Full Judgement
Somasundaram @ Somu Vs. State represented by Deputy Commissioner of Police
[Criminal Appeal No. 403 of 2010]
[Criminal Appeal No. 827 of 2013]
[Criminal Appeal No. 828 of 2013]
V. GOPALA GOWDA, J.
The present appeals arise out of the common impugned judgment and order dated 06.10.2007 in Criminal Appeal Nos. 698, 716 and 781 of 2004 and Criminal Appeal No. 685 of 2005 passed by the High Court of Judicature at Madras, whereby the conviction and sentences awarded to the accused- appellants by the Additional District and Sessions Judge, (Fast Track Court- I), Chennai were upheld for the offences punishable under different sections of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"), for the abduction and murder of one M.K. Balan (hereinafter referred to as the "deceased").
The following table outlines the conviction and sentences awarded to each of the accused by the Trial Court:
Senthil Kumar (A-1)
Section 120-B IPC: Imprisonment for life and fine of Rs. 50,000/- Section 365 IPC read with Section 109 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 387 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 302 IPC read with Section 109 IPC : Imprisonment for life and fine of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year. Section 347 IPC read with Section 109 IPC : Rigorous Imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 6 months. Section 364 IPC read with Section 109 IPC : Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 2 years. Hariharan (A-2) Section 120-B IPC: Imprisonment for life. Section 365 IPC read with Section 109 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 387 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 302 IPC read with Section 109 IPC : Imprisonment for life and fine of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year. Section 347 IPC read with Section 109 IPC : Rigorous Imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 6 months. Section 364 IPC read with Section 109 IPC : Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 2 years. Poonga Nagar Manickam (A-3) Section 120-B IPC: Acquitted under Section 235(1) of Code of Criminal Procedure, 1973(hereinafter referred to as the "CrPC"). Section 365 IPC read with Section 109 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 387 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 302 IPC read with Section 109 IPC : Imprisonment for life and fine of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year. Section 347 IPC read with Section 109 IPC : Rigorous Imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 6 months. Section 364 IPC read with Section 109 IPC : Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 2 years. Section 201 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 10,000/-, in default of payment, rigorous imprisonment for 1 year. Somasundaram (A-4) Section 120-B IPC: Acquitted under Section 235(1) of CrPC. Section 365 IPC read with Section 109 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 387 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 302 IPC read with Section 109 IPC : Imprisonment for life and fine of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year. Section 347 IPC read with Section 109 IPC : Rigorous Imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 6 months. Section 364 IPC read with Section 109 IPC : Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 2 years. Balamurugan (A-5) li>Section 120-B IPC: Acquitted under Section 235(1) of CrPC. Section 365 IPC read with Section 109 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 387 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 302 IPC read with Section 109 IPC : Imprisonment for life and fine of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year. Section 347 IPC read with Section 109 IPC : Rigorous Imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 6 months. Section 364 IPC read with Section 109 IPC : Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 2 years. Section 201 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 10,000/-, in default of payment, rigorous imprisonment for 1 year. Shankar Ganesh (A-6) Section 120-B IPC: Acquitted under Section 235(1) of CrPC. Section 365 IPC read with Section 109 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 387 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 302 IPC read with Section 109 IPC : Imprisonment for life and fine of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year. Section 347 IPC read with Section 109 IPC : Rigorous Imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 6 months. Section 364 IPC read with Section 109 IPC : Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 2 years. Section 201 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 10,000/-, in default of payment, rigorous imprisonment for 1 year. Irudhayaraj (A-7) Section 120-B IPC: Acquitted under Section 235(1) of CrPC. Section 365 IPC read with Section 109 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 387 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 302 IPC read with Section 109 IPC : Imprisonment for life and fine of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year. Section 347 IPC read with Section 109 IPC : Rigorous Imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 6 months. Section 364 IPC read with Section 109 IPC : Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 2 years. Section 201 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 10,000/-, in default of payment, rigorous imprisonment for 1 year. Jaibeam Anbu (A-8) Section 120-B IPC: Acquitted under Section 235(1) of CrPC. Section 365 IPC read with Section 109 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 387 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 302 IPC read with Section 109 IPC : Imprisonment for life and fine of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year. Section 347 IPC read with Section 109 IPC : Rigorous Imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 6 months. Section 364 IPC read with Section 109 IPC : Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 2 years. Section 201 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 10,000/-, in default of payment, rigorous imprisonment for 1 year. Udhayam Kumar (A-9) Section 120-B IPC: Acquitted under Section 235(1) of CrPC. Section 365 IPC read with Section 109 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 387 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 302 IPC read with Section 109 IPC : Imprisonment for life and fine of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year. Section 347 IPC read with Section 109 IPC : Rigorous Imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 6 months. Section 364 IPC read with Section 109 IPC : Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 2 years. Leela Shankar (A-10) Section 120-B IPC: Acquitted under Section 235(1) of CrPC. Section 365 IPC read with Section 109 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 387 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 302 IPC read with Section 109 IPC : Imprisonment for life and fine of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year. Section 347 IPC read with Section 109 IPC : Rigorous Imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 6 months. Section 364 IPC read with Section 