one Jayaprakash vide Ex. P-25. As stated by PW-3, M.K. Balan was abducted in
the said van. It has been established that the place of occurrence is vermicelli factory
at Mudichur. Samundeeswari PW-31 and Krishnapandi PW-34 have proved the said
facts. PW-30 has also stated that A-9 studied with him and one Somu of Chitlapakkam
had entrusted a Maruti van bearing Regn. No. TSI 7484 and A-9 had asked him to
lend the said car, and he had given the same to A-9 who told him to return the same on
the next day. On receiving the van, its tape recorder and speaker were found missing
Page 100 100
and there were liquor bottles in the same and seats were burnt with fire. Then he went
upstairs in the house of Udayakumar A-9 and asked about the said condition of
vehicle, and A-9 assured him to compensate for the loss but did not give any amount.
Thereafter, CBCID came to PW-30 and seized the vehicle and prepared Ex. P-25.
Thus it is apparent that MO-9 was in custody of A-9 and the vehicle was used in
commission of offence. This also lends corroboration to statements of PW-10 and
PW-11.
41.Sankar Ganesh A-6 was arrested on 19.3.2002 who identified Maruti Omni van
No. TN-0343 and his confessional statement Ex. P-16 had been recorded in the
presence of PW-24. At his instance said Maruti van was recovered in front of the
house of John Kennedy, PW-37 at 11.30 a.m. under Ex. P-17. Said Maruti van is
MO-8. PW-37 has owned a signature on the memo. At the instance of A-7, cot which
was used to keep M.K. Balan in the factory had been recovered. Cot had been
identified also. This lends further support to versions of PWs. 10 and 11.
42.A-3 was arrested on 25.3.2002. His confessional statement was recorded by CB
CID in the presence of Premkumar. PW-26 has deposed as to seizure of Maruti zen
TN-02-Z-99. He was taken to the residence of PW-16. On being identified by A-3,
said Maruti zen car had been seized from PW-16. Ex. P-20 is the admissible portion of
the confessional statement of A-3. Seizure memo Ex. P-6 of Maruti zen car, MO-12,
was drawn. PW-16 has stated that he had given the car for marriage of said Manickam
as his office is near to his house so he could identify Manickam A-3. A-3 had taken
MO-12 Maruti car in November, 2001 and was returned to him during the month of
Page 101 101
February, 2002. The police seized the car from him on 25.3.2002 as per Ex. P-6. Use
of this car in offence is established by evidence on record.
43.PW-26 who is an Administrative Officer, has also proved the confessional
statement of A-3. The witness has proved his signature on the same. A-3 had identified
the Maruti zen car of maroon colour. PW-11 has stated that the Maruti zen car came to
the vermicelli factory along with Ford car and Tata Sumo car. It is apparent from
PWs.10 and 11 that Maruti zen car was used for committing the offence. Maruti van
was also recovered on 30.3.2002 at the instance of A-9 from PW-18. At the instance of
A-9, bedpan was also recovered. Maruti omni van MO-7 of golden colour, bearing
Regn. No. TN-22-B-8853 and Tata Sumo car were also recovered. PWs.10 and 11
have deposed about bedpan, Tata Sumo and Maruti van. As instructed by A-3, bedpan
was kept at vermicelli factory, Maruti van MO-8, had been used for taking the dead
body of the deceased, Tata Sumo car was also used by the accused persons. PW-18 has
deposed that he had given Maruti van to A-9. On 31.12.2001 at about 10 a.m., he had
taken the van and returned it in the night itself and on 1.1.2002 he took the same at
about 10 a.m. but did not return as usual on the night of 1.1.2002 but returned it only
on 2.1.2002 at about 11 p.m. i.e. after M.K. Balan was killed and body cremated.
Thereafter on 30.3.2002 CB CID seized his Maruti car MO-7, vide Ex. P-8. The
statement of PW-18 corroborates the versions of PW-10 and PW-11.
44.Manickam’s confession was recorded on 5.4.2002 in the presence of
Purushothaman and Babu-PW-40. PW-40 deposed that on the direction of the
Tehsildar, he along with one Purushothaman went to the CB CID Office on
Page 102 102
05.04.2002, where one Manickam was being investigated with regard to the M.K.
Balan murder case and he along with Purushothaman signed the confession statement.
Based on the confessional statement the TTK 90 Cassette along with a piece of paper
kept in the back of the photo of the Accused No.3 was seized by CB CID and the same
were marked as MO28 and MO33 respectively. The Mahazar was prepared and they
signed the same. The admitted portion Ex. P-35 of the confessional statement given
by Manickam was also signed by them as witnesses.
