# SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. OF POLICE

- **Citation:** [2016] 7 S.C.R. 263
- **Court:** Supreme Court of India
- **Decided:** 2016-09-28
- **Case number:** Criminal Appeal No. 403 of2010
- **Bench:** V. Gopala Gowda, Arun Mishra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/somasundaram-somu-v-state-rep-by-dy-comm-of-police-31607
- **Pages:** 87

## Headnote

Penal Code, J860 - ss. J20B, 3651J09, 3871J09, 3021J09, 3471
109, 3641J09 and 20J - Prosecution under - Of the appellantsaccused (A-3, A-4 and A-J 5), alongwith other J 5 accused - For
entering into criminal conspiracy for abduction and murder of the
deceased - Trial court acquitted A-J2 and A-J8 and convicted rest
of the accused mainly relying on the evidence of PWs JO and 11 -
High Court confirmed the order of trial court except that of A-JO -
Appeal by A-3, A-4 and A-J 5 - Held: Difference of opinion between
the Judges - Per V. Gopala Gowda, J. : Evidence of PWs JO and 11
are not reliable and hence cannot forlJ) basis for conviction of
appellants-accused - Also in view of their acquittal under s. l 20B
and in absence of establishing their involvement individually in each
offence, they could not have been convicted for the offences of
abduction and murder - The appellants-accused are entitled for
acquittal - Per Arun Mishra, J.: Involvement of the appe/lantsaccused in the commission of offence is established by the evidence
of PWs JO and 11 and also by other evidence - When charge ul
s.J09 is established, mere acquittal uls. J 20B is of no avail to the
appellants-accused - Conviction of the appellants-accused affirmed.
Per V. Gopala Gowda, J. :
Allowing the appeal,
HELD : 1. The case of the prosecution as far as A-3 and A4 are concerned rests heavily on the evidence of PW-10 and PW11, whose evidence is supported by the evidence of PW-33 and
PW-34. From a perusal of the evidence of PW-10 and PW-11, it
becomes clear that they are accomplice witnesses. PW-10 and
PW-11 have not been granted pardon by any Court and have been
arrayed as prosecution witnesses. The mere fact that pardon bas
not been tendered by a court of law, does not make an accomplice
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cease being an accomplice. Thus, PW-10 and PW-11 being
accomplice witnesses, their evidence must be treated as such,
and subject to the same test of reliability of the evidence of an
accomplice or approver are subject to. While the evidence of al}
accomplice can be used to convict an accused, as a rule of
prudence, the Court must first ensure that the testimony of the
accomplice is corroborated in material particulars by adducing
independent evidence. It is also a well settled position of law
that the evidence of two accomplices cannot be used to
corroborate with each other. The independent evidence must be
such that it corroborates with the testimony of the accomplice in
material particulars, that is, the corroboration must be both in
respect of the crime as well as the identity of the accused. This
particular test assumes significance when there is more than one
accused in a case. [Paras 50, 55, 57, 59, 61 and 63) (305-C; 306H; 307-F; 308-F; 312-C; 313-D]
Laxmipat Choraria v. State of Maharashtra AIR 1968
SC 938 : 1968 SCR 624; Chandran@ Maniyan v. State
of Kera/a 2011 (8) SCR 273 : (2011) 5 SCC 161;
Sanvan Singh v. State of Punjab AIR 1957 SC 637 :
1957 SCR 953; Haroom Haji Abdulla v. State of
Maharashtra AIR 1968 SC 832 : 1968 SCR 641;
Ravinder Singh v. State of Haryana 1975 (3) SCR 453
: (1975) 3 SCC 742; R v. Baskerville [1916) 2 KB 658;
Mohd. Hussain Kochra v. K.S. Dalipsinghji & Ors. 1969
(3) SCR 130 : (1969) 3 SCC 429; Chonampara
Chellapan v. State of Kera/a (1979) 4 SCC 312;
Sheshanna Bhumanna Yadav v. State of Maharashtra
AIR 1970 SC 1330 : 1971 (1) SCR 617 - relied on.
Black's Law Dictionary; Ramanatlw Aiyar's Law
Dictionary - referred to.
2. The Trial Court acquitted all the appellants-accused (A3, A-4 and A-15) of the charge of conspiracy under Section 120-B
of IPC. They have however, been convicted for, among others,
the offences under Section 302 read with Section 109 and Section
364 read with Section 109 of IPC. There is nothing on record to
show the direct involvement of the accused - appellants in either
the abduction of the deceased or his murder. The requirement of
corroboration from

## Text

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[2016] 7 S.C.R. 263
SOMASUNDARAM @ SOMU
v.