109 IPC : Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 2 years. Section 201 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 10,000/-, in default of payment, rigorous imprisonment for 1 year. Sampath (A-11) Section 120-B IPC: Acquitted under Section 235(1) of CrPC. Section 365 IPC read with Section 109 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 387 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 302 IPC read with Section 109 IPC : Imprisonment for life and fine of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year. Section 347 IPC read with Section 109 IPC : Rigorous Imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 6 months. Section 364 IPC read with Section 109 IPC : Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 2 years. Section 201 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 10,000/-, in default of payment, rigorous imprisonment for 1 year. Romita Mary (A-12) Section 120-B IPC: Acquitted under Section 235(1) of CrPC. Swamikannu (A-13) Section 120-B IPC: Acquitted under Section 235(1) of CrPC. Section 365 IPC read with Section 109 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 302 IPC read with Section 109 IPC : Imprisonment for life and fine of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year. Section 347 IPC read with Section 109 IPC : Rigorous Imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 6 months. Section 364 IPC read with Section 109 IPC : Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 2 years. Section 201 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 10,000/-, in default of payment, rigorous imprisonment for 1 year. Sori Ramesh (A-14) Section 120-B IPC: Acquitted under Section 235(1) of CrPC. Section 365 IPC read with Section 109 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 387 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 302 IPC read with Section 109 IPC : Imprisonment for life and fine of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year. Section 347 IPC read with Section 109 IPC : Rigorous Imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 6 months. Section 364 IPC read with Section 109 IPC : Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 2 years. Section 201 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 10,000/-, in default of payment, rigorous imprisonment for 1 year. Bomb Selvam (A-15) Section 120-B IPC: Acquitted under Section 235(1) of CrPC. Section 365 IPC read with Section 109 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 387 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 302 IPC read with Section 109 IPC : Imprisonment for life and fine of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year. Section 347 IPC read with Section 109 IPC : Rigorous Imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment rigorous imprisonment for 6 months. Section 364 IPC read with Section 109 IPC : Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 2 years. Section 201 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 10,000/-, in default of payment, rigorous imprisonment for 1 year. Jagadeesan (A-16) Section 120-B IPC: Acquitted under Section 235(1) of CrPC. Section 365 IPC read with Section 109 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 387 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 302 IPC read with Section 109 IPC : Imprisonment for life and fine of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year. Section 347 IPC read with Section 109 IPC : Rigorous Imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 6 months. Section 364 IPC read with Section 109 IPC : Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 2 years. Section 201 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 10,000/-, in default of payment, rigorous imprisonment for 1 year. Gunasekar (A-17) Section 120-B IPC: Acquitted under Section 235(1) of CrPC. Section 365 IPC read with Section 109 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 387 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 1 year. Section 302 IPC read with Section 109 IPC : Imprisonment for life and fine of Rs. 50,000/-, in default of payment, rigorous imprisonment for 1 year. Section 347 IPC read with Section 109 IPC : Rigorous Imprisonment for 3 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 6 months. Section 364 IPC read with Section 109 IPC : Rigorous Imprisonment for 10 years and fine of Rs. 5,000/-, in default of payment, rigorous imprisonment for 2 years. Section 201 IPC : Rigorous Imprisonment for 7 years and fine of Rs. 10,000/-, in default of payment, rigorous imprisonment for 1 year. Naraimudi Ganesan (A-18) Section 120-B IPC: Acquitted under Section 235(1) of CrPC.
The aforesaid sentences imposed upon each one of the accused persons were ordered to run concurrently. Out of all the accused persons who were tried by the Sessions Court, only three, i.e., Manickam @ Poonga Nagar Manickam (hereinafter referred to as "A-3"), Somasundaram (hereinafter referred to as "A-4") and Bomb Selvam (hereinafter referred to as "A-15") are in appeal before us. Since we are only required to examine the correctness of the conviction and sentences as against these three accused persons, we shall restrict to the appreciation of facts and evidence relevant to these three accused persons only. The facts of the incident leading up to the case, the arrest of the accused persons followed by their trial and conviction are stated as under:
The case of the prosecution is that on 30.12.2001, at about 5:30 a.m., the deceased went for morning walk, but did not return home. As a result, his son, B. Manimaran (PW-1) lodged a missing person complaint at the Pattinapakkam Police Station at 11.00 a.m. The same was registered as Crime No. 986 of 2001. PW-66, the Inspector started the investigation. The statements of various witnesses were recorded.
The breakthrough came on 21.02.2002, when the Investigating Officer came to know of the involvement of Balamurugan (A-5) in the case through an informant. A-5 was arrested on 18.03.2002 by PW-67, who also recorded his statement, produced as Ex. P-43. On the basis of the statement of A-5, the FIR was altered and the offences under Sections 120B read with Sections 364, 365, 302 and 201 of IPC were added to the same. Subsequently, the rest of the accused persons were arrested on the basis of the statements of the witnesses. A-3 was arrested on 25.03.2002 and his statement was recorded, which is produced as Ex. P- 20.
On the basis of the evidence of A-3, M.O. 12- Maruti Zen Car, under mahazar Ex. P-6 was recovered on the same day. On 01.04.2002, A-3 and A-1 were remanded to police custody as per the order of the Magistrate for a period of ten days. A-4 was arrested on 09.04.2002 from Chrompet Railway Station. His statement was recorded as Ex.P-34 in the presence of PW-9. On the basis of the disclosure made in the statement, M.O.-6, Ford Escort Car bearing Registration No. TN-10-F-5555 was recovered, which has been produced as Ex. P-19. A-15 was arrested on 25.04.2002 from near the Egmore Railway Station, from where he was taken to the office of the CBCID. On the basis of the disclosure made in the statement of A-15, a 'Tiruvalluvar Hero Honda 6475', marked as M.O.-10 and a black coloured Reebok shoe, marked as M.O.- 1, kept inside the side box of that motor cycle were recovered.
