SOMASUNDARAM @ SOMU versus STATE REP. BY DY. COMM. OF POLICE
[2016] 7 S.C.R. 263, Supreme Court of India, 2016
Outcome: Matter referred to larger bench
Segment: Ratio
[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 appellants-
accused (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/lants-
accused 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 A-
4 are concerned rests heavily on the evidence of PW-10 and PW-
11, 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; 306-
H; 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 (A-
3, 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 accused-
appellants, 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 re-
appreciating 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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[20 I 6] 7 S.C.R. 
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 PW-
48 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 PW-
11, 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 A-
l~. 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 A-
3; 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] (340-
F, 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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[2016] 7 S.C.R. 
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 
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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"). 
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[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 
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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 
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276 
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c 
D 
E 
F 
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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. 
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B 
c 
D 
E 
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SUPREME COURT REPORTS 
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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. 
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B 
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E 
F 
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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. 
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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. The aforesaid sentences imposed upon each one of the accused 
persons were ordered to run concurrently. 
4. Out of all the accused persons who were tried by the Sessions 
Court, only three, i.e., Manickam @ Poonga Nagar Manickam 
(hereinafter referred to as "A-3"), Somasundaram (hereinafter referred 
to as "A-4") and Bomb Selvam (hereinafter referred to as "A-15") are 
in appeal before us. Since we are only required to examine the correctness 
of the conviction and sentences as against these three accused persons, 
we shall restrict to the appreciation of facts and evidence relevant to 
these three accused persons only. The facts of the incident leading up to 
the case, the arrest of the accused persons followed by their trial and 
conviction are stated as under: 
The case of the prosecution is that on 30.12.200 I, at about 5 :30 
a.m., the deceased went for morning walk, but did not return home. As 
a result, his son, B. Manimaran (PW-I) lodged a missing person complaint 
at the Pattinapakkam
Police Station at 11.00 a.m. The same was 
registered as Crime No. 986 of2001. PW-66, the Inspector started the 
investigation. The statements of various witnesses were recorded. The 
breakthrough came on 21.02.2002, when the Investigating Officer came 
to know of the involvement ofBalamurugan (A-5) in the case through 
an infonnant. A-5 was arrested on 18.03.2002 by PW-67, who also 
recorded his statement, produced as Ex. P-43. On the basis of the 
statement of A-5, the FIR was altered and the offences under Sections 
1208 read with Sections 364, 365, 302 and 201 of IPC were added to 
the same. Subsequently, the rest of the accused persons were arrested 
on the basis of the statements-of the witnesses. A-3 was arrested on 
25.Q3.2002 and his statement was recorded, which is produced as Ex. 
I 
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SUPREME COURT REPORTS 
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P-20. On the basis of the evidence of A-3, M.O. 12- Maruti Zen Car, 
under mahazar Ex. P-6 was recovered on the same day. On 01.04.2002, 
A-3 and A-I were remanded to police custody as per the order of the 
Magistrate for a period of ten days. A-4 was arrested on 09.04.2002 
from Chrompet Railway Station. His statement was recorded as Ex.P-
34 in the presence of PW-9. On the oasis of the disclosure made in the 
statement, M.0.-6, Ford Escort Car bearing Registration No. TN-I O"F-
SSSS was recovered, which has been produced as Ex. P-19. A-IS was 
arrested on 2S.04.2002 from near the Egmore Railway Station, from 
where he was taken to the office of the CBCID. On the basis of the 
disclosure made in the statement of A-IS, a 'Tiruvalluvar Hero Honda 
647S', marked as M.0.-10.and a black coloured Reebok shoe, marked 
as M.0.- I, kept inside the side box of that motor cycle were recovered. 
S. On 14.06.2002, the final report under Section 173(2) ofCrPC 
was filed in PRC No. SS of 2002 before the XXllI Metropolitan 
Magistrate, Chennai, against A-1 to A-17 and one unknown person. 
Pursuant to further investigation and apprehension of A-18, final report 
was filed on 10.01.2003 under Section 120-B read with Sections 364, 
36S, 419, 437,387,302,402 and201 ofIPC. 
6. During the course of the trial, the prosecution examined 67 
Prosecution Witnesses to establish the guilt of the accused persons. 
7. The Trial Court,
after examining the evidence produced on 
record, convicted and sentenced A-I to A-11 and A-13 to A-17, as 
specified in the table referred to supra. A-12 and A-18 were acquitted 
of all charges. The accused persons preferred appeals against their 
conviction and the State preferred an appeal against the acquittal of A-
12 and A-18 before the High Court. The High Court, after consideration 
of the evidence placed on record, upheld the order of conviction and 
sentence passed by the learned Sessions Judge against all the accused, 
except A-10. A-10 was acquitted of all the charges by the High Court. 
The appeals filed were accordingly, dismissed. The High Court, in the 
impugned judgment and order relied on the testimony of PW- I, the son 
of the deceased, who spoke about the fact that his father went on his 
usual morning walk but did not return and the testimony of PW-13, who 
saw the deceased walking. The next crucial link, according to the High 
Court is provided from the evidence ofVenugopal (PW-10) and Newton 
(PW-11), who saw some of the accused bringing the deceased into the 
vermicelli manufacturing factory premises at Mudichur on the morning
SOMASUNDARAM@ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [V. GOPALA GOWDA, J.] 
of 30.12.2001. Both PW-10 and PW-11 also deposed as to the prior 
arrangements made by them on the direction of the accused persons, 
including the arrangement of the premises of the vermicelli factory, 
vehicles and food. PW-I I also deposed that he saw four of the accused 
persons carrying the dead body of the deceased. PW-32, the Doctor, 
deposed that at the instance of A-3, he had issued a death certificate to 
PW-33, which was needed to cremate the body of the deceased. He 
also stated that he had done so without actually seeing the body of the 
deceased as he had known PW-33 for a long time and trusted him. Both 
the Trial Court and the High Court treated PW-I 0 and PW-11 as 
accomplices, keeping in view their role in the entire incident. The High 
Court then went on to examine the case law with regard to the reliability 
of the evidence of the accomplice. On this aspect, the High Court held 
as under: 
"An accomplice is undoubtedly a competent witness under 
the Indian Evidence Act. There can be, however, no doubt 
that the very fact that he has participated in the commission 
of the offence introduces a serious stain in his evidence 
and Courts are naturally reluctant to act on such tainted 
evidence unless it is corroborated in material particulars by 
other independent evidence. 
It would not be right to expect that such independent 
corroboration should cover the whole of the
prosecution 
story on even all the material particulars. If such a view is 
adopted, it would render the evidence of the accomplice 
wholly superfluous ..... . 
... ... the appreciation of an approver's evidence has to 
satisfy a double test. His evidence must show that he is a 
reliable witness and that is a test which is common to all 
witnesses. If this test is satisfied the second test which still 
remains to be applied is that the approver's evidence must 
receive sufficient corroboration." 
The High Court accordingly, came to the conclusion that the 
evidence of PW-I 0 and PW-11 was reliable and could be considered 
while examining the guilt of the appellants. It was held as under: 
"PW-I 0 and PW- I I are accomplices and they were present 
at all stages along with the accused and aided them in very 
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SUPREME COURT REPORTS 
[2016) 7 S.C.R. 
many ways, we have analysed their evidence with great 
care and caution. It is true that both of them had not informed 
the occurrence to anybody and were not to be seen for 
more than a period of months. For their conduct they have 
given acceptable explanation. Both the witnesses have 
spoken that as they came to that A-3 and A-9 had indulged 
in an act of serious offence, they were threatened by the 
accused that if they reveal what had happened, they and 
their family members would be in danger. Afraiding such 
danger, they had hided themselves and therefore, they had 
not disclosed to anyone, only fearing not only to their lives 
but also to their family members ...... " 
8. The High Court held that the case of the prosecution, as sought 
to be proved by the evidence of PW- I 0 and PW-I I, is that PW-I 0 was 
a business associate of A-9. A-9 informed PW-10 that A-3 would get 
him in a post in a political party ifhe completed a task that was assigned 
to him. A-9 asked PW-I 0 to help him finish the same. At the request of 
A-9, PW-I 0 had arranged the vermicelli manufacturing factory premises 
belonging to PW-34 for a week. Further, A-9 informed A-3 of the place 
that had been chosen to carry out the task. PW- I 0, A-3 and A-9 then 
visited the places to inspect the suitability of the premises. After the 
same had been approved by A-3, PW-I 0 at the request of A-3, arranged 
a Maruti van, table, chair,
cot, bedpan etc. and kept the same in the said 
premises of the vermicelli manufacturing factory. PW-I 0 and PW-I I 
also made arrangements for procuring cash as and when A-3 and A-9 
needed them. PW-I 0 and PW-11 also arranged rooms at Hotel Henkala, 
Tambaram for A-9. PW-I 0 also heard the driver of A-3 asking him for a 
chain to tie the deceased. A-3 also asked PW-I 0 to provide food for 
those who are staying in the vermicelli factory premises. PW- IO and 
PW-11 also saw four of the accused persons bringing down the body of 
the deceased, which was loaded in the van and taken out of the place. 