STATE REP. BY DY. COMM. OF POLICE
(Criminal Appeal No. 403 of20 I 0)
SEPTEMBER 28, 2016
[V. GOPALA GOWDA AND ARUN MISHRA, JJ.]
Penal Code, J860 - ss. J20B, 3651J09, 3871J09, 3021J09, 3471
109, 3641J09 and 20J - Prosecution under - Of the appellantsaccused (A-3, A-4 and A-J 5), alongwith other J 5 accused - For
entering into criminal conspiracy for abduction and murder of the
deceased - Trial court acquitted A-J2 and A-J8 and convicted rest
of the accused mainly relying on the evidence of PWs JO and 11 -
High Court confirmed the order of trial court except that of A-JO -
Appeal by A-3, A-4 and A-J 5 - Held: Difference of opinion between
the Judges - Per V. Gopala Gowda, J. : Evidence of PWs JO and 11
are not reliable and hence cannot forlJ) basis for conviction of
appellants-accused - Also in view of their acquittal under s. l 20B
and in absence of establishing their involvement individually in each
offence, they could not have been convicted for the offences of
abduction and murder - The appellants-accused are entitled for
acquittal - Per Arun Mishra, J.: Involvement of the appe/lantsaccused in the commission of offence is established by the evidence
of PWs JO and 11 and also by other evidence - When charge ul
s.J09 is established, mere acquittal uls. J 20B is of no avail to the
appellants-accused - Conviction of the appellants-accused affirmed.
Per V. Gopala Gowda, J. :
Allowing the appeal,
HELD : 1. The case of the prosecution as far as A-3 and A4 are concerned rests heavily on the evidence of PW-10 and PW11, whose evidence is supported by the evidence of PW-33 and
PW-34. From a perusal of the evidence of PW-10 and PW-11, it
becomes clear that they are accomplice witnesses. PW-10 and
PW-11 have not been granted pardon by any Court and have been
arrayed as prosecution witnesses. The mere fact that pardon bas
not been tendered by a court of law, does not make an accomplice
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cease being an accomplice. Thus, PW-10 and PW-11 being
accomplice witnesses, their evidence must be treated as such,
and subject to the same test of reliability of the evidence of an
accomplice or approver are subject to. While the evidence of al}
accomplice can be used to convict an accused, as a rule of
prudence, the Court must first ensure that the testimony of the
accomplice is corroborated in material particulars by adducing
independent evidence. It is also a well settled position of law
that the evidence of two accomplices cannot be used to
corroborate with each other. The independent evidence must be
such that it corroborates with the testimony of the accomplice in
material particulars, that is, the corroboration must be both in
respect of the crime as well as the identity of the accused. This
particular test assumes significance when there is more than one
accused in a case. [Paras 50, 55, 57, 59, 61 and 63) (305-C; 306H; 307-F; 308-F; 312-C; 313-D]
Laxmipat Choraria v. State of Maharashtra AIR 1968
SC 938 : 1968 SCR 624; Chandran@ Maniyan v. State
of Kera/a 2011 (8) SCR 273 : (2011) 5 SCC 161;
Sanvan Singh v. State of Punjab AIR 1957 SC 637 :
1957 SCR 953; Haroom Haji Abdulla v. State of
Maharashtra AIR 1968 SC 832 : 1968 SCR 641;
Ravinder Singh v. State of Haryana 1975 (3) SCR 453
: (1975) 3 SCC 742; R v. Baskerville [1916) 2 KB 658;
Mohd. Hussain Kochra v. K.S. Dalipsinghji & Ors. 1969
(3) SCR 130 : (1969) 3 SCC 429; Chonampara
Chellapan v. State of Kera/a (1979) 4 SCC 312;
Sheshanna Bhumanna Yadav v. State of Maharashtra
AIR 1970 SC 1330 : 1971 (1) SCR 617 - relied on.
Black's Law Dictionary; Ramanatlw Aiyar's Law
Dictionary - referred to.
2. The Trial Court acquitted all the appellants-accused (A3, A-4 and A-15) of the charge of conspiracy under Section 120-B
of IPC. They have however, been convicted for, among others,
the offences under Section 302 read with Section 109 and Section
364 read with Section 109 of IPC. There is nothing on record to
show the direct involvement of the accused - appellants in either
the abduction of the deceased or his murder. The requirement of
corroboration from independent sources in material particulars
SOMASUNDARAM@ SOMU v. STATE REP. BY DY. COMM.