5. On 14.06.2002, the final report under Section 173(2) of CrPC was filed in PRC No. 55 of 2002 before the XXIII Metropolitan Magistrate, Chennai, against A-1 to A-17 and one unknown person. Pursuant to further investigation and apprehension of A-18, final report was filed on 10.01.2003 under Section 120-B read with Sections 364, 365, 419, 437,387,302,402 and 201 of IPC .
6. During the course of the trial, the prosecution examined 67 Prosecution Witnesses to establish the guilt of the accused persons.
7. The Trial Court, after examining the evidence produced on record, convicted and sentenced A-1 to A-11 and A-13 to A-17, as specified in the table referred to supra. A-12 and A-18 were acquitted of all charges. The accused persons preferred appeals against their conviction and the State preferred an appeal against the acquittal of A-12 and A-18 before the High Court. The High Court, after consideration of the evidence placed on record, upheld the order of conviction and sentence passed by the learned Sessions Judge against all the accused, except A-10. A-10 was acquitted of all the charges by the High Court.
The appeals filed were accordingly, dismissed. The High Court, in the impugned judgment and order relied on the testimony of PW-1, the son of the deceased, who spoke about the fact that his father went on his usual morning walk but did not return and the testimony of PW-13, who saw the deceased walking. The next crucial link, according to the High Court is provided from the evidence of Venugopal (PW- 10) and Newton (PW-11), who saw some of the accused bringing the deceased into the vermicelli manufacturing factory premises at Mudichur on the morning of 30.12.2001. Both PW-10 and PW-11 also deposed as to the prior arrangements made by them on the direction of the accused persons, including the arrangement of the premises of the vermicelli factory, vehicles and food. PW-11 also deposed that he saw four of the accused persons carrying the dead body of the deceased. PW-32, the Doctor, deposed that at the instance of A-3, he had issued a death certificate to PW-33, which was needed to cremate the body of the deceased.
He also stated that he had done so without actually seeing the body of the deceased as he had known PW-33 for a long time and trusted him. Both the Trial Court and the High Court treated PW-10 and PW-11 as accomplices, keeping in view their role in the entire incident. The High Court then went on to examine the case law with regard to the reliability of the evidence of the accomplice. On this aspect, the High Court held as under:
"An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence. It would not be right to expect that such independent corroboration should cover the whole of the prosecution story on even all the material particulars.
If such a view is adopted, it would render the evidence of the accomplice wholly superfluous...... ......the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration." The High Court accordingly, came to the conclusion that the evidence of PW- 10 and PW-11 was reliable and could be considered while examining the guilt of the appellants. It was held as under: "PW-10 and PW-11 are accomplices and they were present at all stages along with the accused and aided them in very many ways, we have analysed their evidence with great care and caution.
It is true that both of them had not informed the occurrence to anybody and were not to be seen for more than a period of months. For their conduct they have given acceptable explanation. Both the witnesses have spoken that as they came to that A-3 and A-9 had indulged in an act of serious offence, they were threatened by the accused that if they reveal what had happened, they and their family members would be in danger. Afraiding such danger, they had hided themselves and therefore, they had not disclosed to anyone, only fearing not only to their lives but also to their family members......"
8. The High Court held that the case of the prosecution, as sought to be proved by the evidence of PW-10 and PW-11, is that PW-10 was a business associate of A-9. A-9 informed PW-10 that A-3 would get him in a post in a political party if he completed a task that was assigned to him. A-9 asked PW-10 to help him finish the same. At the request of A-9, PW-10 had arranged the vermicelli manufacturing factory premises belonging to PW-34 for a week. Further, A-9 informed A-3 of the place that had been chosen to carry out the task. PW-10, A-3 and A-9 then visited the places to inspect the suitability of the premises.
After the same had been approved by A-3, PW-10 at the request of A-3, arranged a Maruti van, table, chair, cot, bedpan etc. and kept the same in the said premises of the vermicelli manufacturing factory. PW-10 and PW-11 also made arrangements for procuring cash as and when A-3 and A-9 needed them. PW-10 and PW-11 also arranged rooms at Hotel Henkala, Tambaram for A-9. PW-10 also heard the driver of A- 3 asking him for a chain to tie the deceased. A-3 also asked PW-10 to provide food for those who are staying in the vermicelli factory premises.
PW-10 and PW-11 also saw four of the accused persons bringing down the body of the deceased, which was loaded in the van and taken out of the place. PW- 10 was also informed by A-13 that the body of the deceased had been burnt in the Erukancheri cremation ground. PW-10 then left for Bangalore and stayed there till he was informed by his wife on 18.03.2002 that A-5 was arrested by CBCID police in connection with the murder of the deceased.
9. The High Court further observed that PW-10 has implicated A-1 to A-11 and A-14. He also identified A-4, A-5, A-6, A-7, A-8, A-11 and A-15 on three occasions as spoken to by PW-60, the Magistrate who conducted the identification parade. On the issue of delay in test identification parade, the High Court held that: "In a complicated investigation like this, where there was no clue for the involvement of any of the accused till A-5 was arrested on 18.03.2002, the delay in holding the test identification parade, if at all from the last arrest of A-16, i.e., on 22.05.2002 would not in our view render the same inconsequence and consequently it would not affect the test on the ground of delay."
10. The High Court placed reliance on the decision of this Court in the case of Daya Singh v. State of Haryana[1] for the same. The High Court further held that the common object for the offence was to collect some money from the deceased, and in case the money did not come through, to do away with the deceased. The High Court held that to achieve the common object, they had conspired together.
11. Further, on the contention that the body which was cremated was not identified by anybody, the High Court held that the man who was abducted on the morning of 30.12.2001, was kept in the vermicelli factory premises by the accused persons, and was murdered there. His body was cremated in the Perambur crematorium. It was held that the circumstances adequately point to the same.