PW-I 0 was also informed by A-13 that the body of the deceased had 
been burnt in the Erukancheri cremation ground. PW- I 0 then left for 
Bangalore and stayed there till he was informed by his wife on 18.03.2002 
that A-5 was arrested by CBCID police in connection with the murder 
of the deceased. 
-
9. The High Court further observed that PW-I 0 has implicated A-
l to A-11 andA-14. He also identifiedA-4,A-5,A-6,A-7,A-8, A-11 and 
A-15 on three occasions as spoken to by PW-60, the Magistrate who
SQMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [V. GOPALA GOWDA, J.] 
conducted the identification parade. On the issue of delay in test 
identification parade, the High Court held·that: 
"In a complicated investigation like this, where there was · 
no clue for the involvement of any of the accused till A-5 
was arrested on 18.03.2002, the delay in liolding the test 
identification parade, if at all from the last arrest of A-16, 
i.e., on 22.05.2002 would not in our view render the same 
inconsequence and consequently it would not affect the test 
on the ground of delay." 
10. The High Court placed reliance on the decision of this Court in 
the case of Daya Singlt 1i State of Harymu1
1 for the same. The High 
Court further held that the common object for the offence was to collect 
some money from the deceased, and in case the money did not come 
through, to do away with the deceased. The High Court held that to 
achieve the common object, they had conspired together. 
11. Further, on the contention that the body which was cremated 
was not identified by anybody, the High Court held that the man who 
was abducted on the morning of30.12.2001, was kept in the vermicelli.· 
factory premises by the accused persons, and was murdered there. His 
body was cremated in the Perambur crematorium. It was held that the 
circumstances adequately point to the same .. 
12. The High Court, therefore, held that the conviction and sentence 
imposed by the Trial Court in respect of
all the accused persons is liable 
to be confirmed as the same does not suffer from any infirmity in law. 
13. The co1Tectness of the impugned judgment and order passed 
by the High Court is under challenge in these appeals by three of the 
accused-appellants, i.e. A-3, A-4 and A-15 in support of which they 
have urged various facts and legal contentions before this Court. 
14. The rival legal coutentions urged on behalf of the accused 
persons and the prosecution are stated hereunder: 
Contentions urged on behalf of the accused-appellants: 
15. Mr. Siddharth Luthra, learned senior counsel-appearing on 
behalf of A-4 in Criminal Appeal No. 403 of 20 I 0, contends that the 
conviction of the appellant is wholly erroneous and is liable to be set 
aside. 
1 (2001)3 sec 468 
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16. The learned senior counsel contends that the recovery of the 
Ford Car (M.0.-6) was not done in accordance with law, and thus, the 
same is vitiated. According to the statement given by A-4 to the Police 
[Ex. P- 34), he had stated as under: 
"If I am taken, I will identify the house, in Chrompet, wherein 
B 
we were staying and the Muddichur Vermicelli Factory, 
wherein we had detained M.K. Balan and the cars which 
were used by us for the kidnapping of Balan." 
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17. The Ford Car in question, M.0-6 was recovered from the 
house of PW-I 0 on 09.04.2002. In the evidence of PW-I 0, he had deposed 
that he had purchased M.0.6 Ford Car for Rs.3,60,000/-. He had bought 
the same from one Advocate Duraipandi. He further stated that M.0.6 
was not registered in his name. It was registered in the name of one 
Ranjit Kumar. The learned senior counsel contends that in the absence 
of the proof ofownership of the vehicle, the only evidence of the use of 
the vehicle on 30.12.2001 is the testimony of PW-10, and the same cannot 
be used agairist A-4. 
18. The learned senior counsel further contends that since the 
accused A-4 has been acquitted of the charge under Section 120-B of 
IPC, Section I 0 of the Indian Evidence Act, 1872 (hereinafter referred 
to as the "Evidence Act") has no application either. Section I 0 of the 
Evidence Act reads as under: 
"10. Things said or done by conspirator in reference 
to CQmmon
desi2n. Where there is reasonable round to 
believe that two or more persons have conspired together 
to commit an offence or an actionable wrong, anything said, 
done or written by any one of such persons in reference to 
their common intention, after the time when such intention 
was first entertained by any one of them, is a relevant fact 
as against each of the persons believed to be so conspiring, 
as well for the purpose of proving the existence of the 
conspiracy as fo.r the purpose of showing that any such 
person was a party to it." 
19. The learned senior counsel places reliance on the decision of 
this Court in the case of Stt1te v. Nt11inP, wherein the scope of Section 
I 0 of the Evidence Act was discussed as under: 
H 
2 (1999) s sec 2s3
SOMASUNDARAM@ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [V. GOPALA GOWDA, J.] 
"The first condition which is almost the opening lock of that 
provision is the existence of"reasonable ground to believe" 
that the conspirators have conspired together. This condition 
will be satisfied even when there is some prima facie 
evidence to show that there was such a criminal conspiracy. 
If the aforesaid preliminary condition is fulfilled then anything 
said by one of the conspirators becomes substantive 
evidence against the other, provided that should have been 
a statement "in reference to their common intention". Under 
the corresponding provision in the English Law the 
expression used is "in furtherance of the common object". 
No doubt, the words "in reference to their common intention" 
are wider than the words used in English Law ..... . 
. . . . . . . . . . .. We cannot overlook that the basic principle which 
underlies in Section I 0 of the Evidence Act is the theory of 
agency. Every conspirator is an agent of his associate in 
carrying out the object of the conspiracy. Section I 0, which 
is an exception to the general rule, while permitting the 
statement made by one conspirator to be admissible as 
against another conspirator restricts it to the statement 
made during the period when the agency subsisted. Once it 
is shown that a person became snapped out of the 
conspiracy, any statement made subsequent thereto cannot 
be used as against the other conspirators under
Section IO." 
20. The learned senior counsel contends that since A-4 has been 
acquitted of the charge of conspiracy, no statement made by any witness 
or accused which seeks to prescribe any sort of common intention can 
be used against A-4. 
21. The learned senior counsel further contends that the only 
relevant testimonies as far as A-4 is concerned are that of Manimaran 
(PW-I), Sudhakar (PW-3), Venugopal (PW-10), Newton (PW-11), 
Krishnapandi (PW-34) and the Investigating Officer (PW-67). PW-3, 
who is one of the eyewitnesses to the kidnapping of the deceased, deposed 
in his evidence as under: 
" ...... On 30.12.2001, at about 5.30 A.M. as usual I started 
to run. By that time, I heard a sound. I saw that 3 persons 
were forcing a person to get into a van at a distance of 
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about 75 metres. Thereafter, all of them went in t!1e same 
van. It's an Omni, Van. A motor cycle followed that van. 
Thereafter, my friend Selvam came there. I told this to him. 
I told Selvaraj Master. Selvaraj Master told me "Why sh.ould 
we b·)ther about others" ...... " 
B 
··· 
22. The learned senior counsel further contends that PW-3 thus, 
neither names, nor identifies nor prescribes any specific role to A-4 in 
kidnapping of the deceased on 30.12.2001. The learned senior counsel 
further contends that according to the evidence of PW-3, the deceased 
was kidnapped in an Omni Van, which was followed by a motorcycle. 