OF POLICE
bas not been met in the instant case. This makes it impossible
for the accused to be convicted of the offences under Sections
302 and 364 of IPC. Neither PW-10 nor PW-11 are witnesses to
the abduction of the deceased. PW-13, who witnessed the
abduction, also did not mention the above three accused at the
site of the abduction. PW-10 places A-3 and A-4 at the meeting.
But this fact loses significance in view of the fact that they have
been acquitted of the offence of conspiracy under Section 120B
ofIPC. PW-10 and PW-11 also saw the body of the deceased being
brought down. But neither of them places any of the three accused
at the site at that time. Further, what comes to light from the
testimony of PW-10 and PW-11 is that even at the premises where
deceased was kept, A-3 stayed downstairs, while it was PW-11
who went upstairs and actually saw the deceased tied to chains
and the room where he was kept. PW-11 only saw A-15 at the
site, carrying a tiffin parcel. A-4 has not been mentioned anywhere
at the premises at all. Further, so far as A-3 is concerned, another
evidence used against him is the testimony of PW-32 and PW-33
who have admitted to creating the evidence of the death
certificate, which was allegedly required by A-3 to produce at the
crematorium in order to cremate the deceased. PW-32 has
admitted to issuing the death certificate without even seeing the
dead body of the deceased at the request of PW-33. There is no
other evidence on record to connect A-3 to the death certificate.
Even if the death certificate is taken to be genuine, it does not in
any way connect A-3 to the deceased, thus rendering the claim of
the prosecution doubtful and shaky.[Para 64)(314-F-H, 315-A-E)
3. So far as A-15 is conce.rned, the crucial evidence on which
reliance was placed upon by both the courts below to convict him
was the recovery of M.O. 1, reebok shoes on his direction. In
respect of PW-31, who was a supervisor at the premises where
the deceased was kept, both the courts below, failed to notice
that PW-31 had explicitly stated in her testimony that she could
not be able to identify the person who had taken the reebok shoes
from the premises. Thus, the evidence of PW-31 cannot be used
against A-15, which has erroneously been done by the courts
below. Further, PW-1 and PW-2 have both stated in their testimony
that the particular r~ebok shoe did not belong to the deceased.
Thus, there is nothing on record which connects A-15 either to
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the crime, or to th~ deceased. [Para 65] [315-F, 316-A]
4. Thus, the evidence of PW-10 and PW-11 is not reliable
for recording the finding of guilt on the charges against the
accused-appellants. Even if it is placed reliance upon, A-3, A-4
and A-15 cannot be convicted of the offences of kidnapping and
murder, more so in the light of the fact that they had been acquitted
of the charge of criminal conspiracy under Section 120-B of IPC
by the courts below. There was no basis for convicting them under
the other Sections like 302 and 365 of IPC. After having found
that the accused persons were not guilty under Section 120-B of
IPC, it was the duty of the Trial Court to establish the involvement
of each of the accused persons individually in each offence for
which they had been charged to hold them guilty under the same.
[~ara 661 [316-B-DI
5. The accused-appellants in the instant case have also been
convicted under Section 109 of IPC (Section 302 read with 109
and 365 read with 109 IPC), which prescribes the punishment
for the offence of abetment. For Section 109 of IPC, it is not
enough to show a conspiracy. It has to be taken a step further.
What needs to be proved is an act committed in furtherance of
that conspiracy. In the instant case, both the courts below did not
find sufficient evidence to convict the accused-appellants of the
charge under Section 120B of IPC. Once the charge under Section
120B oflPC falls, in order to convict the accused appellants under
Section 302 read with Section 109 IPC, or Section 365 read with
Section 109 IPC, what was needed to be established was the
happening of some overt act on the part of the accused appellants.
There is no evidence except the testimony of PW-10 and PW-11
which links the accused appellants to the crime. Since the
testimony of PW-10 and PW-11 is untrustworthy and cannot be
relied upon to convict the accused appellants in the instant case,
the charge under Section 109 of IPC also cannot sustain. [Para
671 (316-D-E; 317-D-GI
Kehar Singh & Ors v. State (Delhi Administration) : 1988
(2) Suppl. SCR 24: (1988) 3 SCC 609; Pramatha Nath
Talukdar v. Saro} Ranjan Sarkar AIR 1962 SC 876 :
1962 Suppl. SCR 297 - relied on.
SOMASUNDARAM@ SOMU v. STATE REP. BY DY. COMM.
