Holding

The Supreme Court upheld the convictions, holding that the presumption of murder based on abduction and the corroborated accomplice testimony satisfy the evidential burden, and that acquittal under s.120B does not affect liability under the other offences.

Summary

The case concerns the abduction, extortion and murder of former MLA M.K. Balan, whose body was cremated under a fictitious name. The prosecution relied on extensive circumstantial evidence, the testimony of two accomplices (PW10 and PW11), recoveries of vehicles, a false death certificate, and statements recorded under Section 164 CrPC. The appellants (A1‑A18) were convicted of offences including murder (s.302 IPC), abduction (s.364, s.365 IPC), extortion (s.347, s.387 IPC), and destruction of evidence (s.201 IPC). The key issues were whether a conviction for murder could be sustained without direct forensic proof, the admissibility and sufficiency of accomplice testimony without independent corroboration, the effect of acquittal under s.120B IPC on other convictions, and the applicability of sections relating to abetment and conspiracy. The Supreme Court held that the presumption of murder arising from the abduction, together with the corroborated accomplice evidence, satisfied the burden of proof, and that acquittal under s.120B does not negate liability under other sections. All appeals were dismissed, upholding the convictions.

Issues considered

The prosecution must prove murder under s.302 IPC without direct forensic evidence.
Whether testimony of accomplices PW10 and PW11, lacking independent corroboration, is sufficient for conviction.
The effect of acquittal under s.120B IPC on convictions under other sections such as s.302, s.364, s.365, s.109.
The applicability of s.109 IPC (abetment) and s.120A IPC (conspiracy) to the accused.
The admissibility and evidentiary value of statements recorded under s.164 CrPC.
The relevance of false death certificate and cremation under a fictitious name to s.201 IPC.
The role of vicarious liability provisions s.34 and s.149 IPC in attributing liability.

Legislation cited

Code of Criminal Procedure, 1973s. 164, s. 306, s. 308
Indian Evidence Act, 1872s. 106, s. 114, s. 133, s. 27
Indian Penal Code, 1860s. 107, s. 108, s. 109, s. 120A, s. 120B, s. 141, s. 149, s. 201, s. 302, s. 347, s. 364, s. 365, s. 387

Subjects

abductionmurderpresumption of murderaccomplice testimonycircumstantial evidencefalse death certificatecremation under fictitious names.302 IPCs.364 IPCs.365 IPCs.109 IPCs.120B IPCs.201 IPCs.347 IPCs.387 IPCevidentiary laws.164 CrPCs.306 CrPCs.308 CrPCs.133 Evidence Acts.106 Evidence Actconspiracyabetmentvicarious liability

Judgment

[2020] 10 S.C.R. 27 27

SOMASUNDARAM @ SOMU A
v.
THE STATE REP. BY THE DEPUTY
COMMISSIONER OF POLICE
(Criminal Appeal No. 403 of 2010) B
JUNE 03, 2020
[R. F. NARIMAN, K.M. JOSEPH AND
V. RAMASUBRAMANIAN, JJ.]
Penal Code, 1860: ss.365 and 302 – Abduction followed by
C
murder in appropriate cases can enable a court to presume that the
abductor is the murderer – The principle is that after abduction, the
abductor would be in a position to explain what happened to his
victim and if he failed to do so, it is only natural and logical that an
irresistible inference may be drawn that he has done away with the
hapless victim. D
Penal Code, 1860: s.107 – Abetment – The key and
indispensable elements under the law to constitute abetment is
instigation, conspiracy or the intentional aiding by any act or illegal
omission, the doing of the thing – The law does not permit the abettor
to escape punishment for abetment even if the actual player who E
commits the offence is not criminally liable for the actual act which
results in the commission of an offence.
Penal Code, 1860: ss.364, 201 365/109, 302 – Abduction
and murder – Prosecution case was that the accused abducted the
victim-deceased (MLA) and illegally detained him and demanded F
huge sum and when he refused to succumb to demand, by
strangulation murdered him and cremated his body under fictitious
name – Trial court convicted all the accused while acquitting A12
and A18 based on circumstantial evidence, accomplice evidence
(PW10 and PW11) and evidence of other prosecution witnesses –
High Court acquitted A10 also – On appeal, held: A3 belonged to G
a political party – Other accused except A12 were all henchmen of
A3 – The plan was brain child essentially of A1 and A2 – A3
organised the whole thing which commenced with the search for an
appropriate house where the victim could be confined after the
abduction – Role of A3 along with his men in carrying out the crime H
27
28 SUPREME COURT REPORTS [2020] 10 S.C.R.

A culminating in cremation under fictitious name of the abducted
person is clear – Not only there was evidence of PW10 and PW11
but other evidence which included PW32, PW33, PW36 and PW8 –
The other players were roped in on the basis of their acts which
was in tune with the conspiracy hatched by A1 and A2 – Evidence
showed that it was the body of the deceased which was cremated
B
and a fictitious name was used and a certificate issued at the instance
of A3 which circumstance was clinching in establishing the
prosecution case – Recovery of a nylon rope and chain at the
instance of A16 strengthened the prosecution case – The evidence
of PW33 was that A3 engaged A13, and at the behest of A3, a
C certificate was issued by PW32 certifying that one person passed
away on the fateful day – PW11 stated that on 30.12.2001, he saw
three cars at the factory led by a Tata Sumo (recovered at the instance
of A9) – While A4, A11, A15, A16 and A17 were guilty under s.364
which was already found by the courts below, other appellants would
be guilty under s.364 read with s.109 on the basis that they actively
D
aided the abduction – Also as far as A5, A6, A7, A8, A11 and A14
were concerned, there was evidence of PW10 that he saw the
deceased in a clear state of wrongful confinement, as he was found
tied on the first floor of the factory where A5, A6, A7, A8, A11 and
A14 were present – They were also convicted under ss.347 and 387
E – A4, A11, A16 and A17 were referred in the evidence of PW 11 as
emerging out of the car along with the deceased – PW3 witnessed
three persons pushing another into a Maruti Van on day deceased
went missing – The accomplices were credible witnesses and as
regards the crime and the accused, their testimony brought home
the truth – There was no motive attributed to them to falsely implicate
F
– If that is so, even in the absence of any direct evidence relating to
murder, the presumption of murder, being committed by the appellants
would apply – Having regard to the facts and circumstances, it
cannot be contended that no case was made out against the
appellants.
G Penal Code, 1860: s.109 – For a charge under s.109, a
minimum of two persons are required – There can be any number of
accused charged with the aid of s.109 – In order that there is
abetment, it is indispensable also that there is a person who abets
another – There is a principal player and the abettor – The principal
H player would be guilty for the acts or omissions which amount to
offences under the law.
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 29
DEPUTY COMMISSIONER OF POLICE

Code of Criminal Procedure, 1973: s.164 – Importance of A
the evidence of the statement recorded u/s.164 and whether it
constitutes substantial evidence – A statement of a witness recorded
under s.164 cannot be used as substantive evidence and can be
used only for the purpose of contradicting or corroborating him.
Constitution of India: Art.136 – Supreme Court’s jurisdiction B
in an appeal generated by Special Leave under Art.136 of the
Constitution of India – Discussed.
Evidence Act, 1872: s.133 – Accomplice – Testimony of,
evidentiary value – Held: s.133 declares that an accomplice is a
competent witness – The corroboration must be in relation to the C
material particulars of the testimony of an accomplice – Accomplice
is familiar with the general outline of the crime, he is the one who
participated in the same and therefore, indeed, be familiar with the
matter in general terms – The connecting link between a particular
accused and the crime, is where corroboration of the testimony of
an accomplice would assume crucial significance. D

Criminal Law: Principles laid down in *Dalbir Kaur –
Discussed.
Criminal Law: Destroying the corpus delicti by cremation –
There cannot be medical evidence relating to murder in a case where E
the body stood cremated.
Code of Criminal Procedure, 1973: s.306 – Procedure for
making a person an approver – Held: An elaborate procedure for
making a person an approver, has been set out in s.306 – The exercise
is undertaken before the competent Magistrate – His evidence is F
recorded – He receives pardon in exchange for the undertaking
that he will give an unvarnished version of the events in which he is
a participant in the crime – He would expose himself to proceedings
under s.308 which contemplates that if such person has not complied
with the condition on which the tender of pardon was given either
by wilfully concealing anything essential or by giving false evidence, G
he can be put on trial for the offence in respect to which the pardon
was so tendered or for any other offence of which he appears to be
a guilty in connection with the same matters.
Penal Code, 1860: ss.364 and 365 – Essential ingredients
and distinguishing features – The essence of abduction is forced H
30 SUPREME COURT REPORTS [2020] 10 S.C.R.

A movement, inter alia, from any place – The offence would be committed
by any one who effects such abduction at any or all points of the
route – In a given case, an abduction may attract both ss.364 and
365 – The distinguishing feature between the two kinds of abduction,
is the difference in the intent with which the abduction, inter alia (as
ss.364 and 365 also deal with kidnapping), is carried out – But so
B
far as the intention attracts both provisions in a given case,
conviction under both sections is not impermissible.
Disposing of the appeals, the Court
HELD: 1. The key and indispensable elements under the
C law to constitute abetment is instigation, conspiracy or the
intentional aiding by any act or illegal omission, the doing of the
thing. The law does not permit the abettor to escape punishment
for abetment even if the actual player who commits the offence is
not criminally liable for the actual act which results in the
commission of an offence. Equally, there need not be meeting of
D minds between all the persons involved in a conspiracy and it is
sufficient if a person is engaged in the conspiracy following which
the offence is committed. [Para 54][74-G; 75-A-B]
2.1 Section 133 of the Evidence Act declares that an
accomplice is a competent witness and further that a conviction
E based on the uncorroborated testimony of an accomplice is not
illegal only on account of it being so. The combined result of
Sections 133 read with illustration (b) to Section 114 of Evidence
Act is that the Courts have evolved, as a rule of prudence, the
requirement that it would be unsafe to convict an accused solely
F based on uncorroborated testimony of an accomplice. The
corroboration must be in relation to the material particulars of
the testimony of an accomplice. It is clear that an accomplice
would be familiar with the general outline of the crime as he would
be one who has participated in the same and therefore, indeed,
be familiar with the matter in general terms. [Paras 59, 65][80-E;
G 85-A-B]
K. Hashim v. State of Tamil Nadu (2005) 1 SCC 237 :
[2004] 6 Suppl. SCR 1; Haroom Haji Abdulla v. State
of Maharashtra AIR 1968 SC 832 : [1968] 2 SCR 641;
Sheshanna Bhumanna Yadav v. State of Maharashtra
H AIR 1970 SC 1330 : [1971] 1 SCR 617 – relied on.
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 31
DEPUTY COMMISSIONER OF POLICE

2.2 An accomplice is in many cases, pardoned and he A
becomes what is known as an approver. An elaborate procedure
for making a person an approver, has been set out in Section 306
of the CrPC. The exercise is undertaken before the competent
Magistrate. His evidence is recorded. He receives pardon in
exchange for the undertaking that he will give an unvarnished
B
version of the events in which he is a participant in the crime. He
would expose himself to proceedings under Section 308 of the
CrPC. Section 308 contemplates that if such person has not
complied with the condition on which the tender of pardon was
given either by wilfully concealing anything essential or by giving
false evidence, he can be put on trial for the offence in respect to C
which the pardon was so tendered or for any other offence of
which he appears to be a guilty in connection with the same
matters. This is besides the liability to be proceeded against for
the offence of perjury. Sub-section (2) of Section 308 declares
that any statement which is given by the person accepting the
D
tender of pardon and recorded under Section 164 and Section
306 can be used against him as evidence in the trial under Section
308(1) of the CrPC. [Para 67][85-G-H; 86-A-C]
George and Others v. State of Kerala and Another AIR
1998 SC 1376 : [1998] 2 SCR 303; R. Shaji v. State of
Kerala AIR 2013 SC 651 : [2013] 3 SCR 1172 – E
relied on.
3. Section 364 of the IPC, more graver than Section 365 of
the IPC, occurs when abduction, inter alia, is done with the
intention to commit murder or that he is so disposed of so as to
put the abducted person in danger of being murdered. Section F
365 of the IPC is attracted when the abduction takes place to
cause the abducted person to be secretly and wrongfully confined.
It is true that in a given case, a person may be abducted to be
secretly and wrongfully confined and also to commit murder. Such
a situation may attract both Sections 364 and 365 of the IPC. As G
with any other offence, there could be the actual offender, who
abducts. Any other person could be roped in with the aid of Section
120A of the IPC or Section 109 of the IPC (abetting). Also,
principle of vicarious liability, under Section 34 of the IPC or a
charge under Section 149 of the IPC, if proved, could visit another
with criminal liability. [Paras 80, 81, 82][91-C-E] H
32 SUPREME COURT REPORTS [2020] 10 S.C.R.

A Jagjit Singh v. State of Punjab (2018) 10 SCC 593 :
[2018] 13 SCR 405; *Dalbir Kaur v. State of Punjab
(1976) 4 SCC 158 : [1977] 1 SCR 280 – relied on.
4. It is established from reading the evidence of PWs 1, 2,
3 and 13 that the deceased used to go for morning walk. He was
B indeed sighted by PW13 who also used to go for morning walk.
PW3 indeed witnessed a person being pushed into Maruti Omni
Van by three persons and the van going away followed by the
motorcycle. These facts were established. PW10 has, inter alia,
stated that A1 and A2 were there at the house of A9 on 30.12.2001.
Both of them told A3 that they have brought the MLA (deceased)
C and only money had to be collected from him. PW11 has stated
that on 30.12.2001, he saw three cars at the factory led by a Tata
Sumo (recovered at the instance of A9), a Ford Escort Car
(recovered at the instance of A4) and finally came the Zen Car
(recovered at the instance of A3). Four persons identified as A4,
D A11, A16 and A17 brought the deceased out of the Ford Car.
This took place within hours of abduction on the same day. PW11
also spoke of three persons coming out of the Zen Car. PW10
also said that on 31.12.2001, he found that the deceased was tied-
up with chain and his eyes were covered with a cloth. He was
wearing black pant and sandal colour t-shirt. He deposed that it
E was A5, A6, A7, A8, A10, A11 and A14, who were present. Still
further, he said that A3 threatened him that he would kill him and
his family members if he discloses anything about the matter. He
further stated that “we had kidnapped ex-MLA Balan itself, you
are nothing to me”. The trial court found that no one else was
F kidnapped on the same day. [Paras 87, 88][94-B-G]
5. PW32-A Medical Practitioner proved Exhibit-P27-Death
Certificate. He deposed that PW33 who was working in the
Government General Hospital and acquainted with him for fifteen
years, came to him and told that one person known to him, viz.,
G ‘RC’ was 61 years old and poor, died on 01.01.2002 at 06.00 P.M.
due to cardiac arrest. There was no body to cremate him and he
alone had to do all the work for him. He wanted death certificate.
Then, PW32 told PW33 that he would go to see him (apparently,
the deceased). PW33 told him, he very well knows PW32 for the

H
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 33
DEPUTY COMMISSIONER OF POLICE

past fifteen years, would he lie to him and that no one else was A
with him (deceased) and PW33 has to do everything and he did
not have time. Believing what he stated to be true, PW32 said
that he issued P27-death certificate without seeing the dead body.
The evidence of PW33 was that A3 engaged A13, and at the
behest of A3, a certificate was issued by PW32 certifying that
B
one ‘RC’ had passed away on 01.01.2002. PW38 that no person,
as shown in Certificate died. Then, PW36-Office Assistant In-
charge also supported the prosecution version. Thus, not only
would the cremation and that too under a false name attract the
offence under Section 201 of IPC, which deals with the destruction
of evidence of committing of offence but it is an important chain C
in the list of circumstances which unerringly points to the role of
A3 and others in the crime of murder also. The circumstance is a
vital corroborative link which establishes the case of not only
murder but relates back to the abduction. The contention that
non-production of the body is fatal to the prosecution case is not
D
accepted. The hand of A3 from the beginning, i.e., from the
selection of the factory, arranging of vehicles, confinement and
cremation, is crystal clear and his role in the murder is
established. The evidence of PW34 clearly confirms clinchingly
the role of A3 and sufficiently corroborates PW10 and PW11.
[Paras 89, 90, 91, 105, 106][95-A-C; 96-B-C; 110-B-G] E
6.1 With regard to A4, he made a confessional statement
witnessed by PW39. It led to the recovery of Ford Escort White
Car (MO6). The use of the said car is mentioned by PW10
thereafter by deposing that on 05.12.2001, A3 went out in the
said car which was given by him for rent. He also identified A4 as F
one among the three persons who followed them on that day.
PW11 noted the Ford Escort car on 30.12.2001 as the car from
which four persons got down and those persons brought the
deceased by closing his eyes and mouth and hands being tied
and took him to the first floor. MO6 was recovered on the basis
of the statement given by A4. This is a case based essentially on G
circumstantial evidence. The condition of the deceased, viz., his
eyes and mouth being closed and hands being tied and being
taken to the first floor, are matters of moment in connecting A4
with the gory episode having its origin in the abduction of the
H
34 SUPREME COURT REPORTS [2020] 10 S.C.R.

A deceased, his illegal confinement and culminating in his murder
and cremation. [Paras 107, 108][110-G-H; 111-D-G]
6.2 With regard to A5, on the fateful day, when the murder
took place, PW10 named A5 as going in a motorcycle to the
company. He went inside and was standing in the light. A cloth
B bag was there in the bike. The body of the deceased was brought
from upstairs by four persons. PW10 then deposed that a cloth
was taken from the bag brought by A5 and tied around the body
of the deceased like doing for a dead body. A5 was cited by PW10
as going in his motorcycle. The facts discovered based on
statement by A5 are very significant, and hence, most relevant,
C not only in revealing his involvement but unravelling the entire
prosecution case. A statement under Section 27 of the Evidence
Act is not only about the thing as such which is discovered
consequent upon the statement but the knowledge attributable
to the person who makes the statement about the matter,
D discovered, based on the statement. The evidence of PW44 who
was a Revenue Inspector and witness to the statement of A5 and
identification by A5, helps establishing his clear link and
sufficiently corroborates PW10 and PW11. Lastly, PW34 has
spoken about the presence of A5 on 30.12.2001 and identified
him. [Paras 109, 110][112-G-H; 113-A-B]
E
6.3 PW10 identified A6, A7, A8 and A11 as the persons
who carried the dead body of the deceased on 01.01.2002. PW10
and PW11 spoke about the body being loaded in a golden colour
Maruti van. It was corroborated by the evidence of PW35 (Police
Constable). The evidence clinchingly points to A6, A7, A8 and
F A11 being involved apparently at the behest of A3 and carrying
dead body of the deceased on the fateful day in the van and their
presence near the place where the deceased came to be cremated.
[Para 115][114-F-H]
6.4 With regard to A14, his involvement in the matter
G emerges as one of the persons who stood in the upstairs of the
building with the deceased when the deceased was in the state of
illegal confinement. This, no doubt, is based on the testimony of
PW10. No doubt, as far as A14 is concerned, there is no recovery.
It is true that there is no direct evidence that the accused
H abducted or murdered the victim. The case hinges on
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 35
DEPUTY COMMISSIONER OF POLICE

circumstantial evidence. A10 was acquitted by the High Court. A
A10 himself was also named by PW10 as present along with A14
at the time of the illegal confinement. The High Court assigned
cogent reasons for acquitting A10, including, inter alia, that PW11
though had identified A10 in the Test Identification Parade, could
not identify him in the Court. The evidence against A14 was
B
believed by both the Courts. [Para 122][116-E-F]
6.5 A15 stated that he got the motorcycle from PW48. In
his deposition, he has stated that he was having a fashion motor
bike Hero Honda. He further states that PW10 was known to
him well. He used to take his vehicle often. Last year, during
November, 2001, PW10 apparently, had taken his vehicle and C
did not return it. It is the motorcycle which was apparently seen
by PW3 and used at the time of abducting the deceased. The
vehicle was recovered at the instance of A15. Even ignoring the
shoe which is recovered on the basis of the statement, the
evidence sufficiently implicates A15. [Para 125][117-C-D, H; D
118-A]
6.6 Regarding A16, he was taken into custody, and on
questioning in the presence of PW47 and another witness, he
gave a confessional statement. He stated that if he is taken, he
would produce the black bag, cell phone and knife from the house E
at Villivakkam. On being so taken to the place at Villivakkam,
he identified a Panasonic Cell Phone, sim card with charger, one
black colour carry bag, nine feet long yellow colour nylon rope
and two chains. This is besides knife and three locks. Therefore,
it cannot be said that there was no corroboration for the role of
A16. It is quite clear that A16 was amongst the accused who F
brought the deceased. His role in the abduction became clear.
The deceased was not only not alive but was undoubtedly done
away by way of murder. Having abducted the deceased, the role
of A16, as assessed by the Trial Court and further accepted by
the High Court, did not require interference. A17 was again G
another accused who was one of the four persons identified by
PW11 who brought the deceased on 30.12.2001 to the factory.
[Paras 126, 127][118-B-F]
7. For a charge under Section 109 of the IPC, a minimum
of two persons are required. There can be any number of accused H
36 SUPREME COURT REPORTS [2020] 10 S.C.R.

A charged with the aid of Section 109 of the IPC. In order that
there is abetment, it is indispensable also that there is a person
who abets another. There is a principal player and the abettor.
The principal player would be guilty for the acts or omissions
which amount to offences under the law. The abettor though does
not trigger the gun, “is the moving force behind it and becomes
B
liable as such”. In this case, the Trial Court has proceeded to
find the appellants (except A5) guilty of the fifth charge under
Section 302 IPC whereas the A1 and A2 were found guilty of the
charge of conspiracy under Section 120B of the IPC. In other
words, the idea to commit the offences came into being in the
C minds of A1 and A2. The other players were roped in on the
basis of their acts which was in tune with the conspiracy hatched
by A1 and A2. The acquittal of A12, who was charged under
Section 120B of the IPC and also for offences under Sections
419, 420 and 387 of the IPC read with Section 109 of the IPC
would not detract from the criminality of the acts committed by
D
the other accused and, in the facts of this case, there is no illegality
involved in convicting the appellants in the manner done under
Section 302 of the IPC. The Trial Court found that the plan was
the brainchild essentially of A1 and A2. [Paras 136, 137][123-D-
H; 124-A]
E
8. The acquittal of A12 would not deflect from the factum of
the conspiracy between A1 and A2. So also, the acquittal of A3 in
this regard. A1 and A2 have been convicted under Section 302
read with Section 109. Accused 1 and 2 have been held guilty
under Section 120B. This means that since accused 1 and 2 are
F held guilty under Section 120B of the IPC to commit the murder
of the deceased, they are to be punished as if they have abetted
the said offence. The judgment of the trial Court is to be
understood in the said vein. It is true that abetment by conspiracy
is only one form of abetment. There can be alternate charges.
There can be abetment by instigation and intentional acting even
G when there is no conspiracy and, therefore, no abetment by
conspiracy. The fifth charge against A1, A2, A5, A9, A12 and A13
would be in the form of an alternate charge. This is so as A5
(Appellant) is charged and found guilty of murder under Section
302 of the IPC read with Section 109 of the IPC. The role of A5,
H particularly, having regard to the statement under Section 27 of
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 37
DEPUTY COMMISSIONER OF POLICE

the Evidence Act, leading to recovery of the Van, the discovery A
of the site of the factory and the cremation ground besides other
evidence, cannot be ignored. It is clear that their acquittal under
Section 120B of the IPC will not impact their conviction under
the other provisions. [Paras 138, 139][124-E-F; 125-B-E]
9. The evidence of PW10 and PW11 was credible and the B
presence and role attributable to A6 cannot be brushed aside.
The presence of A6 spoken to by the accomplices on 05.12.2001,
30.12.2001 and, particularly, on 01.01.2002 on which last day in
carrying the dead body in the van which is later identified by the
police officer at a spot near the cremation ground is certainly a
C
vital circumstance which cannot be brushed aside. The role of
A6 in the illegal confinement appears to be established.
[Para 140][126-A-C]
10. As far as the murder is concerned, there is no direct
evidence that deceased is murdered by strangulating him.
D
However, it is equally true that on the basis of recovery made at
the instance of A16, a nylon rope and chain was recovered which
undoubtedly strengthens the prosecution case. There cannot be
medical evidence relating to murder in a case where the body
stood cremated. The players thought it through meticulously by
destroying the corpus delicti by cremation. The abduction E
followed by murder in appropriate cases can enable a court to
presume that the abductor is the murderer. The principle is that
after abduction, the abductor would be in a position to explain
what happened to his victim and if he failed to do so, it is only
natural that an irresistible inference may be drawn that he has
F
done away with the hapless victim. Section 106 of the Evidence
Act would come to the assistance of the prosecution. [Paras 141,
142][126-E-H]
State of W.B. v. Mir Mohamad Omar (2000) 8 SCC 382:
[2000] 2 Suppl. SCR 712 – referred to
G
11. Section 387 is heightened form of extortion in which
the victim is put in the fear of death or grievous hurt. Section 347
involves wrongful confinement of a person for the purpose of
committing extortion. The appellants were convicted under
H
38 SUPREME COURT REPORTS [2020] 10 S.C.R.

A Sections 347 and 387 of the IPC. This is not an inexorable rule
but to be applied based on the factual matrix presented before
the court. Where abduction is followed by illegal confinement
and still later by death, the inference becomes overwhelming that
the victim died at the hands of those who abducted/confined him.
The deceased was brought in a Ford Escort car. He was brought
B
by A4, A11, A16 and A17. The case of the prosecution is that
except A12, A4 to A18 were the henchmen of A3. The
accomplices are credible witnesses when the whole circumstances
are borne in mind. Their evidence may not be immaculate in
character. But the test is whether it is safe to convict the accused
C believing such witnesses. As regards the crime and the accused,
their testimony brings home the truth, as regards accused who
are appellants. There is no motive attributed to PW10 and PW11
to falsely implicate. The presumption of murder was rightly drawn.
[Paras 143, 144][128-F-G; 129-G-H; 130-A-B]
D 12. The role of A15 is clear who was not only been referred
to in the accomplice evidence but corroborates his link in the
abduction with the recovery of motorcycle at his instance. It
rightfully earned him conviction under Section 365 IPC. There
were two cars apart from the Ford Escort on 30.12.2001 at the
site of the illegal confinement. From the Maruti Zen, three
E
persons emerged as witnessed by PW11. It is true that PW11
has not identified them. That apart there was also a Tata Sumo,
PW11 no doubt identified A5 and A7 apart from A15 as the persons
who came back on 30.12.2001 with tiffin after leaving the factory.
The trial court convicted A4, A11, A15, A16 and A17 under Section
F 365 which is unassailable in regard to these accused. There is no
error in the court drawing the presumption that they are also
guilty of murdering the deceased. PW3 spoke of three men
pushing another into a van on 30.12.2001. The van moved and it
was followed by a motorcycle. A15 gave a statement leading to
the recovery of a motorcycle. The evidence is relied by the two
G courts and there is no reason to take a different view. [Paras 145,
146, 147][130-C-E]
13. As far as A3, A5, A6 and A8 are concerned, they were
convicted under Section 365 read with Section 109. Abetting is
to be understood in the context of their acting on the conspiracy
H
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 39
DEPUTY COMMISSIONER OF POLICE

which stood proved against A1 and A2. No doubt, abetting also A
takes place when there is instigation or intentional aiding. The
role of A3 looms large. It is clear that he organised the whole
thing and it commenced with the search for an appropriate house
where the victim could be confined after the abduction. His role
along with his men in carrying out the crime culminating in the
B
cremation under fictitious name of the abducted person is clear.
[Para 148][130-F-H]
14. As far as A7 and A14 were concerned, they were also
convicted under Section 365 and also under Section 364. The
involvement of A7 is clear. He makes his maiden appearance in
the accomplice evidence as early as on 05.12.2001. PW10 C
witnessed him standing along with certain other accused by the
side of the deceased who was then clearly in the state of illegal
confinement. He further established his complicity by bringing
down the body of the deceased on 01.01.2002 along with three
others. A7 and A14 ought to have been convicted under Section D
365 read with Section 109 of the IPC. A3, A5, A6 and A8 stood
convicted under Section 365 read with Section 109. However
the charge as against A7 and A14 was under Section 365. The
charge against A14 is also under Section 365 read with Section
109 of the IPC. All the appellants were convicted also under
Section 364 of IPC. The evidence in this case no doubt through E
the mouth of PW10 and PW11 who alone have witnessed what
truly happened would establish that on 31.12.2001, PW10 saw
A5, A6, A7, A8, A11 and A14 when he saw the deceased who was
at that time tied up on the first floor. Thus A5, A6, A7, A8, A11
and A14 are persons who can be and have also been convicted in F
connection with the illegal confinement of the deceased.
[Paras 149, 150, 152][131-A-D, F, G]
15. A4, A7, A11, A14, A15, A16 and A17 are persons who
were found guilty under Section 365 of the IPC. A3, A5, A6 and
A8 stood convicted under Section 365 of the IPC with the aid of G
Section 109 of IPC. All of them were also convicted under Section
364 of the IPC. In this regard there is a dichotomy involved.
The law attaches criminality to the act or omission by a person.
Another person may become liable as an abettor, a person who
has conspired and thus liable under Section 120B, a person who
H
40 SUPREME COURT REPORTS [2020] 10 S.C.R.