However, even if the alleged confession of A-4 is taken to be true, what 
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was recovered at his direction was a Ford Escort Car (M.0.6). 
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23. The leam!d senior counsel further contends that during the 
trial, the prosecution has not arrayed PW-10 and PW- I I as accused, nor 
have they been made approver in the case. Thus, the testimonies of 
PW-10 and,PW-11 cannot be relied upon in absence of corroboration 
from independent sources, as the same are in the nature of accomplice 
evidence in terms of Section 133 of the Evidence Act. The learned senior 
counsel places reliance on the decision of this Court in the case of 
Rameshwar v. St"te of H"ry"n"3: 
"., .... The rule, which according to the cases has hardened 
into one oflaw, is not that corroboration is essential before 
there can be; a
conviction but that the necessity of 
corroboration, as a matter of prudence, except where the 
circumstance~ make it safe to dispense with it, must be 
present to the mind of the judge, and in jury cases, must 
find place in the charge, before a conviction without, 
corroboration can, be sustained ...... " 
24. The learned senior counsel further places reliance on the three 
judge bench decision of this Court in the case of Bl1iva bolu Patil v. 
State of Ma/1arasl1trcr: 
" ...... the provisions of s. 133 of the Evidence Act which 
reads:-
S. t33 "An accomplice shall be a competent witness against 
an accused person; and a conviction is. not illegal merely 
3 AIR 1952 SC 54 
4 AIR 1963 SC 599 
'_;,
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
291 
OF POLICE [V. GOPALA GOWDA, J.] 
because it proceeds upon the uncorroborated testimony of 
A 
an accomplice". 
It cannot be doubted that under that section a conviction 
based merely on the uncorroborated testimony of an 
accomplice may not be illegal, the courts nevertheless cannot 
lose sight of the rule of prudence and practice which in the 
words of Martin Bin Res. v. Boyes (1861) 9 CCC. 32 "has 
become so hallowed as to be deserving of respect" and in 
the words of Lord Abinger "it deserves to have all the 
reverence of the law". This rule of guidance is to be found 
in illustration (b) to s. 114 of the Evidence which is as 
follows:-
"The court may presume that an accomplice is unworthy 
of credit unless he is corroborated in material 
particulars" ......... " 
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25. The learned senior counsel contends that PW-I 0 and PW-11 
D 
were witnesses to the entire conspiracy and does not prescribe any role 
toA-4 afterthe meeting on 05.12.2001 at the house of A-9. Nor does he 
prescribe any specific role to A-4 for the kidnapping of the deceased on 
30.12.2001. The learned senior counsel further places reliance on the 
cross examination of PW-I 0 which reads as under: 
"When r and Newton had gone to the house of the 3rd 
accused Manickam, 3'd accused Manickam said to the 
persons available there that the Ex M.L.A. Balan has to be 
brought and that some money has to be collected from him. 
After hearing this it was not
struck to me that it could be 
violence act. After Manickam said as such I and the witness 
Newton came out of the house. I do not know what they 
had spoken and decided thereafter. Thereafter Idid not 
see the accused Somasundaram ........ .'' 
(emphasis laid by this Court) 
E 
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26. The learned senior counsel contends that PW-I 0 does not 
G 
place A-4 on the spot at the vermicelli factory at any of the days from 
30.12.2001 till 01.01.2002. Further, in his cross examination he admits 
the fact of not having seen A-4 after 05.12.2001. According to PW-I 0, 
A-4 was not even one of the four persons who carried the body of the 
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deceased out of the premises of the vermicelli factory. 
27. The learned senior counsel further contends that since A-3 to 
A-11 and A-13 to A-17 have b~en acquitted by the Trial Court of the 
offence punishable under Section 120-B of !PC, the conviction under 
Section I 07 ofIPC cannot be sustained. Reliance has been placed on 
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the decision of this Court in the case of Pranmtlm Natfl Talukdar i: 
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Saroj Ranjan Sarkar5, wherein it was held as under: 
"Furthermore, it appears to me that though the expression 
"criminal conspiracy" occurs in para. 5 of the complaint, 
the facts alleged in the petition of complaint essentially 
disclose an offence of abetment by conspiracy. This brings 
us to the distinction between the offence of criminal 
conspiracy as defined in s. 120A and the offence of 
abetment by conspiracy as defined ins. 107 of the Indian 
Penal Code. Section I 20A which defines the offence of 
criminal conspiracy ands. 1208 which punishes the offence 
are in Ch. VA of the Indian Penal Code. This Chapter 
introduced into the criminal law of India a new offence, 
namely, the offence of criminal conspiracy. It was 
introduced by the criminal Law Amendment Act, 1913 (VII I 
ofl 913 ). Before that, the sections of the Indian Penal Code 
which directly dealt with the subject of conspiracy were 
these contained in Ch. V ands. 121 (Ch. VI) of the Code. 
The present case is not concerned with the kind of
conspiracy referred to in s. 121 A. The point before us is 
the distinction between the offence of abetment as defined 
in s. I 07 (Ch. V) and the offence of criminal conspiracy as 
defined in s. 120A (Ch. VA). Under s. I 07, second clause, 
a person abets the doing of a thing. who engages with one 
or more other person or persons in any conspiracy for the 
doing of that thing, if an act or illegal omission takes place 
in pursuance of that conspiracy. and an order to the doing 
of that thing. Therefore, in order to constitute the offence 
of abetment by conspiracy, there must first be a combining 
together of two or more persons in the conspiracy: secondly, 
·an act or illegal omission must take place in pursuance of 
that conspiracy.and in order to the doing of that thing. It is 
H 
'AIR 1962 SC 876
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [V. GOPALA GOWDA, J.] 
not necessary that the abettor should concert the offence 
with the person who commits it. It is sufficient ifhe engages 
in the conspiracy in pursuance of which the offence is 
committed. It is worthy of note that a mere conspiracy or a 
combination of persons for the doing of a thing does not 
amount to an abetment. Something more is necessary, 
namely. an act or illegal omission must take place in 
pursuance of the conspiracy and in order to the doing of 
the thing for which the conspiracy was made. Before the 
introduction of Ch. VA conspiracy, except in cases provided 
by Sections 121 A, 311, 400, 40 I and 402 of the Indian Penal 
Code, was a mere species of abetment where an act or an 
illegal omission took place in pursuance of that conspiracy, 
and amounted to a distinct offence. Chapter VA, however, 
introduced a new offence defined bys. I 20A. That offence 
is called the offence of criminal conspiracy and consists in 
a mere agreement by two or more persons to do or cause 
to be done an illegal act or an act which is not illegal by 
illegal means; there is a proviso to the section which says 
that no agreement except an agreement to commit an 
offence shall amount to a criminal conspiracy unless some 
act besides the agreement is done by one or more parties 
to such agreement in pursuance thereof. The position, 
therefore comes to this. The gist of the offence of criminal 
conspiracy
is in the agreement to do an illegal act or an act 
which is not illegal by illegal means. When the agreement 
is to commit ail offence, the agreement itself becomes the 
offence of criminal conspiracy. Where, however, the 
agreement is to do an illegal act which is not an offence or 
an act which is not illegal by illegal means, some act besides 
the agreement is necessary .. Therefore, the distinction 
between the offence of abetment by conspiracy and the 
offence of criminal conspiracy, so far as the agreement to 
commit an offence is concerned, lies in this. For abetment 
by conspiracy mere agreement is not enough. An act ot 
illegal omission must take place in pursuance of the 
conspiracy and in order to the doing of the thing conspired 
for. But in the offence of criminal conspiracy the very 
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agreement or plot is an act in itself and is the gist of the 
offence." 
(emphasis laid by this Court) 
28. The learned senior counsel submits that the language of the 
charge is that of abetment for fulfil I ing the conspiracy against the accused 
B 
persons. As the charge under Section 120-B oflPC has not been proved, 
Section 107 of IPC cannot be attracted in this case as the distinction 
between the offence of abetment by conspiracy and offence of criminal 
conspiracy is that in the former, a mere agreement among persons is not 
enough. 