OF POLICE
6. The Trial Court erred in convicting the accusedappellants, more so, after having acquitted them of the offence of
criminal conspiracy punishable under Section 120B of IPC. Even
the High Court adopted the same erroneous approach while reappreciating the evidence against the accused-appellants and
attempting to look for a complete link, as if the accused persons
had been convicted for the charge of criminal conspiracy as well.
This shows a gross non- application of mind on the part of the
courts below, which certainly cannot be allowed to sustain by this
Court, as the same is wholly erroneous in law. The accused
appellants are entitled for acquittal from the charges. [Para 68]
(317-G-H; 318-A-B]
Daya Singh v. State of Haryana 2001 (1) SCR 1115 :
(2001) 3 SCC 468; State v. Nalini 1999 (3) SCR 1 :
(1999) 5 SCC 253; Rameshwar ii State of Haryana AIR
1952 SC 54 : 1952 SCR 377; Bhiva Dolu Patil v. State
of Maharashtra AIR 1963 SC 599: 1963 SCR 830;
Ismail s/o Hassan Ali v. Emperor AIR 1947 Lah 220;
Narain Chandra Biswas v. Emperor AIR 1936 Cal 101;
K Hashim v. State of Tamil Nadu 2004 (6) Suppl. SCR 1
: (2005) 1 sec 237 - referred to.
Per Arun Mishra, J.(Dissenting)
Dismissing the appeal,
HELD: 1. With regard to prior relationship of accused
persons, prosecution has examined PW-4, PW-5, PW6, PW7,
PW8 and PW14. Evidence as to prior relationship has also been
furnished by PW-10, PW-11, PW-34, PW-14 and PW-2. The
happenings in-between 5.12.2001 and 30.12.2001 regarding
preparation are apparent from the statements of PW-10, PW-11,
PW-49, PW-7, PW-8, A-2, PW-16, PW-18, PW-20 and PW-34.
[Paras 13, 14} [325-F-G; 326-G-H; 327-A]
3. It is proved that selection of the factory premises where
the deceased was kept after abduction, had been done by A-3
and A-9. It is stated by PWs.10, 11 and 34 that accused A-3 and
A-9 had selected the same. PW-10 and PW-11 were partners for
some time with its proprietor PW-34. The evidence also discloses
that after inspecting the premises, A-3 and A-9 bad asked to put
fan, table, chair, cot, bedpan in the room in the upstairs and screen
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cloth to cover the windows. The premises were earlier too hired
before a month in November and earlier part of December for
about a week. PW-34 has deposed that from 291h day of November,
2001 leave was given to the factory workers for a period of one
week. Same has been supported by PW-31 and PW-10, but as the
deceased could not be abducted at that time, no one came in the
factory. Statement of PWs.10 and 11 is corroborated by PWs.31
nod 34. Evidence also discloses that A-9 had called PW-10 and
asked for his Ford car M0-6 for 2-3 months on rent. Use of said
car is established from evidence. There is nothing to doubt that
PW-10 and PW-11 visited the house of A-3 along with A-9; and it
is established that A-3 had told A-9 in the presence of PWs.10
and 11 that the deceased has to be brought as some amount had
to be collected from him. The involvement of A-3, A-4 and A-15
is established at the relevant time, and were part of the design to
abduct the deceased. A-4 had an active participation in the
commission of the offence. Ford car which was given was used by
A-3. A-4 had followed them in another car along with 3 other
persons; A-6 and A-11 etc. Evidence also discloses that on
24.12.2001, A-9 phoned to PW-10 and went to the house of A-3
and A-3 had asked PW-10 to arrange for a Maruti van. PW-48,
owner of Hero Honda motorcycle has been examined. PW-10 has
stated that the said motorcycle was given through him. Thus PW48 corroborates and confirms the evidence of PW-10 and PW-11.