A has shared a common object and thus become vicariously liable
and if there be five or more persons u/s. 141 read with Section
149 or if the principle of vicarious liability embedded in Section
34 of the IPC is attracted. In other words, for a conviction under
Section 364, actual abduction is necessary. A person could no
doubt be liable under Section 364 read with Section 34 or under
B
Section 364 read with Section 149 or under Section 364 read
with Section 109 or if he is found guilty under Section 120B. In
this case, there is no scope for either Section 120B or 149.
However just as they have been found guilty under Section 365,
they are liable to conviction under Section 364 in the same manner
C namely the abduction within the meaning of Section 364. The
abduction is alleged to have been taken place on 30.12.2001.
The essence of abduction is forced movement, inter alia, from
any place. The offence would be committed by any one who effects
such abduction at any or all points of the route. In a given case,
an abduction may attract both sections 364 and 365. The
D
distinguishing feature between the two kinds of abduction, is the
difference in the intent with which the abduction, inter alia (as
Sections 364 and 365 also deal with kidnapping), is carried out.
But so far as the intention attracts both provisions in a given
case, conviction under both sections is not impermissible.
E However, when some of the appellants are convicted under Section
365 simpliciter and others are convicted under Section 365 read
with Section 109, then the position of those accused/appellants
in regard to conviction under Section 364 must also be the same.
However, this difference in the matter of conviction under Section
364, cannot advance the case of the appellants, as abduction
F
whether it is with the aid of Section 109 or which is under Section
364 simpliciter, enables the Court to raise the presumption of
murder, in the absence of any explanation offered within the
meaning of Section 106 of the Evidence Act. In other words, while
A4, A11, A15, A16 and A17 are guilty under Section 364 which is
G already found by the courts below, other appellants would be guilty
under Section 364 read with Section 109 IPC on the basis that
they have been actively aided the abduction. Also as far as A5,
A6, A7, A8, A11 and A14 are concerned, there is the evidence of
PW10 that when he saw the deceased in a clear state of wrongful
confinement, as he was found tied on the first floor of the factory,
H
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 41
DEPUTY COMMISSIONER OF POLICE

A5, A6, A7, A8, A11 and A14 were present. They were also A
convicted under Sections 347 and 387 of the IPC. Also, in fact,
on 30.12.2001, PW11 has deposed about three cars out of which
the deceased emerged out of one of them, viz., the Ford Escort.
A4, A11, A16 and A17 were referred in the evidence of PW 11 as
emerging out of the car along with the deceased but it is quite
B
clear that there were more persons than A4, A11, A16 and A17
who were involved in the abduction. In this regard, PW3 witnessed
three persons pushing another into a Maruti Van early in the
morning on 30.12.2001. No doubt there is also a man on the
Motorcycle. Within hours when he is brought to the factory
building, he comes out of a Ford Escort. There were two other C
cars which accompanied it. Under Section 362 of the IPC,
abduction has been defined, inter alia, as compelling a person to
go from any place. It, no doubt, also includes, such movement
procured by deceitful means. The plot reveals the abduction, the
illegal confinement, the death of the deceased and his subsequent
D
cremation, the role of A3, A5, A6, A7, A8 and A14 in aiding the
abduction, appears to be made out. It is also clear that A5, A6,
A7, A8, A11 and A14 were involved in the wrongful confinement
of the deceased. As far as A14 is concerned, there is no recovery,
as such, effected from him under Section 27 of the Evidence Act
and there is essentially the evidence of PW10. The same is E
position about A17, whose involvement has been referred to by
PW11, the other accomplice. However, the accomplice witnesses,
who were relied upon by two courts, are to be treated as credible
witnesses and, even in the absence of corroborative evidence, in
the facts and circumstances of this case, there is no reason to
F
disturb that conviction. If that is so, even in the absence of any
direct evidence relating to murder, the presumption of murder,
being committed by the appellants would apply. In fact, the courts
below drew a presumption about murder being committed. This
is a presumption which cannot be said to be drawn without any
basis. [Para 153][131-G-H; 132-A-H; 133-D-G] G
Somasundaram alias Somu v. State Represented by
Deputy Commissioner of Police (2016) 16 SCC 355 :
[2016] 7 SCR 263; Siri Ram Batra and Others v.
Financial Commissioner, Delhi and Others (2004) 12
H
42 SUPREME COURT REPORTS [2020] 10 S.C.R.

A SCC 52 : [2004] 4 Suppl. SCR 470; Baldev Singh v.
State of Punjab (1990) 4 SCC 692; Ziyauddin
Burhanuddin Bukhari v. Brijmohan Ramdass Mehra
and Others (1976) 2 SCC 17 : [1975] Suppl. SCR 281;
Vijayan v. State of Kerala (1999) 3 SCC 54 : [1999] 1
SCR 659; Mohanlal Shamji Soni v. Union of India
B
and Another (1991) Suppl. 1 SCC 271 : [1991] 1 SCR
712; Nanak Chand v. State of Punjab AIR 1955 SC
274 : [1955] 1 SCR 1201; Pramatha Nath Talukdar v.
Saroj Ranjan Sarkar AIR 1962 SC 876 : [1962] 2
Suppl. SCR 297; Arjun Singh v. State of Himachal
C Pradesh AIR 2009 SC 1568 : [2009] 1 SCR 983; Noor
Mohammad Mohd. Yusuf Momin v. State of Maharashtra
(1970) 1 SCC 696 : [1971] 1 SCR 119; R.v. Baskerville
1916 (2) KB 658; Mohd. Husain Umar Kochra Etc. v.
K.S. Dalipsinghji and Another Etc. (1969) 3 SCC 429
: [1969] 3 SCR 130; Chonampara Chellapan Etc. v.
D
State of Kerala Etc. (1979) 4 SCC 312 : [1969] 3 SCR
130; Kehar Singh and Others v. State (Delhi
Administration (1988) 3 SCC 609 : [1988] 2 Suppl. SCR
24; Ranganayaki v. State by Inspector of Police (2004)
12 SCC 521 : [2004] 5 Suppl. SCR 452; Sarwan Singh
E Rattan Singh v. State of Punjab AIR 1957 SC 637 :
[1957] SCR 953; Chandran and Others v. State of
Kerala (2011) 5 SCC 161 : [2011] 8 SCR 273; Sucha
Singh v. State of Punjab AIR 2001 SC 1436 : [2001] 2
SCR 644 – referred to.
F Case Law Reference
[2016] 7 SCR 263 referred to Para 2
[2004] 4 Suppl. SCR 470 referred to Para 18
(1990) 4 SCC 692 referred to Para 19
G [1975] Suppl. SCR 281 referred to Para 20
[1999] 1 SCR 659 referred to Para 21
[1991] 1 SCR 712 referred to Para 22
[1955] 1 SCR 1201 referred to Para 33
H
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 43
DEPUTY COMMISSIONER OF POLICE

[1962] 2 Suppl. SCR 297 referred to Para 44 A
[2009] 1 SCR 983 referred to Para 52
[1971] 1 SCR 119 referred to Para 55
[1969] 3 SCR 130 referred to Para 56
[1988] 2 Suppl. SCR 24 referred to Para 56 B
[2004] 5 Suppl. SCR 452 referred to Para 58
[1957] SCR 953 referred to Para 61
[1968] 2 SCR 641 relied on Para 62
C
[1971] 1 SCR 617 relied on Para 63
[2004] 6 Suppl. SCR 1 relied on Para 64
[2011] 8 SCR 273 referred to Para 67
[1998] 2 SCR 303 relied on Para 69
D
[2013] 3 SCR 1172 relied on Para 70
[2018] 13 SCR 405 relied on Para 72
[1977] 1 SCR 280 relied on Para 72
[2000] 2 Suppl. SCR 712 referred to Para 142
E
[2001] 2 SCR 644 referred to Para 142
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
403 of 2010.
From the Judgment and Order dated 06.10.2007 of the High Court
of Judicature at Madras in Criminal Appeal No. 698 of 2004. F
With
Criminal Appeal Nos. 827, 828 of 2013, 1504, 2006-2007 and 2008-
2009 of 2017.
P. V. Yogeswaran, Ashish Kumar Upadhyay, Y. Lokesh, G
Ms. V. Susheatha, Babul Kumar, P. Abinesh Karthik, Arun Singh,
Ms. V. Keerthana, B. Karunakaran, M. Tabish Zia, Anirudh J.,
S. Gowthaman, Aditya Kr. Choudhary, Aman Singh, Gurmehar Vaan
Singh, Vaibhav Prasad Deo, Rajesh Singh Chauhan, M. Yogesh Kanna,
Ms. Meha Aggarwal, S. Raja Rajeshwaran, Advs. for the appearing
parties. H
44 SUPREME COURT REPORTS [2020] 10 S.C.R.

A The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. Six appeals arise out of a common judgment rendered by the
High Court confirming the conviction and sentence of the appellants by
the Trial Court. The earliest of the aforesaid appeals, i.e., Criminal Appeal
B No. 403 of 2010, is filed by the fourth accused. Criminal Appeal No. 827
of 2013 and Criminal Appeal No. 828 of 2013 are filed by the third and
the fifteenth accused, respectively.
WHY THIS THREE-JUDGES BENCH?

C 2. The appeals filed by the third, fourth and fifteenth accused
came to be heard by a Bench of two learned Judges. There was a
cleavage of opinion among the learned Judges. One learned Judge (Justice
V. Gopala Gowda), by his Judgment, proceeded to acquit the accused
while Justice Arun Mishra dismissed the appeals. The Judgment rendered
by the two learned Judges is reported in Somasundaram alias Somu v.
D State Represented by Deputy Commissioner of Police 1. After the
judgment was rendered, it is that the other appeals came to be filed by
the other accused. They are as follows:
a. A5 and A8 have filed Criminal Appeal Nos. 2008 of 2017;
b. A6 has filed Criminal Appeal No.1504 of 2017;
E
c. A7, A11, A14, A16 and A17 have together filed Criminal Appeal
No. 2006 of 2017;
d. Though Criminal Appeal No.2007 of 2017 and Criminal Appeal
No. 2009 of 2017 were also filed, subsequent to the hearing,
F applications have been filed seeking to withdraw the aforesaid
two appeals and they are liable to be dismissed as withdrawn.
THE PROSECUTION CASE
3. On M.K. Balan (hereinafter referred to as ‘the deceased’, for
short), who was an Ex. M.L.A., was reported to be missing by his son-
G PW1 after he went for his morning walk on 30.12.2001. On the basis of
the complaint, law was set in motion. PW67-Inspector of Police, took
over the investigation on 12.01.2002 from PW66. It was, in fact, PW66,
who initially conducted investigation. PW66 has spoken about information
of the absconding person being given to the Police Control Room and to
H 1 (2016) 16 SCC 355
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 45
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

all Police Stations by wireless. He has sent photograph of absconding A
person to be published in the daily newspapers. Inquiry was conducted
in hospitals. He has examined a large number of witnesses. It is, as
noted, on 12.01.2002, further investigation was taken over by PW67-
Deputy Superintendent of CBCID. The evidence of PW67 would show
that from 13.01.2002, the Officer has examined several witnesses.
B
According to the prosecution, the breakthrough came on the basis of
information, as per which, the A5 (fifth accused) came to be arrested on
18.03.2002. On the very next day, A6 came to be arrested. Still, within
the space of twenty-four hours, viz., on 20.03.2002, A7 came to be
arrested. A8 was arrested on 22.03.2003. A1 was arrested on 23.03.2002.
A3 was arrested on 25.03.2002. A4 came to be arrested on 09.04.2002. C
A15 was arrested on 25.04.2002. It is the prosecution case that the
accused made confessional statements within the meaning of Section
27 of the Indian Evidence Act, 1872 (hereinafter referred to as ‘the
Evidence Act’, for short) yielding information leading to recoveries. It is
the case of the prosecution that the deceased had been abducted (though
D
it is shown as kidnapped) on 30.01.2002, taken and kept in a factory
premises which belonged to PW34-Krishna Pandi with whom PW10
and PW11 had become partners. A huge sum, running into several crores,
motivated the accused to hatch the conspiracy to abduct the deceased.
It was the further case of the prosecution that the accused decided to do
away with the deceased in case he did not yield to the demand. As it E
transpired as the deceased did not yield, he was murdered while he was
kept captive in the first floor of the vermicelli factory, which, as already
noted, was being operated by PW34. A3 was noted as leader of the
ADMK. A12, it was alleged, who was married to the A2, was made to
speak in the voice of an AIADMK leader Shashikala to A3. In this, the
F
A1 and A2 played a role. It is, according to the prosecution, on being so
spurred by the command given by A12, apparently mimicking the voice
of the AIADMK leader, A3 acts. A9 contacted PW10 and PW11. It is
alleged that PW10 and PW11 were persuaded to search for houses.
Not satisfied with many of the houses shown to A3 and A9, they finally
found favour with the factory premises which is located in Mudichur. It G
is the further case of the prosecution that after he was murdered, the
body of the deceased came to be cremated at the Corporation cremation
ground on 01.01.2002 and, in order to accomplish the same, PW33-an
employee working in a Government Hospital, was roped in by A3 to
procure a false death certificate. Accordingly, PW33, it was alleged,
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46 SUPREME COURT REPORTS [2020] 10 S.C.R.

A approached PW32-a Medical Practitioner. The Medical Practitioner gives
a death certificate wherein the name of a person is indicated in the
certificate, and allegedly residing at an address, which, the Police, on
investigation, found, was not the abode of the person. In other words,
the name of a non-existing and a fictional person was used to concoct a
death certificate and, under the cover of the same, the body of the
B
deceased came to be cremated.
4. On the basis of the charge-sheet and after complying with the
formalities, the Trial Court framed charges against the accused. The
following are the charges framed against the various accused as evident
from the Trial Court Judgment:
C
“The following charges were framed against the accused
in this case: That during the month of November 2001, the 1st, 2nd
and 3rd accused conspired together and discussed about the matter
as to how the Ex.M.L.A. M.K. Balan could be kidnapped and
extract money from him and it was decided to murder him in case
D if he refuses to pay any amount and that consequent upon such
conspiracy on 30.12.01 early morning, he was kidnapped near
MRC Nagar and he was illegally kept at T.K.P. Vermicelli factory
at Mudichur and on account of committing him murder on 1.1.02
night at about 9:00 p.m., thereby a charge under section 120.B.
E IPC has been framed as against the accused 1 to 18 in this case.
Secondly for the purpose fulfilling the object of such
conspiracy, while the said Ex.M.L.A. M.K. Balan was walking in
the morning on 30.12.01 near MRC Nagar, at the knife point he
was kidnapped near Iyyapan temple at about 5.30 am by the
F accused 4,7,10,11,14,15,16 and 17 in the Maruti van bearing Regn.
No.: TN-A-7484 and at that time the 15th accused went in front
of that van in a Hero Honda to show the route for them and lastly
the said M.K. Balan was kept illegally at Vermicelli factory
belonging to one Krishnapandi at Mudichur road, thereby the said
accused have been charged under Section 365 IPC and for
G abetment of the said offence the accused 1,2,3,5,6,8,9 and 13 to
18 accused in going in a car bearing Regn. No.: TN-10-F-5555
have been charged under Section 365 read with Section 109 IPC.
Thirdly in order to fulfil the object of such conspiracy, in the
said place on the said date the said M.K. Balan (Ex.M.L.A.) was
H tied with iron chain and rope in a cot and he was threatened to
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 47
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

part with Rs.16 crores of Rupees or else to execute the document A
in respect of his properties in their favour, thereby the accused 1
to 11 and 14 to 18 have been charged under Section 387 IPC.
Fourthly, in order to fulfil such conspiracy and in pursuant
of the same at the instance and instigation of the accused 1 and 2,
the 12th accused spoke to the third accused over phone by changing B
the voice as that of Smt. Sasikala uttering the words” if possible
get the amount or else close him and come along with Senthil and
meet me and Senthil would tell you everything later, thereby the
said accused have been framed charges under Section 419, 420
and 387 IPC read with 109 IPC.
C
Fifthly in order to fulfil the object of the said conspiracy
and consequent upon the said occurrence on 1.1.02 night at about
9:00p.m. the accused 3,4,6 to 8,10,11 and 14 to 18 committed the
murder of M.K. Balan who refused to pay any money or to execute
any documents in respect of his properties, by tying a rope around
the neck and tightened, thereby all the above said accused persons D
had committed the offence punishable under section 302 IPC.
Likewise the accused 1,2,5,9,12 and 13 were charged under section
302 read with section 109 IPC for having committed the offence
of abetment for the act of committing the murder.
Sixthly, consequent upon the same on the same day in the E
said occurrence, with an object of extracting the property from
the deceased M.K. Balan, he was kidnapped thereby accused 3
to 11 and 13 to 18 were framed charge under section 347 and 364
IPC and for being abetment for the said offence, the accused 1,2
and 12 have been framed charge under section 347 read with 109 F
and 364 read with 109 IPC.
Seventhly, after committing the murder of the deceased
M.K. Balan, the body was taken to the cremation ground and
cremated in Perambur cremation ground by getting false death
certificate as if one Rajamani Chettiar died due to heart ailment G
and that therefore by suppressing the real facts in order to screen
the crime, accused 8,10,11 and 13 to 18 have been framed charge
under section 201 IPC.”
5. The prosecution has sought to discharge its burden by examining
67 witnesses. It has also produced and proved a large number of
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48 SUPREME COURT REPORTS [2020] 10 S.C.R.

A documents (P1 to P86) and also material objects (MO1 to MO39). Five
witnesses were examined by the accused. D1 to D8 were proved on
their behalf. The Trial Court, on appreciation of the evidence, found
merit in the case of the prosecution, except in regard to the A12 and
A18. Resultantly, the Trial Court convicted the accused as follows:
B (i) A1 and A2 were found guilty of the offences under Sections
120B of The Indian Penal Code, 1860 (hereinafter referred
to as ‘the IPC’, for short), Section 365 read with Section
109 of the IPC, Section 387 of the IPC, Section 302 read
with Section 109 of the IPC, Section 347 read with 109 of
the IPC and under Section 364 read with Section 109 of
C the IPC.
(ii) A3 is found to have acted upon the conspiracy of A1 and
A2. He was found guilty of the offences under Section 365
read with Section 109 of the IPC, Section 387 of the IPC,
Section 302 of the IPC, Section 347 of the IPC, Section
D 364 of the IPC and Section 201 of the IPC. He was acquitted
under Section 120B of the IPC. (See paragraph 194 of the
Trial Court Judgment);
(iii) A4 was found guilty of the offences under Section 365 of
the IPC, Section 387 of the IPC, Section 302 of the IPC,
E Section 347 of the IPC, Section 364 of the IPC and Section
201 of the IPC. He was acquitted under Section 120B of
the IPC;
(iv) A5 was found guilty under Section 365 read with Section
109 of the IPC, Section 387 of the IPC, Section 302 read
F with Section 109 of the IPC, Section 347 of the IPC, Section
364 of the IPC and Section 201 of the IPC. He was,
however, acquitted under Section 120B of the IPC.
(v) A6 was found guilty under Section 365 read with Section
109 of the IPC, Section 387 of the IPC, Section 302 of the
G IPC, Section 347 of the IPC, Section 364 of the IPC and
Section 201 of the IPC. He stood acquitted under Section
120B of the IPC;
(vi) A7 was found guilty under Section 365 of the IPC, Section
387 of the IPC, Section 302 of the IPC, Section 347 of the
H
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 49
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

IPC, Section 364 of the IPC and Section 201 of the IPC. A
He stood acquitted under Section 120B of the IPC;
(vii) A8 was found guilty under Section 365 read with Section
109 of the IPC, Section 387 of the IPC, Section 302 read
with Section 109 of the IPC, Section 347 of the IPC, Section
364 of the IPC and Section 201 of the IPC and he stood B
acquitted under Section 120B of the IPC;
(viii) A11, who is one of the appellants before us, was convicted,
Section 365 of the IPC, Section 387 of the IPC, Section
302 of the IPC, Section 347 of the IPC, Section 364 of the
IPC and Section 201 of the IPC and was acquitted under C
Section 120B of the IPC;
(ix) A12 was acquitted of all the charges;
(x) A14, A15, A16 and A17 were convicted under Section 365
of the IPC, Section 387 of the IPC, Section 302 of the IPC,
Section 347 of the IPC, Section 364 of the IPC and Section D
201 of the IPC and the charge under Section 120B of the
IPC was found not proved against them and they stood
acquitted.
6. It is necessary to notice the details of the findings against each
of the accused (appellants): E
“211. The accused 3,6 and 8 for having abetted the crime
of conspiracy of the accused 1 and 2, on 30.12.01 at about
5:30 a.m. the former M.L.A. M.K. Balan was kidnapped and
kept in a secret place at Vermicelli factory at Mudichur road,
Tambaram, committed the offence under section 365 read with F
109 IPC and for having made an attempt to extract money or
property from the said M.K. Balan, former MLA, committed the
offence under section 387 IPC and when it was not able to get
the same, by committing the murder of the said M.K. Balan,
committed the offence under section 302 IPC and before
G
committing murder him, for having kept him in a secret place
unlawfully and illegally, committed the offence under section 347
IPC and for having kidnapped him for the purpose of murdering
him, committed the offence under section 364 IPC and after the
murder of the said M.K. Balan, former M.L.A., the body was
cremated at the crematorium at Erukkancherry, Perambur and H
50 SUPREME COURT REPORTS [2020] 10 S.C.R.

A with a view to screen the traces and giving false information,
committed the offence under section 201 IPC and accordingly
they are found guilty of the above said offences.
212. In order to fulfil the object of on 30.12.01 at about
5.30 a.m. the former M.L.A. M.K. Balan was kidnapped and
B kept in a secret place at Vermicelli factory at Mudichur road,
Tambaram, committed the offence under section 365 read with
109 IPC and for having made an attempt to extract money or
property from the said M.K. Balan, former MLA, committed the
offence under section 387 IPC and when it was not able to get
the same, by committing the murder of the said M.K. Balan,
C committed the offence under section 302 IPC and before
committing murder him, for having kept him in a secret place
unlawfully and illegally, committed the offence under section 347
IPC and for having kidnapped him for the purpose of murdering
him, committed the offence under section 364 IPC conspiracy of
D the accused 1 and 2, the 4th accused has been charged for the
above said offences.
213. The 5th accused is found guilty of the offences for
having fulfilled the conspiracy of the accused 1 and 2 on 30.12.01
at about 5:30 a.m. the former M.L.A. M.K. Balan was kidnapped
E and kept in a secret place at Vermicelli factory at Mudichur road,
Tambaram, committed the offence under section 365 read with
109 IPC and for having made an attempt to extract money or
property from the said M.K. Balan, former MLA, committed the
offence under section 387 IPC and when it was not able to get
the same, by committing the murder of the said M.K. Balan,
F committed the offence under section 302 IPC and before
committing murder him, for having kept him in a secret place
unlawfully and illegally, committed the offence under section 347
IPC and for having kidnapped him for the purpose of murdering
him, committed the offence under section 364 IPC and after the
G murder of the said M.K. Balan, former MLA, the body was
cremated at the crematorium at Erukkancherry, Perambur and
with a view to screen the traces and giving false information,
committed the offence under section 201 IPC and accordingly he
is found guilty of the above said offences.

H
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 51
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

214. The 7th, 10th, 11th and 14th accused were charged for A
the offences for having colluded with the accused 1 and 2 in
fulfilling their conspiracy by stating that on 30.12.01 at about 5.30
a.m. the former M.L.A. M.K. Balan was kidnapped and kept in a
secret place at Vermicelli factory at Mudichur road, Tambaram,
committed the offence under section 365 read with 109 IPC and
B
for having made an attempt to extract money or property from
the said M.K. Balan, former MLA, committed the offence under
section 387 IPC and when it was not able to get the same, by
committing the murder of the said M.K. Balan, committed the
offence under section 302 IPC and before committing murder
him, for having kept him in a secret place unlawfully and illegally, C
committed the offence under section 347 IPC and for having
kidnapped him for the purpose of murdering him, committed the
offence under section 364 IPC and after the murder of the said
M.K. Balan, former M.L.A., the body was cremated at the
crematorium at Erukkancherry, Perambur and with a view to
D
screen the traces and giving false information, committed the
offence under section 201 IPC and accordingly, they are found
guilty of the above said offences as decided in this case.
215. It is stated as against the accused 9 and 13 that for
fulfilling the object of conspiracy of the accused 1 and 2 on 30.12.1
at about 5.30 a.m. the former M.L.A. M.K. Balan was kidnapped E
and kept in a secret place at Vermicelli factory at Mudichur road,
Tambaram, committed the offence under section 365 read with
109 IPC and for having made an attempt to extract money or
property from the said M.K. Balan, former M.L.A., committed
the offence under section 387 IPC and when it was not able to F
get the same, by committing the murder of the said M.K. Balan,
committed the offence under section 302 IPC and before
committing murder him, for having kept him in a secret place
unlawfully and illegally, committed the offence under section 347
IPC and for having kidnapped him for the purpose of murdering
him, committed the offence under section 364 IPC and accordingly G
they were found guilty of the above said offences.”
7. The sentencing is as follows:
“220. Further the accused 3, 6 and 8 are convicted for the
offence under section 365 read with 109 IPC and sentenced to H
52 SUPREME COURT REPORTS [2020] 10 S.C.R.