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29. Mr. 8asant R., the learned senior counsel appearing on behalf 
of A-3 submits that A-:, has been acquitted of the offence under Section 
I 20-8 of IPC. The lea med senior counsel further submits that A-3 was 
never charged with th~ offences under Sections 34 and 149 ofl PC. He 
was only charged wit11 the offence under Section I 09 of IPC, whfoh by 
itself was a vague ch 1rge, making it impossible to defend. The learned 
senior counsel conte ids that the inclusion of the charge under Section . 
109 ofIPC would indicatethatA-3 was in fact not involved in the actual 
murder of the deceased. It is further contended that once the charge 
under Section 1208 •)fIPC fails to be established, the prosecution has to 
show the exact manner in which the abetment of an offence was done 
by A-3. The learned senior counsel contends that this did not happen, in 
the instant case. 
30.
The learned ~enior counsel further contends that as far as the 
charge of offence undbr Section 302 oflPC is concerned, even that has 
not been proved by the' prosecution satisfactorily. At the outset, the learned 
senior counsel contes~s the factum of the death of the deceased itself. It 
is contended that no 1prosecution witness has identified the dead body 
that was burnt on t~'e night of 01.01.2002. No DNA tests have been 
conducted to conclusively verify the identity of the body that was 
allegedly burnt on Of .01.2002. It is submitted that the reliance placed by 
the courts below on the evidence of PW-32 and PW-33 is also misplaced. 
PW-33 stated in hi~' testimony that A-3 had told him to procure a death 
certificate for one Rajamani Chettiar who had died. PW-33 then asked 
PW-32, a doctor he knew for the last fifteen years to issue the same. 
There is nothing to actually connect A-3 to the death certificate except 
the spoken word of PW-33. It is contended that it was in fact PW-32
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [V. GOPALA GOWDA, J.] 
and PW-33 who created the false evidence, and are now conveniently 
pinning it squarely on A-3. The learned senior counsel further contends 
that the specific role of A-3 in the murder of the deceased has not been 
proven, which makes it erroneous in law to convict him of the offence 
under Section 302 read with Section 109 of !PC. 
31. The learned senior counsel further contends that the testimony 
of PW-I 0 and PW-I I should not be relied upon, as their evidence is not 
corroborated by other material evidence. The learned senior counsel 
further contends that the fact that PW-10 and PW-11 have not been 
termed as 'accomplices' by the courts below and their evidence has no 
bearing on the reliability to record the finding of guilt. The fact that the 
term 'accomplice' has not been used to describe them is irrelevant, as if 
the evidence on record points to them being accomplices, then PW-I 0 
and PW-11 are in fact, accomplices. The learned senior counsel further 
submits that the term accomplice has not been defined in any statute. 
He places reliance on the definition of the term 'accomplice' in Black's 
Law Dictionary, in which it has been defined as under: 
"One who is in some way concerned or associated in 
commission of crime, a partaker of guilt, one who aids or 
assists, or is an accessory.'' 
Ramanatha Aiyar's Law Dictionary defines 'ac1;omplice' as: 
"There is some authority for using
the word 'accomplice' 
to include all· principals and all accessories. but the preferred 
usage is to include all principals and accessories before the 
fact, but to exclude accessories after the fact. If this 
limitation is adopted, the word 'accomplice' will embrace 
all perpetrators, abettors and inciters. 
The term in it fullness includes in its meaning an persons, 
who have been concerned in the commission of a crime, all 
. 
. 
. 
participles criminis, whether they are considered in strict 
legal property as principals in the first or second degree or 
merely as accessories before or after the fact." 
32. The learned senior counsel submits that the burden upon the 
accused to show that someone is an accomplice is only to the extent that 
the term accomplice is commonly understood. The burden on the accused 
· is not to show the guilt of the witness beyond reasonable doubt. 
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33. The learned senior counsel contends that it becomes clear 
from a perusal of the testimony of PW-IO and PW-I I (extracted in the 
earlier part of this judgment) that they were actively involved in the 
preparation of the crime. The learned senior counsel further contends 
that the testimony also clearly shows that both the PW shad full knowledge 
of the purpose for which they were making the preliminary preparations, 
i.e., for the abduction of the deceased and keeping him in the premises 
of the vermicelli factory. The learned senior counsel further submits that 
PW-I 0 and PW-I I can by no stretch of imagination be said to be 
approvers, as no court has granted them pardon and made them as 
approvers. 
34. On the question of the role prescribed by PW-I 0 and PW-I I 
to A-3, the learned senior counsel submits that there is no evidence 
which suggests that A-3 came in contact with the deceased while he 
was at the vermicelli factory premises. PW-I 0 had deposed as under: 
"On 30.12.200 I at 8:30 A.M., Udaykumar called me over 
my cell phone. Asked me to come to Henkala Hotel. l also 
went there. After sometime Accused Manickam came by 
Uno car. After coming to the room, he asked Udaykumar 
that he need a Maruti Van. Manickam took myself, 
Udaykumar and Senthilkumar in that Maruti Van and went 
to the vermicelli factory at Mudichur. When we went to 
the company, Manickarn alone got down and was standing
there. One person came down from upstairs and took me 
and Senthilkumar to upstairs. There were about 5 or 6 
persons. Ex. M.L.A. Balan was tied up with chain and his 
eyes were also closed with a cloth and he had been made 
to sit on the green steel cot which was provided by us 
already ......... " 
Further, PW-I 0 identifies four accused who brought down the 
dead body of the deceased and A-3 is not one of these four accused. 
35. The learned senior counsel contends that even if the evidence 
of PW-I 0 and PW-11 are accepted in toto, it does not at all suggest that 
A-3 was present in the vermicelli factory, which is the alleged scene of 
crime when the death occurred. Hence, the charge of the offence under 
Section 302 read with Section I 09 IPC cannot be sustained against A-3 
at all.
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [V. GOPALA GOWDA, J.] 
' 
36. Mr. P.V. Yogeswaran, the learned counsel appearing on behalf 
of A-15 contends that there is nothing in the evidence to directly implicate 
A-15 except M.0.1, the Reebok shoes produced by the prosecution on 
record which allegedly belonged to the deceased. PW-I however, in his 
testimony stated that M.0.1 showed to him in court, did not belong to his 
father. PW-2, the driver of the deceased has also denied that those shoes 
belonged to the deceased. The learned counsel further submits that the 
testimony of PW-I 0 and PW-11 cannot be relied upon, as the proper 
procedure as required under Section 164 ofCrPC has not been followed 
by the Court while recording their evidence. 
Contentions urged on behalf of the prosecution: 
37. On the other hand, Mr. Yogesh Kanna, the learned counsel 
appearing on behalf of the State ofTamil Nadu contends that there is no 
infinnity in the impugned judgment and order passed by the High Court, 
upholding the conviction and sentence passed against the accused-
appellants by the Trial Court, and the same need not be interfered with 
by this Court in exercise of its jurisdiction under Article 136 of the 
Constitution oflndia. 
38. The learned counsel places reliance on the evidence of 
Venugopal (PW-I 0). PW-I 0, in his deposition mentions the scouting for 
locations that had taken place, to carry out the most suitable location 
where the crime could be
carried out. He deposed as under: 
"In the second week of November, 200 I, this Accused 
Udayakumar called me over telephone and came to my 
office. At that time he asked me whether the houses are 
ready. I replied him that I have made them ready. Next 
day, Udaykumar called me once again and asked me and 
Newton to be in the office. He also told me that Poonga 
Nagar Manickam of Perambur is coming to my office. 
Around 2 P.M. on that day Udaykumar and Poonga Nagar 
Manickam came to my office. I and Newton were present 
in our office. Myself and Newton took Poonga Nagar 
Manickam and Udaykumar for the purpose of showing the 
houses. First we went from Tambaram to Camp Road and 
in a considerable distance from there to Mahalakshmi 
Nagar and showed my friend Mr. Choudry's house. Besides 
that, we showed 4 or 5 houses in that place. At last, they 
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saw my house also. Then Manickam told Udaykumar that 
he don't like the houses shown by us including my house. 