[Paras 15, 16, 17) [327-B-H; 328-A-C)
3. On assessment of evidence, it becomes apparent that
PW-3 has clearly stated that the deceased (former MLA) was
abducted on 30.12.2001 at about 5.30 a.m. PW-3 has stated that a
person was put inside a van by three persons. Thereafter
motorcycle followed the said van. That his friend A-15 also came
there. PW-13 had also stated that he had seen the deceased taking
morning walk at about 5.30 a.m.A person was pushed into a Maruti
van. After abduction was.made in the morning at about 5.30 a.m.
on 30.12.2001, the evidence discloses meeting at the residence
of A-9. On 30.12.2001 at 8.30 a.m. as unfolded by PW-10 and PW11, where A-3 stated that abduction of the deceased has been
made and money remains to be collected. (Para 20-21) [328-H;
329-A-C)
4. Presence and participation in abduction and at factory
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM.
OF POLICE
premises of accused A-3, A-4 and A-15 is established by the
evidence of PW-10 and PW-11. In addition presence of A-15 stands
established at place of abduction also as stated by PW-3. It is
apparent from the evidence of PWs.10 and 11 that when the
deceased was brought to the factory premises, A-3 to A-7, A-11
and A-15 to A-17 were present or came there. Thus, it is apparent
that all the three appellants along with other convicted accused
persons were involved in the abduction of the deceased. A-3
played an important role in the entire episode. The finding
recorded by the trial court as affirmed by the High Court is that
the appellants were involved in the abduction stands established
to the hilt. PW 56 lends support a evidence of PW-10. PW-56
also supports version of PW-11. (Paras 23, 24) (330-C-F)
5.1 The dead body of the deceased could not be found as it
was cremated in the name of a fictitious person. His post mortem
also could not be conducted but the evidence clearly indicates
that the dead body of the deceased was taken from the factory
premises. It gives an inference that the accused persons had
murdered the victim. It is not necessary for recording a conviction
that corpus delicti to be found. There is ample evidence leading
to an inescapable conclusion that the deceased was done to death
by the appellants. His dead body was seen by the witnesses. (Para
25) (331-B-C]
5.2 Thus, it is clear that abduction of the deceased is proved
and deceased had been murdered soon after his abduction in two
days and thereafter his body bad been cremated under the name
of a fictitious person. In the aforesaid circumstances it was for
the accused persons to satisfy the court how the abducted victim
was dealt with by them. In the absence of such explanation it is
open to the court to draw a presumption that the abductor was
the murderer also. (Para 26) (331-D-E)
State of MP. v. Lattora (2003) 11 SCC 761; Ram Gu/am
Chaudhary & Ors. v. State of Bihar 2001 (3) Suppl.
SCR 279 : (2001) 8 SCC 311 - relied on.
6. Body of the deeased was carried by A-6, A-7, A-8 and Al~. Version is supported by PW-21 and PW-35. It is apparent that
the deceased was killed in factory some time on 1.1.2002 and the
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fact that the appellants were not persons who brought down body
from upstairs is not enough to exonerate appellants considering
the established facts and circumstances in case they have been
rightly held guilty of murder also.[Paras 29, 32)[333-F; 334-D,E]
7. For cremating the body of the deceased in the cremation
ground, death certificate was required to accompany the dead
body. Death certificate in a fictitious name was obtained at the
instance of A-3 through PW-33. Thus it is apparent that the death
certificate related to non-existent person and dead body of the
deceased was c~mated under the guise and at the instance of A3; false certificate Ex. P-27 was prepared and produced at
cremation ground on next day showing cremation of fictitious
person. PW-36, Office Assistant in the Corporation has deposed
that Ex. P-27 was given to him in the morning at about 8.15 a.m.
He had made the entry Ex.P-27 in Form 2 in the death register
as l" row of 1.1.2002 and that portion is marked as Ex. P-30. The
dispatch book Ex. P-32 has also been proved by the witness along
with memo Ex. P-33. Thus, the involvement of A-3 is proved to
the hilt by the aforesaid evidence also. (Paras 35, 36) [335-1<'-G;
340-A-E)
8. Witnesses as to various accused persons have been
furnished. The seizure of articles has been proved. The accused
persons' confessional statements and recoveries based thereon
support the version of PW-10 and PW-11. [Paras 38, 39, 40] (340F, H; 341-B]
9. On the basis of statement of PW-11, it is established that
A-4 was present when the deceased was brought to the factory
premises after abduction and after about half an hour, A-15 also
came there along with A-5 to provide tiffin. PW-10 has also stated
that the deceased was tied with iron chain on 31.12.2001, his
eyes were shut and he was sitting on a green colour cot and was
wearing a black colour pant and a T-shirt. Thus it is apparent that
A-3, A-4 and A-15 along with other accused persons were involved
in the abduction of the deceased. The trial court with respect to
commission of offence under section 387 IPC has rightly given
the finding in that the prosecution has established its case to the
effect that the accused 1 to 11 and 14 to 17 have committed the
offence punishable under section 387 IPC beyond all reasonable
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM.
