2020 Supreme(SC) 388

SUPREME COURT OF INDIA
ROHINTON FALI NARIMAN, K.M. JOSEPH, V. RAMASUBRAMANIAN, JJ.
SOMASUNDARAM @ SOMU – APPELLANT(S)
VERSUS
THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE – RESPONDENT(S)
CRIMINAL APPEAL NO. 403 OF 2010 WITH CRIMINAL APPEAL NO. 827 OF 2013 CRIMINAL APPEAL NO. 828 OF 2013 CRIMINAL APPEAL NO. 1504 OF 2017 CRIMINAL APPEAL NO(s). 2006-2007 OF 2017 AND CRIMINAL APPEAL NO(s). 2008-2009 OF 2017
Decided On : 03-06-2020

IMPORTANT POINTS
(1) Offence of abetment would be committed irrespective of whether act abetted is committed or not or whether effect which would constitute offence is caused or not.
(2) Corroboration must be in relation to material particulars of testimony of an accomplice.
(3) An accomplice or an approver are competent witnesses – As between an accomplice and an approver, latter would be more beholden to version he has given having regard to adverse consequences which await him as spelt out in Section 308 of Cr.P.C.
(4) There can be any number of accused charged with aid of Section 109 of IPC.
(5) Kidnapping differs from abduction.

Headnote:

(A) Indian Penal Code, 1860 – Sections 108 and 109 – Abetment of offence – Abetment of an offence being an offence, abetment of such abetment is also an offence under Explanation IV – It is not necessary to commission of offence of abetment by conspiracy that abettor should concert offence with person who commits and it is sufficient if he engages in conspiracy in pursuance of which offence is committed – Offence of abetment would be committed irrespective of whether act abetted is committed or not or whether effect which would constitute offence is caused or not – In order that act or offence, be committed within meaning of Section 109 of IPC, in consequence of abetment, it must be as a consequence of instigation or in pursuance of conspiracy or with aid which constitutes abetment – Explanation to Section 109 of IPC must be read in conjunction with Section 107 of IPC which creates offence of abetting. (Paras 42, 46 and 47)

(B) Indian Penal Code, 1860 – Sections 107 and 109 – Abetment of offence – Anything done which facilitates commission of criminal act and promotes commission of the act, would bring the person within scope of abetment – Based on their involvement constituting abetment, a person or any number of persons without even knowing identity of all principal participants to conspiracy, can be prosecuted with aid of Section 107 read with Section 108 of IPC – In order to attract Section 109 of IPC, act abetted must be committed in consequence of abetment – Sections 115 and 116 of IPC deal with punishments for abetment of offences when offence is not committed in consequence of abetment and where no express provision is made in IPC for punishment of such abetment. (Paras 49, 50 and 51)

(C) Indian Penal Code, 1860 – Sections 107 and 109 – Abetment of offence – Abetment, as defined is a substantive offence – Punishment for it varies according to different circumstances – If act which is abetted is done in pursuance to abetment, punishment is graver – Punishment is for offence which is committed based on abetment – Offence of abetment is punishable even if act which is abetted is not committed – At the heart of offence of abetment, however, is presence of any of three requirements in Section 107 of IPC – Key and indispensable elements under law to constitute abetment is instigation, conspiracy or intentional aiding by any act or illegal omission, doing of the thing – Law does not permit abettor to escape punishment for abetment even if actual player who commits offence is not criminally liable for actual act which results in commission of an offence. (Paras 53 and 54)

(D) Indian Evidence Act, 1872 – Section 133 and illustration (b) to Section 114 – Accomplice evidence – Courts have evolved, as a rule of prudence, requirement that it would be unsafe to convict an accused solely based on uncorroborated testimony of an accomplice – Corroboration must be in relation to material particulars of testimony of an accomplice – An accomplice would be familiar with general outline of crime as he would be one who has participated in the same and indeed, be familiar with matter in general terms – Connecting link between a particular accused and crime, is where corroboration of testimony of an accomplice would assume crucial significance – Evidence of an accomplice must point to involvement of a particular accused – It would be sufficient, if his testimony in conjunction with other relevant evidence unmistakably makes out case for convicting an accused – Every material circumstance against accused need not be independently confirmed – Corroboration must be such that it renders testimony of approver believable in facts and circumstances of each case – Testimony of one accomplice cannot be, ordinarily, be supported by testimony of another approver – An accomplice, to be believed, he must be corroborated in material particulars of his testimony – Evidence which is used to corroborate an accomplice need not be a direct evidence and can be in form of circumstantial evidence. (Paras 65 and 66)