A undergo 7 years RI and to pay fine of Rs. 5000/- each in default
to undergo one year RI each; convicting them for the offence
under section 387 IPC and sentencing them to undergo 7 years
RI and to pay fine of Rs. 5000/- in default to undergo one year RI
each and that convincing them for the offence under section 302
IPC and sentencing them to undergo life imprisonment and to pay
B
fine of Rs. 50000/- each and convicting them for the offence
under section 347 IPC and sentencing them to undergo three years
RI each and to pay fine of Rs. 5000/- in default to undergo six
months RI each; also convicting them for the offence under section
364 IPC and sentencing them to undergo 10 years RI and to pay
C fine of Rs. 5000/- in default to undergo two years RI each;
convicting them for the offence under section 201 IPC and
sentencing them to undergo 7 years RI and to pay fine of
Rs. 10000/- in default to undergo one year RI each and that the
total fine amount imposed on them each Rs. 80000/- (Rupees
eighty thousand only) and that it is ordered that all the sentences
D
imposed on these accused shall run concurrently.
221. The 4th accused is convicted for the offence under
section 365 IPC and sentenced to undergo 7 years RI and to pay
fine of Rs. 5000/- and in default to undergo one year RI and
convicting him for the offence under section 387 IPC and
E sentenced to undergo 7 years RI and to pay fine of Rs.5000/- in
default to undergo one year RI; that convicting him for the offence
under section 302 IPC and sentencing him to undergo life
imprisonment and to pay fine of Rs. 50,000/- convicting him for
the offence under section 347 IPC and sentencing him to undergo
F 3 years and to pay fine of Rs. 5000/- in default to undergo six
months RI; convicting him to undergo 10 years RI and to pay fine
of Rs. 5000/- in default to undergo 2 years RI and that it is ordered
that all the sentences imposed on this accused shall run
concurrently (total fine amount imposed on him is Rs. 70,000/-
Rupees seventy thousand only).
G
222. The 5th accused is convicted for the offence under
Section 365 read with 109 IPC and sentenced to undergo 7 years
RI and to pay fine of Rs.5000/- in default to undergo one year RI;
convicting him for the offence under section 387 IPC and
sentencing him to undergo 7 years RI and to pay fine of
H
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 53
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

Rs.5000/- in default to undergo one year RI; convicting him for A
the offence under section 302 IPC read with 109 IPC and
sentencing him to undergo life imprisonment and to pay fine of
Rs.50,000/- convicting him for the offence under section 347 IPC
and sentencing him to undergo 3 years RI and to pay fine of Rs.
5000/- in default to undergo six months RI and convicting him for
B
the offence under section 364 IPC and sentencing him to undergo
10 years RI and to pay fine of Rs. 5000/- in default to undergo
two years RI; convicting him for the offence under section 201
IPC and sentencing him to undergo 7 years RI and to pay fine of
Rs. 10,000/- in default to undergo one year RI and that total fine
imposed on this accused is Rs. 80,000/- (Rupees eighty thousand C
only) and that all the sentences imposed on this accused shall run
concurrently;
223. The 9th accused is convicted for the offence under
section 365 read with 109 IPC and sentenced to undergo 7 years
RI and to pay fine of Rs. 5000/- in default to undergo one year RI, D
convicting him for the offence under section 387 IPC and
sentencing him to undergo 7 years RI and to pay fine of
Rs.5000/- in default to undergo one year RI; convicting him for
the offence under section 302 read with 109 IPC and sentencing
him to undergo life imprisonment and to pay fine of Rs. 50,000/-
and also convicting him for the offence under section 347 IPC E
and sentencing him to undergo 3 years RI and to pay fine of Rs.
5000/- in default to undergo six months RI; and also convicting
the accused for the offence under section 364 IPC and sentencing
him to undergo 10 years RI and to pay fine of Rs. 5000/- in default
to undergo 2 years RI as decided. It is ordered that all the F
sentences imposed on him in this case shall run concurrently (total
fine amount is Rs. Seventy thousand only).
224. Further the 13th accused is convicted for the offence
under section 365 read with 109 IPC and sentenced to undergo 7
years RI and to pay fine of Rs. 5000/- in default to undergo one G
year RI; convicting the accused for the offence under section
302 read with 109 IPC and sentencing him to undergo life
imprisonment and to pay fine of Rs. 50000/- and also convicting
him for the offence under section 347 IPC and sentencing him to
undergo 3 years RI and to pay fine of Rs. 5000/- in default to
H
54 SUPREME COURT REPORTS [2020] 10 S.C.R.

A undergo six months RI; convicting him for the offence under
section 364 IPC and sentencing him to undergo 10 years RI and
to pay fine of Rs. 5000/- in default to undergo two years RI;
convicting him for the offence under section 201 IPC and
sentencing him to undergo 7 years RI and to pay fine of
Rs. 10000/- in default to undergo one year RI as ordered. All the
B
sentences imposed on him shall run concurrently. (Total fine
amount imposed on this accused is Rs. Seventy five only). It is
further ordered that this 13th accused shall undergo the sentences
imposed on him in respect of the case in S.C. No. 206/03 along
with the sentences imposed on him in this case concurrently.
C 225. Further the accused 7,10,11,14,15,16 and 17 are
convicted for the offence under section 365 IPC and sentenced
to undergo seven years RI and to pay fine of Rs.5000/- in default
to undergo one year RI each; convicting them for the offence
under section 387 IPC and sentencing them to undergo 7 years
D RI and to pay fine of Rs. 5000/- in default to undergo one year RI
each; convicting them for the offence under section 302 IPC and
sentencing them to undergo life imprisonment and to pay fine of
Rs. 50000/- each and also convicting them for the offence under
section 347 IPC and sentencing them to undergo 3 years RI and
to pay fine of Rs. 5000/- in default to undergo six months RI
E each; convicting them for the offence under section 364 IPC and
sentencing them to undergo 10 years RI and to pay fine of
Rs. 5000/- in default to undergo two years each; convicting them
for the offence under section 201 IPC and sentencing them to
undergo 7 years RI and to pay fine of Rs. 10,000/- in default to
F undergo one year RI each as decided. (The total fine amount
being Rs. 80,000/- each) All the sentences imposed on these
accused shall run concurrently as ordered.”
8. The High Court confirmed the judgment of the Trial Court
except as regards A10 who was acquitted.
G 9. We heard the learned Counsel for the appellants.
10. We have also heard the learned Counsel appearing for the
respondent-State in all the appeals.
11. Learned Counsel for A3 would submit that the case of the
prosecution was based on the theory of conspiracy. It is accordingly that
H
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 55
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

the charge under Section 120B was framed against the accused including A
A3. The case of the prosecution in this regard was, A12, who was married
to A2, made phone calls to A3. A3 was told over phone by A12 allegedly
in the voice of Shashikala that A1 and A2 would meet A3 and he was
asked to do what they would ask him to do. There were further calls. In
fact, the conspiracy was, according to the prosecution, hatched in the
B
minds of A1 and A2. A1 flaunted his proximity to M.K. Stalin (a political
leader) stating that he was about to marry his daughter. A2 was in dire
financial straits. He had contracted an inter-religious marriage with A12.
They hit upon the idea of abducting the deceased and to compel him to
part with a large sum of money (Rs.16 crores) and, in case he refused,
to do away with him. It is pointed out that the Trial Court has disbelieved C
the case of the prosecution relating to criminal conspiracy which
culminated in the court acquitting A12 of the charge against her. The
appellant also stood acquitted under Section 120B of the IPC. The entire
edifice of the prosecution case was built on the alleged criminal conspiracy
which involved A12. Once this edifice was knocked out by the acquittal
D
of A12, the superstructure sought to be built by the prosecution must
necessarily fall to the ground.
12. Next, it is pointed out that the prosecution case is otherwise
based on the testimony of PW10 and PW11. He would point out that
PW10 and PW11 were unreliable witnesses. It is clear that PW10 and
PW11 were accomplices. They were untrustworthy witnesses. It is E
pointed out that it is settled law that the court would not act on the
deposition of accomplices unless they are found reliable and, furthermore,
there is corroboration of their testimony from other reliable evidence.
Neither are PW10 and PW11 reliable nor is there any corroborative
evidence forthcoming in this case, it is submitted. As far as conviction F
employing Section 109 of the IPC is concerned, learned Counsel
submitted that in order that Section 109 may apply apart from mere
conspiracy, some act or illegal omission in pursuance of the so-called
conspiracy is indispensable. He would further submit that though V. K.
Shashikala was interrogated by PW67-Officer, she has not been
examined as a witness. There is no evidence relating to what her voice G
is. Unless the voice of Shashikala was known to A12, it would be well-
nigh impossible to believe that the A12 could speak in her voice to A3
which ultimately is what the prosecution case is all about. There is no
evidence of Shashikala having made a public speech. Though A3 may
be familiar with her voice being a party functionary, it hardly suffices as H
56 SUPREME COURT REPORTS [2020] 10 S.C.R.

A there is no evidence to conclude that A12 was familiar with her voice
without which it is incredible that she could mimic Shashikala.
13. He would further contend that in this case once the prosecution
case relating to conspiracy under Section 120B of the IPC failed, reliance
placed on Section 109 of the IPC, which contemplates a conspiracy and
B something more would have no legs to stand on. Leave alone any illegal
act or omission based on a conspiracy, no conspiracy itself is proved.
Therefore, Section 109 of the IPC can have no play. Regarding the
recovery of Maruti Zen car at the instance of A3, it is pointed out that
A3 is not the owner of the car. PW10 and PW11 were active participants.
They were not tendered pardon under Section 306 of The Code of
C Criminal Procedure, 1973 (hereinafter referred to as ‘the CrPC’ for
short). He would further contend that the evidence of PW3 does not
establish involvement of A3. PW3 has merely stated that at 05.30 A.M.,
he saw three persons and that he was at the distance of 75 meters when
he saw three persons pushing another person into a Maruti Van. Evidence
D of PW1, who is the son of the deceased, would show that the shoes
allegedly recovered as was worn by the deceased, did not belong to his
father. The case of abduction is not proved on the basis of the evidence
tendered by PW3. The Van, which was recovered, has not been identified.
The Motorcycle, which was recovered, again was not identified. The
recovery was also not proved, he contends. The prosecution has failed
E to prove that A3 brought the deceased to the factory. PW34, on whose
testimony prosecution has placed considerable reliance, is also an
accomplice. He drew our attention to the judgment2 of Justice Arun
Mishra in paragraph 115, which reads as follows:
“115. With respect to charge of murder against A-3 and A-
F 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
G 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

H
2 (2016) 16 SCC 355
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 57
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

offence of murder also. Once they had abducted M.K. Balan it A
was for them to explain how they dealt with him. The dead body
of M.K. Balan could not be found as it was cremated in the name
of a fictitious person—Rajamani Chettiar. His post-mortem also
could not be conducted but the evidence clearly indicates that the
dead body of M.K. Balan was taken from the vermicelli factory.
B
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.”
14. He complains that this approach involves shifting of the burden C
to be shouldered by the prosecution to the accused. Since abduction
itself has not been proved, in order that the prosecution should succeed
in the matter of securing conviction under Section 302 of the IPC, the
prosecution ought to have proved the case as set out by it. A chain was
allegedly used to commit murder of the deceased. A14 and A16 were in D
jail. The chain and the nylon rope were recovered on the basis of the
statements given by them. He would point out that however the said
recoveries cannot be used against the other accused. He reminds the
court of the backdrop in which the investigation proceeded following the
missing of a high-profile person, as the deceased was an Ex-MLA. A
Habeas Corpus Petition was filed in the Madras High Court. There was E
much pressure. The matter engaged the attention of the media also.
This forced the Investigating Officers to manufacture the version indeed
in order to cater to the general public. PW 21 and PW35 are Police
Officers. They are alleged to have identified some of the accused as
loitering in a public road after midnight on 01.01.2002, which was F
immediately after the alleged commission of the crimes including murder.
But this cannot result in conviction of A3. PW12 and PW19 are
prosecution witnesses produced to prove the case under Section 201 of
the IPC, viz., destruction of the body of the deceased after the commission
of the crime, PW12 and PW19 worked at the cremation ground. It is
pointed out that as far as PW12 is concerned, he has turned hostile. It is G
pointed out, in this regard, that the ashes were not recovered. The bones
of the deceased person were not recovered or sent for scientific
investigation.
15. He would submit that the body of the deceased itself is not
found or not produced, and therefore, the case of the prosecution cannot H
58 SUPREME COURT REPORTS [2020] 10 S.C.R.

A be accepted. There is evidence to show that for a person above 60
years, a death certificate is not required for conducting cremation. This
is the submission made in the context of evidence relied on by both the
courts and also a learned Single Judge of this Court to conclude that A3
was involved in procuring a false death certificate. According to the
prosecution, PW32-Doctor was approached by PW33 at the instance of
B
A3. It was mentioned to the Doctor that another person had passed
away. Believing PW33, PW32-Doctor has deposed that he gave a death
certificate. According to PW19, the dead body was cremated in the
night on 01.01.2002. The death certificate is, no doubt, dated 02.01.2002.
[But what weighed with the courts is the role played by A3 in setting up
C a false case that a person, other than deceased, involved in this case,
had passed away and securing a death certificate which paved the way
for cremation of the body of the deceased resulting in the destruction of
the evidence relating to the body of the deceased].
16. Learned Counsel for the A3 pointed out that A3 must be
D connected with the matter as sought to be done by both courts which
was not the case.
17. Regarding the recovery effected from A3, it is pointed out
that, MO12 is the Maruti Zen Car. He would point out that the relevance
of the recovery (apart from the infirmity attached with the recovery) is
E not established. MO28 are the audio cassettes. Regarding the same, it is
pointed out that it was incumbent upon the prosecution to establish the
content by providing the transcript. The audio was supposed to contain
conversation of the deceased but it cannot be relied on in the absence of
a transcript. The relevancy of the content has not been established. The
voice of the speaker has not been proved. Regarding MO12-Maruti Zen
F Car, recovery at the instance of A3, it is contended that the evidence
would show that the owner of the said car had given MO12 to A3 in
November, 2001 and A3 has given back the car in February, 2002. There
is no particular role which is attributed to the Maruti Zen Car.
18. Regarding audio evidence, it is submitted that it did not satisfy
G the requirements of Section 3 of the Evidence Act. MO33 is a bit of
paper on which, in the alleged handwriting of A1, the message from A12
to A3 was written [it will be remembered that it is the case of the
prosecution that A12, imitating the voice of Shashikala, had commanded
A3, a party functionary, to oblige A1 and A2 and this set in motion the
H chain of events culminating in the gruesome murder of the deceased]. It
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 59
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

is the acquittal of A12 who allegedly messaged to A3, which is the subject A
matter of MO33, which is pressed before us to remove any importance
it may otherwise have had. Till 10.04.2002, the evidence of PW67 would
show that it was not sealed thus robbing the material object of any legal
efficacy it may have otherwise had, it is contended. It is further contended
that the voice of the deceased, is not proved through PW1. Learned
B
Counsel would submit that if statement under Section 27 is made and a
person making it is acquitted, such statement cannot be used against
other accused. Learned Counsel would contend that in the case of a
conviction employing Section 109 of the IPC, the principal offender must
be identified. He drew our attention in regard to the judgment reported
in Siri Ram Batra and others v. Financial Commissioner, Delhi and others3. C
He pointed out that Justice Arun Mishra, has proceeded on the basis
that a confession under Section 164 of the CrPC is a substantive piece
of evidence, which, it is not. In this regard, our attention is drawn to the
judgments of this Court. In George and others v. State of Kerala and
another4, it was held as follows:
D
“36. We may now turn to the evidence of PW 50, detailed
earlier. From the judgment of the trial court we notice that the
substantial parts of its comments, (quoted earlier) are based on
his statement recorded under Section 164 CrPC and not his
evidence in court. The said statement was treated as substantive
evidence; as would be evident from the following, amongst other E
observations made by the learned trial court:
“If Ext. P-42 (the statement recorded under Section 164
CrPC) is found to be a genuine statement it can be used as an
important piece of evidence to connect the accused with the
crime.” F

In making the above and similar comments the trial court
again ignored a fundamental rule of criminal jurisprudence that a
statement of a witness recorded under Section 164 CrPC cannot
be used as substantive evidence and can be used only for the
purpose of contradicting or corroborating him.” G
(Emphasis supplied)

3 (2004) 12 SCC 52
4 (1998) 4 SCC 605 H
60 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 19. Learned Counsel for A3 relied upon the following decisions.
In Baldev Singh v. State of Punjab5, this Court noted that the High Court
had fallen into error in relying upon the statement of the witness under
Section 161 of the CrPC as well as on the FIR regarding identification
of the accused in a case where, in his cross-examination in the court, he
deposed that he could not, due to darkness, identify the culprits. The
B
court emphasised that the statement under Section 161 of the CrPC is
not to be used for any purpose except to contradict the witness in the
manner provided in Section 162 of the CrPC. Obviously, this judgment is
invoked against the court relying upon the evidence of PW19.
20. In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass
C Mehra and others6, is relied on to point out that while taking record of
speeches as documents under Section 3 of the Evidence Act, the
admissibility would depend upon the following conditions being fulfilled:
“(a) The voice of the person alleged to be speaking must
be duly identified by the maker of the record or by others who
D know it.
(b) Accuracy of what was actually recorded had to be
proved by the maker of the record and satisfactory evidence,
direct or circumstantial, had to be there so as to rule out possibilities
of tampering with the record.
E
(c) The subject-matter recorded had to be shown to be
relevant according to rules of relevancy found in the Evidence
Act.”
21. He also pointed out that if the photograph of the accused is
F shown to the witnesses and the witnesses then depose about identifying
the accused, it would deprive the identification of any value it would
have otherwise. He relied on the judgement of this Court in Vijayan v.
State of Kerala7:
“8. Another circumstance sought to be established was
through the evidence of PW 4, a young girl living a few yards
G
away from the house of the deceased. According to her, she heard
the sound of somebody running and when she turned, she saw
accused Vijayan running away after crossing a water channel
5 (1990) 4 SCC 692
6 (1976) 2 SCC 17
7 (1999) 3 SCC 54
H
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 61
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

and wearing a blue pant and blue shirt. It is no doubt true that she A
identified accused Vijayan in the test identification parade but for
the reasons already advanced while discussing the evidence of
PWs 3 and 9, the identification of the accused in the test
identification parade cannot be relied upon. The High Court
unfortunately appears to have taken a view that the identification
B
of the accused by PW 4 in the test identification parade should be
relied upon. We are unable to agree with this conclusion
particularly when it is apparent from the prosecution material that
much before the holding of the test identification parade, the
photograph of the accused Vijayan had been published in the
newspaper and because of a certain sensation in the locality, it C
had a lot of publicity and there was sufficient opportunity for the
witnesses being shown the accused person. In this view of the
matter, in our considered opinion, the High Court erroneously
interfered with the conclusion of the learned Sessions Judge in
this regard and came to hold that the identification of Vijayan by
D
PW 4 could be relied upon. We have examined the evidence of
the said PW 4 in great detail and we are unable to subscribe to
the view the High Court has taken on the evidence of the aforesaid
witness. We also really fail to understand how a witness seeing
an unknown man running away could be able to identify him at a
later point of time. No special feature was also indicated by the E
witness. In our view, the evidence of PW 4 is totally unworthy of
credit and, as such, cannot be relied upon for bringing home the
charge.”
(Emphasis supplied)
It was a case where also just before the Test Identification Parade, F
someone told her to identify the tallest man in the Parade.
22. Learned Counsel would point out that the accused are entitled
to request the Court to draw an adverse inference against the prosecution
when the best evidence has not been produced [See Mohanlal Shamji
Soni v. Union of India and another8. Clearly, the accused was entitled to G
at least the benefit of doubt.

8 1991 Supp (1) SCC 271
H
62 SUPREME COURT REPORTS [2020] 10 S.C.R.

A CRIMINAL APPEAL NO. 2006 OF 2017
23. The learned Counsel for A3 also adopted arguments in Criminal
Appeal No. 2006 of 2017 where he appeared for A7, A11, A14, A16 and
A17 about PW10 and PW11 and other submissions.
CRIMINAL APPEAL NO. 403 OF 2010
B
APPEAL BY ACCUSED NO.4(A4)
24. The learned Counsel would submit that no value can be given
to the Test Identification Parade (TIP) conducted insofar as A4 is
concerned. He would point out that PW10 and PW11 are proved to be
familiar with A4 by having seen him on a number of occasions prior to
C the TIP. This would deprive the alleged identification of any value it
would have. MO6 is the Ford Escort Car, which is recovered from A4
on the basis of the statement given under Section 27 of the Evidence
Act. The recovery is attacked by the learned Counsel on the basis that
it is planted evidence. He took us through the deposition of PW25 to
D impugn the recovery. According to PW67, he points out that car was
parked outside. He would complain that the courts have relied on PW10
and PW11 as if they were reliable witnesses, which they were not. He
would also emphasise that being accomplices, they should not only be
reliable but their evidence must stand the test of corroboration. He points
out that the prosecution has tried to build up the case that the said
E witnesses had not approached the Police out of fear for their lives and
that of their family members but he would point out that on a perusal of
their evidence, it would be clear that they were involved with the matter
right from the beginning and nothing prevented them from approaching
the law enforcement authorities. Their evidence, therefore, should not
F inspire the confidence of the court. He would point out that PW10 and
PW11 were in police custody for about more than two months. They
would have bargained with the police and their testimony is suspect.
The TIP was held after 45 days on 24.05.2002. He would point out
contradiction between the testimony of PW10 and PW11. In other words,
he would point out that leave alone corroboration from other evidence
G available on record, there is no corroboration of evidence of PW10 even
from the evidence of PW11 as their deposition reveal contradictions.
The learned Counsel otherwise adopts arguments of A3.
25. Substantially, similar arguments are addressed in regard to A5
as in respect of A3. It is also contended that PW67 was aware of the
H involvement of all and the evidence of PW10 and PW11 was unreliable.
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 63
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

CRIMINAL APPEAL NO. 1504 OF 2017 A
26. Herein the appellant is A6. The learned Counsel for the
appellant would address the following submissions. He would submit
that there are four circumstances used against A6. It is first sought to be
contended by the prosecution that A6 was seen on 05.12.2001. Next, his
presence on 31.12.2001 at the factory, where the deceased was allegedly B
done to death, is used against him. Still further, the deposition of PW10
that he saw him on 01.01.2002 and that he threatened PW10, are used
against him. He would also point out the contradiction between PW10
and PW11, in this regard. MO8 is the white colour Maruti Van recovered
at the instance of A6. The said vehicle bore Number - TN-22-BO/343.
He would point out that there is no evidence to show that the said vehicle C
was used for abduction or transportation. He would, in other words,
question its very relevance to secure conviction of his client. He would
further point out that PW24-Police Officer has in fact identified A8 as
A6. In this regard, he drew our attention to paragraph 147 of the Trial
Court judgement. He further submitted that PW12-the employee at the D
crematorium, did not identify A6 though PW19 identified A6. Identification
by PW19 is unreliable as he did not mention about physical features of
A6. He would complain that PW19 would have seen photographs in the
media, a complaint which is being echoed on behalf of the other accused,
also. Next, the circumstance used against A6 is deposition of PW21 and
PW35, Police Head Constable and Constable, respectively. He would, E
in fact, submit that even accepting their deposition, it would prove nothing
more than the fact A6 was there on the public road on the midnight of
01.01.2002. It would not connect A6 with the crime. He would further
point out that the deposition of PW35 would show that contrary to the
usual practice in the Beat Note, there is nothing noted about A6 though F
he has deposed that along with three others, A6 presence was noted.
The identification of A6 by the Police Officers is not reliable, it is
contended. It is pointed out that the Police Officer would have visited
the jail and also been in the court premises where he would have seen
A6. Therefore, the identification of A6 by the Police Officers loses all
meaning. G

27. He also relied on deposition of PW1 that the Reebok Shoes
did not belong to his father-the deceased. There is no corroboration of
the evidence relating to the presence of A6 on 30.01.2001 and 31.01.2001.
There is no evidence to establish the presence of A6 on 01.01.2002.
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64 SUPREME COURT REPORTS [2020] 10 S.C.R.

A PW10 and PW11, accomplices, were tutored by the Police Officers
considering the pressure on the Investigating Officers consequent upon
the fact that the case attracted considerable publicity as a result of the
Habeas Corpus Petition being filed in the High Court. He would submit
that PW67-Investigating Officer, after the arrest of A5 on 18.03.2002,
was completely aware of involvement of all the persons.
B
28. It is also the case of the appellant-A15 that no reliance could
be placed on the recovery of the shoe when PW1-son of the deceased,
has himself deposed that the shoe which is recovered was not the one
which was worn by his father. It is also the contention that PW31 has
not been able to identify the person who took away allegedly the shoe
C from the factory.
29. Per contra, the learned Counsel appearing on behalf of the
State would begin by submitting that PW10 and PW11 were not
accomplices. Their evidence would, therefore, not require corroboration.
He tried to make good this submission by pointing out that qua the offence
D under Section 302 of the IPC, PW10 and PW11 had no involvement and
the mere fact that they were familiar with the developments leading to
the murder and other acts of the accused, they could not be treated as
accomplices. He would point out, in fact, that accused nos. 1 and 2,
have been convicted under Section 120B read with 302 of the IPC. He
E would draw considerable support from the deposition of PW34. He further
submitted that A1 and A2 were the principal conspirators. The other
accused, who have been convicted under Section 109 of the IPC, have
aided and connived, within the meaning of Section 109 of the IPC, with
A1 and A2. He would submit that the acquittal of A12 would have no
impact on the conviction of the appellants. He would point out that this
F Court, in the case of this nature, which is based on circumstantial evidence,
what is to be looked into is the cumulative effect of all the circumstances
put together. In regard to any defect in charge, he drew our attention to
Section 460 of the CrPC and contended that there is no incurable illegality
involved in this case. He drew our attention to the deposition of PW60.
G He referred us to the recoveries which have led to relevant evidence
believed in by two courts, and what is more, a learned Single Judge of
this Court. He would further point out to the deposition of PW19. He
points out that both PW12 and PW19 had made statements under Section
164 of the CrPC. Statement under Section 164 of the CrPC could be
used for the purpose of corroborating though it could not be used as a
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substantive evidence by itself. He also drew considerable support from A
deposition of PW32 read with PW33. The hand of A6 in the murder of
a public man is clearly made out, runs the argument. He fairly does not
dispute the contention of A6 in regard to MOs 28 and 33. He assures the
Court that the Court can eschew the said items of evidence but he would
submit that even dehors the same, there is sufficient material before the
B
Court to confirm the conviction of the appellants. Learned Counsel for
A3, in reply, would point out that in fact, even A1 and A2 have also been
convicted with the aid of Section 109 of the IPC. In other words, it is his
case that even A1 and A2 are not the principal actors so that the other
accused could be convicted for abetting them. They were themselves
convicted on the basis that they abetted the crimes in question. He further C
pointed out that PW10 and PW11 have been treated as accomplices by
the High Court contrary to what is sought to be espoused by the learned
Counsel for the State.
SECTIONS 120A, 107, 108, 109, 141 AND 149 OF THE IPC
30. Section 120A of the IPC defines “criminal conspiracy”, which D
reads as follows:
“120A. Definition of criminal conspiracy.— When two or more
per-sons agree to do, or cause to be done,—
(1) an illegal act, or E
(2) an act which is not illegal by illegal means, such an agreement
is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit
an offence shall amount to a criminal conspiracy unless some act
besides the agreement is done by one or more parties to such F
agreement in pursuance thereof.
Explanation.—It is immaterial whether the illegal act is the
ultimate object of such agreement, or is merely incidental to that
object.”
G
31. Section 141 of the IPC falls under Chapter VIII, viz., offences
against the public tranquillity. Section 141 defines unlawful assembly as
assembly of five or more persons, the common object of the persons
being any one of the five mentioned thereunder. It includes the common
object to commit any mischief or criminal trespass or other offence.
Section 142 of the IPC declares that if a person, being aware of facts H
66 SUPREME COURT REPORTS [2020] 10 S.C.R.