OF POLICE
doubt. [Para 48] (343-H; 344-A-D]
10.1 In the facts and circumstances of the case when charge
under section 109 has been found established, mere acquittal of
the accused under section 120B is of no avail to them. Charges
which were framed were specific ingredients of section 109 have
been rightly found to proceed by both the courts below. Their
acquittal under section 120B of IPC cannot help them as offences
of both sections are separate. Section 120B found established
against A-land A-2 and other charges against accused/appellants.
[Para 49] [34~E-FJ
10.2 Under section 109 IPC, the abettor is liable to the
same punishment which may be inflicted on the principal offender
if the act of the latter is committed in consequence of the
abetment. The offence of conspiracy under section 120B IPC is
different. Section 120A IPC is bare agreement to commit an
offence which has been made punishable under section 120B IPC.
The punishment for these two categories of crimes is also quite
different. Section 109 IPC is concerned only with punishment of
abetment for which no express provision has been made in the
IPC. An offence of criminal conspiracy on the other hand is an
independent offence which is made punishable under section 120B
IPC for which a charge under section 109 IPC is unnecessary
and inappropriate. [Para 50) [344-G-H; 345-A-B]
Ranganayaki v. State by Inspector of Police 2004 (5)
Suppl. SCR 452 : (2004) 12 SCC 521 - relied on.
10.3 Thus commission of offence under section 109 IPC
has been established along with other sections. The conviction
and the sentence imposed by the trial court and the High Court
is absolutely proper and no benefit can be obtained by acquittal
under section 120B IPC. That docs not adversely impinge upon
the ingredients of section 109 IPC and other sections for which
he has been found guilty. Thus on appellants having been
acquitted under section 120B the entire case does not fall down.
[Para 51)(347-G-H]
11. Even if PW-10 and PW-11 are taken as accomplices
their depositions are corroborated by overwhelming evidence
on record on each and every aspect. The accused persons have
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been found guilty under section 109 IPC a lso. All convicted
accused persons including appellants acted together. Entire
gamut of evidence, admissible portions of confessional statements
of various accused persons including appellants, recovery of
articles of offence also lends credence to versions of PWs. 10
and 11. [Para 52] (348-B-C)
12. Holding test identification parade has been proved by
PW-60. Recording of statement under section 164 Cr.PC has been
proved by PW-59; PW-61 for A-12, PW-32 and PW-33, PW-62
recorded the statements of PW-12 and PW-19. PW-64 has
recorded the statement under section 164 Cr.P.C. of PWs.10 and
C
11. [Para 53) (348-D-E]
13. The trial court has rightly found that the accused A-3,
A-4 and A-15 had acted upon the conspiracy of A-1 and A-2 and
have been found guilty of offences under sections 365, 387, 302,
347, 364, 109 and 201 IPC. The conviction and sentence imposed
D
by the Trial Court as affirmed by the High Court calls for no
interference in the appeals. [Paras 37 and 57) [340-E-F; 349-F)
Case Law Reference
In the Judi:;ment ofV. Gonala Gowda2 J.
E
2001 (1) SCR 1115
referred to
Para 10
1999 (3) SCR 1
referred to
Para 19
1952 SCR 377
referred to
Para 23
1963 SCR 830
referred to
Para24
F
1962 Suppl. SCR 297
relied on
Para27
AIR 1947 Lah 220
referred to
Para44
AIR 1936 Cal 101
referred to
Para45
2004 (6) Suppl. SCR 1
referred to
Para 47
G
1968 SCR 624
relied on
Para 57
2011 (8) SCR 273
relied on
Para 58
1957 SCR 953
relied on
Para60
1968 SCR 641
relied on
Para 60
H
1975 (~) SCR 453
relied on
Para60
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM.
OF POLICE
[1916) 2 KB 658
relied on
Para 61
1969 (3) SCR 130
relied on
Para 61
(1979) 4 sec 312
relied on
Para 62
1971 (1) SCR 617
relied on
Para 63
1988 (2) Suppl. SCR 24
relied on
Para 67
In the Jud2ment of Arun Mishra1 J.
(2003) 11 sec 761
relied on
Para26
2001 (3) Suppl. SCR 279
relied on
Para27
2004 (5) Suppl. SCR 452 .
relied on
Para 50
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
403 of2010
273
A.