(E) Criminal Procedure Code, 1973 – Section 308 – Accomplice and Approver – An accomplice or an approver are competent witnesses – As between an accomplice and an approver, latter would be more beholden to version he has given having regard to adverse consequences which await him as spelt out in Section 308 of Cr.P.C. – Competency of an accomplice is not impaired, though, he could have been tried jointly with the accused and instead of so being tried, he has been made a witness for prosecution. (Para 67)

(F) Criminal Procedure Code, 1973 – Section 164 – Evidentiary value of Section 164 statement – Ordinarily, prosecution which is conducted through State and police machinery would have custody of person – Though, Section 164 does provide for safeguards to ensure that statement or a confession is a voluntary affair it may turn out to be otherwise – Substantive evidence is evidence rendered in Court. (Paras 68 and 71)

(G) Constitution of India – Article 136 – Appellate Jurisdiction – In a criminal appeal by special leave, this Court at the hearing examines evidence and judgment of High Court with limited purpose of determining whether or not High Court has followed settled principles – Where Court finds that High Court has committed no violation of various principles laid down by this Court and has made a correct approach and has not ignored or overlooked striking features in evidence which demolish prosecution case, findings of fact arrived at by High Court on an appreciation of evidence in circumstances of case would not be disturbed. (Para 72)

(H) Indian Penal Code, 1860 – Sections 364 and 365 – Kidnapping differs from abduction – Section 364 of IPC, more graver than Section 365 of IPC, occurs when abduction, is done with intention to commit murder or that he is so disposed of so as to put abducted person in danger of being murdered – Section 365 of IPC is attracted when abduction takes place to cause abducted person to be secretly and wrongfully confined – 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 IPC. (Paras 79, 80 and 81)

(I) Indian Penal Code, 1860 – Sections 365/109, 387, 302/109, 347/109 and 120B – Indian Evidence Act, 1872 – Section 106 – Kidnapping for ransom and murder – Conspiracy, abetment and disappearance of evidence – Conviction and sentence – This is a case where accused have not only carried out a grave crime of murder but they have also attempted to efface most important evidence relating to the same, viz., corpus delicti – Evidence in this case establishes that deceased was indeed cremated under name of a fictitious person mentioned in death certificate – A16 was amongst accused who brought deceased – His role in abduction becomes clear – Deceased was done away by way of murder – Having abducted deceased, role of A16, as assessed by Trial Court and further accepted by High Court, does not require interference – Principle that abduction followed by murder raises presumption that abductor was instrumental in murder was rightly invoked by Trial Court – A12 would be criminally liable for only those acts done with requisite mens rea – Fact that appellants have been acquitted under Section 120B will not extricate them from criminal liability for their acts which would constitute substantive offences under Sections 302, 347 and 387 of IPC – There can be any number of accused charged with aid of Section 109 of IPC – There is no illegality involved in convicting appellants in the manner done under Section 302 of IPC – There cannot be medical evidence relating to murder in a case where body stood cremated – Abduction followed by murder in appropriate cases can enable a court to presume that abductor is murderer – Section 106 of Evidence Act would come to assistance of prosecution – For a conviction under Section 364 actual abduction is necessary – A person could be liable under Section 364 read with Section 34 or under Section 364 read with Section 149 or under Section 364 read with Section 109 or if he is found guilty under Section 120B – In this case there is no scope for either 120B or 149 – However just as they have been found guilty under Section 365, Court would support the conviction under Section 364 in same manner namely abduction within meaning of Section 364 – Criminal Appeals dismissed. (Paras 106, 121, 126, 127, 130, 133, 136, 137, 139, 141, 142, 153 and 154)

Facts of the Case:

Appeals arise out of a common judgment rendered by the High Court confirming the conviction and sentence of the appellants by the Trial Court. The earliest of the aforesaid appeals, i.e., Criminal Appeal No. 403 of 2010, is filed by the fourth accused. Criminal Appeal No. 827 of 2013 and Criminal Appeal No. 828 of 2013 are filed by the third and the fifteenth accused, respectively. appeals filed by the third, fourth and fifteenth accused came to be heard by a Bench of two Judges. There was a cleavage of opinion among Judges. One learned Judge (Justice V. Gopala Gowda), by his Judgment, proceeded to acquit the accused while Justice Arun Mishra dismissed the appeals. That is why this Three-Judges Bench.

Findings of the Court:

Essence of abduction is forced movement, inter alia, from any place. The offence would be committed by anyone who effects such abduction at any or all points of the route. We have already noticed that in a given case, an abduction may attract both Sections 364 and 365. The distinguishing feature between the two kinds of abduction, is the difference in the intent with which the abduction, inter alia (as Sections 364 and 365 also deal with kidnapping), is carried out. But so far as the intention attracts both provisions in a given case, conviction under both sections is not impermissible.

Result : Criminal Appeals 2007 of 2017 and 2009 of 2017 dismissed as withdrawn. Rest of Criminal Appeals dismissed.