Then, Udaykumar asked to show the Vermicelli factory in 
Mudhichur Road. Myself and Newton took Poonga Nagar 
Manickam and Udayakumar and showed the Vermicelli 
factory in Mudichur Road. Witness Krishnapandi was also 
there. Manickam saw the factory. After seeing the factory, 
Manickam told Udayakumar that this place is the correct 
place for the work to be done by us." 
38. The learned counsel further contends that apart from explaining 
the meetings between the accused persons to hatch the conspiracy to 
abduct the deceased, PW-I 0 has also spoken about the Maruti Van that 
was used to carry the dead body of the deceased after the crime had 
been committed. PW-I 0 has deposed as follows: 
"On 30.12.2001 at 8:30 A.M., Udaykumar called me over 
my cell phone. Asked me to come to Henkala Hotel. l also 
went there. After sometime Accused Manickam came by 
Uno Car. After coming to room, he asked Udayakumar 
that he needed a Maruti Van. He went outside and brought 
one sandal colour Maruti Van. Manickam took myself, 
Udayakumar and Senthilkumar in that Maruti Van and went 
to the vermicelli factory at Mudichur. When we went to 
the company, Manickam alone got down and was standing 
there. One person came down from upstairs and took me 
and Senthilkumarto upstairs. There were about 5-6 persons. 
Even
Ex MLA M.K. Balan was tied up with chain and his 
eyes were also closed with a cloth and he had been made 
to sit on the green steel cot which was provided by us 
already. He was wearing black pant and sandal colour T-
shirt ...... " 
The learned counsel further submits that PW-I 0 in fact also saw 
the accused carrying the body of the deceased out of the vermicelli 
factory premises. The relevant portion of his evidence is extracted 
hereunder: 
"On 1.1.2002 morning, I came back to my house. By I 0:30 
a.m. Udayakumar called up over phone and asked me to 
come to Henkala Hotel. I also went there. After sometime
SOMASUNDARAM@ SOMU v. STATE REP. BY DY. COMM. 
299 
OF POLICE [V. GOPALA GOWD;\?J.] 
Manickam came there. Manickam asked Udayakumar to 
provide an ambulance to him. Udayalumar took me with 
him and went to 2,3 places in search of an ambulance. He 
could not find ambulance. Then Manickam told him that if 
ambulance is not there it does not matter, but to arrange 
one Maruti Van .and fix one Lumax light as fixed in 
ambulance vehicle. By that time, Manickam's driver Viji 
came there ...... After sometime Manickam called 
Udayakumar over phone. Then Udayakumar t91d me that 
Manickam asked me to arrange for a Maruti Van. 
Udayakumar asked me to wait there and went out and came 
back with a Maruti Car. That Maruti Van is of gold 
colour ...... I came to a tea shop with Newton by his motor 
cycle. Newton told me that lunch was not supplied in the 
afternoon to the Vermicelli factory and they have totd over 
phone that they do not need dinner also. I also told Newton 
about their requirement of ambulance. Also I told him that 
they are arranging for a vehicle like ambulance. I told him 
about Udayakumar sending the Maruti van by 8.00 P.M. 
and also about my fear on seeing all these. Newton was 
also very much scared. Both ofus suspected that something 
is going on in the company. Then, both of us started around 
8:45 P.M. from Tambaram and reached the Mudichur 
company by 9.00 P.M. There the gate in the ground floor 
was closed ...... The Golden colour Maruti sent from 
Henkala
Hotel was standing there ...... Then 4 persons came 
from upstairs carrying on Mr. M.K. Balan's body. Among · 
that four persons, 2 persons were holding his legs and the 
other 2 persons were holding his hands. By that time also 
M.K. Balan was wearing black colour pant, and sandal 
colour T shirt. After coming from the upper steps, there is 
a slab like place. They kept the body there. They took a 
cloth from the bag brought by Balamurugan and tied around 
M.K. Balan's body, like doing a dead body. There is no 
movement in the body." 
39. The learned counsel thus, submits that PW-I 0 has explicitly 
mentioned seeing the dead body of the deceased by some of the accused, 
and has also spoken about the Maruti Van which was recovered from 
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the accused-appellants. His testimony is crucial in placing the accused-
appellants at the scene of the crime, and their involvement in the same. 
It thus, establishes their guilt beyond reasonable doubt. 
40. The learned counsel further places reliance on the testimony 
of Newton (PW-I I). PW-I I has also spoken about making the 
preparations on the instruction of Poonga Nagar Manickam, A-3. 
Significantly, PW-I I also mentions seeing the dead body of the deceased 
being carried down the vermicelli factory premises. The relevant portion 
of his evidence is extracted as under: 
" ...... As per that, both ofus wentto the vermicelli company 
by the motor cycle. By that time, 2 persons were near the 
gate. Then both of them told us that we do not have any 
work there and we can go from there. Then I left the bike 
adjacent to the company and when I and Yenugopal crossed 
the company gate, we saw Balamurgan going into the 
vermicelli factory. At that time, 4 persons came from upstairs 
of the vermicelli factory, carrying M.K. Balan, who was 
wearing Black colour pant and T shirt (sandal colour) and 
they left him on the floor. They tied up M.K. Balan with the 
dhoti brought by Balamurugan and carried him to the van 
and the van started from there ...... I and Venugopal were 
scared and came back to home. PW-I 0 Venugopal told me 
that he was called by Poonga Nagar Manickam and told by 
him that if this matter
is leaked out anywhere he will kill 
him and his family." 
41. The learned counsel further places reliance on the testimony 
of PW-33, Kamaraj, who had procured the death certificate, which was 
shown as that of the deceased in order to cremate him. PW-33 stated 
that he had procured the death certificate at the instance of A-3. The 
relevant portion of his evidence is extracted hereunder: 
" ...... At that time Sarni told me that Manickam asked me 
to come by 6 am in the morning. Next day I went to 
Manickam's house by 6 am and when he enquired about 
my conveyance and I told him that I had come by Auto and 
he gave me Rs 50/- for expenses. Further he told that 
watchman working in a Kolathur company had died; and 
one Rajamani Chettiar expired and asked me to get a
'· 
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [V. GOPALA GOWDA, J.] 
certificate. I immediately told about PW-32, Dr. Anbarasu 
known to me for the past 15 years; and went to his place 
by auto. The Doctor was there. I told him that a watchman 
in a Kolathur Company had died. He believed me and gave 
it in writing in a letterhead. I gave it to Manickam in 
Perambur and came back to my house ...... " 
42. The learned counsel further relies on the evidence of Dr. K.V. 
Chinnaswamy, PW-32, who had stated that PW-33 had asked him for a 
death certificate .in the name of one Rajamani Chettiar. PW-32 stated 
that he had no reason to suspect PW-33, whom he had known for about 
fifteen years, and thus, issued the death certificate without even looking 
at the dead body of the deceased. 
43. '.J:he learned counsel further submits that after considering the 
evidence of PW-I and PW-3 and after perusal of the First Information 
Report, that according to the circumstantial evidence, it can be seen that 
it was indeed the deceased who had been kidnapped from MRC Nagar 
on 30.12.200 I at about 5 :30 a.m by the accused appellants. 
44. The learned counsel further contends that PW-lO and PW-11 
are not accomplices, and thus, their evidence can be safely relied upon, 
in light of the fact that they corroborate each other on all material aspects 
in relation to the charges. The learned counsel places reliance on the 
decision of the High Court of Lahore, in the case of Ismail
s/o Hassan 
Ali v. Emperor", wherein an accomplice was defined as: 
"The expression 'accomplice' has not been defined in the 
Evidence Act, but there can be little doubt that it means a 
person who knowingly or voluntarily cooperates with or aids 
and assists another in the commission of a crime. The 
expression obviously includes principals in the first and 
second degree. In the case in ('36) 23 A.LR. 1936 P.C. 
242 : 163 J.C. 681 (P.C.), Mahadeo v. The King their 
Lordships of the Privy Council held that the expression is 
wide enough to include persons who are known to the 
English law as accessories after the fact. An accessory 
after the fact is one who, knowing a felony to have been 
committed, receives, relieves, comforts or assists the felon. 