B
c
From the Judgment and Order dated 06.10.2007 of the High Court
D
of Judicature at Madras in Criminal Appeal No. 698 of2004
WITH
Crl. A. Nos. 827 and 828 of2013.
Manoj Prasad, Sidharth Luthra, Basant R., Sr. Advs., A. Dubey,
Sanjay Misra, Raj Kumar, Sangita Chauhan, Aditya Chaudhary, Rakesh
K. Sharma, V. Gandhi, Sameer Choudhary, P. V. Yogeswaran, Karthik
. Ashok V. Susheatha, Advs. for the Appellant.
M. Yogesh Kanna, Jayant Patel, Advs. for the Respondent.
The Judgments of the Court were delivered by
V. GOPALA GOWDA, J, I. The present appeals arise out of
the common impugned judgment and order dated 06.10.2007 in Criminal
Appeal Nos. 698, 716 and 781 of2004 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 "!PC"), for the
abduction and murder of one M.K. Balan (hereinafter referred to as the
'"deceased").
E
F
G
H
··1' ..
274
SUPREME COURT REPORTS
[2016] 7 S.C.R.
A
2. 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
B
Rs. 50,000/-
c
D
E
F
G
H
•
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 I year.
•
Section 387 IPC: Rigorous Imprisonment for 7 years
and fine of Rs. 5,000/-, in default of payment, rigorous
imprisonment for I 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 I 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 IO 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 I year.
•
Section 387 IPC: Rigorous Imprisonment for 7 years
and fine of Rs. 5,000/-, in default of payment, rigorous
imprisonment for I 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 I 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.
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM.
275
OF POLICE [V. GOPALA GOWDA, J.]
•
Section 364 IPC read with Section 109 IPC:
Rigorous Imprisonment for I 0 years and fine of Rs.
5,0001-, 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, I 973(hereinafter
referred io as the "CrPC").
•
Section 365 IPC read with Section 109 IPC:
. Rigorous Imprisonment for 7 years and fine of Rs.
5,0001-, in default of payment, rigorous imprisonment
for I year.
•
Section 387 IPC: Rigorous Imprisonment for 7 years
and fine of Rs. 5,000/-, in default of payment, rigorous
imprisonment for I 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 I year.
•
Section 347 IPC read with Section 109 !PC:
Rigorous Imprisonment for 3 years and fine of Rs.
5,0001-, in default of payment, rigorous imprisonment
for 6 months.
•
Section 364 IPC read with Section l 09 IPC:
Rigorous Imprisonment for I 0 years and fine of Rs.
5,0001-, in default of payment, rigorous imprisonment
for 2 years.
·-
·
•
Section 201 IPC: Rigorous-Imprisonment for 7 years
and fine of Rs. I 0,000/-, in default of payment,
rigorous imprisonment for I year.
Somasundaram (A-4)
•
Section 120-B IPC: Acquitted under Section 235(1)
ofCrPC.-
•
Section 365 IPC read with Section 109 IPC:
Rigorous Imprisonment for 7 years and fine of Rs.
5,0001-, in default of payment, rigorous imprisonment
for I year.
•
Section 387 IPC: Rigorous Imprisonment for 7 years
and fine of Rs. 5,000/-, in default of payment, rigorous
im risonment for I ear.
A
B.
c
D
E
F
G
H
276
A
B
c
D
E
F
G
I-I
SUPREME COURT REPORTS
[2016] 7 S.C.R.
•
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 I 0 years and fine of Rs. 5,000/-, in
default of payment, rigorous imprisonment for 2 years.
Balamurugan (A-5)
•
Section 120-B IPC: Acquitted under Section 235(1) of
CrPC.
•
Section 365 IPC read with Section 109 IPC: Rigorous
Imprisonment for 7 years and fine of Rs. 5,000/-, in
default of payment, rigorous imprisonment for I year.
•
Section 387 IPC: Rigorous Imprisonment for 7 years
and fine of Rs. 5,000/-, in default of payment, rigorous
imprisonment for I 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, r-igorous imprisonment for 6 months.
•
Section 364 IPC read with Section 109 IPC: Rigorous
Imprisonment for I 0 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. I 0,000/-, in default of payment, rigorous
imprisonment for I year.
Shankar Ganesh (A-6)
•
Section 120-B IPC: Acquitted under Section 235(1) of
Cr PC.
•
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 I year.