12. The High Court, therefore, held that the conviction and sentence imposed by the Trial Court in respect of all the accused persons is liable to be confirmed as the same does not suffer from any infirmity in law.
13. The correctness of the impugned judgment and order passed by the High Court is under challenge in these appeals by three of the accused-appellants, i.e. A-3, A-4 and A-15 in support of which they have urged various facts and legal contentions before this Court.
14. The rival legal contentions urged on behalf of the accused persons and the prosecution are stated hereunder: Contentions urged on behalf of the accused-appellants: Mr. Siddharth Luthra, learned senior counsel appearing on behalf of A-4 in Criminal Appeal No. 403 of 2010, contends that the conviction of the appellant is wholly erroneous and is liable to be set aside.
The learned senior counsel contends that the recovery of the Ford Car (M.O.- 6) was not done in accordance with law, and thus, the same is vitiated. According to the statement given by A-4 to the Police [Ex. P- 34], he had stated as under: "If I am taken, I will identify the house, in Chrompet, wherein we were staying and the Muddichur Vermicelli Factory, wherein we had detained M.K. Balan and the cars which were used by us for the kidnapping of Balan."
The Ford Car in question, M.O-6 was recovered from the house of PW-10 on 09.04.2002. In the evidence of PW-10, he had deposed that he had purchased M.O.6 Ford Car for Rs.3,60,000/-. He had bought the same from one Advocate Duraipandi. He further stated that M.O.6 was not registered in his name. It was registered in the name of one Ranjit Kumar. The learned senior counsel contends that in the absence of the proof of ownership of the vehicle, the only evidence of the use of the vehicle on 30.12.2001 is the testimony of PW-10, and the same cannot be used against A-4.
The learned senior counsel further contends that since the accused A-4 has been acquitted of the charge under Section 120-B of IPC, Section 10 of the Indian Evidence Act, 1872 (hereinafter referred to as the "Evidence Act") has no application either. Section 10 of the Evidence Act reads as under:
"10. Things said or done by conspirator in reference to common design. Where there is reasonable round to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it." The learned senior counsel places reliance on the decision of this Court in the case of State v. Nalini[2], wherein the scope of Section 10 of the Evidence Act was discussed as under:
"The first condition which is almost the opening lock of that provision is the existence of "reasonable ground to believe" that the conspirators have conspired together. This condition will be satisfied even when there is some prima facie evidence to show that there was such a criminal conspiracy. If the aforesaid preliminary condition is fulfilled then anything said by one of the conspirators becomes substantive evidence against the other, provided that should have been a statement "in reference to their common intention". Under the corresponding provision in the English Law the expression used is "in furtherance of the common object".
No doubt, the words "in reference to their common intention" are wider than the words used in English Law...... ............We cannot overlook that the basic principle which underlies in Section 10 of the Evidence Act is the theory of agency. Every conspirator is an agent of his associate in carrying out the object of the conspiracy. Section 10, which is an exception to the general rule, while permitting the statement made by one conspirator to be admissible as against another conspirator restricts it to the statement made during the period when the agency subsisted. Once it is shown that a person became snapped out of the conspiracy, any statement made subsequent thereto cannot be used as against the other conspirators under Section 10."
The learned senior counsel contends that since A-4 has been acquitted of the charge of conspiracy, no statement made by any witness or accused which seeks to prescribe any sort of common intention can be used against A-4. The learned senior counsel further contends that the only relevant testimonies as far as A-4 is concerned are that of Manimaran (PW-1), Sudhakar (PW-3), Venugopal (PW-10), Newton (PW-11), Krishnapandi (PW-34) and the Investigating Officer (PW-67). PW-3, who is one of the eyewitnesses to the kidnapping of the deceased, deposed in his evidence as under:
"......On 30.12.2001, at about 5.30 A.M. as usual I started to run. By that time, I heard a sound. I saw that 3 persons were forcing a person to get into a van at a distance of about 75 metres. Thereafter, all of them went in the same van. It's an Omni Van. A motor cycle followed that van. Thereafter, my friend Selvam came there. I told this to him. I told Selvaraj Master. Selvaraj Master told me "Why should we bother about others"......"
The learned senior counsel further contends that PW-3 thus, neither names, nor identifies nor prescribes any specific role to A-4 in kidnapping of the deceased on 30.12.2001. The learned senior counsel further contends that according to the evidence of PW-3, the deceased was kidnapped in an Omni Van, which was followed by a motorcycle. However, even if the alleged confession of A-4 is taken to be true, what was recovered at his direction was a Ford Escort Car (M.O.6). The learned senior counsel further contends that during the trial, the prosecution has not arrayed PW-10 and PW-11 as accused, nor have they been made approver in the case.
Thus, the testimonies of PW-10 and PW-11 cannot be relied upon in absence of corroboration from independent sources, as the same are in the nature of accomplice evidence in terms of Section 133 of the Evidence Act. The learned senior counsel places reliance on the decision of this Court in the case of Rameshwar v. State of Haryana[3]:
"......The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, and in jury cases, must find place in the charge, before a conviction without, corroboration can, be sustained......"
The learned senior counsel further places reliance on the three judge bench decision of this Court in the case of Bhiva Dolu Patil v. State of Maharashtra[4]: "......the provisions of s. 133 of the Evidence Act which reads:- S. 133 "An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice". It cannot be doubted that under that section a conviction based merely on the uncorroborated testimony of an accomplice may not be illegal, the courts nevertheless cannot lose sight of the rule of prudence and practice which in the words of Martin B in Res. v. Boyes (1861) 9 CCC.