Three conditions must unite to render one an accessory 
6 AIR 1947 Lah 220 
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after the fact: (I) the felony must be complete; (2) the 
accessory must have knowledge thatthe principal committed 
the felony; and (3) the accessory must harbour or assist 
the principal felon. Mere acts of charity which relieve or 
comfort a felon, but do not hinder his apprehension and 
conviction nor aid his escape, do not render one an accessory 
after the fact ( 4 Blackstone's commentaries p. 38). He must 
be proved to have done some act to assist the felon 
personally ( 1823-41) 9 C.P. 355). The mere fact, that one 
had knowledge that a crime had been committed, and that 
he concealed or failed to disclose such knowledge, does · 
not render him an accomplice. If, for example, the 
concealment is due to the witness's anxiety for his own 
safety rather than to any desire to shield the criminal, he 
would not be an accomplice. Nor would a person who 
remains passively silent after obtaining knowledge of the 
commission of the crime be an accessory or an accomplice 
within the rule as to the testimony of accomplices. To render 
a person an accomplice his participation in the crime must 
be criminally corrupt." 
(emphasis laid by this Court) 
45. The learned counsel further contends that PW-I 0 and PW-11 
only did the things they were told to do, like scouting for the location and 
arranging the necessary items needed to keep the deceased at the 
vermicelli factory premises at the instance of the
accused-appellants. 
PW-I 0 and PW-11 were also threatened with harm to themselves and 
to their families if they did not comply with the instructions given to them 
by the accused-appellants. The learned counsel further contends that 
mere knowledge. of a crime does not make a person an accomplice. 
Reliance has been placed on the decision of the Calcutta High Court in 
the case of Narllin Cltandra Biswas ti Emperor7, wherein it was held 
as under: 
" It may further be noticed that where a witness is not 
concerned with the commission of the crime for which the 
accused is charged, he cannot be said to be an accomplice 
in the crime, as it is well settled that all accessories before 
the fact, if they participate in the preparation for the crime 
'AIR 1936Cal JOI
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
303 
OF POLICE [V. GOPALA GOWDA, J.] 
are accomplices, but iftheir participation is limited to the 
knowledge that crime is to be committed, they are not 
accomplices. "Whether therefore a person is or is not an 
accomplice depends upon the facts in each particular case 
considered in connexion with the nature of the crime; and 
persons to be accomplices must participate in the 
commission of the same crime as the accused persons in a 
trial are charged. All persons coming; technically within 
the category of accomplices cannot also be treated as on 
precisely the samefooting." 
c-- _ 
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46. The learned counsel submits that there is nothing on record to,,.. 
prove that PW-I 0 and PW-11 had prior knowledge that the deceased 
C 
would be murdered at the hands of the accused-appellants. The only 
knowledge they had was that the factory premises was needed for some 
work by the accused appellants. 
47. The learned counsel further contends that even if PW-I 0 and 
PW-11 were taken to be accomplices, their testimony can still be safely 
relied upon, for the reason that they corroborate each other, as well as 
corroborated by other independent witnesses, including P_W-1, the son 
of the deceased, as well as PW-13, who is an eyewitness to the kidnapping 
of the deceased. The learned counsel places reliance on the decision of 
this Court in the case of K Hasllim v. State of Tamil Nadu8, wherein it 
was held that: 
"First, it is not
necessary that there should be independent 
confirmation of every material circumstance in the sense 
that the independent evidence in the case, apart from the 
testimony of the complainant or the accomplice, should in 
itself be sufficient to sustain conviction. As Lord Readings· 
says -
. 'Indeed, if it were required that the accomplice should be 
confirmed in every detail of the crime, his evidence would 
not be essential to the case, it would be merely confirmatory 
ofother and independent testimony.' 
38. All that is required is that there must be some additional 
evidence rendering it probable that the story of the 
accomplice (or complainant) is true and that it is reasonably 
safe to act upon it. 
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39. Secondly, the independent evidence must not only make 
it safe to believe that the crime was committed but must in 
some way reasonably connect or tend to connect the 
accused with it by confirming in some material particular 
the testimony of the accomplice or complainant that the 
accused committed the crime. This does not meant that the 
corroboration as to identify must extend to all the 
circumstances necessary to identify the accused with the 
offence. Again, all that is necessary is that there would be 
independent evidence which will make it reasonably safe 
to believe the witness's story that the accused was the one, 
or among those, who committed the offence. The reason 
for this part of the rule is that -
"a man who has been guilty of a crime himself will always 
be able to relate the facts of the case, and ifthe confirmation 
be only on the truth of that history, without identifying the 
persons, that is really no corroboration at all ...... It would 
not at all tend to show that the party accused participated 
in it." 
40. Thirdly, the corroboration must come from independent 
sources and thus ordinarily the testimony of one accomplice 
would not be sufficient to corroborate that of another. But 
of course the circumstances may be such as to make it 
safe to dispense with the necessity of corroboration and in 
those special circumstances a conviction so based would 
not be illegal. I say
this because it was contended that the 
mother in this case was not an Independent source. 
41. Fourthly, the corroboration need not be direct evidence 
that the accused committed the crime. It is sufficient if it is 
merely circumstantial evidence of his connection with the 
crime. Were it otherwise, "many crimes which are usually 
committed between accomplices in secret, such as incest, 
offences with females' (or unnatural offences) could never 
be brought to justice". [See M.O. Shamsudhin v. State of 
Kerala.]" 
48. The learned counsel contends that the Trial Court and the 
High Court were correct in placing reliance on the testimony of PW-I 0 
and PW-11 and convicting and sentencing the accused-appellants for
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
OF P?LICE [V. GOPALA GOWDA, J.] 
kidnapping and murder of the deceased and the same does not warrant 
any interference by this Court in exercise of its appellate power under 
Article 136 of the Constitution. 
49. We have heard the learned counsel appearing on behalf of all 
the parties and have appreciated the evidence on record. The essential 
question that would arise for our consideration is whether the High Court 
was justified in upholding the conviction and sentence imposed on A-3 
and A-4 by the Trial Court. At the cost of reiteration, since the only 
appellants before us in the present appeals are A-3, A-4 and A-IS, we 
shall restrict our examination of the evidence on record only to their role 
in the .crime as has been alleged by the prosecution. 
SO. From a perusal of the evidence on record, it becomes clear 
that the case of the prosecution as far as A-3 and A-4 are concerned 
rests heavily on the evidence of PW-10 and PW-11, whose evidence is 
supported by the evidence of PW-33 and PW-34. 
51. At the outset, it is crucial for me to examine the evidence of 
PW-I 0 and PW-11, as this forms the backbone of the case of the 
prosecution against A-3 and A-4. 
S2. PW-10 has admitted to making preparations for the crime, 
albeit on the instructions of the accused. PW-I 0 stated that he had shown 
various houses to the accused, including his own, before settling in on 
305 
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the vermicelli factory premises as the
place where the deceased would 
E 
be brought and kept. PW-I 0 was also present in the alleged meeting 
held on 05.12.2001 atthe residence of A-3 at Perambur. In that meeting, 
PW-10 stated thafA-3 told everyone present there that the deceased 
had to be abducted and money recovered from him. It is further evident 
from the evidence of PW~lO that he arranged money and vehicles, as 
F 
and when needed. What becomes further clear from the evidence of 
PW-I 0 is that he has squarely kept himself out of the actual abduction 
and murder of the deceased. According to PW-I 0, on 31.12.200 I, the 
day that the deceased was abducted, A-9 Udayakumar called PW-I 0 to 
a hotel, from whereA-3,A-9,A-I went in a Maruti Van to the vermicelli 
factory at Mudichur. It was after reaching the vermicelli factory that 
G 
PW-I 0 was taken to the room where the deceased was tied up .in chains. 
PW-I 0 was then asked by A-3 to arrange for an ambulance or a vehicle 
like an ambulance. On 01.01.2002, at about 9:00 P.M., he saw the body 
of the deceased being carried downstairs by four persons. A-3 and A-4 
were not among them. 
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53. Newton, PW-I I, in his deposition states that at the request of 
A-9, he and PW~IO showed houses to A-3 and A-9. PW-11 was also 
present at the meeting on 05.12.200 I and saw A-4, A-6 and A-11 there. 