SOMASUNDARAM@ SOMU v. STATE REP. BY DY. COMM.
277
OF POLICE [V. GOPALA GOWDA, J.]
•
Section 387 IPC: Rigorous Imprisonment for 7 years and
fine of Rs. 5,000/-, in default of payment, rigorous
imprisonment for I 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 I 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. I 0,0001-, in default of payment, rigorous
imprisonment for I year.
Irudhayaraj CA-7)
•
Section 120-B IPC: Acquitted under Section 235(1) of
Cr PC.
•
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 I year.
•
Section 387 IPC: Rigorous Imprisonment for 7 years and
fine of Rs. 5,000/-, in default of payment, rigorous
imprisonment for I year.
•
Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs. 50,0001-, in default
of payment, rigorous imprisonment for I 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.
A
B
c
D
E
F
G
H
278
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2016] 7 S.C.R.
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
Cr PC.
•
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 I year.
•
Section 347 IPC read with Section 109 IPC: Rigorous
Imprisonment for 3 years and fine of Rs. 5,000/-, in default
of a ment, ri orous im risonment for 6 months.
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM.
279
OF POLICE [V. GOPALA GOWDA, J.]
•
Section 364 IPC read with Section 109 IPC: Rigorous
Imprisonment for 10 years and fine of Rs. 5,000/-, m
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 I year.
•
Section 387 IPC: Rigorous Imprisonment for 7 years and
fine of Rs. 5,0001-, in default of payment, rigorous
imprisonment for I 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 I 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 I 0 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. I 0,000/-, in default of payment, rigorous
imprisonment for I year.
Sampath (A-11)
•
Section 120-B IPC: Acquitted under Section 235(1) of
Cr PC.
•
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 I year.
•
Section 387 IPC: Rigorous Imprisonment for 7 years and
fine of Rs. 5,000/-, in default ·of payment, rigorous
imprisonment for I year.
•
Section 302 IPC read with
Section 109 IPC:
Imprisonment for life and fine of Rs. 50,000/-, in default
of a ment, ri orous im risonment for I ear.
A
B
c
D
E
F
G
H
280
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2016] 7 S.C.R.
•
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. I 0,000/-, in default of payment, rigorous
imprisonment for I year.
Romita Mary (A-12)
•
Section 120-B IPC: Acquitted under Section 235(1) of ·
Cr PC.
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 I 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 I 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 I 0 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. I 0,000/-, in default of payment, rigorous
imprisonment for I 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 I year.
SOMASUNDARAM@ SOMU v. STATE REP. BY DY. COMM.
281
OF POLICE [V. GOPALA GOWDA, J.]
•
Section 387 IPC: Rigorous Imprisonment for 7 years and
fine of Rs. 5,000/-, in default of payment, rigorous
imprisonment for I 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 I 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 imprisorunent for 2 years.
•
Section 201 IPC: Rigorous Imprisonment for 7 years and
fine of Rs. I 0,000/-, in default of payment, rigorous
imprisonment for I 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 I year.
•
Section 387 IPC: Rigorous Imprisonment for 7 years and
fine of Rs. 5,000/-, in default of payment, rigorous
imprisonment for I year.
•
Section 302 IPC read with Section 109 IPC:
Imprisonment for life and fine of Rs. 50,0001-, in default
of payment, rigorous imprisonment for I 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. I 0,000/-, in default of payment, rigorous
hnprisomnent for I year.
A
B
c
D
E
F
G
H
282
A
8
c
D
E
F
G
H
SUPREME COURT REPORTS
[2016] 7 S.C.R.
Jagadeesan (A-16)
•
Section 120-B IPC: Acquitted under Section 235(1) of
Cr PC.
•
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 I year.
•
Section 387 IPC: Rigorous Imprisonment for 7 years and
fine of Rs. 5,000/-, in default of payment, rigorous
imprisonment for I 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 I 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 I 0 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. I 0,000/-, in default of payment, rigorous
imprisonment for I 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 I year.
•
Section 387 IPC: Rigorous Imprisonment for 7 years and
fine of Rs. 5,000/-, in default of payment, rigorous
imprisonment for I 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 I 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.
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM.
283
OF POLICE [V. GOPALA GOWDA, J.]
•
Section 364 IPC read with Section 109 IPC: Rigorous
Imprisonment for I 0 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 I year.
Naraimudi Ganesan (A-18)
•
Section 120-B IPC: Acquitted under Section 235 (I) of
Cr PC.
3.