32 "has become so hallowed as to be deserving of respect" and in the words of Lord Abinger "it deserves to have all the reverence of the law". This rule of guidance is to be found in illustration (b) to s. 114 of the Evidence which is as follows :- "The court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars"........."
The learned senior counsel contends that PW-10 and PW-11 were witnesses to the entire conspiracy and does not prescribe any role to A-4 after the meeting on 05.12.2001 at the house of A-9. Nor does he prescribe any specific role to A-4 for the kidnapping of the deceased on 30.12.2001.
The learned senior counsel further places reliance on the cross examination of PW-10 which reads as under: "When I and Newton had gone to the house of the 3rd accused Manickam, 3rd accused Manickam said to the persons available there that the Ex M.L.A. Balan has to be brought and that some money has to be collected from him. After hearing this it was not struck to me that it could be violence act. After Manickam said as such I and the witness Newton came out of the house. I do not know what they had spoken and decided thereafter.
Thereafter I did not see the accused Somasundaram........."
(emphasis laid by this Court)
The learned senior counsel contends that PW-10 does not place A-4 on the spot at the vermicelli factory at any of the days from 30.12.2001 till 01.01.2002. Further, in his cross examination he admits the fact of not having seen A-4 after 05.12.2001. According to PW-10, A-4 was not even one of the four persons who carried the body of the deceased out of the premises of the vermicelli factory. The learned senior counsel further contends that since A-3 to A-11 and A- 13 to A-17 have been acquitted by the Trial Court of the offence punishable under Section 120-B of IPC, the conviction under Section 107 of IPC cannot be sustained. Reliance has been placed on the decision of this Court in the case of Pramatha Nath Talukdar v. Saroj Ranjan Sarkar[5], wherein it was held as under:
"Furthermore, it appears to me that though the expression "criminal conspiracy" occurs in para. 5 of the complaint, the facts alleged in the petition of complaint essentially disclose an offence of abetment by conspiracy. This brings us to the distinction between the offence of criminal conspiracy as defined in s. 120A and the offence of abetment by conspiracy as defined in s. 107 of the Indian Penal Code . Section 120A which defines the offence of criminal conspiracy and s. 120B which punishes the offence are in Ch. VA of the Indian Penal Code. This Chapter introduced into the criminal law of India a new offence, namely, the offence of criminal conspiracy.
It was introduced by the criminal Law Amendment Act, 1913 (VIII of 1913). Before that, the sections of the Indian Penal Code which directly dealt with the subject of conspiracy were these contained in Ch. V and s. 121 (Ch. VI) of the Code. The present case is not concerned with the kind of conspiracy referred to in s. 121A. The point before us is the distinction between the offence of abetment as defined in s. 107 (Ch. V) and the offence of criminal conspiracy as defined in s. 120A (Ch. VA). Under s. 107, second clause, a person abets the doing of a thing, who engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and an order to the doing of that thing.
Therefore, in order to constitute the offence of abetment by conspiracy, there must first be a combining together of two or more persons in the conspiracy; secondly, an act or illegal omission must take place in pursuance of that conspiracy, and in order to the doing of that thing. It is not necessary that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. It is worthy of note that a mere conspiracy or a combination of persons for the doing of a thing does not amount to an abetment.
Something more is necessary, namely, an act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing for which the conspiracy was made. Before the introduction of Ch. VA conspiracy, except in cases provided by Sections 121A, 311, 400, 401 and 402 of the Indian Penal Code , was a mere species of abetment where an act or an illegal omission took place in pursuance of that conspiracy, and amounted to a distinct offence. Chapter VA, however, introduced a new offence defined by s. 120A.
That offence is called the offence of criminal conspiracy and consists in a mere agreement by two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means; there is a proviso to the section which says that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
The position, therefore comes to this. The gist of the offence of criminal conspiracy is in the agreement to do an illegal act or an act which is not illegal by illegal means. When the agreement is to commit an offence, the agreement itself becomes the offence of criminal conspiracy. Where, however, the agreement is to do an illegal act which is not an offence or an act which is not illegal by illegal means, some act besides the agreement is necessary.
Therefore, the distinction between the offence of abetment by conspiracy and the offence of criminal conspiracy, so far as the agreement to commit an offence is concerned, lies in this. For abetment by conspiracy mere agreement is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for. But in the offence of criminal conspiracy the very agreement or plot is an act in itself and is the gist of the offence."
(emphasis laid by this Court)
The learned senior counsel submits that the language of the charge is that of abetment for fulfilling the conspiracy against the accused persons. As the charge under Section 120-B of IPC has not been proved, Section 107 of IPC cannot be attracted in this case as the distinction between the offence of abetment by conspiracy and offence of criminal conspiracy is that in the former, a mere agreement among persons is not enough. Mr. Basant R., the learned senior counsel appearing on behalf of A-3 submits that A-3 has been acquitted of the offence under Section 120-B of IPC.
The learned senior counsel further submits that A-3 was never charged with the offences under Sections 34 and 149 of IPC . He was only charged with the offence under Section 109 of IPC , which by itself was a vague charge, making it impossible to defend. The learned senior counsel contends that the inclusion of the charge under Section 109 of IPC would indicate that A-3 was in fact not involved in the actual murder of the deceased. It is further contended that once the charge under Section 120B of IPC fails to be established, the prosecution has to show the exact manner in which the abetment of an offence was done by A-3.
The learned senior counsel contends that this did not happen in the instant case. The learned senior counsel further contends that as far as the charge of offence under Section 302 of IPC is concerned, even that has not been proved by the prosecution satisfactorily. At the outset, the learned senior counsel contests the factum of the death of the deceased itself.
