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Penal Code, 1860: ss.365 and 302 – Abduction followed bymurder in appropriate cases can enable a court to presume that theabductor is the murderer – The principle is that after abduction, theabductor would be in a position to explain what happened to hisvictim and if he failed to do so, it is only natural and logical that anirresistible inference may be drawn that he has done away with thehapless victim.Penal Code, 1860: s.107 – Abetment – The key andindispensable elements under the law to constitute abetment isinstigation, conspiracy or the intentional aiding by any act or illegalomission, the doing of the thing – The law does not permit the abettorto escape punishment for abetment even if the actual player whocommits the offence is not criminally liable for the actual act whichresults in the commission of an offence.Penal Code, 1860: ss.364, 201 365/109, 302 – Abductionand murder – Prosecution case was that the accused abducted thevictim-deceased (MLA) and illegally detained him and demandedhuge sum and when he refused to succumb to demand, bystrangulation murdered him and cremated his body under fictitiousname – Trial court convicted all the accused while acquitting A12and 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 toa political party – Other accused except A12 were all henchmen ofA3 – The plan was brain child essentially of A1 and A2 – A3organised the whole thing which commenced with the search for anappropriate house where the victim could be confined after theabduction – Role of A3 along with his men in carrying out the crimeculminating in cremation under fictitious name of the abductedperson is clear – Not only there was evidence of PW10 and PW11but other evidence which included PW32, PW33, PW36 and PW8 –The other players were roped in on the basis of their acts whichwas in tune with the conspiracy hatched by A1 and A2 – Evidenceshowed that it was the body of the deceased which was crematedand a fictitious name was used and a certificate issued at the instanceof A3 which circumstance was clinching in establishing theprosecution case – Recovery of a nylon rope and chain at theinstance of A16 strengthened the prosecution case – The evidenceof PW33 was that A3 engaged A13, and at the behest of A3, acertificate was issued by PW32 certifying that one person passedaway on the fateful day – PW11 stated that on 30.12.2001, he sawthree cars at the factory led by a Tata Sumo (recovered at the instanceof A9) – While A4, A11, A15, A16 and A17 were guilty under s.364which was already found by the courts below, other appellants wouldbe guilty under s.364 read with s.109 on the basis that they activelyaided the abduction – Also as far as A5, A6, A7, A8, A11 and A14were concerned, there was evidence of PW10 that he saw thedeceased in a clear state of wrongful confinement, as he was foundtied on the first floor of the factory where A5, A6, A7, A8, A11 andA14 were present – They were also convicted under ss.347 and 387– A4, A11, A16 and A17 were referred in the evidence of PW 11 asemerging out of the car along with the deceased – PW3 witnessedthree persons pushing another into a Maruti Van on day deceasedwent missing – The accomplices were credible witnesses and asregards the crime and the accused, their testimony brought homethe truth – There was no motive attributed to them to falsely implicate– If that is so, even in the absence of any direct evidence relating tomurder, the presumption of murder, being committed by the appellantswould apply – Having regard to the facts and circumstances, itcannot be contended that no case was made out against theappellants.Penal Code, 1860: s.109 – For a charge under s.109, aminimum of two persons are required – There can be any number ofaccused charged with the aid of s.109 – In order that there isabetment, it is indispensable also that there is a person who abetsanother – There is a principal player and the abettor – The principalplayer would be guilty for the acts or omissions which amount tooffences under the law.Code of Criminal Procedure, 1973: s.164 – Importance ofthe evidence of the statement recorded u/s.164 and whether itconstitutes substantial evidence – A statement of a witness recordedunder s.164 cannot be used as substantive evidence and can beused only for the purpose of contradicting or corroborating him.Constitution of India: Art.136 – Supreme Court’s jurisdictionin an appeal generated by Special Leave under Art.136 of theConstitution of India – Discussed. Evidence Act, 1872: s.133 – Accomplice – Testimony of,evidentiary value – Held: s.133 declares that an accomplice is acompetent witness – The corroboration must be in relation to thematerial particulars of the testimony of an accomplice – Accompliceis familiar with the general outline of the crime, he is the one whoparticipated in the same and therefore, indeed, be familiar with thematter in general terms – The connecting link between a particularaccused and the crime, is where corroboration of the testimony ofan 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 wherethe body stood cremated.Code of Criminal Procedure, 1973: s.306 – Procedure formaking a person an approver – Held: An elaborate procedure formaking a person an approver, has been set out in s.306 – The exerciseis undertaken before the competent Magistrate – His evidence isrecorded – He receives pardon in exchange for the undertakingthat he will give an unvarnished version of the events in which he isa participant in the crime – He would expose himself to proceedingsunder s.308 which contemplates that if such person has not compliedwith the condition on which the tender of pardon was given eitherby wilfully concealing anything essential or by giving false evidence,he can be put on trial for the offence in respect to which the pardonwas so tendered or for any other offence of which he appears to bea guilty in connection with the same matters.Penal Code, 1860: ss.364 and 365 – Essential ingredientsand distinguishing features – The essence of abduction is forcedmovement, inter alia, from any place – The offence would be committedby any one who effects such abduction at any or all points of theroute – In a given case, an abduction may attract both ss.364 and365 – The distinguishing feature between the two kinds of abduction,is the difference in the intent with which the abduction, inter alia (asss.364 and 365 also deal with kidnapping), is carried out – But sofar as the intention attracts both provisions in a given case,conviction under both sections is not impermissible. |