A which render an assembly an unlawful assembly, either initially joins it or
continues in it is a member of such unlawful assembly.
32. Section 149 of the IPC declares the Principle of Vicarious
Criminal Liability. Upon an offence being committed by any member of
an unlawful assembly in prosecution of the common object, every person,
B who at the time of the offence being committed is a member of such
assembly is guilty of such offence. Equally, in the second part of Section
149, the Law Giver has provided that upon an offence being committed
by any member of the unlawful assembly which was such that members
of that assembly, viz., the unlawful assembly, knew to be likely to be
committed in prosecution of that object, every member of the assembly,
C
though he may not have committed the offence, is rendered guilty of the
offence.
33. In Nanak Chand v. State of Punjab9, the Court had to deal
with a contention on behalf of the prosecution that Section 149 of the
IPC did not create any offence at all and hence a separate charge, was
D
not obligatory. This Court, therefore, found it necessary to decide a
question whether Section 149 of the IPC creates a specific offence.
The Court held, inter alia, as follows:
“6. … Under this section a person, who is a member of an
unlawful assembly is made guilty of the offence committed by
E
another member of the same assembly, in the circumstances
mentioned in the section, although he had no intention to commit
that offence and had done no overt act except his presence in the
assembly and sharing the common object of that assembly. Without
the provisions of this section a member of an unlawful assembly
F could not have been made liable for the offence committed not by
him but by another member of that assembly. Therefore when
the accused are acquitted of riot and the charge for being members
of an unlawful assembly fails, there can be no conviction of any
one of them for an offence which he had not himself committed.
…”
G
34. The Court, thereafter, went on to notice the distinction between
Sections 34 and 149 of the IPC. Dealing with the argument that Section
149 of the IPC cannot be understood as creating an offence because it
did not itself provide for the punishment, this Court held as follows:
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9 AIR 1955 SC 274
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“7. … There is a clear distinction between the provisions A
of Sections 34 and 149 of the Indian Penal Code and the two
sections are not to be confused. The principal element in Section
34 of the Indian Penal Code is the common intention to commit a
crime. In furtherance of the common intention several acts may
be done by several persons resulting in the commission of that
B
crime. In such a situation Section 34 provides that each one of
them would be liable for that crime in the same manner as if all
the acts resulting in that crime had been done by him alone. There
is no question of common intention in Section 149 of the Indian
Penal Code. An offence may be committed by a member of an
unlawful assembly and the other members will be liable for that C
offence although there was no common intention between that
person and other members of the unlawful assembly to commit
that offence provided the conditions laid down in the section are
fulfilled. Thus if the offence committed by that person is in
prosecution of the common object of the unlawful assembly or
D
such as the members of that assembly knew to be likely to be
committed in prosecution of the common object, every member
of the unlawful assembly would be guilty of that offence, although
there may have been no common intention and no participation by
the other members in the actual commission of that offence. In
Barendra Kumar Ghosh v. Emperor [(1925) ILR LII Cal 197] E
Lord Sumner dealt with the argument that if Section 34 of the
Indian Penal Code bore the meaning adopted by the Calcutta High
Court, then Sections 114 and 149 of that Code would be otiose. In
the opinion of Lord Sumner, however, Section 149 is certainly not
otiose, for in any case it created a specific offence. It postulated
F
an assembly of five or more persons having a common object, as
named in Section 141 of the Indian Penal Code and then the
commission of an offence by one member of it in prosecution of
that object and he referred to Queen v. Sabid Ali [(1873) XX
Weekly Reporter (Cr), p 5]. He pointed out that there was a
difference between object and intention, for although the object G
may be common, the intentions of the several members of the
unlawful assembly may differ and indeed may be similar only in
respect that they are all unlawful, while the element of participation
in action, which is the leading feature of Section 34, was replaced
in Section 149 by membership of the assembly at the time of the
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68 SUPREME COURT REPORTS [2020] 10 S.C.R.

A committing of the offence. It was argued, however, that these
observations of Lord Sumner were obiter dicta. Assuming though
not conceding that may be so, the observations of a Judge of such
eminence must carry weight particularly if the observations are in
keeping with the provisions of the Indian Penal Code. It is,
however, to be remembered that the observations of Lord Sumner
B
did directly arise on the argument made before the Privy Council,
the Privy Council reviewing as a whole the provisions of Sections
34, 114 and 149 I.P.C.”
(Emphasis supplied)
C 35. Further, this Court proceeded to hold that a person charged
with an offence under Section 149 of the IPC cannot be convicted of
the substantive offence without there being a specific charge framed as
required under Section 233 of the CrPC, 1898. This Court held as follows:
“10. After an examination of the cases referred to on behalf
D of the appellant and the prosecution we are of the opinion that the
view taken by the Calcutta High Court is the correct view, namely,
that a person charged with an offence read with Section 149
cannot be convicted of the substantive offence without a specific
charge being framed as required by Section 233 Cr.P.C.”

E 36. Section 107 falls in Chapter V of the IPC. It reads as follows:
“107. Abetment of a thing.—A person abets the doing of a
thing, who—
(First) — Instigates any person to do that thing; or
(Secondly) —Engages with one or more other person or persons
F
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.
G
Explanation I.—A person who, by wilful misrepresentation, or by
wilful concealment of a material fact which he is bound to disclose,
voluntarily causes or procures, or attempts to cause or procure, a
thing to be done, is said to instigate the doing of that thing.

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Illustration A, a public officer, is authorized by a warrant from a A
Court of Justice to apprehend Z. B, knowing that fact and also
that C is not Z, wilfully represents to A that C is Z, and thereby
intentionally causes A to apprehend C. Here B abets by instigation
the apprehension of C.
Explanation II.—Whoever, either prior to or at the time of the B
commission of an act, does anything in order to facilitate the
commission of that act, and thereby facilitate the commission
thereof, is said to aid the doing of that act.”
37. Section 108 of the IPC provides that a person abets an offence
who abets either the commission of an offence or the commission of an C
act which would be an offence if committed by a person capable by law
of committing an offence with the same intention or knowledge as that
of the abettor. The first Explanation provides that abetment of an illegal
omission of an act may amount to an offence although the abettor may
not himself be bound to do that act. Explanation (2) declares that it is not
necessary to constitute abetment that the act abetted should be committed D
or that the effect requisite to constitute the offence should be caused.
The Illustration(a) under Explanation II provides as follows:
“ (a) ’A’ Instigates ‘B’ to murder ‘C’. ‘B’ refuses to do so.
‘A’ is guilty of abetting ‘B’ to commit murder.”
E
38. The second limb of the Explanation (II) is illumined by the
illustration(b) and it reads as follows:
“(b) ‘A’ instigates ‘B’ to murder ‘D’, ‘B’ in pursuance of
the instigation stabs ‘D’. ‘D’ recovers from the wound. ‘A’ is
guilty of instigating ‘B’ to commit murder.” F
39. Explanation (3) declares that it is not necessary that the person
abetted should be capable by law of committing an offence or that he
should have the same guilty intention or knowledge as that of the abettor
or any guilty intention or knowledge. The first illustration is as follows:
“(a) ‘A’, with a guilty intention, abets a child or a lunatic to G
commit an act which would be an offence, if committed by a
person capable by law of committing an offence, and having the
same intention as ‘A’. Here ‘A’, whether the act be committed or
not, is guilty of abetting an offence.”
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70 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 40. Another illustration(d) is as follows:
“(d) ‘A’, intending to cause a theft to be committed, instigates
‘B’ to take property belonging to ‘Z’ out of ‘Z’s possession. ‘A’
induces ‘B’ to believe that the property belongs to ‘A’. ‘B’ takes
the property out of Z’s possession, in good faith, believing it to be
B A’s property. ‘B’, acting under this misconception, does not take
dishonestly, and therefore does not commit theft. But ‘A’ is guilty
of abetting theft, and is liable to the same punishment as if ‘B’ had
committed theft.”
41. Thus, Explanation (3) constitutes an exception to the main
C provisions of Section 108 of the IPC.
42. Abetment of an offence being an offence, the abetment of
such abetment is also an offence under Explanation IV. Explanation V
makes it clear that it is not necessary to the commission of offence of
abetment by conspiracy that the abettor should concert the offence with
D the person who commits and it is sufficient if he engages in the conspiracy
in pursuance of which the offence is committed. The illustration under
Explanation V is as follows:
“’A’ concerts with ‘B’ a plan for poisoning ‘Z’. ‘A’ was to
under the agreement administer the poison. ‘B’ then explains the
E plan to ‘C’ without taking the name of ‘A’. ‘C’ agrees to procure
the poison and deliver it to ‘B’ for it being used in the manner
explained. ‘Z’ dies pursuant to the poison being administered.
However, ‘A’ and ‘C’ have not conspired together yet since ‘C’
has been engaged in the conspiracy in pursuant to which ‘Z’ was
murdered, ‘C’ has committed an offence of abetment who is guilty
F for punishment for murder.”
(Emphasis supplied)
43. Thus, abetment of a thing is defined in Section 107 of IPC and
the concept of “abettor” is explained in Section 108 of the IPC. Sections
107 and 108 of the IPC must be read together to glean the intention of
G
the Law Giver. So read, abetment can happen in three situations (a) It
may happen when a person instigates another person to do the thing
which is abetted; (b) Secondly, abetment takes place if a person engages
with one or more other person or persons in any conspiracy for doing of
that thing, if an act or illegal omission takes place in pursuance of that
H conspiracy, and in order to the doing of that thing. Finally, there is
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abetment when a person intentionally aids, by an act or omission, the A
doing of that act. At this juncture, we may have to take a deeper look at
the concept of abetment by engaging in a conspiracy resulting in abetment
and conspiracy as provided in Section 120A of the IPC.
44. In Pramatha Nath Talukdar v. Saroj Ranjan Sarkar10, this Court
spoke about the distinction between the offence of abetment by B
conspiracy and the offence of criminal conspiracy (Section 120A of
IPC):
“16. … The gist of the offence of criminal conspiracy is in
the agreement to do an illegal act or an act which is not illegal by
illegal means. When the agreement is to commit an offence, the C
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 D
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 E
gist of the offence. Willes, J. observed in Mulcahy v. Queen
[(1868) LR 3 HL 306 at 317]:
“When two agree to carry it into effect, the very plot is an
act in itself, and the act of each of the parties, promise against
promise, actus contra actum, capable of being enforced, if lawful, F
punishable if for a criminal object or for the use of criminal means.”
Put very briefly, the distinction between the offence of
abetment under the second clause of Section 107 and that of
criminal conspiracy under Section 120-A is this. In the former
offence a mere combination of persons or agreement between G
them is not enough. An act or illegal omission must take place in
pursuance of the conspiracy and in order to the doing of the thing
conspired for; in the latter offence the mere agreement is enough,
if the agreement is to commit an offence.”
10 AIR 1962 SC 876 (Emphasis supplied)
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72 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 45. Section 109 of the IPC provided for the punishment of abetment
if the act abetted is committed and where there is no express provision
made for punishment. It provides that where no express provision is
made for the punishment of the abetment, the punishment will be the
same as is that which is provided for the offence. The Explanation
provides as follows:
B
“An act or offence is said to be committed in consequence
of abetment when it is committed in consequence of the instigation
or in pursuance of the conspiracy or with the aid which constitutes
the abetment.”
C 46. Explanation II to Section 108 of the IPC makes it clear that
the offence of abetment would be committed irrespective of whether
the act abetted is committed or not or whether the effect which would
constitute the offence is caused or not. Illustrations(a) and (b) are clear
that the person who abets, as declared in law, cannot extricate himself
from criminal liability for the offence of abetment on the ground that the
D act which was abetted was not done or that the offence which was
actually abetted was not committed. Section 109 of the IPC contemplates,
on the other hand, the situation that there is abetment and the act abetted
is committed, and what is furthermore, it is committed as a result of the
abetment. Should these ingredients be present and if there is no express
E provision under the IPC for the punishment of the act of such abetment,
the person renders himself liable for being punished with the punishment
for that offence which stands committed in consequence of the abetment
by the accused.
47. In order that the act or offence, be committed within the
F meaning of Section 109 of the IPC, in consequence of the abetment, it
must be as a consequence of the instigation or in pursuance of the
conspiracy or with the aid which constitutes the abetment. Explanation
to Section 109 of the IPC must be read in conjunction with Section 107
of the IPC which creates the offence of abetting. As far as instigating
any person to do an act, it is relatable to the first part of Section 107
G which declares that abetment is done when the person who abets
instigates any person to do that thing.
48. As far as conspiracy within the meaning of Explanation to
Section 109 of the IPC is concerned, it deals with secondly under Section
107 of the IPC which speaks about engaging of a person with one or
H more other person or persons in any conspiracy for the doing of that
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thing provided an act or illegal omission takes place in pursuance of the A
conspiracy.
49. As far as the last part of the Explanation to Section 109 of the
IPC is concerned, which speaks about an act or offence being committed
in consequence of abetment being committed with the aid which
constitutes abetment, it is relatable to thirdly under Section 107 of the B
IPC. Section 107 of the IPC under this head requires intentional aiding
by the act or illegal omission. Instigation takes place in terms of
Explanation I to Section 107 of the IPC when (i) a person by wilful
representation; (ii) by wilful concealment of a material fact which he is
bound to disclose, voluntarily causes or procures or attempts to causes
or procure a thing to be done and he would be guilty of instigating the C
doing of that thing. Explanation (2) to Section 107 declares that whoever,
either prior to or at the time of the commission of the act, does anything
in order to facilitate the commission of that act and thereby facilitate its
commission, is said to aid the doing of that act. Thus, anything done
which facilitates the commission of the criminal act and promotes the D
commission of the act, would bring the person within the scope of
abetment.
50. Explanation III to Section 108 also contemplates a situation
where the principal player meant to describe the person who actually
commits the act which is abetted, would not be guilty of the offence E
such as a child or a lunatic but the abettor, would remain guilty of the
offence of abetment of that offence and if it attracts Section 109 of the
IPC, would be punishable for that offence under the appropriate provision.
Also, as we have noticed, under Explanation V to Section 108 of the
IPC for the offence of abetment by conspiracy to be committed, the
principal player, meaning a person who commits the act which results in F
the offence being committed (as in the case of murder by poisoning)
need not be in league with the abettor. All that is required is that the
abettor also engages in the conspiracy which must be understood as
meaning participate in the concert between two or more others even if
he may not have seen or known, by face or otherwise, one or more G
persons who are privy to the conspiracy. Thus, based on their involvement
constituting abetment, a person or any number of persons without even
knowing the identity of all the principal participants to the conspiracy,
can be prosecuted with the aid of Section 107 read with Section 108 of
the IPC.
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74 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 51. In order to attract Section 109 of the IPC, the act abetted
must be committed in consequence of the abetment. Sections 115 and
116 of the IPC deal with punishments for abetment of offences when
the offence is not committed in consequence of the abetment and where
no express provision is made in the IPC for the punishment of such
abetment.
B
52. In Arjun Singh v. State of Himachal Pradesh11, this Court held
as follows:
“11. … Law does not require instigation to be in a particular
form or that it should only be in words. The instigation may be by
C 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
D 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. …”
E (Emphasis supplied)
53. Thus, to sum-up, abetment, as defined is a substantive offence.
The punishment for it varies according to different circumstances. If the
act which is abetted is done in pursuance to the abetment, the punishment
is graver, as can been seen from Section 109 of the IPC, as the
F punishment is for the offence which is committed based on the abetment.
The offence of abetment is punishable even if the act which is abetted is
not committed. As noted, Sections 115 and 116 provide for punishment
in such cases. There are several other aspects relating to offences
including Section 114 of the IPC which provides cumulative punishment
G for the act abetted and also for the act done.
54. At the heart of the offence of abetment, however, is the
presence of any of the three requirements in Section 107 of the IPC.
The key and indispensable elements under the law to constitute abetment
is instigation, conspiracy or the intentional aiding by any act or illegal
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11 AIR 2009 SC 1568
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omission, the doing of the thing. The law does not permit the abettor to A
escape punishment for abetment even if the actual player who commits
the offence is not criminally liable for the actual act which results in the
commission of an offence (See in this regard, the situation contemplated
in illustrations in Explanation III of Section 108 of the IPC). Equally,
there need not be meeting of minds between all the persons involved in
B
a conspiracy and it is sufficient if a person is engaged in the conspiracy
following which the offence is committed (See Explanation V to Section
108 of the IPC). This means that it is not even necessary that the persons
who are engaged in the conspiracy, to even know the identity, leave
alone physically meet the other players. There can be any number of
persons depending on their guilty mind and acts or omissions which may C
render them liable.
55. In Noor Mohammad Mohd. Yusuf Momin v. State of
Maharashtra12, this Court had an occasion to deal with Sections 34, 107
and 120B of the IPC and this is what this Court lay down:
“7. So far as Section 34 IPC is concerned, it embodies the D
principle of joint liability in the doing of a criminal act, the essence
of that liability being the existence of a common intention.
Participation in the commission of the offence in furtherance of
the common intention invites its application. Section 109 IPC on
the other hand may be attracted even if the abettor is not present E
when the offence abetted is committed, provided that he has
instigated the commission of the offence or has engaged with one
or more other persons in a conspiracy to commit an offence and
pursuant to that conspiracy some act or illegal omission takes
place or has intentionally aided the commission of an offence by
an act or illegal omission. Turning to the charge under Section F
120-B IPC criminal conspiracy was made a substantive offence
in 1913 by the introduction of Chapter V-A in the Penal Code,
1860. Criminal conspiracy postulates an agreement between two
or more persons to do, or cause to be done, an illegal act or an act
which is not illegal, by illegal means. It differs from other offences G
in that mere agreement is made an offence even if no step is
taken to carry out that agreement. Though there is close association
of conspiracy with incitement and abetment the substantive offence

12 (1970) 1 SCC 696 H
76 SUPREME COURT REPORTS [2020] 10 S.C.R.

A of criminal conspiracy is somewhat wider in amplitude than
abetment by conspiracy as contemplated by Section 107 IPC…...”
(Emphasis supplied)
THE APPROACH OF THE TWO LEARNED JUDGES
B THE APPROACH OF JUSTICE V. GOPALA GOWDA
56. The learned Judge proceeds to find that PWs 10 and 11 are
accomplice witnesses. The two tests to test accomplice evidence are
referred to, viz., that the evidence must be credible and, secondly, there
must be corroboration of accomplice evidence. The learned Judge noted
C that PWs 10 and 11 have not been granted pardon by any court but
further notes that the mere fact that pardon was not tendered, did not
make the accomplice cease to be an accomplice. It was further found
that it was a well-settled position of law that the evidence of two
accomplices cannot be used to corroborate with each other as laid in
R. v. Baskerville13. Support in this regard was sought from precedent in
D India in the form of judgment of this Court in Mohd. Husain Umar Kochra
Etc. v. K.S. Dalipsinghji and another Etc.14 wherein this Court, inter
alia, laid down that corroboration must be from an independent source.
One accomplice cannot corroborate another. This position was noted to
be reiterated in a still later decision of this Court in Chonampara Chellapan
E Etc. v. State of Kerala Etc.15. Corroboration must be in regard to material
particulars or rather it must be in relation to the crime as well as identity
of the accused. Noting that the accused before the Court were A3, A4
and A15, it was found crucial that they were acquitted of the charge
under Section 120B of the IPC. They were found convicted for the
offence under Section 302 of the IPC read with Section 109 of the IPC
F and Section 365 of the IPC read with Section 109 of the IPC. Nothing
on record was found to show the direct involvement of the accused in
the abducting of the deceased or his murder. The Ford Escort Car-
MO12 recovered at the instance of PW10 did not trace back its
ownership to A4. Thereafter, it is stated that the requirement of
G corroboration from independent sources in material particulars, has not
been met in the instant case and made it impossible for the accused to
be convicted under Sections 302 and 364 of the IPC. PWs 10 and 11
were not witnesses to the abduction of the deceased. PW3, who
13 1916 (2) KB 658
14 (1969) 3 SCC 429
H 15 (1979) 4 SCC 312
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 77
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

witnessed the abduction, it is stated, did not witness the accused at the A
site of the abduction. Though, PW10 placed A3 and A4 in the meeting
on 05.12.2001, significance of the same was lost in view of their acquittal
under Section 120B of the IPC. PWs 10 and 11 have not placed any of
the three accused (A3, A4 and A15) at the site when the body of the
deceased was brought down in the factory. A3, according to the deposition
B
of the accomplices, was found staying downstairs while PW11, who
went upstairs, actually saw the deceased tied to chains in the room where
he was kept. PW11 only saw A5 at the site on the night of 30.12.2001
carrying a tiffin parcel. The death certificate of the deceased issued by
PW32, which PW33 has stated was got at the instance of A3, was
found, even if genuine, did not connect A3 in any way to the deceased. C
As far as A15 is concerned, MO1-Reebok Shoe, which was recovered,
was brushed aside by noticing that the courts had failed to consider that
PW31-a worker in the factory, has stated that she could not remember
the person who came to get it as there is lapse of more than two years.
Therefore, PW31 cannot be used against A15. PWs 1 and 2 in their
D
testimony (the son and driver, respectively, of the deceased) stated that
the Reebok Shoes did not belong to the deceased. Evidence of PWs 10
and 11 was not found reliable. Finding the accused not guilty under Section
120B of the IPC, the learned Judge noted that it was the duty of the Trial
Court to establish the involvement of each of the accused persons
individually for each offence for which they have been charged. E
Reference was made to Section 107 of the IPC, and thereafter, to the
Judgment of this Court in Kehar Singh and others v. State (Delhi
Administration)16 that something more than a mere conspiracy, viz., some
act or illegal omission in pursuance of the conspiracy, is required to be
established for abetment by conspiracy. Once a charge under Section
F
120B of the IPC fails, what was needed to convict the appellants was
the happening of some overt act on the part of the appellants. The learned
Judge noted that there was no evidence except the testimony of PWs 10
and 11 which linked the appellants to the crime. The charge under Section
109 of the IPC could not be sustained.
THE APPROACH OF JUSTICE ARUN MISHRA G

57. The learned Judge divided the circumstances into fifteen
circumstances. They are as follows:

16 (1988) 3 SCC 609 H
78 SUPREME COURT REPORTS [2020] 10 S.C.R.

A (i) Prosecution case - Evidence of PWs. 10 and 11;
(ii) Prior relationship of accused;
(iii) Selection of premises where M.K. Balan was kept/and
other arrangements;
B (iv) Abduction of deceased M.K. Balan on 30.12.2001 in white
omni van;
(v) Taking of M.K. Balan to factory premises/meeting dated
30.12.2001 at the residence of A9;
(vi) Commission of offence under section 302 IPC;
C
(vii) Removal of dead body from factory premises;
(viii) Cremation of dead body;
(ix) Procurement of death certificate by A3;
(x) Confessions and recoveries from accused;
D
(xi) Commission of offence under section 387 IPC;
(xii) Effect of acquittal under section 120B IPC;
(xiii) Evidence of accomplices;
(xiv) Holding TIP/recording of statement under section 164
E
CrPC.;
(xv) Cell phones/cassettes/forensic evidence.
58. The learned Judge proceeded to discuss the evidence of PWs
10 and 11 elaborately. Thereafter, the prior relationship between the
F accused came to be discussed. The circumstance relating to selection
of premises where the deceased was kept and other arrangements as
also “abduction of the deceased” was discussed. The learned Judge
referred to the deposition of PW1-son of the deceased. He also referred
to evidence of PW3 and, at paragraph 20, it stated that PW3 has clearly
stated that the former MLA was abducted at 05.30 A.M. [Actually PW3
G has stated that a person was put inside a van by three persons]. Thereafter,
motorcycle followed the said van. That his friend Selvam also came
there. PW13 has also stated that he has seen the deceased taking morning
walk at about 05.45 A.M. The learned Judge finds that it is apparent that
the deceased in this case was abducted from M.R.C. Nagar. After
H abduction, the evidence discloses meeting at the residence of A9. He
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 79
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

further finds that on 30.12.2001, PWs 10 and 11 have stated about A3 A
stating that the abduction of the deceased has been made and money
remains to be collected. Thereafter, the learned Judge discusses evidence
relating to taking of the deceased to the factory premises. In this regard,
apart from PWs 10 and 11, the learned Judge refers to the evidence of
PW56 also. In regard to the commission of offence under Section 302
B
of the IPC, it is found that abduction is proved and the deceased was
murdered soon after abduction in two days and the body cremated under
the name of a fictitious person. The learned Judge finds that in the
aforesaid circumstances, it is for the accused person to satisfy the Court
how the abducted victim was dealt with by them. Undoubtedly, he noted
that there is no direct evidence with respect to the murder by putting C
nylon rope around the neck and tightening it but it can be inferred, in the
circumstances, that they committed the offence of murder also. There
is evidence which clearly indicated that the dead body of the deceased
was taken from the factory. Thereafter, the Court discusses again
evidence of PWs 10, 11, 21 and 35 in regard to the removal of the dead
D
body from the factory premises. Next, the learned Judge discusses the
evidence relating to the cremation of the dead body. The evidence
referred to include PWs 19 and 36 apart from noting that PW12 has
resiled from part of his statement. Next, the learned Judge elaborately
discusses the evidence relating to the procuring of the death certificate
by A3. The confessions and recoveries by the accused were next E
discussed. The effect of acquittal under Section 120B of the IPC next
engaged the learned Judge. It was found that mere acquittal under Section
120B of the IPC when the charge under Section 109 of the IPC was
found established, was of no avail to them. Charges, which were framed,
were specific. Ingredients of Section 109 of the IPC were there and
F
have been rightly found to be present by both the courts below. Section
120B of the IPC was found established against accused A1 and A2 and
other charges against the accused appellants. Sections 120B and 109 of
the IPC were found to be distinct offences. He referred to the judgment
of this Court in Ranganayaki v. State by Inspector of Police17, which,
inter alia, held that for an offence under Section 120B of the IPC, a G
charge under Section 109 of the IPC was unnecessary and inappropriate.
The commission of offence under Section 109 of the IPC was found
established along with other offences. The acquittal under Section 120B
of the IPC was found not to adversely impinge upon the ingredients of
17 (2004) 12 SCC 521 H
80 SUPREME COURT REPORTS [2020] 10 S.C.R.