It is contended that no prosecution witness has identified the dead body that was burnt on the night of 01.01.2002. No DNA tests have been conducted to conclusively verify the identity of the body that was allegedly burnt on 01.01.2002. It is submitted that the reliance placed by the courts below on the evidence of PW-32 and PW-33 is also misplaced. PW-33 stated in his testimony that A-3 had told him to procure a death certificate for one Rajamani Chettiar who had died. PW-33 then asked PW-32, a doctor he knew for the last fifteen years to issue the same. There is nothing to actually connect A-3 to the death certificate except the spoken word of PW-33. It is contended that it was in fact PW-32 and PW-33 who created the false evidence, and are now conveniently pinning it squarely on A-3.
The learned senior counsel further contends that the specific role of A-3 in the murder of the deceased has not been proven, which makes it erroneous in law to convict him of the offence under Section 302 read with Section 109 of IPC .
The learned senior counsel further contends that the testimony of PW-10 and PW-11 should not be relied upon, as their evidence is not corroborated by other material evidence. The learned senior counsel further contends that the fact that PW-10 and PW-11 have not been termed as 'accomplices' by the courts below and their evidence has no bearing on the reliability to record the finding of guilt. The fact that the term 'accomplice' has not been used to describe them is irrelevant, as if the evidence on record points to them being accomplices, then PW-10 and PW-11 are in fact, accomplices.
The learned senior counsel further submits that the term accomplice has not been defined in any statute. He places reliance on the definition of the term 'accomplice' in Black's Law Dictionary, in which it has been defined as under: "One who is in some way concerned or associated in commission of crime, a partaker of guilt, one who aids or assists, or is an accessory." Ramanatha Aiyar's Law Dictionary defines 'accomplice' as:
"There is some authority for using the word 'accomplice' to include all principals and all accessories, but the preferred usage is to include all principals and accessories before the fact, but to exclude accessories after the fact. If this limitation is adopted, the word 'accomplice' will embrace all perpetrators, abettors and inciters. The term in it fullness includes in its meaning all persons, who have been concerned in the commission of a crime, all participles criminis, whether they are considered in strict legal property as principals in the first or second degree or merely as accessories before or after the fact." The learned senior counsel submits that the burden upon the accused to show that someone is an accomplice is only to the extent that the term accomplice is commonly understood.
The burden on the accused is not to show the guilt of the witness beyond reasonable doubt. The learned senior counsel contends that it becomes clear from a perusal of the testimony of PW-10 and PW-11 (extracted in the earlier part of this judgment) that they were actively involved in the preparation of the crime. The learned senior counsel further contends that the testimony also clearly shows that both the PWs had full knowledge of the purpose for which they were making the preliminary preparations, i.e., for the abduction of the deceased and keeping him in the premises of the vermicelli factory.
The learned senior counsel further submits that PW-10 and PW-11 can by no stretch of imagination be said to be approvers, as no court has granted them pardon and made them as approvers. On the question of the role prescribed by PW-10 and PW-11 to A-3, the learned senior counsel submits that there is no evidence which suggests that A-3 came in contact with the deceased while he was at the vermicelli factory premises. PW-10 had deposed as under: "On 30.12.2001 at 8:30 A.M., Udaykumar called me over my cell phone. Asked me to come to Henkala Hotel. I also went there.
After sometime Accused Manickam came by Uno car. After coming to the room, he asked Udaykumar that he need a Maruti Van. Manickam took myself, Udaykumar and Senthilkumar in that Maruti Van and went to the vermicelli factory at Mudichur. When we went to the company, Manickam alone got down and was standing there. One person came down from upstairs and took me and Senthilkumar to upstairs. There were about 5 or 6 persons. Ex. M.L.A. Balan was tied up with chain and his eyes were also closed with a cloth and he had been made to sit on the green steel cot which was provided by us already........."
Further, PW-10 identifies four accused who brought down the dead body of the deceased and A-3 is not one of these four accused. The learned senior counsel contends that even if the evidence of PW-10 and PW-11 are accepted in toto, it does not at all suggest that A-3 was present in the vermicelli factory, which is the alleged scene of crime when the death occurred. Hence, the charge of the offence under Section 302 read with Section 109 IPC cannot be sustained against A-3 at all. Mr. P.V. Yogeswaran, the learned counsel appearing on behalf of A-15 contends that there is nothing in the evidence to directly implicate A-15 except M.O.1, the Reebok shoes produced by the prosecution on record which allegedly belonged to the deceased. PW-1 however, in his testimony stated that M.O.1 showed to him in court, did not belong to his father. PW-2, the driver of the deceased has also denied that those shoes belonged to the deceased.
The learned counsel further submits that the testimony of PW-10 and PW-11 cannot be relied upon, as the proper procedure as required under Section 164 of CrPC has not been followed by the Court while recording their evidence. Contentions urged on behalf of the prosecution: On the other hand, Mr. Yogesh Kanna, the learned counsel appearing on behalf of the State of Tamil Nadu contends that there is no infirmity in the impugned judgment and order passed by the High Court, upholding the conviction and sentence passed against the accused-appellants by the Trial Court, and the same need not be interfered with by this Court in exercise of its jurisdiction under Article 136 of the Constitution of India.
The learned counsel places reliance on the evidence of Venugopal (PW-10). PW-10, in his deposition mentions the scouting for locations that had taken place, to carry out the most suitable location where the crime could be carried out. He deposed as under: "In the second week of November, 2001, this Accused Udayakumar called me over telephone and came to my office. At that time he asked me whether the houses are ready. I replied him that I have made them ready.
