2016 Supreme(SC) 760

SUPREME COURT OF INDIA
V. GOPALA GOWDA, ARUN MISHRA, JJ.
Somasundaram @ Somu – Appellant
Vs.
State Rep. by Dy. Comm. of Police – Respondent
Criminal Appeal Nos. 403 of 2010, 827 & 828 of 2013
Decided On : 28-09-2016

IMPORTANT POINT
V. Gopala Gowda, J. acquitted the appellants of all charges.
Arun Mishra, J. maintained the conviction.

Headnote:Per V. Gopala Gowda, J.

       (a) Indian Evidence Act, 1872 – Section 133 – Accomplice witness – PW 10 and 11 involved in the crime before and after although not participating in actual abduction and murder – Are accomplices – Absence of pardon granted by any court does not mean that an accomplice ceases to be an accomplice – However, he would be a competent witness. (Para 55, 57)

       AIR 1968 SC 938; (2011) 5 SCC 161 – Relied upon

       AIR 1952 SC 54; AIR 1963 SC 599 – Referred

       (b) Indian Evidence Act, 1872 – Section 133 – Accomplice witness – Credibility of evidence – Needs corroboration by other independent evidence – However, evidence of two accomplices cannot be used to corroborate with each other – Such corroboration must be both in respect of the crime as well as the identity of the accused. (Para 60, 61, 63)

       AIR 1957 SC 637; [1916] 2 KB 658; (1969) 3 SCC 429; (1979) 4 SCC 312; AIR 1970 SC 1330 – Relied upon

       (c) Criminal trial – Conviction – Appellant-accused acquitted of charge of conspiracy u/s 120-B, IPC – No evidence of their direct involvement – Accomplice evidence not corroborated by independent witness – Conviction not sustainable. (Para 63)

       (1999) 5 SCC 253; (2001) 3 SCC 468; AIR 1947 Lah 220; AIR 1936 Cal 101; (2005) 1 SCC 237 – Referred

       (d) Indian Penal Code, 1860 – Section 120-B, 302 and 365 – No evidence to connect accused-appellants A-3, A-4 and A-15 either to the crime, or to the deceased – Having acquitted the appellants of charges u/s 120-B, trial court was duty bound to establish involvement of each of the accused persons individually in each offence – Conviction u/s 302 and 365 IPC held bad. (Para 65, 66)

       (e) Indian Penal Code – Section 109 and 120-B – Appellants acquitted of charges u/s 120-B – No overt act on part of appellants established – Conviction u/s 109 not sustainable. (Para 67, 68)

       AIR 1962 SC 876; (1988)3 SCC 609 – Relied upon

       Per Arun Mishra, J.

       (f) Indian Penal Code, 1860 – Section 302 – For conviction u/s 302 it is not necessary that corpus delicti is found – Conviction can be based on other evidence. (Para 25)

       (g) Indian Penal Code, 1860 – Section 302 – Deceased abducted by appellants – Murdered and cremated under fictitious name after two days – Appellants not explaining what they did after abduction – Open to court to draw adverse presumption that the abductor was the murderer also. (Para 26)

       (2003) 11 SCC 761; (2001) 8 SCC 311 – Relied upon

       (h) Indian Penal Code, 1860 – Sections 365, 387, 302, 347, 364, 109 and 201 – Accused A-3, A-4 and A-15 acting upon conspiracy of A-1 and A-2 participated in abduction, murder and cremation of the deceased – Trial court rightly convicting the accused u/s 365, 387, 302, 347, 364, 109 and 201. (Para 37)

       (i) Criminal trial – Conviction – Confessional statements and recoveries pursuant thereto – Corroborating evidence of PW 10 and 11 – Conviction justified. (Para 47)

       (j) Indian Penal Code, 1860 – Section 387 – Evidence of PW 10 establishing involvement of A-3, A-4 and A-15 along with other accused persons in the abduction of the deceased – Conviction u/s 387 held justified. (Para 48)

       (k) Indian Penal Code, 1860 – Section 120-B – Accused appellants convicted u/s 365 r/w section 109; sections 387 and 302 r/w section 109; section 347 r/w section 109; section 364 r/w section 109 and section 201 – When charge u/s 109 is established, acquittal u/s 120-B is of no avail – Offence u/s 109 and 120-B distinguished – Conviction proper. (Para 49, 51)

       (2004) 12 SCC 521 – Relied upon

       (l) Criminal trial – Recovery – Car – Name of registered owner immaterial – Its use in offence and recovery is material aspect – Car in possession of PW 10 – Lent to accused – Recovery of the car at the instance of accused cannot be ignored. (Para 55)

       Facts of the case:

       17 accused persons were tried, convicted and sentenced under various sections of IPC for abduction and murder of one M.K. Balan.

       High Court affirmed the conviction and sentence.

       Three accused have filed these appeals.

       Finding of the Court:

       Per V. Gopala Gowda, J.

       Prosecution has not been able to prove its case. Appellants deserve acquittal.

       Per Arun Mishra, J.

       Appellants have been rightly convicted.

       Result: Per V. Gopala Gowda, J. Appeals allowed. Per Arun Mishra, J. Appeals dismissed.