A Section 109 of the IPC. The evidence of PWs 10 and 11, even taken as
accomplices, was found corroborated by overwhelming evidence on
record on each and every aspect. Regarding holding of TI/Recording of
Statement under Section 164 of the CrPC, it was proved by PWs 60, 59,
61, 32, 33, 62, 12 and 19. The last circumstance discussed was the cell
phone/cassette/forensic evidence. Cassettes were recovered with
B
suitcase-MO2 from A2 which was supported by PW43. Regarding the
contention that no value is to be attached to the recovery of the Ford
Car at the instance of A4 based on ownership, it was found that ownership
was irrelevant. PW10 may have purchased the car in the name of Shri
Ranjit Kumar. The evidence disclosed that the car in the possession of
C PW10 was given by him to the accused. Total six cars were used in the
offence including the Ford Escort Car and one motorcycle. As regards
the recovery of the remains from the cremation ground not being proved
to be that of the deceased, it was found that as the case of the prosecution,
the body was fully burnt, their seizure and forensic report was of no
value. This broadly is the basis for the learned Judge to uphold the
D
conviction.
ACCOMPLICE EVIDENCE
59. Section 133 of the Evidence Act declares that an accomplice
is a competent witness and further that a conviction based on the
E uncorroborated testimony of an accomplice is not illegal only on account
of it being so. Section 133 reads as follows:
“133. Accomplice.- An accomplice shall be a competent
witness against an accused person; and a conviction is not illegal
merely because it proceeds upon the uncorroborated testimony
F of an accomplice.”
60. It is apposite to notice Section 114 of the Evidence Act,
Illustration ‘b’, the Court may presume:
“(b) That an accomplice is unworthy of credit, unless he is
corroborated in material particulars.”
G
61. Thus, there appears to be a contradiction between these
provisions. The matter is no longer res integra. We may notice the
following statement of the law contained in an early judgment of this
Court reported in Sarwan Singh Rattan Singh v. State of Punjab18:

H 18 AIR 1957 (SC) 637
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 81
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

“7. It is hardly necessary to deal at length with the true A
legal position in this matter. An accomplice is undoubtedly a
competent witness under the Indian Evidence Act. There can be,
however, no doubt that the very fact that he has participated in
the commission of the offence introduces a serious stain in his
evidence and courts are naturally reluctant to act on such tainted
B
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 C
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. D
But it must never be forgotten that before the court reaches
the stage of considering the question of corroboration and its
adequacy or otherwise, the first initial and essential question to
consider is whether even as an accomplice the approver is a
reliable witness. If the answer to this question is against the E
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. F
If this test is satisfied the second test which still remains to be
applied is that the approver’s evidence must receive sufficient
corroboration. This test is special to the cases of weak or tainted
evidence like that of the approver.”
(Emphasis supplied) G
62. We may profitably also refer to the views expressed in Haroom
Haji Abdulla v. State of Maharashtra19:

19 AIR (1968) SC 832
H
82 SUPREME COURT REPORTS [2020] 10 S.C.R.

A “8. The law as to accomplice evidence is well settled. The
Evidence Act in Section 133 provides that an accomplice is a
competent witness against an accused person and that a 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
B
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
C betrays his associates, is not a fair witness and it is possible that
he may, to please the prosecution, weave false details into those
which are true and his whole story appearing true, there may be
no means at hand to sever the false from that which is true. It is
for this reason that courts, before they act on accomplice evidence,
insist on corroboration in material respects as to the offence itself
D
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.
E This rule of caution or prudence has become so ingrained in the
consideration of accomplice evidence as to have almost the
standing of a rule of law.”
(Emphasis supplied)
63. The dichotomy between the mandate of Section 133 and
F illustration (b) to Section 114, of the Evidence Act has been explained as
follows in Sheshanna Bhumanna Yadav v. State of Maharashtra20:
“12. The law with regard to appreciation of approver’s
evidence is based on the effect of Sections 133 and 114, illustration
(b) of the Evidence Act, namely, that an accomplice is competent
G to depose but as a rule of caution it will be unsafe to convict upon
his testimony alone. The warning of the danger of convicting on
uncorroborated evidence is therefore given when the evidence is
that of an accomplice. The primary meaning of accomplice is any
party to the crime charged and someone who aids and abets the
H 20 AIR (1970) SC 1330
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 83
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

commission of crime. The nature of corroboration is that it is A
confirmatory evidence and it may consist of the evidence of second
witness or of circumstances like the conduct of the person against
whom it is required. Corroboration must connect or tend to connect
the accused with the crime. When it is said that the corroborative
evidence must implicate the accused in material particulars it means
B
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 C
the evidence of the witness as against the accused. But if the
skins were found in the accused’s house, this would corroborate
because it would tend to confirm the statement that the accused
had some hand in the theft.”
(Emphasis supplied) D
64. We may finally advert to a recent pronouncement of this Court
in K. Hashim v. State of Tamil Nadu21:
“38. First, it is not necessary that there should be
independent confirmation of every material circumstance in the
sense that the independent evidence in the case, apart from the E
testimony of the complainant or the accomplice, should in itself be
sufficient to sustain conviction. As Lord Reading says:
“Indeed, if it were required that the accomplice should be
confirmed in every detail of the crime, his evidence would not
be essential to the case; it would be merely confirmatory of F
other and independent testimony.” (Baskerville case [(1916)
2 KB 658 : (1916-17) All ER Rep 38 (CA)] , All ER p. 42 B-C)
39. All that is required is that there must be some additional
evidence rendering it probable that the story of the accomplice
(or complainant) is true and that it is reasonably safe to act upon G
it.
40. Secondly, the independent evidence must not only make
it safe to believe that the crime was committed but must in some
21
(2005) 1 SCC 237 H
84 SUPREME COURT REPORTS [2020] 10 S.C.R.

A way reasonably connect or tend to connect the accused with it by
confirming in some material parti.cular the testimony of the
accomplice or complainant that the accused committed the crime.
This does not mean that the corroboration as to identification must
extend to all the circumstances necessary to identify the accused
with the offence. Again, all that is necessary is that there should
B
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
C 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.”
D 41. Thirdly, the corroboration must come from independent sources
and thus ordinarily the testimony of one accomplice would not be
sufficient to corroborate that of another. But of course the
circumstances may be such as to make it safe to dispense with
the necessity of corroboration and in those special circumstances
E a conviction so based would not be illegal. I say this because it
was contended that the mother in this case was not an independent
source.
42. Fourthly, the corroboration need not be direct evidence that
the accused committed the crime. It is sufficient if it is merely
F circumstantial evidence of his connection with the crime. Were it
otherwise, “many crimes which are usually committed between
accomplices in secret, such as incest, offences with females” (or
unnatural offences) “could never be brought to justice”. (See M.O.
Shamsudhin v. State of Kerala [(1995) 3 SCC 351 : 1995 SCC
(Cri) 509].)”
G
(Emphasis supplied)
65. To summarize, by way of culling out the principles which
emerge on a conspectus of the aforesaid decisions, we would hold as
follows:
H
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 85
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

The combined result of Sections 133 read with illustration A
(b) to Section 114 of Evidence Act is that the Courts have evolved,
as a rule of prudence, the requirement that it would be unsafe to
convict an accused solely based on uncorroborated testimony of
an accomplice. The corroboration must be in relation to the material
particulars of the testimony of an accomplice. It is clear that an
B
accomplice would be familiar with the general outline of the crime
as he would be one who has participated in the same and therefore,
indeed, be familiar with the matter in general terms. The connecting
link between a particular accused and the crime, is where
corroboration of the testimony of an accomplice would assume
crucial significance. The evidence of an accomplice must point to C
the involvement of a particular accused. It would, no doubt, be
sufficient, if his testimony in conjunction with other relevant
evidence unmistakably makes out the case for convicting an
accused.
66. As laid down by this Court, every material circumstance against D
the accused need not be independently confirmed. Corroboration must
be such that it renders the testimony of the approver believable in the
facts and circumstances of each case. The testimony of one accomplice
cannot be, ordinarily, be supported by the testimony of another approver.
We have used the word ‘ordinarily’ inspired by the statement of the law
in paragraph-4 in K. Hashim(supra) wherein in this Court, did contemplate E
special and extraordinary cases where the principle embedded in Section
133 would literally apply. In other words, in the common run of cases,
the rule of prudence which has evolved into a principle of law is that an
accomplice, to be believed, he must be corroborated in material particulars
of his testimony. The evidence which is used to corroborate an F
accomplice need not be a direct evidence and can be in the form of
circumstantial evidence.
ACCOMPLICE AND APPROVER
67. An accomplice is in many cases, pardoned and he becomes
what is known as an approver. An elaborate procedure for making a G
person an approver, has been set out in Section 306 of the CrPC. Briefly,
the person is proposed as an approver. The exercise is undertaken before
the competent Magistrate. His evidence is recorded. He receives pardon
in exchange for the undertaking that he will give an unvarnished version
of the events in which he is a participant in the crime. He would expose H
86 SUPREME COURT REPORTS [2020] 10 S.C.R.

A himself to proceedings under Section 308 of the CrPC. Section 308
contemplates that if such person has not complied with the condition on
which the tender of pardon was given either by wilfully concealing
anything essential or by giving false evidence, he can be put on trial for
the offence in respect to which the pardon was so tendered or for any
other offence of which he appears to be a guilty in connection with the
B
same matters. This is besides the liability to be proceeded against for the
offence of perjury. Sub-section (2) of Section 308 declares that any
statement which is given by the person accepting the tender of pardon
and recorded under Section 164 and Section 306 can be used against
him as evidence in the trial under Section 308(1) of the CrPC. An
C accomplice or an approver are competent witnesses. An approver is an
accomplice, who has received pardon within the meaning of Section
306. We would hold, that as between an accomplice and an approver,
the latter would be more beholden to the version he has given having
regard to the adverse consequences which await him as spelt out in
Section 308 of the CrPC. as explained by us. It is also settled principle
D
that the competency of an accomplice is not impaired, though, he could
have been tried jointly with the accused and instead of so being tried, he
has been made a witness for the prosecution. See the judgment of this
Court reported in Chandran and Others v. State of Kerala22.
PURPORT AND VALUE OF SECTION 164 OF CRPC
E
68. Section 164 of the CrPC enables the recording of the statement
or confession before the Magistrate. Is such statement substantive
evidence? What is the purpose of recording the statement or confession
under Section 164? What would be the position if the person giving the
statement resiles from the same completely when he is examined as a
F witness? These questions are not res integra. Ordinarily, the prosecution
which is conducted through the State and the police machinery would
have custody of the person. Though, Section 164 does provide for
safeguards to ensure that the statement or a confession is a voluntary
affair it may turn out to be otherwise. We may advert to statements of
G law enunciated by this Court over time.
69. As to the importance of the evidence of the statement recorded
under Section 164 and as to whether it constitutes substantial evidence,

H
22 (2011) 5 SCC 161
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 87
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

we may only to advert to the following judgment, i.e., in George and A
others v. State of Kerala and another23:
“In making the above and similar comments the trial Court again
ignored a fundamental rule of criminal jurisprudence that a
statement of a witness recorded under S. 164, Cr.P.C., cannot be
used as substantive evidence and can be used only for the purpose B
of contradicting or corroborating him.”
70. What is the object of recording the statement, ordinarily of
witnesses under Section 164 has been expounded by this Court in R.
Shaji v. State of Kerala24:
“15. So far as the statement of witnesses recorded under C
Section 164 is concerned, the object is two fold; in the first place,
to deter the witness from changing his stand by denying the
contents of his previously recorded statement, and secondly, to
tide over immunity from prosecution by the witness under Section
164. A proposition to the effect that if a statement of a witness is D
recorded under Section 164, his evidence in Court should be
discarded, is not at all warranted. (Vide: Jogendra Nahak & Ors.
V. State of Orissa & Ors., AIR 1999 SC 2565: (1999 AIR SCW
2736); and Assistant Collector of Central Excise, Rajamundry v.
Duncan Agro Industries Ltd. & Ors., AIR 2000 SC 2901) : (2000
Air SCW 3150). E

16. Section 157 of the Evidence Act makes it clear that a
statement recorded under Section 164 Cr.P.C., can be relied upon
for the purpose of corroborating statements made by witnesses in
the Committal Court or even to contradict the same. As the defence
had no opportunity to cross-examine the witnesses whose F
statements are recorded under Section 164 Cr.P.C., such
statements cannot be treated as substantive evidence.”
71. Thus, in a case where a witness, in his statement under Section
164 of the CrPC, makes culpability of the accused beyond doubt but
when he is put on the witness stand in the trial, he does a complete G
somersault, as the statement under Section 164 is not substantial evidence
then what would be the position? The substantive evidence is the evidence
rendered in the Court. Should there be no other evidence against the
23 AIR 1998 SC 1376
24 AIR 2013 SC 651 H
88 SUPREME COURT REPORTS [2020] 10 S.C.R.

A accused, it would be impermissible to convict the accused on the basis
of the statement under Section 164.
CONTOURS OF JURISDICTION IN APPEAL BY SPECIAL
LEAVE
72. Before we embark upon a consideration of the contentions,
B we think it is necessary to remind ourselves of the contours of this Court’s
jurisdiction in an appeal generated by Special Leave under Article 136
of the Constitution of India. This question, far from being res integra, is
the subject matter of a large number of decisions of this Court. We
would only advert to one out of many decisions, rendered by one of us
C (K.M. Joseph, J.), in Jagjit Singh v. State of Punjab25. Therein, the Court
noted the principles laid down by this Court in Dalbir Kaur v. State of
Punjab26 wherein this Court culled out the principles in paragraph-8 as
follows:
“8. Thus the principles governing interference by this Court
D in a criminal appeal by special leave may be summarised as follows:
“(1) that this Court would not interfere with the concurrent
finding of fact based on pure appreciation of evidence even if it
were to take a different view on the evidence;
(2) that the Court will not normally enter into a
E reappraisement or review of the evidence, unless the assessment
of the High Court is vitiated by an error of law or procedure or is
based on error of record, misreading of evidence or is inconsistent
with the evidence, for instance, where the ocular evidence is totally
inconsistent with the medical evidence and so on;
F (3) that the Court would not enter into credibility of the
evidence with a view to substitute its own opinion for that of the
High Court;
(4) that the Court would interfere where the High Court
has arrived at a finding of fact in disregard of a judicial process,
G principles of natural justice or a fair hearing or has acted in violation
of a mandatory provision of law or procedure resulting in serious
prejudice or injustice to the accused;

25 (2018) 10 SCC 593
H
26 (1976) 4 SCC 158
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 89
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

(5) this Court might also interfere where on the proved A
facts wrong inferences of law have been drawn or where the
conclusions of the High Court are manifestly perverse and based
on no evidence.”
It is very difficult to lay down a rule of universal application,
but the principles mentioned above and those adumbrated in the B
authorities of this Court cited supra provide sufficient guidelines
for this Court to decide criminal appeals by special leave. Thus in
a criminal appeal by special leave, this Court at the hearing
examines the evidence and the judgment of the High Court with
the limited purpose of determining whether or not the High Court
has followed the principles enunciated above. Where the Court C
finds that the High Court has committed no violation of the various
principles laid down by this Court and has made a correct approach
and has not ignored or overlooked striking features in the evidence
which demolish the prosecution case, the findings of fact arrived
at by the High Court on an appreciation of the evidence in the D
circumstances of the case would not be disturbed.”
A LOOK AT THE OFFENCES INVOLVED
73. Section 201 of the IPC, inter alia, is as follows:
“201. Causing disappearance of evidence of offence, or giving E
false information to screen offender.—Whoever, knowing or
having reason to believe that an offence has been committed,
causes any evidence of the commission of that offence to
disappear, with the intention of screening the offend-er from legal
punishment, or with that intention gives any infor-mation respecting
the offence which he knows or believes to be false.” F
74. Section 347 of the IPC reads as follows:
“347. Wrongful confinement to extort property, or constrain to
illegal act.—Whoever wrongfully confines any person for the
purpose of extorting from the person confined, or from any person
G
interested in the person confined, any property or valuable security
or of constraining the person confined or any person interested in
such person to do anything illegal or to give any information which
may facilitate the commission of an offence, shall be punished
with imprisonment of either description for a term which may
extend to three years, and shall also be liable to fine.” H
90 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 75. Section 364 of the IPC, inter alia, deals with abducting in
order to murder. It reads as follows:
“364. Kidnapping or abducting in order to murder.—Whoever
kidnaps or abducts any person in order that such person may be
murdered or may be so disposed of as to be put in danger of being
B murdered, shall be punished with imprisonment for life or rigorous
imprisonment for a term which may extend to ten years, and shall
also be liable to fine.”
76. The offence of abduction is described in Section 362 of the
IPC and it reads as follows:
C “Abduction.- Whoever by force compels, or by any deceitful means
induces, any person to go from any place, is said to abduct that
person.”
It is to be distinguished from kidnapping which is of two kinds as
stated in Section 359 of the IPC, viz., kidnapping from India and kidnapping
D from lawful guardianship. Both kidnapping and abducting, are referred
to in Sections 364 and 365 of the IPC.
77. Section 365 of the IPC reads as follows:
“365. Kidnapping or abducting with intent secretly and wrongfully
to confine person.—Whoever kidnaps or abducts any person with
E
intent to cause that person to be secretly and wrongfully confined,
shall be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be liable to
fine.”
78. Section 302 of the IPC, no doubt, deals with the offence of
F
murder. Lastly, Section 387 of the IPC is a heightened, a more serious
form of offence of extortion and it reads as follows:
“387. Putting person in fear of death or of grievous hurt, in order
to commit extortion.—Whoever, in order to the committing of
extortion, puts or attempts to put any person in fear of death or of
G grievous hurt to that person or to any other, shall be punished with
imprisonment of either description for a term which may extend
to seven years, and shall also be liable to fine.”
79. It is clear that kidnapping differs from abduction. Kidnapping
is of two kinds. Kidnapping from India involves taking a person against
H
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 91
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

his consent or consent of legally authorised person out of India (Section A
360). Kidnapping from lawful custody is occasioned if a male below 16
years or female below 18 years or person of unsound mind is taken out
of custody of lawful guardian without his consent (Section 361).
Abduction, as defined in Section 362 of the IPC, occurs when by force
or deceitful means, a person is induced to go from any place. In this
B
case, under Sections 364 and 365, though, it could be kidnapping and
abduction, what is involved is abduction.
80. Section 364 of the IPC, more graver than Section 365 of the
IPC, occurs when abduction, inter alia,is done with the intention to
commit murder or that he is so disposed of so as to put the abducted
person in danger of being murdered. Section 365 of the IPC is attracted C
when the abduction takes place to cause the abducted person to be
secretly and wrongfully confined.
81. It is true that in a given case, a person may be abducted to be
secretly and wrongfully confined and also to commit murder. Such a
situation may attract both Sections 364 and 365 of the IPC. D

82. As with any other offence, there could be the actual offender,
who abducts. Any other person could be roped in with the aid of Section
120A of the IPC or Section 109 of the IPC (abetting). Also, principle of
vicarious liability, under Section 34 of the IPC or a charge under Section
149 of the IPC, if proved, could visit another with criminal liability. E

ABDUCTION, THE EVIDENCE
83. PW1 is the son of the deceased. He has deposed, inter alia,
as follows:
His father is an MLA of Saidapet Constituency. He is F
Director of Mahilapur Hindu Saswatha Nidhi Limited for a period
of ten years. He used to go walking in the morning as he was
suffering from diabetes. He used to leave the house at 05.30 A.M.
in the morning for walking in MRC Nagar near Ayyapan Temple
and return home at about 07.30 A.M.. He also used to go for
G
walking in the morning along with one Ramesh residing near their
house. On 30.12.2001, his father went for walking at about 05.30
A.M.. Normally, his father used to wear t-shirt, black track pant
and black shoes. The shoes were of one Reebok company. He
did not return home on 30.12.2001. He went in search of his father.
He contacted his friends. Then, he went and lodged a complaint H
92 SUPREME COURT REPORTS [2020] 10 S.C.R.

A marked as Exhibit PSEI. In cross-examination, PW1 deposed that
he did not state that his father used to walk by using the Reebok
shoes. The shirt and the pant were not shown to him by the Crime
Branch who investigated him. The Police asked him to remove
certain averments made by him in his complaint. The complaint,
after removal of the averments, is PSE1. He went, at 08.00 P.M.,
B
to the Anna Nagar Police Station. They have told him that the
father was in Tirumangalam Police Station. Then, he went to
Tirumangalam Police. He was told that he was not there. He
speaks about learning that his father was kept in the Police Station
and, sensing danger, he filed a Habeas Corpus Petition. In the
C complaint, he has averred that when his father went for walking,
he was illegally detained by the Police for procuring certain
statements from him. He has read the Nakeeran Journal of
05.03.2002. He says that he has stated that the arrest of the A3
and A5 was mere eyewash. On 30.12.2001, when his father went
for walking only his mother had seen him. The shoes worn by his
D
father was bought from the Mount Road Vasant Complex Reebok
Company. Then he says that the size of shoes was told by him to
the Police (CBCID) and then, they showed the shoes to him.
PW1 told that the shoes did not belong to his father. Thereupon,
permission was sought and granted to declare PW10 as hostile
E and he was cross-examined. On 30.12.2001, his father had gone
for walking and had not returned till today. He has not contacted
them through letter or phone. He has not challenged the dismissal
of Habeas Corpus petition. The age of his father is disclosed as
52 years on 30.12.2001. His father did not fight with any private
person and only fought with political adversaries. To the question,
F
whether the Police had given him any audio cassette containing
the voice of his father and played it before his mother and brother,
he answers in the affirmative. He says there was no dispute
between his father and A3 and other accused. In answer to the
question, whether the persons of ADMK had any grudge against
G his father for changing his party to DMK, he said, yes, there were
serious disputes regarding this. He still believed that his father
was alive. The prosecution conducted re-examination of PW1.
He states that when the CBCID examined him on 06.04.2002, he
has not stated that the voice in the audio cassette was of his
father. Suggestion that he was purposefully deposing in favour of
H the accused, was denied.
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 93
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

84. PW2-Ramesh deposes that he is a car driver by profession. A
He knew the deceased. He used to go to the house at 08.45 A.M. or
09.00 A.M.. He speaks about taking the deceased to the company of
which he was the Director. He speaks about coming at about 09.00
A.M. on 30th and the wife of the deceased informed him that her husband
has not returned home after he had gone for walking. He says, to his
B
knowledge, he did not know about the fact that deceased went for walking
on that day. After 29.12.2001, he has not seen the deceased.
85. PW3 is another key witness produced by the prosecution to
prove the aspect of abduction. He is a native of Sri Lanka. He came to
Chennai in 1991. In 2001, he used to practice wrestling. He would do
skipping and running along with others at MRC Nagar. His wrestling C
master is Selvaraj. On 30.12.2001, at about 05.30 A.M., as usual, he
started to run. At that time, at a distance of about 75 meters, he saw
three persons forcing a person to get into a van. Thereafter, all of them
went in the same van. It was an Omni Van. A motorcycle followed that
van. Thereafter, his friend Selvam came there. He told this to him. He D
told Selvaraj Master. Selvaraj Master told him “why should we bother
about others.”He has stood by his statement in the cross-examination.
He, no doubt, inter alia says that in December, the sunrise will be late
and that 05.30 A.M. will be dark. He saw the incident at a distance of 75
meters as there was street light. No doubt, he says that during Police
investigation, he did not mention about the glow of street light. He did E
not lodge any complaint in the Police Station about the incident.
86. The next witness, who is produced to prove abduction, is
PW13. He states as follows:
His brother is working in the Police Department. From F
1999, he has diabetes. He goes for walk at MRC Nagar every
day at morning 05.30 A.M.. On 30.12.2001, at 05.45 A.M. in
the morning, when he was walking in the MRC Nagar, Kasturi
Estate, the deceased came opposite to him. He was wearing
bright shoes, sandal colour t-shirt and dark pant. He crossed
him. He is shown MO14-photograph and he identified the G
deceased. In cross-examination, he says that he saw in the
newspaper that the deceased was not found but he did not see
the TV.
It is, no doubt, true that Justice Arun Mishra has found
that it becomes apparent that PW13 clearly stated that the H
94 SUPREME COURT REPORTS [2020] 10 S.C.R.

A former MLA Balan-the deceased was taking morning walk.
The learned Judge concluded that it is apparent that M.K.
Balan had been abducted. PW3 has not stated that it was the
deceased who was abducted. He has not stated that three
persons, who pushed the deceased into the van were from
amongst the accused in the case.
B
87. However, reading the evidence of PWs 1, 2, 3 and 13, the
following is established. The deceased used to go for morning walk. He
was indeed sighted by PW13 who also used to go for morning walk.
PW3 has indeed witnessed a person being pushed into Maruti Omni Van
C by three persons and the Van going away followed by the motorcycle.

88. These facts are established. The evidence of PW10 and PW11
is to be seen next in this regard. PW10 has, inter alia, stated that first
and second accused were there at the house of A9 on 30.12.2001. Both
of them told A3 that they have brought the MLA [M.K. Balan
D (deceased)] and only money had to be collected from him. PW11 has
stated that on 30.12.2001, he saw three cars at the factory led by a Tata
Sumo (recovered at the instance of A9), a Ford Escort Car (recovered
at the instance of A4) and finally came the Zen Car (recovered at the
instance of A3). Four persons identified as A4, A11, A16 and A17 brought
E the deceased out of the Ford Car. This takes place within hours of
abduction on the same day. PW11 also speaks of three persons coming
out of the Zen Car. PW10 also says that on 31.12.2001, he found that
the deceased was tied-up with chain and his eyes were covered with a
cloth and he had been made to sit on a green steel cot provided by them
already. He was wearing black pant and sandal colour t-shirt. He has
F deposed that it was A5, A6, A7, A8, A10, A11 and A14, who were present.
Still further, he says that A3 threatened him that he would kill him and his
family members if he discloses anything about the matter. He further
stated that “we had kidnapped ex-MLA Balan itself, you are nothing
to me”. Unless PW10 and PW11, PW3 and PW13 are disbelieved, the
G conclusion is inevitable that the deceased was indeed abducted. The
trial court finds that no one else was kidnapped on the same day. The
Trial Court finds that A3, A4 to A8, A10, A11 and A14 to A17 kidnapped
the deceased (A10 stands acquitted by the High Court).

H
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 95
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

THE CIRCUMSTANCES RELATING TO OBTAINING OF A
FALSE DEATH CERTIFICATE
89. PW32-a Medical Practitioner has proved Exhibit-P27-Death
Certificate. He has deposed that PW33-Kamaraj, who was working in
the Government General Hospital, Chennai and acquainted with him for
fifteen years, came to him. He deposed that PW33 told that one person B
known to him, viz., Rajamani Chettiar was 61 years and poor, died on
01.01.2002 at 06.00 P.M. due to cardiac arrest. There was no body to
cremate him and he alone had to do all the work for him. He wanted
death certificate. Then, PW32 told PW33 that he would go to see him
(apparently, the deceased). PW33 told him, he very well knows PW32
for the past fifteen years, would he lie to him and that no one else was C
with him (deceased) and PW33 has to do everything and he did not have
time. Believing what he stated to be true, PW32 says that he issued
P27-death certificate without seeing the dead body. No doubt, PW32
has deposed in cross-examination that PW33 came to his house and
stated that his younger paternal uncle working as a watchman in the D
company had passed away. He has given the certificate on 02.01.2002.
Though, it is not written that it was issued on 02.01.2002, and in P27, it
was shown that it was issued on 01.01.2002.
90. PW33 states, inter alia, as follows:
He knew A3 for the last five years. He corroborates
E
statement of PW32 that they were known to each other for fifteen
years. On 01.01.2002, he was lying sick in his house. One
Samikannu-A13 came and told him that he was called by A3. He
was taken by Samikannu to the house of A3. A3 told him that one
watchman died in Kollathur. PW33 was asked whether a vehicle
could be arranged. He tried in vain. He was given Rs.50/- by A3 F
on noting that he had reached the next day by auto. A3 told him
that one Rajamani Chettiar expired and asked him to get a
certificate. PW33 told about PW32 being known to him for the
last fifteen years. He went to his place by auto. PW32 was there
and he told him that a watchman in Kollathur Company had died.
G
PW32 believed PW33 and gave it in writing in a letterhead. He
gave it to A3. He identifies P27 as the certificate. He also identifies
A3 and A13 (Samikannu). He states that the certificate is dated
01.01.2002 as he had asked so. He says that he is giving the
deposition like this because he will lose his job if he does not do
so. He did not identify A13 to the Police or the Magistrate in the H
TI Parade. He also says, inter alia, that it is false to say that
96 SUPREME COURT REPORTS [2020] 10 S.C.R.