45.The bit of paper MO-33, which had been seized from A-3 and also bit of paper
MO-31 regarding extortion of money seized from A-12 in order to establish the fact
that both had been written by A-1. As mentioned above the High Court has ignored it
as the articles were not kept in a sealed condition, we also leave it out of
consideration.
46.On 9.4.2002 accused Somasundaram A-4 was arrested at about 6 a.m. near
Chromepet police station. His confessional statement Ex. P-34 was recorded in the
presence of Francis Arpudham PW-39. On the basis thereof Ford white colour car
bearing Regn. No. TN-10-F-5555 was recovered as per memo Ex. P-19. PW-39 has
proved his signatures on the confessional statement. Use of car is corroborated by
PWs.10 and 11. The car had been entrusted to accused A-9. Recovery of the car also
implicates Somu A-4 and supports the versions of PWs.10 and 11.
47.Bomb Selvam A-15 was arrested near Egmore Railway Station on 25.4.2002 at
about 12.30 p.m. in the presence of Muthurakku and Kaha Sahul Hameed PW-44. His
confessional statement Ex. P-51 came to be recorded. As per his statement Hero
Page 103 103
Honda 6475 and black colour Reebok shoes were recovered as per Ex. P-51.
Motorcycle was article MO-10, and shoes were marked as MO-1. Samundeeswari,
PW-31, has stated that at about 11.30 a.m., a person came and went upstairs and took
along with him Reebok shoe, MO-1. At that time he came in a car and took an object
in a gunny bag. Even if we discard recovery of Reebok shoes it is apparent that
motorcycle used by the accused had been recovered at the instance of A-15. This lends
additional support to versions of PWs.10 and 11.
In re: Commission of offence under section 387 IPC
48.On the basis of statement of PW-11, it is established that A-4 was present when
M.K. Balan was brought to the vermicelli factory after abduction and after about half
an hour, Bomb Selvam A-15 also came there along with A-5 to provide tiffin. PW-10
has also stated that M.K. Balan was tied with iron chain on 31.12.2001, his eyes were
shut and he was sitting on a green colour cot and was wearing a black colour pant and
a T-shirt. Thus it is apparent that A-3, A-4 and A-15 along with other accused persons
were involved in the abduction of ex-MLA M.K. Balan. PW-10 has deposed that
driver of Manickam namely Viji told that he wanted a chain to tie M.K. Balan. A-9
had taken out Rs.100/- from his shirt pocket to buy one chain. However, Viji PW-49
turned hostile. He was confronted with his statement under section 164 Cr.PC. He
admitted that he had given a statement before the Magistrate but under fear. Be that as
it may. We ignore the version of Viji PW-49. There is nothing to doubt the aforesaid
statement of PW-10 regarding purchase of chain. The trial court with respect to
commission of offence under section 387 IPC has rightly given the finding in para
Page 104 104
166 that the prosecution has established its case to the effect that the accused 1 to 11
and 14 to 17 have committed the offence punishable under section 387 IPC beyond all
reasonable doubt.
Effect of acquittal under section 120B
49.Now I take up effect of acquittal of appellants under section 120B IPC. The
accused appellants have been convicted for commission of offence under section 365
read with section 109 IPC, under sections 387, 302 read with section 109, under
section 347 read with section 109; under section 364 read with section 109 and section
201 IPC. In the facts and circumstances of the case when charge under section 109 has
been found established, mere their acquittal under section 120B is of no avail to them.
Charges which were framed were specific ingredients of section 109 have been rightly
found to proceed by both the courts below. Their acquittal under section 120B of IPC
cannot help them as offences of both sections are separate. Section 120B found
established against A-1 and A-2 and other charges against accused/appellants.
50.This Court has considered the abduction under section 109 and the conspiracy
and the explanation thereof and compared with the same under section 120B. This
Court held that under section 109 the abettor is liable to the same punishment which
may be inflicted on the principal offender if the act of the latter is committed in
consequence of the abetment. The offence of conspiracy under section 120B is
different. Section 120A is bare agreement to commit an offence which has been made
punishable under section 120B. The punishment for these two categories of crimes is
also quite different. Section 109 IPC is concerned only with punishment of abetment
Page 105 105
for which no express provision has been made in the IPC. An offence of criminal
conspiracy on the other hand is an independent offence which is made punishable
under section 120B IPC for which a charge under section 109 is unnecessary and
inappropriate. In Ranganayaki v. State by Inspector of Police (2004) 12 SCC 521, this
Court has held thus :
“10. Motive for doing a criminal act is generally a difficult area
for prosecution. One cannot normally see into the mind of another.
