Somasundaram @ Somu vs The State Rep. by the Deputy Commissioner of Police

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 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 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 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 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 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 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 – 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 – 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.

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 player would be guilty for the acts or omissions which amount to offences under the law.

Code of Criminal Procedure, 1973: s.164 – Importance of 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 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 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.

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 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 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, 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 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 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 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 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 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 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; 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 AIR 1970 SC 1330 : [1971] 1 SCR 617 – relied on.

2.2 An accomplice is in many cases, pardoned and he becomes what is known as an approver. An elaborate procedure for making a person an approver, has been set out in Section 306 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 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 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 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 –

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

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 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] 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 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) and only money had to be collected from him. PW11 has stated that on 30.12.2001, he saw three cars at the factory led by a Tata Sumo (recovered at the instance of A9), a Ford Escort Car (recovered at the instance of A4) and finally came the Zen Car (recovered at the instance of A3). Four persons identified as A4, A11, A16 and A17 brought the deceased out of the Ford Car. This 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 tiedup with chain and his eyes were covered with a cloth. He was wearing black pant and sandal colour t-shirt. He deposed that it 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 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., ‘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 past fifteen years, would he lie to him and that no one else was 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 one ‘RC’ had passed away on 01.01.2002. PW38 that no person, as shown in Certificate died. Then, PW36-Office Assistant Incharge 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 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 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]

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 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 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 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 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, 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, 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]

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 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 emerges as one of the persons who stood in the upstairs of the building with the deceased when the deceased was in the state of illegal confinement. This, no doubt, is based on the testimony of PW10. No doubt, as far as A14 is concerned, there is no recovery. It is true that there is no direct evidence that the accused abducted or murdered the victim. The case hinges on circumstantial evidence. A10 was acquitted by the High Court. A10 himself was also named by PW10 as present along with A14 at the time of the illegal confinement. The High Court 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 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 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; 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 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 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 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 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 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 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 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-DH; 124-A]

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 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 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, particularly, having regard to the statement under Section 27 of the Evidence Act, leading to recovery of the Van, the discovery of the site of the factory and the cremation ground besides other evidence, cannot be ignored. 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 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 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. 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 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 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

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 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 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 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]

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 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

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 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 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 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. [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 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

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 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 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 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 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 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 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 distinguishing feature between the two kinds of abduction, is the difference in the intent with which the abduction, inter alia (as Sections 364 and 365 also deal with kidnapping), is carried out. But so far as the intention attracts both provisions in a given case, conviction under both sections is not impermissible. However, when some of the appellants are convicted under Section

365 simpliciter and others are convicted under Section 365 read with Section 109, then the position of those accused/appellants in regard to conviction under Section 364 must also be the same. However, this difference in the matter of conviction under Section 364, cannot advance the case of the appellants, as abduction whether it is with the aid of Section 109 or which is under Section

364 simpliciter, enables the Court to raise the presumption of murder, in the absence of any explanation offered within the meaning of Section 106 of the Evidence Act. In other words, while A4, A11, A15, A16 and A17 are guilty under Section 364 which is 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, A5, A6, A7, A8, A11 and A14 were present. They were also 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 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 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 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 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 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]

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 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 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 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. 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 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.