A accused-Samipannu did not call him or take him to A3. He also
says it is not correct to state that he is giving false deposition in
the fear of losing his job. We see no reason to take a different
view. The irresistible inference would be as follows:
A3 engaged A13, and at the behest of A3, a certificate is
B issued by PW32-medical practitioner certifying that one Rajamani
Chettiar had passed away on 01.01.2002.
91. Now, the next question to be decided would be whether such
a person as Rajamani Chettiar had indeed passed away and whether he
was residing at the place reported? PW38 has deposed that no person,
C as shown in the Certificate, died. Then, PW36-Office Assistant In-Charge
also supported the prosecution version. It is to be noted that going by the
evidence of PW32 and PW33, A3 wanted such a certificate. The evidence
of PW19 does support the prosecution case though he may not have
identified the ‘8’ persons who came. The Trial Court, noted that he had
identified them in the Test Identification Parade. It is clear as daylight
D that the person cremated on 01.01.2002 by PW19 and PW12 late in
night was the deceased under a fake name though.
THE EVIDENCE RELATING TO VEHICLES USED
THE VEHICLES RECOVERED
E 92. The evidence relating to vehicles used is as follows:
i. M09 is van bearing No. TNA 7484. A5 made a statement
to the Police. PW30 has spoken about the vehicle being
given to A9 and PW44 is a witness to the seizure. It is the
vehicle which is used in the abduction of the deceased.
F ii. The next vehicle is TN02P343. This is marked though PW10
as MO8 and is another Van. PW10 states that on 24.12.2001,
A9 told him that A3 wanted a Maruti Van. He speaks about
complaining about not receiving rent for the Ford Escort-
MO6 and non-return of Motorcycle-MO10. He further says
G that A9 called later and said that he had arranged for vehicle
of Kennedy and brother-in-law of PW30, Jayprakash
(MO9) and sent it to A3. PW24-Sub-Inspector deposes to
witnessing confessional statement of A6 leading to the
recovery of MO8, the Van bearing No. TN-22-BO-343.
But he stated “I can identify A6 who also identifies A8”.
H
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 97
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

Pw37 IS John Keneddy who has deposed about buy MO8 A
on 24.12.2001. PW10 called him on cell-phone and asked
for Van for two days. It was given to him. It was returned
back in two days. Apart from the fact that PW24 identifies
A8 as A6, the connection with the offences is not clear. No
doubt, PW37 was declared hostile and cross-examined by
B
the State.
iii. A3 gave P20 statement leading to the recovery of MO12-
Maruti Zen having No. TN9-Z-99. PW16 has been
examined to establish that MO12 was given by him to A3
in November, 2001 and it was returned back only in
February, 2002. This is the vehicle which is used on C
30.03.2001, the crucial day, along with two other vehicles.
The Trial Court has also, no doubt, relied on the evidence
of PWs 10 and 11.
iv. A9 gave P37 statement. PW41 is a witness. Pursuant to
the same, MO7-Maruti Omni Van, having golden colour D
and bearing No. TN22B8853, was recovered. PW18 is
acquainted with A9 since childhood. He has deposed to
giving MO7-golden colour Maruti Omni van to A9 four
times. He has deposed that the last time he gave was on
01.01.2002 and it was not returned on the same day, as E
was the case on the earlier occasions, but was returned
only on 02.01.2002. It is this van which has been used to
take the body of the deceased away after the murder at
the factory building. The evidence of PW11 and, more
appropriately PW35-Police Constable, clinches the issue
as to its use. F

v. The statement of A9 has also led to the recovery of a Tata
Sumo and it stood marked as MO13. The number of the
vehicle is TN04D9657. PW15 is the Dealer in cars, inter
alia. He has deposed that he knew A9 for 30 years. He
further deposed that A9 went to him for buying the Tata G
Sumo and gave advance of Rs.15,000/- in September, 2001
and sold his Maruti Zen and took the Sumo. Later, he came,
he left the Tata Sumo saying that it was not auspicious and
took away the car. The Tata Sumo makes its appearance
along with the Ford Escort on 30.12.2001. The link is H
undeniable.
98 SUPREME COURT REPORTS [2020] 10 S.C.R.

A vi. A4 has given statement leading to the recovery of the Ford
Escort White Car having No. TN-10F-5555. It was marked
as MO6. It was entrusted to A3 through A9 by PW10 for
the car. On the basis of statement given by A4, the said car
came to be recovered. We notice that Justice Arun Mishra
has correctly rejected the contention that since the car stood
B
registered in the name of another person, and therefore, it
could not be relied upon. It is to be noticed that the
connection of the car with the crime is that the deceased is
brought to the factory in the Ford Escort car, according to
evidence (PW10).
C vii. A15 has given P51-statement pursuant to which MO10-
Hero Honda Motorcycle and the black colour Reebok shoe
(the shoe which the prosecution alleges was worn by the
deceased and kept in the side pocket of the motorcycle,
were recovered). The shoe was marked as MO1. More
D about the motorcycle, will be discussed later on.
This shoe has been marked as MO1. There is the evidence
of Pw48. More about this vehicle will follow in discussion
relating to A15.
WHAT THE ACCOMPLICES SAID
E
93. We think it is appropriate that we should consider the evidence
of PWs 10 and 11. We have already set out the principles which govern
the appreciation of evidence of accomplices. Proceeding on the basis
that PWs 10 and 11 are accomplices (though the Counsel for the State
has a case that PWs 10 and 11 cannot be considered as accomplices
F insofar as it related to offence under Section 302 of the IPC), we notice
the following.
94. PW10 was examined on 30.10.2003. We are referring to the
date of his deposition only to bear in mind that this is not a case where
the witness is examined after a long gap from the date of crime as the
G murder is alleged to have taken place on 01.01.2002.
95. Let us examine what he has stated. He was doing rice business
in Tambaram from 1984 to 1995. From 1995, he ran a business under
the name and style of Valluvar Travels from 1985 with Uday Kumar
(the ninth accused), his friend. In 1998, he started a wine shop in which
H PW11 was also a partner. It was in 1999, the ninth accused informed
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 99
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

that Krishna Pandi-PW34 was running a vermicelli company in Mudichur. A
He was facing a loss. PWs 10 and 11 invested in the venture of Krishna
Pandi. There is reference to the relationship between PW10 and the
ninth accused turning sour. PW10 purchased a Ford Escort car though
in the name of one Ranjit Singh with whom he had business connections.
The registration number of the car was TN-10F-5555. He speaks about
B
his reconciliation with Uday Kumar. In 2001, Uday Kumar approached
him and told him that he was to join ADMK with the help of the A3 for
which he had to do certain works. For the same, he needed some houses.
A search was mounted for an appropriate house. The third accused
comes upon the scene. PWs 10 and 11, along with Uday Kumar-A9 and
A3, finally, finalise the vermicelli factory at Mudichur Road. He identified C
the third accused. Instructions were given by the third accused for a
screen to be put up on the windows of the factory building. As ninth
accused asked for two cots, PW10 asked for two cots from one Guru,
his friend. Chairs from the house of PW10, fan from the house of ninth
accused and bedpan were kept in the factory by PW10, A9 and PW11.
D
Screen for the windows was put. Third accused told PW34 to give a
weeks’ leave for the company. Believing that he would get rent, PW10,
upon being asked for his Ford Escort car, sent the car to the house of the
ninth accused. There is reference to what happened on 05.12.2001. On
the said day, he was called by the ninth accused to come over to the
residence of the third accused. There were two or three other persons. E
PWs 10 and 11 followed the ninth accused who went inside the house.
Third accused was telling the persons and the ninth accused that the
deceased had to be brought and some money to be collected from him.
PW10 identifies A4, A6 and A11 as persons who were present at the
residence of A3 and who followed them in another car. There is reference
F
to the involvement of A1, A2 and A12. PW10 has identified A5 as the
person who came along with A3, A9 and A1 by his Ford Escort car. A1
was shown and he was talked about as a VIP, a very big VIP. PWs 10
and 11 were to get food for him and to do other works. PW10 has
spoken about Rs.1,10,000/- being given, as requested by Uday Kumar-
A9, as money needed by A3. Money was handed over to A2. G
WHAT TRANSPIRED ON 30.12.2001 AS PER VERSION OF
PW10 - THE SALIENT ELEMENTS
96. On the said date, at 08.30 a.m., A9 called him over phone to
his house. PW10 called PW11. A boy working in his office, dropped him
H
100 SUPREME COURT REPORTS [2020] 10 S.C.R.

A in residence in his motorcycle and went back. A5 was asked to drop him
at the factory by a bike which was at the residence of A9. On reaching
factory, he received a phone call from A9 asking him whether he had
got the key. He further asked to handover the cell-phone to PW34-
Krishna Pandi. After the conversation, PW34-Krishna Pandi agreed to
handover the key. He handed over the key to A3 who came by auto.
B
The key came to be handed over to A5. A3 thereafter sat as a pillion
rider with PW10 and went to the house of A9. PW10 followed A3 to the
upstairs portion. Therein, A1 and A2 were there. They told A3 that they
had brought the Ex. MLA (deceased) and only the money had to be
collected from him. There is reference to Hotel Henkala where room
C was booked for A1. On the same day, at 05.00 p.m., the Ford Escort car
was left in his office by the driver of A3.
31.12.2001 – THE IMPORTANT FEATURES
97. Udai Kumar-A9 calls PW10 at 08.30 a.m. He was asked to
come to Hotel Henkala. He went there. After some time, A3 came. A3
D told A9 that he needed a Maruti van. Apparently, A9 went outside and
brought sandal colour Maruti van. A3 took PW10, A9 and A1 in that
Maruti van and went to the factory. A9 alone got down and was standing
there. One person came from upstairs and took him (PW10) and A1
upstairs. There were about five or six persons. The deceased was tied
E up with the chair and his eyes were also closed with cloth. He had been
made to sit on the green steel cot which was provided by them already.
He was wearing black pant and sandal colour t-shirt. Navy blue shoes
were lying in the room somewhere far away from the steel cot. A1
asked A9 to go to his house to get the recorded cassettes (two in number)
and two empty cassettes from A2. This is besides the tape recorder. A3
F approached PW10 and A9 to get the things. PW10 speaks about the A9
getting Philips two-in-one tape recorder from his house and two recorded
cassettes from A2. Also, two empty cassettes were purchased from a
shop. One person came from upstairs and A3 told him to remove the
cloth tied around the eyes of the deceased. PW10 speaks about feeling
G frightened. A3 came to him and told him that he suspected only PW10
and his suspicion was that he would tell to somebody. A3, it is deposed,
threatened PW10 that if he disclosed anything about the matter, he would
actually kill him and his family members. A3 further stated that “we
have kidnapped Ex. MLA Balan itself, you are nothing to me”. He
speaks about being very much frightened. Around 07.30 p.m., on
H 30.12.2001, A9 called over phone and asked him to stay in the hotel.
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 101
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

01.01.2002 A
98. He went at 10.30 a.m. to the hotel after coming back from the
hotel in the morning from the hotel to his house. After some time, A3
came there. A3 asked A9 for an ambulance. PW10 and A9 went in
search for an ambulance. Not finding one, and on being told so, A3 told
A9 to arrange for one Maruti van and to fix an Alumax light as fixed in B
an ambulance. There is reference to driver Vigi of A3 pointing out that
shops were closed as it was a holiday (being the New Year Day). By
08.00 p.m., a Maruti van was taken away by two persons from the ninth
accused. PW10 identifies these persons as sixth accused and accused-
Sampath (A11). PW10 speaks with PW11 about the ambulance being
required and arranging up of a vehicle like ambulance. PW10 deposed C
that both of them suspected that something was going on in the company.
They started at 08.45 p.m. and reached Mudichur by 09.00 a.m.. The
gate was closed. A6 was standing near the gate. He saw them and
made them go from there. A golden colour Maruti van was standing
there. Because they were scared, they came by walk. A5 went in a D
motorbike to the company. The motorbike went inside and it was standing
in the light. Four persons came from upstairs carrying the body of the
deceased, two holding his legs and two his hands. PW10 refers to the
deceased wearing black colour pant and sandal colour t-shirt. Body was
kept on a slab like place. There was no movement in the body. The body
was loaded in the van and it started very fast. A5 went on the motor E
bike. This, in short, is the account by PW10 about what he saw and
what he knows about the incident. PW10 identifies A5, A6, A7, A8, A10,
A11 and A14 as the persons whom he saw near the deceased when he
was tied-up on the first floor of the factory (this is apparently on
31.12.2001). He also identified the four persons who carried the body of F
the deceased as A6, A7, A8 and A11.
99. PW10 has this to say in his cross examination:
On 30.12.2001 he did not go to the Vermicilli factory [this is
a point which is also pressed by counsel for the appellant for the
reason that in his chief examination he had said that he had gone G
to the factory on 30.12.2001]. However, it is pertinent to note
that in cross examination itself PW10 has stated that on 30 th at
about 8.30 am he went to get the key, from there he went back at
9.30 am. He did not go thereafter [which makes it clear that that
PW10 indeed did go on 30th] as deposed by him in his cross H
102 SUPREME COURT REPORTS [2020] 10 S.C.R.

A examination. He, no doubt, says that till he was there a person
called M.K. Balan was not brought there. He further says in his
cross examination that he had given a cheque for the room rent
for the hotel from which he has vacated on 02.01.2002. He states
that he did not tell anyone outside about the matter, he had
mentioned the police for the first time what he has seen on
B
01.05.2002. It was due to fear he did not say. He further says
that after seeing the Police, his fear had gone. He further states
that he denies having met Nakkeran Gopal and discussed with
him. He no doubt says that if it is asked whether he is accurately
aware of the incident that had happened in the factory from
C 31.12.2001, he did not know. About 15-20 days before 5.12.2001
he had seen A3. He saw A4 for the first time on 5.12.2001 at the
house of the 3rd accused. He says after hearing A3 telling the
persons available there that the Ex. MLA M.K. Balan had to be
brought and some money had to be collected from him, it did not
strike that it could be a violent act. He further says in cross that
D
all the accused were not to known him earlier. He denies having
identified A10 and A14 after they were identified by the Police to
him. He says that he had finally shown his house also. His house
was also shown to them as he could get commission. There is
toilet facility in the Vermicilli factory. (In the re-examination he
E states that toilet is in the ground floor. The significance of this
aspect is that a bedpack was also used when the deceased was
kept in the first floor) He further states that he did not ask Krishan
Pandi (PW34) how long it is to let out and what is the monthly
rent and what is the advance amount and what is the commission
for the same, he also did not tell him. He does not know how
F
many workers were working in the factory, he could not
approximately also. He does not have the details about men and
women who are working in the factory. He was standing at a
distance of 50ft. away from the place of occurrence (apparently
on 01.01.2002). He next says that if it is asked that why it was not
G informed to PW34 about the incident witnessed by him when this
incident took place, he was not a partner in the factory but then
he says that he received the interest amount for the amount given
to PW34.
100. It is time to look what PW11, the other accomplice has
H deposed. This is for the reason also that there is an argument that PW10
and PW 11, the two accomplices do not even corroborate each other.
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 103
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

101. He identifies A9 as the person with whom PW10 was doing A
sand quarry business. He states about PW9 and PW 10 conversing with
each other at the Polling Booth, A9 telling PW10 that he is going to join
the ADMK and about A3, he is going to arrange for a position for him.
He speaks about the need for some houses, the hunt for houses and
various houses being shown and the involvement of A3 in this matter.
B
He speaks about investment which A9 persuaded him and PW10 to
make in the factory run by PW34. A3 told A9 that the factory is the
correct place. He is able to identify A3 and identifies him. The Ford
Escort car was obtained from PW10 on rental basis by A9 and given to
A3. On 05.12.2001, A9 informed him and PW10 that A3 has asked
them to go to his house. Three persons were present at the residence of C
A3. He identifies them as A4, A6 and A7. He further states that A3 told
A9 that the deceased had to give money and the same had to be collected
by bringing him. He speaks about A3 going before them in the Ford
Escort Car. He speaks about A12. He identifies A5 as the person who
assisted A1 Senthil Kr. On 30.12.2001, at round 8.30 A.M., PW10 called
D
him and asked him to go to the house of A9. He went there and saw that
PW10 was not there. A9 took him in Tata Sumo and they were waiting
at Mudichur Road Junction. After half an hour, the Ford Escort car
came and A3 came out of the car and was talking to A9. A9 told him to
take A3 by an auto and go to the factory. PW 10 and A5 was there at
the factory. A3 saw him and asked A5 whether the company is ready? E
Then he took the company key from PW10 and gave the same to A5.
After about half an hour, A9 called him over phone and told him to open
the gate of the company. The Tata Sumo came first, followed by Ford
Escort and Maruti Zen. Four persons got down from Ford car. Those
four persons brought the deceased by closing his eyes, mouth and tying
F
his hands and took him to the first floor. The deceased was wearing
black colour pant, sandalwood colour t-Shirt and shoes. Three persons
came out of the Zen. A9 came to him and asked him whether he knew
that he is N.K. Balan (deceased) and he also threatened him that if he
discloses the same to anybody A3 will kill him and his family members.
He identified the four persons who brought the deceased in the Ford G
Escort car as A4, A11, A16 and A17. He speaks about further details,
like three more persons coming with the tiffin parcels and that he could
identify them, viz., A6, A15 and A7. He went to his house. The same
day after PW10 called him over phone and asked him to go Hotel Henkala.
In Room No.207, he saw A9, PW10 and A1. He stayed with A1 during
H
104 SUPREME COURT REPORTS [2020] 10 S.C.R.

A that night. The next day, viz., on 31.12.2001 at 6.00 A.M., he went from
the Hotel where he stayed in the night on 30.12.2001. He speaks about
buying lunch for 10 persons in the factory. By 12 noon he was asked to
buy lunch for 10 persons, BP tablet and headache tablet and hand them
over to A5 in the factory. He bought them the same and went home (on
1.1.2001), he was called at 10.00 am by A9 and to get tiffin and he got
B
the lunch for them in the afternoon. A5 told him that there is no need for
getting dinner in the night and they are going to start from there and
asked him to convey the same to A9. After 8.00 pm in the night PW 10
called him over phone and asked him to come to Hotel Henkala… He
went there and PW10 told that they need not to get lunch and PW10 told
C him that A3 and A9 asked to arrange for a van and for that he had
replied that he cannot do and A9 arranged one van. PW10 told him that
something is going and he is not aware of the same. Then PW10 told
him that let us go and see in the factory. Both of them went to the
company by the motorcycle. Two persons were near the gate. Both of
them told them that they have no work there and they can go from
D
there. Then PW12 left the bike adjacent to the company and when PW10
crossed the company gate they saw A5 going into the factory. At that
time four persons came from upstairs of the factory carrying N.K. Balan
who was wearing the black colour pant and T-shirt sandalwood colour
and they left him on the floor. They tied up the deceased with a dhoti
E brought by A5 and carried him to the van and the van started from there.
A5 went by motorbike. The van registration number is TN 22-B-8853
(MO7). The Ford Escort number stated by him is TN 10-F 5555 (MO6).
Maruti van number is TN 02-Z-99 (MO12) and Tata Sumo number is
TN-04-B-9657 (MO13). PW11 speaks about him and PW10 being
scared and they went back home. PW10 told him that he was called by
F
A3 and told him that if this matter is leaked out anywhere, he will kill him
and his family. This, in substance is, what PW11 has spoken in his chief
examination. No doubt, in cross he states inter alia as follows:
He has TV in his house. He did not know of news that deceased
was missing was announced on TV. He has seen that in the paper. He
G did not see the deceased on 30.12.2001 at 10.30 A.M. in the upstairs of
the vermicelli company. He has seen the deceased but he did not have
any contact with him. PW10 had left (MO6)-CAR in the travels for
rent. The house being selected and arrangements in the factory at
Mudichur Road were known to him, A9, A3, PW34 and Venugopal PW
H 10 and the arrangement at the factory was known to PW10 and PW11
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 105
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

alone. He speaks about the cot being purchased from Nirmala industries A
on Shanmugham Road. He, A9 and PW10 has purchased the same.
Three cots were purchased. The cot is of green colour and he could
identify it. He reiterates that on 5.12.2001 he had been to the house of
A3. The identification marks of the three persons seen in the home of
A3 and age was mentioned during police investigators. He mentions A4,
B
A11 and A17 as among the four. He also says another person came. He
says he did not remember. In the identification parade he did not say that
he did not tell him that he has seen three persons in the house of A3-
Manickam. He has identified nine persons at the time of identification
parade. He had only given the tiffin and meals to the accused in the
factory. He does not know whether on the 1st deceased was upstairs. C
He says that we went from there after 9.00 P.M. on the 1st. PW34 did
not give the interest to him in January. Till date he has not given the
interest to him. He knew the accused already. He saw A3 only on
05.12.2001 for the first time. Thereafter he had seen him on the 30th.
He did not see him thereafter. A3 was not identified by him during the
D
identification parade. Police did not call him to identify any of the accused.
He also did not go. He did not identify (MOI). He denies it as incorrect
that he did not mention about the accused Guna either during the police
investigation or before the judicial magistrate. He knows A16 having
seen him in the factory. He does not remember whether he was also of
the four persons. He does not remember two persons who told PW10 E
and him at the factory that they do not have any work. He denied having
seen the Nakkeeeran Magazine. He studied up to Plus 2. He denies as
incorrect that he and PW10 were not asked by anyone to get a house
for them. A9 is a member in the Puratchi Bharatem Party at state level.
He is not a member of ADMK. A9 has own car. He says it is correct to
F
state that there is no need of A9 to either believe him or PW10 to do the
work. During the police investigation the identification, colour, height
etc. of the deceased was not asked from him and he had also not stated
about the same. When a person stands outside the gate of the factory,
the incident taking place there could be seen. During the night there was
no light outside the factory. The police did not take him to show the G
factory. They did not show him the van TN22-B-8853 and asked him to
identify. They did not show MO6 also and examine him. Photographs of
the deceased was not shown. The Tata Sumo, Maruti van car was not
shown.
H
106 SUPREME COURT REPORTS [2020] 10 S.C.R.

A PW34, AN INDEPENDENT WITNESS?
102. It is next necessary to have a look at the testimony of PW34.
PW 34 is none other than the owner of the factory and as per the
prosecution case PW10 and PW11 came to invest in the business of
PW34 when he was undergoing financial problems. He states, inter
B alia, as follows:
In 1999, he approaches A9 owing to some problems. He
accepted PW10 and PW11 as partners. He has the entire
responsibility of the company. PW10 and PW11 used to come
occasionally and go. On 29.11.2001 at 6.00 P.M. PW10 and PW11
C asked for company premises to conduct a meeting. He refused.
They insisted. He locked the articles of the company in a room
and handed over room in the upstairs and went away. They asked
him not to come till the meeting was over. On December 5 they
told him the meeting was not over. When looked inside the office
they saw cot, dining table, chair, pedestal fan. On 10th, PW10 and
D PW11 brought a person and introduced him as Poonga Nagar
Manickam-A3 and told them that he was a big shot. (It is true
that PW10 places the meeting with PW34 as having taken place
earlier.) He was a Secretary at the same time for two Districts.
He was organising meeting and went immediately. On 30.12.2001,
E at 08.30 A.M., PW 10 brought a person by name Balamurugan-
A5 and told him that a meeting was called and asked him (PW34)
to vacate the company. When he told that they have kept semai
for drying and ladies are working and it will go waste, they told
the meeting is set and asked him to contact A9 who said he would
compensate the loss for the semai. PW34 sent the employees
F and announced leave. At 05.00 P.M., he came to the company for
collecting wet semiya with company employees Chandru, Venu,
Driver Karuppia. At that time, PW11 and A5 were standing
downstairs. They loaded the semiya in the van and PW11 and A5
helped them to gather it. They took the semiya and went away.
G He speaks about taking the semiya to Ezhichur and dried the
semiya and sent it to the market. The employees were asked to
come early and on 01.01.2002, the company was on holiday. He
called PW10 on the 1st and he told him to call on the next day. He
came to the company on the 2nd at 11.00 A.M.. His employees
Rathnam, Chamundeswan were there with doors open and lights
H
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 107
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

burning but the outside gate locked. He immediately went to the A
public booth and called PW10 but got PW11. When he saw the
lock, it was merely wound by chain but not locked. They went
upstairs and saw cigarettes, two case beer bottle and two shoes.
The cot was damaged and there was a bedpan. PW34 poured
the urine inside it outside. At 12 to 12.30 P.M., a Maruti Van
B
came and a person came out and asked for articles lying there.
He went upstairs and took away a cardboard box, shoes kept in a
car and asked if there were anything left behind. He took the
articles that were kept near the wood storing place in the company
kept in a plastic sack. He again came at 02.00 P.M. and asked
that he has been sent to clean the place. The employee PW34 C
Chamundeswari admonished him saying that he has spoilt a place
where women are working and sent him back saying that they
will clean it themselves. He identifies the shoes as MO1 series.
He identified A3, A9, and A5.
In cross examination, inter alia, he states as follows: D
He saw A3 on December 10, 12. He further says he has
not seen the deceased and he did not know him. On 30.12.2001,
at 08.30 A.M., he went to the company office. He did not give the
key to anyone. A5 did not allow us to go upstairs and he did not go
upstairs. He says that disappearance of the deceased had come E
as news in papers and TV also. PW10 requested the company
premises for meeting and he has told that it will interfere in the
business and refused him the place for holding the meeting to
which PW10 insisted again. In the records there was nothing to
show that PW10 and PW 11 were shareholders.
F
YET ANOTHER INDEPENDENT WITNESS PW31
103. In context would be the deposition of a worker of PW34,
Samundeswari examined as PW31. She says, inter alia,as follows:
PW34 is the proprietor of the company. PW10 and PW11
became partners during 1999 and 16 persons are working. She G
was the supervisor. She speaks about attendance being
maintained. The company was closed for a period of one week
from 29.11.2001 treating as leave. Then they came to the company
on 6th December. They were informed that there were no meeting
convened. On 30th December she did not go for duty as it was
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108 SUPREME COURT REPORTS [2020] 10 S.C.R.