On the day of the abduction, PW-11 saw the deceased being brought 
into the vermicelli factory premises. He stated as under: 
" ...... After half an hour, Udayakumar called me over the 
phone and told me to open the gate of the vermicelli factory. 
Then, the Tata Sumo car came first, followed by the Ford 
Escort Car and a Maruti Zen Car. 4 persons got down from 
the Ford Car. Those 4 persons brought M.K. Balan by 
closing his eyes, mouth and tying his hands and took him to 
the I" floor. M.K. Balan was wearing black colour pant, 
sandal colour T shirt and shoes. 3 persons came out of the 
zen car. Udayakumar came to me and asked me whether I 
know that he is M.K. Balan and he also threatened me that 
ifl disclose the same to anybody Poonga Nagar Manickam 
will kill me and my family members. Then all the three cars 
went from the company. I can identify the 4 persons, who 
brought M.K. Balan in the Ford Car, if I see them. They 
are 4th accused, I J 'h Accused, 16th Accused and J 7•h 
Accused .................. The next day around 6.00 A.M. 
when Udayakumar came there, I went from there. 
Thereafter, Udayakumar called me over phone and asked 
me to buy tiffin for I 0 persons and gve the same to 
Balamurugan
in the vermicelli factory. By 12.00 noon, 
Udayakumar called again and asked me to buy lunch for I 0 
persons, B.P. tablets and head ache tablet and to handover 
the same to Balamurugan in Mudichur vermicelli factory. I 
gave them the same and went home ...... " 
54. PW-I I also speaks about seeing the dead body of the deceased. 
· He also identified the Ford Escort Car, M.O. 7, whose registration number 
is T.T.N. 10-F-5555. As farasA-15 is concerned, only PW-I I identifies 
him at the vermicelli factory premises on 30.12.2001, when he states 
that A-15 was one of the four persons who came with accused 
Balamurugan with the tiffin parcel. 
55. From a perusal of the evidence of PW-10 and PW-11, it 
becomes clear that they ar.e accomplice witnesses. It is also clear that 
the case of the prosecution heavily rests on their evidence. Before we
SOMASUNDARAM@ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [V. GOPALA GOWDA, J.] 
proceed to examine the culpability of A-3 and A-4, it is important for us 
to examine the reliability of the evidence of the above accomplices. 
Section 133 of the Indian Evidence Act, 1872, which deals with the 
testimony of accomplice witness, reads as under: 
"an accomplice shall be a competent witness against an 
accused person; and a conviction is not illegal inerely 
because it proceeds upon the uncorroborated testimony of 
ari accomplice." 
56. The High Court, in the impugned judgment and order also 
considered this aspect at some length. After adverting to judgments of 
both the Privy Council as well as this Court, the High Court concluded 
as under: 
" A deep study on the above approach in law as to the 
evidentiary value of the deposition of an accomplice, the 
following settled principles culminate; that an evidence of 
an accomplice need not necessarily be rejected, that the 
evidence requires corroboration in material particulars as 
well as the corroboration of the evidence connecting or tend 
to connect the accused with the crime, that such accomplice 
witness is reliable. If the above tests are satisfied, the 
evidence of an accomplice can be safely relied upon to 
" >~ hold the accused guilty of the offence. Keeping the above 
principle in mind, the evidence of PW-10 and PW-11 should 
be considered." 
57. In the instant case, PW-10 and PW-11 have not been granted 
pardon by any
Court and have been arrayed as prosecution witnesses. 
This Court has held that the mere fact that pardon has not been tendered 
by a court of law does not make an accomplice cease being an 
accomplice. The learned senior counsel Mr. Basant R. has aptly placed 
reliance upon the case of Laxmipat C/1oraria v. State of M"lmras/1tra9, 
this Court held as under: 
"The word accomplice is ordinarily used in connection with 
the law of evidence and rarely under the substantive law of 
crimes. Accomplice evidence denotes evidence of a 
participant in crime with others. Section 133 of the Evidence 
Act makes the accomplice a competent witness against an 
accused person. 
· 
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The witness was, of course, treated as an accomplice. The 
evidence of such an accomplice was received with 
necessary caution inthose cases. These cases have all been 
mentioned in In re Kandaswami Gounder AIRl 957Mad727, 
and it is not necessary to refer to them in detail here. The 
leading cases are : Queen Emperor v. Mona Puna I.L.R. 
16 Born. 661, Banu Singh v. Emperor I.LR. 33 Cal. 1353, 
Keshav Vasudeo Kortikar v. Emperor l.L.R. 59 Born. 355, 
Empress v. Durant I.L.R, 23 Born. 213, Akhoy Kumar 
Mookerjee v. Emperor I.LR. 45 Cal. 720, A.V. Joseph v. 
Emperor I.L.R. 3 Rang. 11, Amdumiyan and others v. 
Crown I.L.R. 1937 Nag. 315, Gallagher v. Emperor I.LR. 
54 Cal. 52, and Emperor v. Har Prasad, Bhargava I.LR. 
45 All. 226. In these cases (and several others cited and 
relied upon in them) it has been consistently held that the 
evidence of an accomplice may be read although he could 
have been tried jointly with the accused. In some of these 
cases the evidence was received although the procedure 
of s. 33 7, Criminal Procedure Code was applicable but was 
not followed. It is not necessary to deal with this question 
any further because the consensus of opinion in India is 
that the competency of an accomplice is not destroyed 
because he could have been tried jointly with the accused 
but was not and was instead made to give evidence in the 
case." 
(emphasis laid by this Court) 
58. The same view
has been reiterated by this Court more recently 
in the case of C/1andra11 ® Maniytm v. State of Kera/a 10• 
59. Thus, PW-I 0 and PW-I I being accomplice witnesses, their 
evidence must be treated as such, and subject to the same test ofreliability 
of the evidence of an accomplice or approver are subject to. 
60. As far as how much reliance can be placed upon the evidence 
of such witnesses is concerned, in this regard this Court has laid "Clown 
the well settled position oflaw. In support of the above legal submission, 
the learned senior counsel Mr. Basant R. relied upon the case of Sarwan 
Singli v. State of Punjab 11 , a three judge bench of this Court held as 
,,, (2011) s sec 161' 
II AIR 1957 SC 637
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
309 
OF POLICE [V. GOPALA GOWDA, J.] 
under: 
A 
"An accomplice is undoubtedly a competent witness 
under the Indian Evidence Act. There can be, however, no 
doubt 'that the very fact that he has participated in ,the 
commission of the offence introduces a serious stain in his 
evidence and courts are naturally reluctant to act on such 
B 
tainted evidence unless it is corroborated in material 
particulars by other independent evidence. It would not be 
right to expect that such independent corroboration should -
cover the w_hole of the prosecution story -or even all the 
material particulars. If such a view is adopted it would render 
the evidence of the accomplice wholly superfluous. On the 
C 
other hand, it would not be safe to act upon such evidence 
merely because it is corroborated in minor particulars or 
incidental details because, in such a case, corroboration does 
not afford the necessary assurance that the main story 
disclosed by the approver can be reasonably and safely 
D 
accepted as true. But it must never be forgotten that before 
the court reaches the stage of considering the question of 
corroboration and its adequacy or otherwise. the first initial 
and essential question to consider is whether even as an 
accomplice the approver is a reliable witness. lfthe answer 
to this question is against the approver then there is an end 
E 
of the matter. and no question as to whether his evidence is 
corroborated
or not falls to be considered. In other words, 
the appreciation of an approver's evidence has to satisfy a 
double test. His evidence must show that he is a reliable 
witness and that is a test which is common to all witnesses. 
If this test is satisfied the second test which still remains to 
be applied is that the approver's evidence must receive 
sufficientcorroboration. This test is special to the cases of 
weak or tainted evidence like-that of the approver. " 
(emphasis laid by this Court) 
The above principle was reiterated in the case of Haroom Haji 
Abdulla v. State of Mal1araslltra
1 ~, as under: 
"8 ....... The Evidence Act in Section 133 provides that an 
accomplice is a competent witness against an accused 
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person and that a conviction is not illegal merely because it 
proceeds upon the uncorroborated testimony of an 
accomplice. The effect of this provision is that the court 
trying an accused may legally convict him on the single 
evidence, of an accomplice. To this there is a rider in 
Illustration (b) to Section 114 of the Act which provides 
that the Court may presume that an accomplice is unworthy 
of credit unless he is corroborated in material particulars. 