Motive is the emotion which impels a man to do a particular act.
Such impelling cause need not necessarily be proportionally grave
to do grave crimes. Many a murder has been committed without
any known or prominent motive. It is quite possible that the
aforesaid impelling factor would remain undiscoverable. Lord
Chief Justice Campbell struck a note of caution in Red v. Palmer
[Shorthand Report at p. 308, May 1856] thus:
“But if there be any motive which can be assigned, I
am bound to tell you that the adequacy of that motive is of
little importance. We know, from experience of criminal
courts that atrocious crimes of this sort have been
committed from very slight motives; not merely from
malice and revenge, but to gain a small pecuniary
advantage, and to drive off for a time pressing
difficulties.”
Though, it is a sound presumption that every criminal act is done
with a motive, it is unsound to suggest that no such criminal act
can be presumed unless motive is proved. After all, motive is a
psychological phenomenon. Mere fact that prosecution failed to
translate that mental disposition of the accused into evidence does
not mean that no such mental condition existed in the mind of the
assailants. In Atley v. State of U.P. AIR 1955 SC 807 it was held:
(AIR p. 810, para 6)
“That is true, and where there is clear proof of motive
for the crime, that lends additional support to the finding
of the court that the accused was guilty, but absence of
clear proof of motive does not necessarily lead to the
contrary conclusion.”
In some cases it may be difficult to establish motive through
direct evidence, while in some other cases inferences from
circumstances may help in discerning the mental propensity of the
person concerned. There may also be cases in which it is not
Page 106 106
possible to disinter the mental transaction of the accused which
would have impelled him to act. No proof can be expected in all
cases as to how the mind of the accused worked in a particular
situation. Sometimes it may appear that the motive established is a
weak one. That by itself is insufficient to lead to an inference
adverse to the prosecution. Absence of motive, even if it is
accepted, does not come to the aid of the accused. These principles
have to be tested on the background of factual scenario.
11. Under Section 109 the abettor is liable to the same
punishment which may be inflicted on the principal offender: (1) if
the act of the latter is committed in consequence of the abetment,
and (2) no express provision is made in IPC for punishment for
such an abetment. This section lays down nothing more than that if
IPC has not separately provided for the punishment of abetment as
such then it is punishable with the punishment provided for the
original offence. Law does not require instigation to be in a
particular form or that it should only be in words. The instigation
may be by conduct. Whether there was instigation or not is a
question to be decided on the facts of each case. It is not necessary
in law for the prosecution to prove that the actual operative cause
in the mind of the person abetting was instigation and nothing else,
so long as there was instigation and the offence has been
committed or the offence would have been committed if the person
committing the act had the same knowledge and intention as the
abettor. The instigation must be with reference to the thing that was
done and not to the thing that was likely to have been done by the
person who is instigated. It is only if this condition is fulfilled that
a person can be guilty of abetment by instigation. Further the act
abetted should be committed in consequence of the abetment or in
pursuance of the conspiracy as provided in the Explanation to
Section 109. Under the Explanation an act or offence is said to be
committed in pursuance of abetment if it is done in consequence of
(a) instigation, (b) conspiracy, or (c) with the aid constituting
abetment. Instigation may be in any form and the extent of the
influence which the instigation produced in the mind of the
accused would vary and depend upon facts of each case. The
offence of conspiracy created under Section 120-A is bare
agreement to commit an offence. It has been made punishable
under Section 120-B. The offence of abetment created under the
second clause of Section 107 requires that there must be something
more than mere conspiracy. There must be some act or illegal
omission in pursuance of that conspiracy. That would be evident by
Section 107 (secondly), “engages … in any conspiracy for the
doing of that thing, if an act or illegal omission takes place in
Page 107 107
pursuance of that conspiracy”. The punishment for these two
categories of crimes is also quite different. Section 109 IPC is
concerned only with the punishment of abetment for which no
express provision has been made in IPC. The charge under Section
109 should, therefore, be along with charge for murder which is the
offence committed in consequence of abetment. An offence of
criminal conspiracy is, on the other hand, an independent offence.