A Sunday. On 31st December, they were asked by PW34 to go to
Ezhichur to dry up the vermicelli and to pack the same and on the
1st January the company was on leave. On 2nd January, PW 31,
Nagarathinam and PW34 went and saw the company. The main
gate was found locked. While returning after making a phone
call, the owner found that the gate was not locked and only chain
B
along with was put. When they went upstairs, the cot was found
smashed and the lights were burning and the bottles and the bits
of cigarette were found in an ugly scene and about 11.30 A.M.
one person came upstairs saying that he has come to take a thing
from there and he has taken Rebook shoe marked as MOI and
C for the second time, the same person came in a car and taken
away something in a gunny bag. At the same time at about 02.30
P.M., one person came in a motorcycle and asked whether it is
cleaned and at that time she told him as to why you are making
the place ugly where the ladies are working. She states further
that on 18th March, one person was brought by the police to the
D
company and enquired from her and at that time on seeing that
person, told the police that she only shouted him and that if it is
asked her whether she could identify the said person she could
say that as it is a lapse of more than 2 years, she could not
remember that person. Regarding the cot she says that cot is in
E green colour and if she is asked to identify she could say that she
could not remember. The company owner PW34 declared holiday
on the suggestion of PW10. During police interrogation she did
not say that there was a bedpan. Her husband Vijay Kumar had
acted as partner, she deposes with PW10. Her husband had died
of heart attack. She had seen the shoe when it was taken away.
F
THE MATERIALS AGAINT THE ACCUSED WHO ARE
APPELLANTS THE MATERIALS AGAINST A3
104. On the basis of his(A3) arrest on 25.3.2002, he gave a
confession statement, which has been recorded in the presence of PW26.
G His statement led to the discovery of Maruti Zen Car bearing No.TN-
02-EZ-99. PW16 has also supported prosecution version and it is from
him ultimately the vehicle came to be seized. P20 is the admissible portion.
PW16 has identified A3. The Maruti car which has been marked MO12,
according to PW16, was taken in November, 2001 by A3 and returned
to PW16 only during February, 2002. The relevant aspect of the Maruti
H car is as follows:
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 109
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

PW11 has deposed that on 30.12.2001 at the factory A
premises, A9 called him over phone and told him to open the gate.
Then, he deposes about a Tata Sumo car coming first, followed
by Ford Escort Car and a Maruti zen car. The eyes and mouth of
the deceased was closed. His hands were tied. The deceased
was taken to the first floor. PW11 has identified the four persons
B
who brought the deceased in the position we have described a
little earlier. They are A4, A11, A16 and A17. A5 went in the zen
car which left the company. He had given further statement on
05.04.2002 wherein he stated that if taken to his office, he will
surrender the cassette, and bit paper given by A1 from the near
side of his wife’s photograph which are marked as MO28 and C
MO33.
105. The next circumstance appearing against the third accused
which corroborates the testimony of PW10 and PW11, is the
circumstance relating to the creation of a false death certificate of the
deceased. In our view, the prosecution has, indeed, succeeded in proving D
the following:
At the instance of A3, PW32 (medical practitioner) who
was known to PW33 was persuaded to issue a false certificate.
The certificate was got issued in the name of a fictional person
which is proved by the evidence of PW38 who has deposed that E
no such person (Rajamani Chettiar) who has been certified to
have died by PW32 lived in the residence as reported. PW36-
Office Assistant In-Charge of the Burial Ground has deposed
that on 02.01.2002, PW19 told him after he (PW36) left,
(apparently on the previous day) a body came and the Doctor’s
Certificate would be given on that day. The Certificate is P27. F
The certificate was, apparently, produced in view of what was
requested by PW19, a licence in the cremation ground, PW12
has become hostile but even PW12 has deposed about a person
being cremated, on 01.01.2002, in the night and his role along with
PW19 in it. The certificate was procured at the instance of A3. It G
was meant to facilitate the cremation of the dead body on the
date of the death. Going by the testimony of PW1, the deceased
was around 52 years. We say this because an attempt is made to
contend that for a person above 60 years, no certificate is insisted
upon to cremate as deposed by PW6. It may be that the age is
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110 SUPREME COURT REPORTS [2020] 10 S.C.R.

A shown as above 60. The circumstance of A3 creating the document
for which purpose A13 was an emissary (A13 has not filed any
appeal), goes a long way to strengthen the prosecution case. We
see no reason at all not to conclude that the body which was
cremated through PW19 and PW12 on 01.01.2002 was that of
the deceased. Not only would the cremation and that too under a
B
false name attract the offence under Section 201 of IPC, which
deals with the destruction of evidence of committing of offence
but it is an important chain in the list of circumstances which
unerringly points to the role of A3 and others in the crime of murder
also. The circumstance is a vital corroborative link which
C establishes the case of not only murder but relates back to the
abduction. This is for the reason that it will be absurd to believe
that the deceased went with the accused voluntarily and willingly,
particularly, when the evidence of PW13 and PW3 are also borne
in mind. We stand reminded that abduction takes place either when
there is force or deceit in causing a person to move from a place
D
under Section 362 of the IPC. PW10 has spoken of seeing the
deceased tied and blindfolded in the upstairs portion.
106. This is a case where the accused have not only carried out a
grave crime of murder but they have also attempted to efface the most
important evidence relating to the same, viz., the corpus delicti. We
E reject also the contention that the non-production of the body is fatal to
the prosecution case. The evidence of PW32, PW33 and PW36 (the
Officer of the Corporation before whom the certificate was produced)
and PW38 assumes critical significance. The hand of A3 from the
beginning, i.e., from the selection of the factory, arranging of vehicles,
F confinement and cremation, is crystal clear and his role in the murder is
established. It is in this context that evidence of PW10 and PW11 falls
to be appreciated. The evidence of PW34 clearly confirms clinchingly
the role of A3 and sufficiently corroborates PW10 and PW11. We would
arrive at the conclusion even excluding MO28 and MO33 as agreed to
by the Counsel for the State.
G
ACCUSED NO. 4 (A4)
107. A4 was arrested on 09.04.2002. He made a confessional
statement-P34 witnessed by PW39. It led to the recovery of Ford Escort
White Car TN1075554. PW10 deposed that he bought the same car
H though in the name of one Ranjit Singh. He further deposes that by the
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 111
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

end of November, 2001, A9 called him over phone and asked him for the A
said Ford car. A9 asked for two or three months. PW10 believing that
he will pay the rent, sent the car to the house of A9. The driver of A3-
Viji came and took that car. The use of the said car is mentioned by
PW10 thereafter by deposing that on 05.12.2001, A3 went out in the
said car which had been given by him for rent. He also identified A4 as
B
one among the three persons who followed them on that day. Thereafter,
the said car makes its appearance when he speaks about A3 telling A9
to be at the Woodlands Hotel and going along with A1 and A2 in the car.
He again speaks about A3 coming alone to the Woodlands Hotel by the
same car. Again around 07.00 P.M., A3, A9 and A1 came along with
one more person by the same car. That other person is none other than C
A5. Thereafter, he says, on 30.12.2001, at 05.00 P.M., the driver of A3
had left the car in his office. In his cross-examination, PW10 has deposed
that he bought the car for Rs.3,60,000/- from one Advocate Durai Pandi.
He, no doubt, admits that it is not in his name.
108. Passing on to PW11 in connection with the vehicle, PW11 D
has noted the Ford Escort car on 30.12.2001 as the car from which four
persons got down and those persons brought the deceased by closing his
eyes and mouth and hands being tied and took him to the first floor. He
has marked the Ford Escort Car as MO6. It is this car which stands
recovered on the basis of the statement given by A4. This is a case
based essentially on circumstantial evidence. The statement made by E
A4 led to the discovery of the car in the circumstances which have
already been explained in the evidence of PW10 and the presence of
A4, not only on 05.12.2001 but also on 30.12.2001, has crucial relevance
in particular the presence on 30.12.2001. A4 was present along with
three others and they emerged out of the very same car, viz., the Ford F
Escort car, in which, apparently, the deceased was brought. The condition
of the deceased, viz., his eyes and mouth being closed and hands being
tied and being taken to the first floor, are matters of moment in connecting
A4 with the gory episode having its origin in the abduction of the
deceased, his illegal confinement and culminating in his murder and
cremation. G

ACCUSED NO. 5 (A5)
109. PW10 refers to him, in his deposition, as coming along with
A3, A9 and A1 around 07.00 P.M. by the Ford Escort Car. He has been
identified by PW10. This is on 05.12.2001. A3 introduced him to A5 and H
112 SUPREME COURT REPORTS [2020] 10 S.C.R.

A though they (PW10 and PW11), provided food to Senthil Kumar-A1, it
was to be served only by A5. His involvement is further spoken about by
PW10 as having occurred on 30.12.2001. On the said day, PW10 speaks
about going to the residence of A9 on being called by him. A9 asked for
the keys of the factory. A9 asked A5 to drop him in the factory on a
bike. PW10 and A5 went to the factory. There is further reference to
B
the key being handed over by PW34 to PW10. The key was handed
over by PW10 to A3 who came in the auto. PW10 deposed about the
key being given to A5. On the fateful day, on 01.01.2002, when the
murder took place, PW10 has named A5 as going in a motorcycle to the
company. It went inside and was standing in the light. A cloth bag was
C there in the bike. The body of the deceased was brought from upstairs
by four persons. PW10 then deposes that a cloth was taken from the
bag brought by A5 and tied around the body of the deceased like doing
for a dead body. A5 is cited by PW10 as going in his motorcycle.
110. PW11 has also spoken about A3 telling them about the person.
D He identified him. He also says that A3 told that A1 is a VIP and only A5
will do everything for him and that they should not do anything (apparently
directly). He notices presence of A5 along with PW10 on 30.12.2001 at
the factory. A3 asked A5 whether the company is ready. A3 and A5 told
that they were going to the house of A9 and went from there. He speaks
about A5 going by the Zen car on 30.12.2001. Thereafter, about half-an-
E hour later, the Tata Sumo car came. In the same, A5 and three more
persons came with the tiffin parcel. These persons have been identified
as A6, A15 and A7. On 31.12.2001, by 12 Noon, on being asked by A9,
he purchases lunch and medicine and handed over to A5. On 01.01.2002,
A5 told PW11 that there was no need for getting dinner in the night.
F PW11 has also seen A5 going into the company. He also speaks about
dhoti brought by A5 used to tie-up the deceased and A5 leaving on a
motorcycle. A5, who was arrested on 18.03.2002[the first arrestee in
this case], has, in fact, given statement under which he has identified the
Maruti Omni Van MO9 bearing No. TN-A-7484, the place (factory) as
also the cremation ground. The Maruti Omni Van-MO9 is the Van which
G was used for abduction of the deceased. PW3 has spoken about a person
being pushed into a Maruti Van. The facts discovered based on statement
by A5 are very significant, and hence, most relevant, not only in revealing
his involvement but unravelling the entire prosecution case. A statement
under Section 27 of the Evidence Act is not only about the thing as such
H which is discovered consequent upon the statement but the knowledge
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 113
DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

attributable to the person who makes the statement about the matter, A
discovered, based on the statement. The evidence of PW44 who was a
Revenue Inspector and witness to the statement of A5 and identification
by A5, helps establishing his clear link and sufficiently corroborates PW10
and PW11. Lastly, PW34 has spoken about the presence of A5 on
30.12.01 and identified him.
B
A6, A7, A8 and A11
111. What is the evidence, as regards, these accused/ appellants
before us? Taking the evidence of the accomplices, PW10 has this to
say about them – He says that along with A4, A6 and A11 were present
on 05.12.2001 as two out of the three persons present in the residence C
of A3. He speaks about A3 telling the persons and A9 that Balan had to
be brought and some money to be collected from him. He also speaks
about the three persons as A4, A6 and A11, following him, PW11, A9 in
another car. He further speaks about their involvement when he deposed
that on 01.01.2002, A9 asked PW10 to wait at the hotel and he came
with a golden colour Maruti van. By 8 P.M. that Maruti van was taken D
by two persons from A9. Those two persons have been identified as A6
and A11. Presence of A6 and his involvement is further deposed by
PW10 when he states that the 6th accused was standing near the gate of
the factory later on 01.01.2002. PW10 and PW11 were asked to go
away. He speaks about PW10 and PW11 being scared after the threat E
by A6. He further identifies A6, A7 and A11 as among the persons who
were present near the deceased when he was tied up in the first floor of
the factory. He also identified A6, A7, A8 and A11 as the persons who
carried the dead body of the deceased. They go in the van with the
body. At this juncture, it is apposite to notice PW18 deposing that he is
the owner of van bearing No. TN 22-8853. He has deposed to giving the F
van to A9 on earlier occasions. More importantly, he has deposed to it
being taken by A9 on 01.01.2002 at about 10 A.M. and it being returned
only on 2.01.2002 and its seizure by the police on 30.03.2002.
112. Turning to PW11, the other accomplice, this is what he has
deposed about the involvement of the accused in question. PW11, for G
whatever it is worth in law, has also identified A6 and A11 as two out of
the three persons who were in conversation at the residence of A3 on
05.12.2001. He has also spoken about A3 telling A9 that the deceased
had to give some money and it has to be collected by bringing him. He
also speaks about A6 and A11, inter alia, following them in another car. H
114 SUPREME COURT REPORTS [2020] 10 S.C.R.

A He has identified A11 as one among the four persons who brought M.K.
Balan in the Ford car on 30.12.2001. He also identified A6 and A7 as
among the persons as two out of the three persons who came with A5 in
the Tata Sumo car which came again on 30.12.2001.
113. Now let us look at the other evidence available, pointing to
B the involvement of the aforesaid accused. PW21 is a Head constable
(Police). He has deposed to be on night duty on 01.01.2002. He speaks
about being given beat tickets along with PW35. He speaks about a
Maruti Omni van standing in the middle of the road. He and PW35 went
to the van. He asked the occupants what they were doing at that hour.
They told that they were celebrating the new year with drinks. Though,
C on become suspicious, they searched the van from inside but there was
nothing suspicious inside it. They continued with their duty. He has proved
P10 beat ticket. He has also identified the accused as A6, A7 and A11.
He also spoken about the identification done by him before the Magistrate
by way of TIP. He has proved P11 - the duty book.
D 114. PW35 is the constable referred to by PW21. He also speaks
about being on duty on 01.01.2002. He speaks about going with PW21
to Melpatti, Ponnappa Street from 24:00 hours (PW19 speaks about the
cremation from being at Melpatti, Ponnapa Mudali Street). He speaks
about finding of Maruti vehicle bearing no. TN-22-B8853 in Melpatti
E New Street. He speaks about interacting with the four persons. The
vehicle was standing near Perambur cemetery and the sodium lamp
was burning. He has proved P28 as his duty book. PW10 is also his beat
book. He has also identified A6, A7, A8 and A11 as the persons who
were present. He has also identified the van which he saw as MO7. He
has spoken about the identification done in the TIP.
F
115. It is relevant to remember that PW10 has identified A6, A7,
A8 and A11 as the persons who carried the dead body of the deceased
on 01.01.2002. It is also to be borne in mind that PW10 and PW11 have
spoken about their body being loaded in a golden colour Maruti van
which has also been identified by PW10 as MO7 and bearing the very
G same registration no. TN 22-B-8853. It is corroborated by the evidence
of PW35 (Police Constable). The evidence clinchingly points to A6, A7,
A8 and A11 being involved apparently at the behest of A3 and carrying
dead body of the deceased on the fateful day in the van and their presence
near the place where the deceased came to be cremated. To overlook
H the testimony of PW10 and PW11 in a case based on circumstantial
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 115
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evidence, being about matters which could not possibly, have been A
witnessed by any other witnesses other than the accomplices will be
asking for the impossible except perhaps concocted evidence.
116. A6 was arrested on 19.03.2002. He gave P16 which is the
admissible portion of his confession statement within the meaning of
Section 27 of the Evidence Act. He identified the Maruti omni van bearing B
no. TN-0343 which was parked in front of the house of PW37 and
seized under P17. The Maruti van itself has been marked as MO8 but
we would exclude the same from consideration for reasons which we
have discussed.
117. A7 was arrested on 20.03.2002. He gave the admissible portion C
of confession statement which is P38. PW42 is a Village Administrative
officer who has witnessed the statement. On the basis of the statement,
the green colour steel cot was seized. It is marked as MO11. It was
produced and seized under P38 which is also witnessed by PW42. PW34
and PW31 have also spoken about the cot apart from PW10. The evidence
of PW10 shows that when he went upstairs, he found that the deceased D
whose eyes were closed was tied with a chain and he was asked to sit
in a green colour steel cot. He has been identified by PW21 and PW35
police officers as one of the four, present near the spot of cremation.
118. A8 was arrested on 22.03.2002. He gave a confession
statement in the presence of PW23 and another witness, P14 is the E
admissible portion. PW35 police constable has identified him as one of
the four found in MO7 van on 01.012002 near the cremation ground.
119. We have noticed that PW11 has identified A11 as one of the
persons who brought the deceased in the Ford car to the factory. It is to
be remembered that PW11 has identified the accused in the Identification F
Parade conducted by the Judicial Magistrate. That apart, after arrest,
he gave P53-Statement. He has produced the Philips Stereo Cassette
Recorder which was recovered under P54-Mahazar marked as MO2.
To lend assurance to this circumstance, PW46, working in the Revenue
Department, has been examined. The tape-recorder was hidden in the G
house of A11.
120. Moreover, PW21 and PW35, Police Constables, have deposed
to seeing A11 near the graveyard on 01/02.01.2002. They were standing
near MO7. MO7 is the Van in which the deceased was taken from the
factory after the murder. It is the Golden Colour Maruti Van bearing No.
H
116 SUPREME COURT REPORTS [2020] 10 S.C.R.

A TN228853. PW11 has, in his deposition, given the same number in his
evidence as the number of the Van in which the body of the deceased
was taken away from the factory. Therefore, presence of A11, as noted
by PW11, from 30.12.2001 till after the murder and near the site of the
cremation, as noted by independent witnesses-PW21 and PW35, lend
sufficient assurance to the prosecution case against him. PW10 has also
B
deposed to identifying A11 as one of the three persons who were present
at the residence of A3 on 05.12.2001. It is on that day A3 said that the
deceased had to be brought and some money had to be collected from
him.
121. It must be remembered that the evidence in this case
C establishes that the deceased was indeed cremated under the name of a
fictitious person mentioned in the death certificate issued by PW32 (the
medical practitioner). It is also clear that such certificate is procured by
A3 through PW33. It is clear that A6, A7, A8 and A11 were clearly
involved.
D A14
122. With regard to A14, his involvement in the matter emerges
as one of the persons who stood in the upstairs of the building with the
deceased when the deceased was in the state of illegal confinement.
This, no doubt, is based on the testimony of PW10. No doubt, as far as
E A14 is concerned, there is no recovery. It is true that there is no direct
evidence that the accused abducted or murdered the victim. The case,
as already noticed, hinges on circumstantial evidence. We do notice that
A10 has been acquitted by the High Court. A10 himself was also named
by PW10 as present along with A14 at the time of the illegal confinement.
F The High Court has, in paragraph 33, assigned cogent reasons for
acquitting A10, including, inter alia, that PW11 though had identified
A10 in the Test Identification Parade, could not identify him in the Court.
The evidence against A14 has been believed in by both the Courts.
A15
G 123. A15 is the sole appellant in Criminal Appeal No. 828 of 2013.
124. PW3, the witness to prove the abduction has spoken about a
motor cycle following the Omni van. He earlier deposes that he saw
three persons were forcing a person to get into the van. A15 gave a
statement to the police in the presence of PW44 and another (Mutthu
H Rekku). The admissible portion of the statement is P50. As per PW44,
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 117
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he stated that he will provide the fashion Hero Honda bearing No. TN- A
05-C-6475. PW44 says that he identified the motorcycle parked in front
of a compound of a house at Gandhiji Street, Bharathi Nagar and also
the shoe. PW67 has spoken about recovery of the motor cycle under
P51 Mahazer. The motor cycle is MO10 while the shoe is MO1. Justice
Arun Mishra confirmed his conviction even after eschewing MO1 shoes.
B
[PW1 the son of the deceased deposed that the shoes showed by the
CBCID did not belong to his father]. As regards the motorcycle, PW10
has deposed that A9 wanted an ambassador car and a motor cycle.
PW10 got the motorcycle from his friend Akbar which is fashion vehicle
and navy blue in colour and gave it to A9. PW10 asked for return of the
motorcycle. He marks the motorcycle as MO10. C
125. As noticed, A15 has stated that he got the motorcycle from
one Akbar. PW48 is the said Akbar. His name is shown as Shaheed
Akbar. In his deposition, he has stated that he was having a fashion
motor bike Hero Honda but he states that he purchased through financier.
He further states that the Registration No. TN-04-J-1878 blue colour. D
He further states that PW10 was known to him well. He used to take
his vehicle often. Last year, during November, 2001, the said Venu (PW10)
apparently, had taken his vehicle and did not return it. The RC book
related with the vehicle is with the financier. He has produced and
marked as P58 photocopy of the RC of the said motor vehicle. He deposes
that motor bike seen by him which belongs to him. He further says that E
the registration number of the vehicle which he saw, was not in the said
motor bike. It is that motor bike which is marked as MO10. No doubt, in
the cross, he says that he does not know the wheel base and weight of
the bike, inter alia. He has neither issued any notice to PW10 nor had
he filed any complaint. He says that he has neither repaid any loan nor F
received any notice from any financier. MO10 was marked by PW10
and under the statement under Section 27 the vehicle which is seized
actually, has the registration no. TN-8-6785 whereas the vehicle which
PW48 from whom PW10 took the vehicle for giving it to A3 as requested
by A9, bears no. TN-04-J-1878. The evidence of PW48 makes it clear
that it is the same vehicle and he does, no doubt, say that the registration G
number of the vehicle was not in the said motorcycle. This means that
the vehicle marked as MO10 is, indeed, the vehicle belonging to PW48.
He makes it over to PW10. As requested by A9, PW10 handed it over
to A9. It would appear that the registration number, as was originally
seen on the motorcycle, has been changed. It is the motorcycle which H
118 SUPREME COURT REPORTS [2020] 10 S.C.R.

A was apparently seen by PW3 and used at the time of abducting the
deceased. The vehicle has been recovered at the instance of A15. Even
ignoring the shoe which is recovered on the basis of the statement, we
would think that the evidence sufficiently implicates A15.
A16
B 126. PW11 has deposed that they were amongst the four persons
who brought the deceased in the Ford car on the 30.12.2001. Moreover,
no doubt, in cross, he is unable to remember A16 which he persevered
with the names of other three. But he does speak of his presence at the
factory. Regarding A16, he was taken into custody, and on questioning
C in the presence of PW47 and another witness, he gave a confessional
statement. He stated that if he is taken, he would produce the black bag,
cell phone and knife from the house at Villivakkam. P56 is marked as
the admissible portion. On being so taken to the place at No.110/57,
Nehru Nagar, Villivakkam, he identified a Panasonic Cell Phone, sim
card with charger, one black colour carry bag, nine feet long yellow
D colour nylon rope and two chains. This is besides knife and three locks.
Therefore, it cannot be said that there was no corroboration for the role
of A16. It is quite clear that A16 was amongst the accused who brought
the deceased. His role in the abduction becomes clear. It is also clear
that the deceased is not only not alive but was undoubtedly done away
E by way of murder. Having abducted the deceased, it is clear that the
role of A16, as assessed by the Trial Court and further accepted by the
High Court, does not require interference.
Accused No.17 (A17)
127. A17 is again another accused who was one of the four persons
F identified by PW11 who brought the deceased on 30.12.2001 to the
factory. In this case, he was arrested on 01.07.2002. The principle that
abduction followed by murder raises a presumption that the abductor
was instrumental in murder was rightly invoked by the Trial Court.
AQUITTAL OF A12, THE INVOKING OF SECTION 109 OF
G THE IPC EVEN AGAINST A1 AND A2 – THE ACQUITTAL OF A3
TO A18 UNDER SECTION 120B OF THE IPC
128. In this regard, it is necessary to have a closer look at the
prosecution case. The case of the prosecution, in substance, is as follows:

H
SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE 119
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The first and second accused were close associates. The A
twelfth accused is the wife of the second accused. The third
accused belongs to ADMK party. The other accused except the
twelfth accused, were all the henchmen of the third accused.
During the month of November 2001, at the instance of the first
accused, the twelfth accused had spoken to the third accused
B
over phone posing herself as Sasikala (a leader of the ADMK
party). The twelfth accused told the third accused that she had
entrusted a work to the first accused for which the third accused
was to help him on the same day evening. A1 to A3 conspired and
planned as to how to kidnap the deceased and to take money
from him. As per their plan on 30.12.2001, the deceased came to C
be kidnapped (it must be abducted). He was taken to the factory
owned by PW34, illegally detained; was tied with the rope and
iron chain in a cot. They threatened him to give Rs. 16 crores and
the deceased refused to give the same. He was asked to tell what
is his property, and thereafter on 01.01.2002, the twelfth accused,
D
spoke over phone in the voice of Sasikala to the third accused
saying that if it is possible to get the money or else finish the
matter and to meet her with the first accused and the rest of the
matter would be informed by the first accused himself and
accordingly what was stated by him was recorded in a tape
recorder. The accused on the same day evening at about 09 P.M., E
by strangulation, murdered the deceased and to screen the crime,
the accused had taken the body in a vehicle and cremated the
body for which purpose a false death certificate was brought from
PW32.
THE ACQUITTAL OF A12 (Accused No.12) F
129. It must be remembered that A12 came to be charged under
Sections 419, 420 and 387 IPC read with 109 of the IPC. There is also
a charge under Section 120B of the IPC against her, as already noticed
by us. The Trial Court discusses the case against A-12 in the following
manner inter alia: G
It is found that the twelfth accused was an Anglo-Indian
lady. On a perusal of P65 which is the confessional statement
given by her under Section 164 of The Code of Criminal Procedure,
1973 (hereinafter referred to as ‘the CrPC’, for short), the Court
found that anyone would come to the conclusion that she was H
120 SUPREME COURT REPORTS [2020] 10 S.C.R.

A living as per the Indian culture. She is a mother of twins and
growing them well. The second accused is her husband. The
second accused, as per P65 statement, was suffering a loss and
facing financial problems. The second accused fell into the cunning
trap of first accused. The second accused forced the twelfth
accused to fall into the cunning trap of the first accused. The first
B
and twelfth accused got married out of their love affair. The
marriage took place at a temple as per Hindu Rites and Customs.
Initially, when first accused asked twelfth accused to talk like
Sasikala, she refused. Then the twelfth accused did not talk over
phone thereafter. The first accused pushed the second accused
C into his cunning trap and on account of that the twelfth accused
was convinced by the second accused and she has talked over
cell phone to the third accused as if Sasikala talked to him. There
was a threat by the first accused to the twelfth accused. A2 forced
his wife to act and to fall into the cunning trap. The Trial Court
further goes on to state that normally in foreign countries, it would
D
be commonly seen that while the husband is committing mistakes
and misdeeds, the wife would leave her husband and choose
anyone as her husband of her choice as that of changing clothes
every day. The Trial Court further finds that it is not the State in
our country. When the husband is doing any wrong deeds, the
E wife would mend her husband in some way or the other and when
the wife is trying to mend her husband and she is forced to do the
same by her husband, she would do it as what her husband is
asking her to do so and she thinks that her husband is as God and
thereby she is committing such mistakes. The Trial Court goes on
to hold that the twelfth accused that if she told anything about her
F
husband, he would be taken by the Police. As a result of that she
had been suffering and on account of the fact that she followed
the Tamil culture, she did not whisper anything about her husband.
It is clearly seen that the Court goes on to hold that A12 did not do
anything to attract the offence under Section 34 with the intention
G or motive and that she did not feel that she had done anything
wrong and she was doing anything only as to what was stated by
her husband and then she has been arrayed as A12. The Court
goes on to find that she cannot be held guilty under the fourth
charge which is framed under Sections 419, 420 and 387 read
with Section 109 of the IPC. However, the Court proceeds to find
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accused Nos. 1 and 2 had committed offences under Sections A
419 and 420 of the IPC.
130. A12 was not labouring under any disability. We may have
our reservation about exonerating A12 on the reasoning that as it was
perceived to be a part of the duty of the wife in the Indian culture to
obey her husband even when the demand of the husband is to commit a B
criminal act. We notice, however, that not only A12 was acquitted by the
Trial Court but the appeal by the State against her acquittal has been
dismissed by the High Court. The State has also not challenged her
acquittal before this Court. No doubt A12 would be criminally liable for
only those acts done with the requisite mens rea. Hence, we say no
more. C

131. What is, however, important is that it is not a case where the
Court has not believed the version of the prosecution that the twelfth
accused did make the calls posing herself as Sasikala.
132. It is true that arguments have been addressed that there is D
no evidence to show that A12 knew the voice of Sasikala and contention
is seen raised in Section 313 CrPC Statement of A3 that A3 knew the
voice of Sasikala. The prosecution would have to prove the negative if it
is called upon to prove that A3 did not know the voice of Sasikala. Though
it is the duty of the prosecution to prove the case, it may not extend to
holding that a matter which could be proved by the defence as something E
within his knowledge, the accused can sit tight. Further, the case of the
prosecution must, at any rate, be judged with reference to the actions of
A3 and the other accused who are described as his henchmen. The
wealth of evidence, extending even to A3, ‘procuring’ a totally false
death certificate, is formidable. It should be noted that the first charge F
was essentially framed that A1 to A3 had conspired. A1 and A2 have
accepted the verdict and we are not called upon to judge the correctness
of their conviction under Section 120B. It may be true that, though, there
is a charge against all the accused under Section 120B of the IPC, except
A1 and A2, all the other accused stand acquitted under Section 120B of
the IPC. G
133. The question would, therefore, arise as to what is the effect
of acquittal of the appellants before us under Section 120B. We are
primarily concerned with their conviction under Section 302 besides
Sections 387, 365 read with Section 109 of the IPC and Sections 364
and 201 of the IPC. The fact that the appellants have been acquitted H
122 SUPREME COURT REPORTS [2020] 10 S.C.R.