Next day, Udaykumar called me once again and asked me and Newton to be in the office. He also told me that Poonga Nagar Manickam of Perambur is coming to my office. Around 2 P.M. on that day Udaykumar and Poonga Nagar Manickam came to my office. I and Newton were present in our office. Myself and Newton took Poonga Nagar Manickam and Udaykumar for the purpose of showing the houses. First we went from Tambaram to Camp Road and in a considerable distance from there to Mahalakshmi Nagar and showed my friend Mr. Choudry's house. Besides that, we showed 4 or 5 houses in that place. At last, they saw my house also.
Then Manickam told Udaykumar that he don't like the houses shown by us including my house. Then, Udaykumar asked to show the Vermicelli factory in Mudhichur Road. Myself and Newton took Poonga Nagar Manickam and Udayakumar and showed the Vermicelli factory in Mudichur Road. Witness Krishnapandi was also there. Manickam saw the factory. After seeing the factory, Manickam told Udayakumar that this place is the correct place for the work to be done by us."
38. The learned counsel further contends that apart from explaining the meetings between the accused persons to hatch the conspiracy to abduct the deceased, PW-10 has also spoken about the Maruti Van that was used to carry the dead body of the deceased after the crime had been committed. PW-10 has deposed as follows: "On 30.12.2001 at 8:30 A.M., Udaykumar called me over my cell phone. Asked me to come to Henkala Hotel. I also went there. After sometime
Accused Manickam came by Uno Car. After coming to room, he asked Udayakumar that he needed a Maruti Van. He went outside and brought one sandal colour Maruti Van. Manickam took myself, Udayakumar and Senthilkumar in that Maruti Van and went to the vermicelli factory at Mudichur. When we went to the company, Manickam alone got down and was standing there. One person came down from upstairs and took me and Senthilkumar to upstairs. There were about 5-6 persons. Even Ex MLA M.K. Balan was tied up with chain and his eyes were also closed with a cloth and he had been made to sit on the green steel cot which was provided by us already.
He was wearing black pant and sandal colour T-shirt......" The learned counsel further submits that PW-10 in fact also saw the accused carrying the body of the deceased out of the vermicelli factory premises. The relevant portion of his evidence is extracted hereunder: "On 1.1.2002 morning, I came back to my house. By 10:30 a.m. Udayakumar called up over phone and asked me to come to Henkala Hotel. I also went there. After sometime Manickam came there. Manickam asked Udayakumar to provide an ambulance to him. Udayalumar took me with him and went to 2,3 places in search of an ambulance.
He could not find ambulance. Then Manickam told him that if ambulance is not there it does not matter, but to arrange one Maruti Van and fix one Lumax light as fixed in ambulance vehicle. By that time, Manickam's driver Viji came there......After sometime Manickam called Udayakumar over phone. Then Udayakumar told me that Manickam asked me to arrange for a Maruti Van. Udayakumar asked me to wait there and went out and came back with a Maruti Car. That Maruti Van is of gold colour......I came to a tea shop with Newton by his motor cycle. Newton told me that lunch was not supplied in the afternoon to the Vermicelli factory and they have told over phone that they do not need dinner also. I also told Newton about their requirement of ambulance.
Also I told him that they are arranging for a vehicle like ambulance. I told him about Udayakumar sending the Maruti van by 8.00 P.M. and also about my fear on seeing all these. Newton was also very much scared. Both of us suspected that something is going on in the company. Then, both of us started around 8:45 P.M. from Tambaram and reached the Mudichur company by 9.00 P.M. There the gate in the ground floor was closed......The Golden colour Maruti sent from Henkala Hotel was standing there......Then 4 persons came from upstairs carrying on Mr. M.K. Balan's body. Among that four persons, 2 persons were holding his legs and the other 2 persons were holding his hands.
By that time also M.K. Balan was wearing black colour pant, and sandal colour T shirt. After coming from the upper steps, there is a slab like place. They kept the body there. They took a cloth from the bag brought by Balamurugan and tied around M.K. Balan's body, like doing a dead body. There is no movement in the body."
The learned counsel thus, submits that PW-10 has explicitly mentioned seeing the dead body of the deceased by some of the accused, and has also spoken about the Maruti Van which was recovered from the accused- appellants. His testimony is crucial in placing the accused-appellants at the scene of the crime, and their involvement in the same. It thus, establishes their guilt beyond reasonable doubt.
The learned counsel further places reliance on the testimony of Newton (PW- 11). PW-11 has also spoken about making the preparations on the instruction of Poonga Nagar Manickam, A-3. Significantly, PW-11 also mentions seeing the dead body of the deceased being carried down the vermicelli factory premises. The relevant portion of his evidence is extracted as under: "......As per that, both of us went to the vermicelli company by the motor cycle. By that time, 2 persons were near the gate. Then both of them told us that we do not have any work there and we can go from there. Then I left the bike adjacent to the company and when I and Venugopal crossed the company gate, we saw Balamurgan going into the vermicelli factory.
At that time, 4 persons came from upstairs of the vermicelli factory, carrying M.K. Balan, who was wearing Black colour pant and T shirt (sandal colour) and they left him on the floor. They tied up M.K. Balan with the dhoti brought by Balamurugan and carried him to the van and the van started from there......I and Venugopal were scared and came back to home. PW-10 Venugopal told me that he was called by Poonga Nagar Manickam and told by him that if this matter is leaked out anywhere he will kill him and his family."