It is made punishable under Section 120-B for which a charge
under Section 109 is unnecessary and inappropriate. [See Kehar
Singh v. State (Delhi Admn.) (1988) 3 SCC 609] Intentional aiding
and active complicity is the gist of the offence of abetment.”
51.Thus commission of offence under section 109 has been established along with
other sections. The conviction and the sentence imposed by the trial court and the
High Court is absolutely proper and no benefit can be obtained by acquittal under
section 120B IPC. That does not adversely impinge upon the ingredients of section
109 IPC and other sections for which he has been found guilty. Thus I find no force in
submission of appellants that once appellants have been acquitted under section 120B
the entire case falls down.
In re: evidence of accomplices
52.Several decisions were cited which are referred to by esteemed brother which
indicate that accomplice version requires corroboration, same cannot be rejected
outrightly. It was submitted that PW-10 and PW-11 are not reliable being accomplices
and there is no corroboration of their version. Submission is too tenuous to be
accepted. Though only their help was taken as discussed above. In my opinion even
if PW-10 and PW-11 are taken as accomplices their depositions are corroborated by
overwhelming evidence on record on each and every aspect. The accused persons
have been found guilty under section 109 IPC also. All convicted accused persons
Page 108 108
including appellants acted together. Entire gamut of evidence discussed above,
admissible portions of confessional statements of various accused persons including
appellants, recovery of articles of offence also lends credence to versions of PWs. 10
and 11.
In re : Holding T.I./recording statement under section 164 Cr.PC
53.Holding test identification parade has been proved by Krishnasamy-PW-60.
Recording of statement under section 164 Cr.PC has been proved by
Thangamariyappan PW-59; Karunanidhi PW-61 for A-12, PW-32 and PW-33,
Vijayakanth PW-62 recorded the statements of Vettiyans PW-12 and PW-19. Junath
Sherif PW-64 has recorded the statement under section 164 of PWs.10 and 11.
In re : Cell phones/cassettes/forensic evidence
54.Evidence discloses that cell phone was given to A-2 by PW-7. Cassettes were
recovered with suitcase MO3 from A-1 which is supported by PW-43 Accountant of
Butts Paradise Hotel where suitcase was left and for stay money was paid by Venu.
Forensic evidence is furnished by Kasi PW-63 and Dr. C.P. Singh PW-65. PW-63 has
deposed that he had compared the documents MO31 and MO33 with the specimen
handwritings and signature of Senthil Kumar and submitted his report Ex. P-55 dated
24.7.2002 by concluding that both the handwritings were of the same person. PW-65
had deposed that he had received four video cassettes and two audio cassettes which
are marked as MOs.27 and 28. After analyzing he found both the voices to be same
and marked the report as Ex. P-83. However, the High Court has not relied upon
forensic evidence relating to cassettes and MOs. 31 and 33 and also regarding voice
Page 109 109
comparison, for the reason that the said articles were not kept in a sealed condition.
We also ignore this evidence but ignoring this evidence also does not further the case
of the appellants in any way as their guilt stands established by other overwhelming
evidence.
55.It was also contended that recovery of Ford car at the instance of A-4 is of no
value. In my opinion, in whose name car was registered is immaterial as its use in
offence and recovery is material aspect. The registration of car is in name of Ranjit
Kumar who paid money for its purchase is a matter inter se between PW-10 and Ranjit
Kumar. PW-10 may have purchased the car in the name of Ranjit Kumar. However,
the evidence clearly disclosed that the car was in possession of PW-10 and was given
by him to accused. Total six cars were used in offence including Ford Escort car and
one motorcycle. They were used by one or other accused persons at one or other time
while committing offence thus which vehicle was used at particular time by which
accused would not create any circumstance in favour of an accused person when it has
been proved that various vehicles seized have been used in offence their recovery at
the instance of accused persons cannot be ignored.
56.Coming to submission that remains recovered from cremation ground are not
proved to be of deceased M.K. Balan. As per the case of prosecution the body of the
deceased was fully burnt as such the recovery of certain remains which was made
after several months from the cremation ground was of no utility. Remains would not
have been at cremation ground after 2 ½ months when everyday bodies are cremated.
Their seizure and the forensic science report regarding that are of no value.
Page 110 110
57.Thus in my opinion the appeals preferred by appellants sans merits hence, liable
to be dismissed. The appeals are hereby dismissed. The conviction and sentence
imposed by the Trial Court as affirmed by the High Court calls for no interference in
the appeals.
New Delhi; ……………………..J.
September 28, 2016. (Arun Mishra)
Legal Notes
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