A under Section 120B will not, in our view, extricate them from criminal
liability for their acts which would constitute substantive offences under
Sections 302, 347 and 387 of the IPC.
A DEEPER GLANCE AT THE CHARGES; THE EFFECT OF
ACQUITTAL OF A12
B 134. The first charge is to the effect that A1, A2 and A3 conspired
in November, 2001 to kidnap the deceased and to extract money. It was
further agreed to murder him in case he refuses to pay money. Based on
the said conspiracy, on 30.12.2001 early morning, he was kidnaped,
detained at the factory and murdered on 01.01.2002. Thereby a charge
C under Section 120B of the IPC was framed against A1 to A18. The
second charge is about actual kidnapping (it must be understood as
abducting). The abduction is alleged to be done by A4, A7, A10, A11,
A14, A15, A16 and A17 in a Maruti Van bearing Registration No.
TNA7484. A15 went in a Hero Honda Motorcycle to show the route.
The deceased was kept at the factory belonging to PW34. The aforesaid
D accused were charged under Section 365 of the IPC. For abetment of
the said offences, A1 to A3, A5, A6, A8, A9 and A13 to A18 were
charged under Section 365 of the IPC read with Section 109 of the IPC
for going in a car bearing No. TN10F5555. All the accused, except A12
and A13, were charged under Section 387 for tying the deceased with
E iron chain and rope in a cot and he was threatened to part with Rs. 16
crores or else execute the documents in regard to his properties. The
fourth charge is to the effect that in order to fulfil such conspiracy, and
in pursuance to the same, at the instance and the instigation of A1 and
A2, A12 spoke to A3 in the voice of Sashikala uttering the words, if
possible, to get the amount or else close him and come along with A1
F and meet her-A12. Charges were accordingly framed against A12 under
Section 419, 420 and 387 of the IPC read with Section 109 of the IPC.
The fifth charge was in order to fulfil the object of the said conspiracy,
consequent upon the said occurrence, on 01.01.2002, A3, A4, A6 to A8,
A10, A11 and A14 to A18 committed the murder of the deceased by
G tying a rope around the neck and tightening it. Likewise, A1, A2, A5, A9,
A12 and A13 were charged under Section 302 of the IPC read with
Section 109 of the IPC for abetment of murder. There is a charge under
Sections 347 and 364 of the IPC for kidnapping against A3 to A11 and
A13 to A18 and A1, A2 and A12 were charged, with the aid of Section
109 of the IPC, under Sections 347 and 364 of the IPC. Charge was
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also framed against A8, A10, A11 and A13 to A18 under Section 201 of A
the IPC for cremation of the body and getting the false certificate as if
one Rajamani Chettiar had died due to heart ailment.
135. There is the argument addressed before us that the effect of
the acquittal of the appellants under Section 120B of the IPC would be
that their conviction under Section 302 of the IPC and other offences B
cannot be sustained. As we have noted, the charge under Section 120B
of the IPC is based on the conspiracy hatched between A1 to A3. No
doubt, the charges laid against A1 to A18 under Section 120B of the
IPC, is essentially based on the conspiracy between A1 to A3. It is to be
noted, however, the charge under Section 302 of the IPC is against A3,
A4, A6 to A8, A10, A11 and A14 to A18. It was A1, A2, A5, A9, A12 and C
A13, who were charged under Section 302 of the IPC read with Section
109 of the IPC.
136. We agree that for a charge under Section 109 of the IPC, a
minimum of two persons are required. There can be any number of
accused charged with the aid of Section 109 of the IPC. In order that D
there is abetment, it is indispensable also that there is a person who
abets another. To take an example, a person shoots with his gun on
being intentionally aided or instigated in doing so by another. The latter
would be guilty under Section 109 of the IPC along with the person who
actually carried out the murder by shooting. Thus, there is a principal E
player and the abettor. The principal player would be guilty for the acts
or omissions which amount to offences under the law. The abettor though
does not trigger the gun, if we may use the expression, “is the moving
force behind it and becomes liable as such”.
137. In this case, the Trial Court has proceeded to find the F
appellants (except A5) guilty of the fifth charge under Section 302 IPC
whereas the A1 and A2 have been found guilty of the charge of
conspiracy under Section 120B of the IPC. In other words, the idea to
commit the offences came into being in the minds of A1 and A2. The
other players have been roped in on the basis of their acts which was in
tune with the conspiracy hatched by A1 and A2. The acquittal of A12, G
who has been charged under Section 120B of the IPC and also for
offences under Sections 419, 420 and 387 of the IPC read with Section
109 of the IPC would not detract from the criminality of the acts
committed by the other accused and, in the facts of this case, we would
think that there is no illegality involved in convicting the appellants in the H
124 SUPREME COURT REPORTS [2020] 10 S.C.R.

A manner done under Section 302 of the IPC. The Trial Court has found
that the plan was the brainchild essentially of A1 and A2
138. We have noticed that the trial Court has essentially proceeded
on the basis that the appellants were except A5, charged under Section
302 under the 5th charge were guilty of the said charge (See paragraph-
B 167 for the discussion). We have referred to the paragraphs in the
judgment of the trial court wherein the trial court has found A3, A4, A6,
A7, A8, A9, A10, A11, A14, A15, A16 and A17 guilty under section 302
IPC. It must be noticed that it is without invoking Section 109 of the
IPC. However, it so happened, that in the initial portion of the judgment
of the trial Court it is mentioned that Section 109 was also invoked along
C with Section 302 which is inconsistent with the actual charge which was
adverted to and findings by the trial Court. It is on this basis apparently
that the High Court and this Court also proceeded in the matter. This
inconsistency must, in our view, be resolved by holding that the finding is
to be understood as one in terms of the 5th charge as discussed from
D paragraph 167 onwards of the judgment of the trial Court. We would
proceed to hold further that if it is so understood then the criticism levelled
that even A1 and A2 are convicted with the aid of Section 109 and there
would be no principal player would not hold good. We must appreciate
that the first charge is that a conspiracy was woven between accused
No.1, 2 and 3 within the meaning of Section 120B. It has not been found
E acceptable to the trial Court and only A1 and A2 are found guilty under
Section 120B of the IPC. The acquittal of A12 as we have noticed,
would not deflect from the factum of the conspiracy between A1 and
A2. So also, the acquittal of A3 in this regard. We have also touched
upon the provisions of explanation 5 to the Section 108 of the IPC. We
F further notice that A1 and A2 have been convicted under Section 302
read with Section 109. It is to be noticed that accused 1 and 2 have been
held guilty under Section 120B. It is necessary to notice Section 120B.
“120B. Punishment of criminal conspiracy. —
(1) Whoever is a party to a criminal conspiracy to commit an
G offence punishable with death,
2[imprisonment for life] or rigorous imprisonment for a term of
two years or upwards, shall, where no express provision is made
in this Code for the punishment of such a conspiracy, be punished
in the same manner as if he had abetted such offence.
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(2) Whoever is a party to a criminal conspiracy other than a criminal A
conspiracy to commit an offence punishable as aforesaid shall be
punished with imprisonment of either description for a term not
exceeding six months, or with fine or with both.”
(Emphasis supplied)
139. This means that since accused 1 and 2 are held guilty under B
Section 120B of the IPC to commit the murder of the deceased, they
are to be punished as if they have abetted the said offence. The judgment
of the trial Court is to be understood in the said vein. It is true that
abetment by conspiracy is only one form of abetment. There can be
alternate charges. There can be abetment by instigation and intentional C
acting even when there is no conspiracy and, therefore, no abetment by
conspiracy. The fifth charge against A1, A2, A5, A9, A12 and A13 would
be in the form of an alternate charge. We say this as A5 (Appellant
before us) in Criminal Appeal No. 2008 of 2017 is charged and found
guilty of murder under Section 302 of the IPC read with Section 109 of
the IPC. The role of A5, particularly, having regard to the statement D
under Section 27 of the Evidence Act, leading to recovery of the Van,
the discovery of the site of the factory and the cremation ground besides
other evidence, cannot be ignored. We have no hesitation in repelling
the contention of the appellants on this ground. It is clear that their acquittal
under Section 120B of the IPC will not impact their conviction under the E
other provisions.
CERTAIN CONTENTIONS OF A6
140. PW21 and PW35 have identified A6 in the Test Identification
Parade. The contention that there would be possibility of these witnesses
being seen before the Parade does not appeal to us. The presence of the F
Omni Van and A6 besides 3 others on the very date on which murder
was committed and near the site of cremation and the fact of cremation
of the body being done, is certainly a very important circumstance and
not to be ignored as contended. The fact that PW19 has not found it
possible to remember A6 though he has identified him in the Test G
Identification Parade before the Magistrate cannot lead to the obliteration
of the evidence relating to the cremation on 01.01.2002 and about 8
persons coming there. The fact that PW 19 has stated that the person
identified in MO14 photograph was the person cremated is not liable to
be brushed aside. We should also not be oblivious to the principle that in
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126 SUPREME COURT REPORTS [2020] 10 S.C.R.

A a case of this nature, the total effect of the circumstances, must be
borne in mind. It must be safe to believe the accomplice evidence based
on other materials available. We find the evidence of PW10 and PW11
credible and the presence and role attributable to A6 cannot be brushed
aside. The presence of A6 spoken to by the accomplices on 05.12.2001,
30.12.2001 and, particularly, on 01.01.2002 on which last day in carrying
B
the dead body in the van which is later identified by the police officer at
a spot near the cremation ground is certainly a vital circumstance which
cannot be brushed aside. The role of A6 in the illegal confinement appears
to be established. No doubt there is recovery of MO8 which is attacked
on the score that PW 24 “has identified A8 as A6”. We have dealt with
C it elsewhere and shall not be detained by it.
ABDUCTION, ILLEGAL CONFINEMENT, MURDER AND
CREMATION IN FICTITIOUS NAME
141. It is clear that the deceased was abducted on 30.12.2001. It
is also established that he was confined illegally at the upstairs portion of
D the factory at Moudihur owned by PW34. It is clear from the evidence
that it was the body of the deceased which was cremated and a fictitious
name was used and a certificate issued at the instance of A3(P27) which
circumstance is clinching in establishing the prosecution case. As far as
the murder is concerned, there is no direct evidence. There is no direct
E evidence that deceased is murdered by strangulating him. However, it is
equally true that on the basis of recovery made at the instance of A16 a
nylon rope and chain was recovered which undoubtedly strengthens the
prosecution case. There cannot be medical evidence relating to murder
in a case where the body stood cremated. We have no hesitation in
ignoring the evidence relating to recovery of certain parts of the body of
F the deceased but that is not sufficient for the accused to persuade us to
throw out the prosecution case. A carefully thought out criminal plan has
led to the cruel snuffing out of precious life. The players thought it through
meticulously by destroying the corpus delicti by cremation.
142. The abduction followed by murder in appropriate cases can
G enable a court to presume that the abductor is the murderer. Now the
principle is that after abduction, the abductor would be in a position to
explain what happened to his victim and if he failed to do so, it is only
natural and logical that an irresistible inference may be drawn that he
has done away with the hapless victim. Section 106 of the Evidence Act
H would come to the assistance of the prosecution. In this regard it is
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necessary to look at what this Court has laid down. In State of W.B. v. A
Mir Mohamad Omar27 this Court held as follows:
“13. Section 364 IPC says, whoever abducts any person “in order
that such person may be murdered or may be so disposed of as to
be put in danger of being murdered” he commits the offence
punishable under the section. So the important task of the B
prosecution was to demonstrate that abduction of Mahesh was
for murdering him. Even if the murder did not take place, the
offence would be complete if the abduction was completed with
the said objective. Conversely, if there was no such objective when
the abduction was perpetrated, but later the abductors murdered
the victim, Section 364 IPC would not be attracted, though in C
such a case the court may have to consider whether the offence
of culpable homicide (amounting to or not amounting to murder)
was committed.”
In this case the trial Court has convicted the appellants under
Section 364 IPC. This is apart from also convicting them either under D
Section 365 or under Section 365 read with Section 109 as already
discussed.
This Court in a later judgment reported in AIR 2001 SC 1436
Sucha Singh v. State of Punjab turned down the request of the appellant
to reconsider the ratio laid down in State of W.B. V. Mir Mohd. Omar E
(supra). In the said case, the conviction appears to have been only under
Section 302 though read with Section 34 of the IPC. It is pertinent to
note what this Court held speaking through Justice K.T. Thomas:
“19. We pointed out that Section 106 of the Evidence Act is not
intended to relieve the prosecution of its burden to prove the guilt F
of the accused beyond reasonable doubt, but the section would
apply to cases where the prosecution has succeeded in proving
facts for which a reasonable inference can be drawn regarding
the existence of certain other facts, unless the accused by virtue
of special knowledge regarding such facts failed to offer any G
explanation which might drive the court to draw a different
inference.

27 (2000) 8 SCC 382
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128 SUPREME COURT REPORTS [2020] 10 S.C.R.

A 20. We have seriously bestowed our consideration on the arguments
addressed by the learned Senior Counsel. We only reiterate the
legal principle adumbrated in State of W.B. v. Mir Mohd. Omar
[(2000) 8 SCC 382 : 2000 SCC (Cri) 1516] that when more persons
than one have abducted the victim, who is later murdered, it is
within the legal province of the court to justifiably draw a
B
presumption depending on the factual situation, that all the
abductors are responsible for the murder. Section 34 IPC could
be invoked for the aid to that end, unless any particular abductor
satisfies the court with his explanation as to what else he did with
the victim subsequently, i.e., whether he left his associates en
C route or whether he dissuaded others from doing the extreme act
etc. etc.
21. We are mindful of what is frequently happening during these
days. Persons are kidnapped in the sight of others and are forcibly
taken out of the sight of all others and later the kidnapped are
D killed. If a legal principle is to be laid down that for the murder of
such kidnapped there should necessarily be independent evidence
apart from the circumstances enumerated above, we would be
providing a safe jurisprudence for protecting such criminal
activities. India cannot now afford to lay down any such legal
principle insulating the marauders of their activities of killing
E kidnapped innocents outside the ken of others.”
143. We would think that the aforesaid principle would also apply
to those persons who illegally confine the person who stands abducted
even if there is no evidence that they have themselves carried out the
abduction. Section 387 is heightened form of extortion in which the victim
F is put in the fear of death or grievous hurt. Section 347 involves wrongful
confinement of a person for the purpose of committing extortion. The
appellants have been convicted under Sections 347 and 387 of the IPC.
This is not an inexorable rule but to be applied based on the factual
matrix presented before the court. Where abduction is followed by illegal
G confinement and still later by death, the inference becomes overwhelming
that the victim died at the hands of those who abducted/confined him.
Nobody has a case that the deceased died a natural death. In State of
W.B. (supra) therein, the Court, inter alia, held as follows:
“34. When it is proved to the satisfaction of the Court that
H Mahesh was abducted by the accused and they took him out of
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that area, the accused alone knew what happened to him until he A
was with them. If he was found murdered within a short time
after the abduction the permitted reasoning process would enable
the Court to draw the presumption that the accused have murdered
him. Such inference can be disrupted if the accused would tell the
Court what else happened to Mahesh at least until he was in their
B
custody.
35. During arguments we put a question to learned Senior
Counsel for the respondents based on a hypothetical illustration.
If a boy is kidnapped from the lawful custody of his guardian in
the sight of his people and the kidnappers disappeared with the
prey, what would be the normal inference if the mangled dead C
body of the boy is recovered within a couple of hours from
elsewhere. The query was made whether upon proof of the above
facts an inference could be drawn that the kidnappers would have
killed the boy. Learned Senior Counsel finally conceded that in
such a case the inference is reasonably certain that the boy was D
killed by the kidnappers unless they explain otherwise.
36. In this context we may profitably utilise the legal principle
embodied in Section 106 of the Evidence Act which reads as
follows: “When any fact is especially within the knowledge of
any person, the burden of proving that fact is upon him. E
37. The section is not intended to relieve the prosecution of
its burden to prove the guilt of the accused beyond reasonable
doubt. But the section would apply to cases where the prosecution
has succeeded in proving facts from which a reasonable inference
can be drawn regarding the existence of certain other facts, unless F
the accused by virtue of his special knowledge regarding such
facts, failed to offer any explanation which might drive the court
to draw a different inference.”
144. The deceased was brought in a Ford Escort car. He was
brought by A4, A11, A16 and A17. It is to be remembered that the case G
of the prosecution is that except A12, A4 to A18 were the henchmen of
A3. We have referred to the evidence against A6, A11 and A16. There
are material other than the deposition of PW11. We hold that the
accomplices are credible witnesses when the whole circumstances are
borne in mind. Their evidence may not be immaculate in character. By
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130 SUPREME COURT REPORTS [2020] 10 S.C.R.

A their very nature, that is being accomplices, any such claim would be
incongruous. But the test is whether it is safe to convict the accused
believing such witnesses. We are of the view that as regards the crime
and the accused, their testimony brings home the truth, as regards accused
who are appellants before us. There is no motive attributed to PW10
and PW11 to falsely implicate. The presumption of murder was rightly
B
drawn.
145. The role of A15 is clear who was not only been referred to in
the accomplice evidence but corroborates his link in the abduction with
the recovery of motorcycle at his instance. It has rightfully earned him
conviction under Section 365 IPC. There were two cars apart from the
C Ford Escort on 30.12.2001 at the site of the illegal confinement. From
the Maruti Zen, three persons emerged as witnessed by PW11. It is true
that PW11 has not identified them. That apart there was also a Tata
Sumo, PW11 no doubt identified A5 and A7 apart from A15 as the persons
who came back on 30.12.2001 with tiffin after leaving the factory.
D 146. The trial Court has convicted A4, A11, A15, A16 and A17
under Section 365 which in our view is unassailable in regard to these
accused who are also appellants before us. We do not see any error in
the court drawing the presumption that they are also guilty of murdering
the deceased.
E 147. PW3, it must be remembered has spoken of three men
pushing another into a van on 30.12.2001. The van moved and it was
followed by a motorcycle. It must be remembered that A15 gave a
statement leading to the recovery of a motorcycle. The evidence is relied
by the two courts and we see no reason to take a different view.
F 148. As far as A3, A5, A6 and A8 are concerned, they stand
convicted under Section 365 read with Section 109. Abetting is to be
understood in the context of their acting on the conspiracy which stood
proved against A1 and A2. No doubt, abetting also takes place when
there is instigation or intentional aiding. The role of A3 looms large. It is
G clear that he organised the whole thing and it commenced with the search
for an appropriate house where the victim could be confined after the
abduction. His role along with his men in carrying out the crime culminating
in the cremation under fictitious name of the abducted person is clear.
Not only there is evidence of PW10 and PW11 but other evidence which
includes PW32, PW33, PW36 and PW8.
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149. As far as A7 and A14 are concerned, they have also been A
convicted under Section 365 and also under Section 364. The involvement
of A7 is clear. He makes his maiden appearance in the accomplice
evidence as early as on 05.12.2001. PW10 has witnessed him standing
along with certain other accused by the side of the deceased who was
then clearly in the state of illegal confinement. He further establishes
B
his complicity by bringing down the body of the deceased on 01.01.2002
along with three others. His role is also corroborated by the testimony
of PW21 and PW35, Police officers.
150. A7 and A14 we would think ought to have been convicted
under Section 365 read with Section 109 of the IPC. We notice that A3,
A5, A6 and A8 stood convicted under Section 365 read with Section C
109. We notice however that the charge as against A7 and A14 was
under Section 365. We further notice the charge as against A14 is
concerned is also under Section 365 read with Section 109 of the IPC.
As already noticed all the appellants have been convicted also under
Section 364 of IPC. D
151. In this connection as regards the lack of a charge or defect
in a charge is concerned, it is one which is essentially intertwined with
the question of prejudice to the accused. See in this regard the judgment
of this Court in Willie (William) Slaney v. State of Madhya PradeshAIR
1956 SC 116. We do not think that prejudice is caused in this regard in E
the facts.
152. It must be noticed that the evidence in this case no doubt
through the mouth of PW10 and PW11 who alone have witnessed what
truly happened would establish that on 31.12.2001, PW10 saw A5, A6,
A7, A8, A11 and A14 when he saw the deceased who was at that time F
tied up on the first floor. We notice indeed that A10 has been acquitted
by the High Court, for which reason, stands given by the High Court.
Thus A5, A6, A7, A8, A11 and A14 are persons who can be and have
also been convicted in connection with the illegal confinement of the
deceased.
G
153. A4, A7, A11, A14, A15, A16 and A17 are persons who have
been found guilty under Section 365 of the IPC. A3, A5, A6 and A8
stand convicted under Section 365 of the IPC with the aid of Section
109 of IPC. All of them have also been convicted under Section 364 of
the IPC. In this regard there is a dichotomy involved. The law attaches
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132 SUPREME COURT REPORTS [2020] 10 S.C.R.

A criminality to the act or omission by a person. Another person may
become liable as an abettor, a person who has conspired and thus liable
under Section 120B, a person who has shared a common object and
thus become vicariously liable and if there be 5 or more persons under
Section 141 read with Section 149 or if the principle of vicarious liability
embedded in Section 34 of the IPC is attracted. In other words, for a
B
conviction under Section 364 actual abduction is necessary. A person
could no doubt be liable under Section 364 read with Section 34 or under
Section 364 read with Section 149 or under Section 364 read with Section
109 or if he is found guilty under Section 120B. In this case there is no
scope for either 120B or 149. However just as they have been found
C guilty under Section 365 we would support the conviction under Section
364 in the same manner namely the abduction within the meaning of
Section 364. The abduction is alleged to have been taken place on
30.12.2001. Be it remembered, that essence of abduction is forced
movement, inter alia, from any place. The offence would be committed
by any one who effects such abduction at any or all points of the route.
D
We have already noticed that in a given case, an abduction may attract
both sections 364 and 365. The distinguishing feature between the two
kinds of abduction, is the difference in the intent with which the abduction,
inter alia (as Sections 364 and 365 also deal with kidnapping), is carried
out. But so far as the intention attracts both provisions in a given case,
E conviction under both sections is not impermissible. However, when some
of the appellants are convicted under Section 365 simpliciter and others
are convicted under Section 365 read with Section 109, then the position
of those accused/ appellants in regard to conviction under Section 364
must also be the same. However, this difference in our approach in the
matter of conviction under Section 364, cannot advance the case of the
F
appellants, as abduction whether it is with the aid of Section 109 or
which is under Section 364 simpliciter, enables the Court to raise the
presumption of murder, in the absence of any explanation offered within
the meaning of Section 106 of the Evidence Act. In other words, while
we would find A4, A11, A15, A16 and A17 guilty under Section 364
G which is already found by the courts below, we would support the
conviction under Section 364 of other appellants on the basis that they
have been actively aided the abduction. In other words they would be
guilty under Section 364 read with Section 109 IPC. Also as far as A5,
A6, A7, A8, A11 and A14 are concerned, there is the evidence of PW10
that when he saw the deceased in a clear state of wrongful confinement,
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as he was found tied on the first floor of the factory, A5, A6, A7, A8, A11 A
and A14 were present. They have also been convicted under Sections
347 and 387 of the IPC. Also, in fact, we have already noted that on
30.12.2001, PW11 has deposed about three cars out of which the
deceased emerged out of one of them, viz., the Ford Escort. A4, A11,
A16 and A17 have been referred in the evidence of PW 11 as emerging
B
out of the car along with the deceased but it is quite clear that there
were more persons than A4, A11, A16 and A17 who were involved in
the abduction. In this regard it is profitable to remember that PW3 has
witnessed three persons pushing another into a Maruti Van early in the
morning on 30.12.2001. No doubt there is also a man on the Motorcycle.
Within hours when he is brought to the factory building, he comes out of C
a Ford Escort. There were two other cars which accompanied it. We
must bear in mind that under Section 362 of the IPC, abduction has been
defined, inter alia, as compelling a person to go from any place. It, no
doubt, also includes, such movement procured by deceitful means. To
make it more clear, if we see the plot unravelling, viz., the abduction, the
D
illegal confinement, the death of the deceased and his subsequent
cremation, the role of A3, A5, A6, A7, A8 and A14 in aiding the abduction,
appears to be made out. It is also clear that A5, A6, A7, A8, A11 and
A14 were involved in the wrongful confinement of the deceased. We,
no doubt, noticed that as far as A14 is concerned, there is no recovery,
as such, effected from him under Section 27 of the Evidence Act and E
there is essentially the evidence of PW10, as aforesaid. The same is
position about A17, whose involvement has been referred to by PW11,
the other accomplice. We, however, find that that the accomplice
witnesses, who have been relied upon by two courts, are to be treated
as credible witnesses and, even in the absence of corroborative evidence,
F
in the facts and circumstances of this case, we see no reason to disturb
that conviction. If that is so, even in the absence of any direct evidence
relating to murder, the presumption of murder, being committed by the
appellants before us, would apply. In fact, the courts below have drawn
a presumption about murder being committed. This is a presumption
which cannot be said to be drawn without any basis. Having regard to G
the facts and circumstances before us, we are of the view that it cannot
be contended that no case is made out against the appellants.
71. Applications for withdrawal of Criminal Appeal No.2007/2017
and Criminal Appeal No.2009 of 2017 are allowed. Criminal Appeals
2007 of 2017 and 2009 of 2017 are dismissed as withdrawn. Rest of the H
134 SUPREME COURT REPORTS [2020] 10 S.C.R.

A Criminal Appeals are dismissed. The bail bonds of the appellants who
have been released on bail under orders of this Court shall stand cancelled
and they shall surrender within three weeks to serve their sentences.

Devika Gujral Appeals disposed of.
B

C

D

E

F

G

H