The learned counsel further places reliance on the testimony of PW-33, Kamaraj, who had procured the death certificate, which was shown as that of the deceased in order to cremate him. PW-33 stated that he had procured the death certificate at the instance of A-3.
The relevant portion of his evidence is extracted hereunder: "......At that time Sami told me that Manickam asked me to come by 6 am in the morning. Next day I went to Manickam's house by 6 am and when he enquired about my conveyance and I told him that I had come by Auto and he gave me Rs 50/- for expenses. Further he told that watchman working in a Kolathur company had died; and one Rajamani Chettiar expired and asked me to get a certificate. I immediately told about PW-32, Dr. Anbarasu known to me for the past 15 years; and went to his place by auto. The Doctor was there. I told him that a watchman in a Kolathur Company had died.
He believed me and gave it in writing in a letterhead. I gave it to Manickam in Perambur and came back to my house......" The learned counsel further relies on the evidence of Dr. K.V. Chinnaswamy, PW-32, who had stated that PW-33 had asked him for a death certificate in the name of one Rajamani Chettiar. PW-32 stated that he had no reason to suspect PW-33, whom he had known for about fifteen years, and thus, issued the death certificate without even looking at the dead body of the deceased.
The learned counsel further submits that after considering the evidence of PW-1 and PW-3 and after perusal of the First Information Report, that according to the circumstantial evidence, it can be seen that it was indeed the deceased who had been kidnapped from MRC Nagar on 30.12.2001 at about 5:30 a.m by the accused appellants. The learned counsel further contends that PW-10 and PW-11 are not accomplices, and thus, their evidence can be safely relied upon, in light of the fact that they corroborate each other on all material aspects in relation to the charges.
The learned counsel places reliance on the decision of the High Court of Lahore, in the case of Ismail s/o Hassan Ali v. Emperor[6], wherein an accomplice was defined as: "The expression 'accomplice' has not been defined in the Evidence Act, but there can be little doubt that it means a person who knowingly or voluntarily cooperates with or aids and assists another in the commission of a crime.
The expression obviously includes principals in the first and second degree. In the case in ('36) 23 A.I.R. 1936 P.C. 242 : 163 I.C. 681 (P.C.), Mahadeo v. The King their Lordships of the Privy Council held that the expression is wide enough to include persons who are known to the English law as accessories after the fact. An accessory after the fact is one who, knowing a felony to have been committed, receives, relieves, comforts or assists the felon.
Three conditions must unite to render one an accessory after the fact:
(1) the felony must be complete;
(2) the accessory must have knowledge that the principal committed the felony; and
(3) the accessory must harbour or assist the principal felon.
Mere acts of charity which relieve or comfort a felon, but do not hinder his apprehension and conviction nor aid his escape, do not render one an accessory after the fact (4 Blackstone's commentaries p. 38). He must be proved to have done some act to assist the felon personally (1823-41) 9 C.P. 355).
The mere fact, that one had knowledge that a crime had been committed, and that he concealed or failed to disclose such knowledge, does not render him an accomplice. If, for example, the concealment is due to the witness's anxiety for his own safety rather than to any desire to shield the criminal, he would not be an accomplice. Nor would a person who remains passively silent after obtaining knowledge of the commission of the crime be an accessory or an accomplice within the rule as to the testimony of accomplices. To render a person an accomplice his participation in the crime must be criminally corrupt."
(emphasis laid by this Court)
The learned counsel further contends that PW-10 and PW-11 only did the things they were told to do, like scouting for the location and arranging the necessary items needed to keep the deceased at the vermicelli factory premises at the instance of the accused-appellants. PW-10 and PW-11 were also threatened with harm to themselves and to their families if they did not comply with the instructions given to them by the accused-appellants.
The learned counsel further contends that mere knowledge of a crime does not make a person an accomplice. Reliance has been placed on the decision of the Calcutta High Court in the case of Narain Chandra Biswas v. Emperor[7], wherein it was held as under: " It may further be noticed that where a witness is not concerned with the commission of the crime for which the accused is charged, he cannot be said to be an accomplice in the crime, as it is well settled that all accessories before the fact, if they participate in the preparation for the crime are accomplices, but if their participation is limited to the knowledge that crime is to be committed, they are not accomplices.
"Whether therefore a person is or is not an accomplice depends upon the facts in each particular case considered in connexion with the nature of the crime; and persons to be accomplices must participate in the commission of the same crime as the accused persons in a trial are charged. All persons coming; technically within the category of accomplices cannot also be treated as on precisely the same footing."
The learned counsel submits that there is nothing on record to prove that PW-10 and PW-11 had prior knowledge that the deceased would be murdered at the hands of the accused-appellants. The only knowledge they had was that the factory premises was needed for some work by the accused appellants. The learned counsel further contends that even if PW-10 and PW-11 were taken to be accomplices, their testimony can still be safely relied upon, for the reason that they corroborate each other, as well as corroborated by other independent witnesses, including PW-1, the son of the deceased, as well as PW-13, who is an eyewitness to the kidnapping of the deceased.
The learned counsel places reliance on the decision of this Court in the case of K Hashim v. State of Tamil Nadu[8], wherein it was held that: "First, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. As Lord Readings says - 'Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case, it would be merely confirmatory of other and independent testimony.'
38. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it.
39. Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. This does not meant that the corroboration as to identify must extend to all the circumstances necessary to identify the accused with the offence. Again, all that is necessary is that there would be independent evidence which will make it reasonably safe to believe the witness's story that the accused was the one, or among those, who committed the offence.
The reason for this part of the rule is that - "a man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all ...... It would not at all tend to show that the party accused participated in it."
40. Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal. I say this because it