This cautionary provision incorporates a rule of prudence 
because an accomplice, who betrays his associates, is not 
a fair witness and it is possible that he may, to please the 
prosecution, weave false details into those which are true 
and his whole story appearing true. there may be no means 
at hand to sever the false from that which is true. It is for 
this reason that courts. before they act on accomplice 
evidence. insist on corroboration in material respects as to 
the offence itself and also implicating in some satisfactory 
way, however small. each accused named by the 
accomplice. In this way the commission of the offence is 
confirmed by some competent evidence other than the 
single or unconfirmed testimony of the accomplice and the 
inclusion by the accomplice of an innocent person is 
defeated. This rule of caution or prudence has become so 
ingrained in the consideration of accomplice evidence as to 
have almost the standing of a
rule of law. 
9. The argument here is that the cautionary rule applies, 
whether there be one accomplice or more and that the 
confessing co-accused cannot be placed higher than an 
accomplice. Therefore, unless there is some evidence 
besides these implicating the accused in some material 
respect, conviction cannot stand. Reliance is placed in this 
connection upon the observations of the Judicial Committee 
in Bhuboni Sahu v. Emperor a case in which a conviction 
was founded upon the evidence of an accomplice supported 
only by the confession of a co-accused. The Judicial 
Committee acquitting the accused observed: 
." ...... Their Lordships whilst not doubting that such a 
conviction is justified in law under s. 133, Evidence Act,
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [V. GOPALA GOWDA, J.) 
and whilst appreciating that the coincidence of a number 
of confessions of co-accused all implicating the particular 
accused given independently, and without an opportunity 
of previous concert, might be entitled to great weight, 
would nevertheless observe that Courts should be slow 
to depart from the rule of prudence, based on long 
experience, which requires some independent evidence 
implicating the particular accused. The danger of acting 
upon accomplice evidence is not merely that the 
accomplice is on his own admission a man of bad 
character who took part in the offence and afterwards 
to save himself betrayed his former associates, and how 
has placed himself in a position in which he can hardly 
fail to have a strong bias in favour of the prosecution; 
the real danger is that he is telling a story which in its 
general outline is true, and it is easy for him to work into 
the story matter which is untrue ..... "" 
(emphasis laid by this Court) 
In the case of Ravine/er Singlt v. State of Haryana
13, a three 
judge bench of this Court held as under: 
"12. An approver is a most unworthy friend, if at all, and 
he, having bargained for his immunity, must prove his 
worthiness for credibility in court. This test is fulfilled, firstly, 
ifthe story he relates involves him in the crime and appears 
intrinsically to be a natural and probable catalogue of events 
that had taken place. The
story if given, of minute details 
according with reality is likely to save it from being rejected. 
Secondly, once that hurdle is crossed, the story given by an 
approver so far as the accused on trial is concerned, must 
implicate him in such a manner as to give rise to a conclusion 
of guilt beyond reasonable doubt. In a rare case taking into 
consideration all the factors, circumstances and situations 
· governing a particular case, conviction based on the 
uncorroborated evidence of an approver confidently held. 
to be true and reliable by the court may be permissible. 
Ordinarily, however, ari approver's statement has to be 
corroborated in material particulars bridging closely the 
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distance between the crime and the criminal. Certain 
clinching features ofinvolvement disclosed by an approver 
appertaining directly to an accused, if reliable, by the 
touchstone of other independent credible evidence, would 
give the needed assurance for acceptance of his testimony 
on which a conviction may be based." 
(emphasis laid by this Court) 
61. It becomes clear from a perusal of the abovementioned case 
law that while the evidence of an 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 oflaw 
that the evidence of two accomplices cannot be used to corroborate 
with each other, as held in the case of R v. Baskerville
1
~. The same 
position of law has been reiterated and adopted in India in a catena of 
cases. In this regard, the learned senior counsel Mr. Basant R. has placed 
reliance upon the case of Moltd. Hussain Koclira v. K.S. Dalipsing/1ji 
& Ors. 15, a three judge bench of this Court held as under: 
"The combined effect of Sections 133 and 114 lllustration 
(b) is that though a conviction based upon accomplice 
evidence is legal the Court will not accept such evidence 
unless it is corroborated in material particulars. The 
corroboration must connect the accused with the crime. It 
may be
direct or circumstantial. It is not necessary that the 
corroboration should confirm all the circumstances of the 
crime. It is sufficient if the corroboration is in material 
particulars. The corroboration must be from an independent 
source. One accomplice cannot corroborate another." 
(emphasis laid by this Court) 
62. The said position of law was reiterated by this Court in the 
case of C/1onampara C/1ellapa11 v. State of Keralll
16 as under: 
"Tl}e law is well settled that the Court looks with some 
amount of suspicion on the evidence of an accomplice 
witness which is tainted evidence and even Section 133 of 
1' (1916) 2 KB 658 
"(1969) 3 SCC429 
"(1979) 4 sec 312
" 
SOMASUNDARAM@ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [V. GOPALA GOWDA, J.] 
the Evidence Act clearly provides that the evidence of an 
accomplice witness should not be accepted unless 
corroborated. At the same time, it must be remembered 
that corroboration must be in respect to material particulars 
and not with respect of each and every item however minor 
or insignificant it may be. Actually the requirement of · 
corroboration is a rule of prudence which the courts have 
followed for satisfying the test of the reliability of an 
approver and has now been crystallized into a rule oflaw. 
It is equally well settled that one tainted evidence cannot 
corroborate another tainted evidence because if this is 
allowed to be done then the verv necessity of corroboration 
is frustrated." 
(emphasis laid by this Court) 
63. Further, 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, as is the case here. In 
the case of S/1es/1anna B/1umanm1 Yadav v. State of Maliaras/1tra 11, 
this Court held as under: 
"The law with regard to appreciation of approver's evidence 
is based on the effect of Sections 133 and 114 illustration 
(b) of the Evidence Act, namely, that an accomplice is 
competent to depose but as a rule
of caution it will be unsafe 
to convict upon his testimony alone. The warning of the 
danger of convicting on uncorroborated evidence is therefore 
given when the evidence is that of an accomplice. The 
primary meaning of accomplice is any party to the crime 
charged and someone who aids and abets the commission 
of crime. The nature of corroboration is that it is confirmatory 
evidence and it may consist of the evidence of second 
witness or of circumstances like the conduct of the person 
against whom it is required. Corroboration must connect or 
tend to connect the accused with the time. When it is said 
thatthe corroborative evidence must implicate the accused 
in material particulars it means that it is not enough that a 
----
17 AIR 1970 SC 1330 
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piece of evidence tends to confirm the truth of a part of the 
testimony to be corroborated. That evidence must confirm 
that part of the testimony which suggests that the crime 
was committed by the accused. If a witness says that the 
accused, and he stole the sheep and he put the skins in a 
certain place, the discovery of the skins in that place would 
not corroborate the evidence of the witness as against the 
accused. But ifthe skins were found in the accused's house, 
this would corroborate because it would tend to confirm 
the statement that the accused had some hand in the theft. 
This Court stated the law of corroboration of accomplice 
evidence in several decisions. One of the earlier decision is 
Sarwan Singh v. State of Punjab and the recent decision is 
Lachi Ram v. State of Punjab. In Sarwan Singh's case this 
Court laid down that before the court would look into the 
corroborative evidence it was necessary to find out whether 
the approver or accomplice was a reliable witness. This 
Court in Lachi Ram's case said that the first test ofreliability 
of approver and accomplice evidence was for the court to 
be satisfied that there was nothing inherently impossible in 
evidence. After, that conclusion is reached as to reliability 
corroboration is required. The rule as to corroboration is 
based on the reasoning that there must be sufficient 
corroborative evidence in material particulars to
connect 
the accused with the crime." 
64. The accused before us are A-3, A-4 and A-15. What is crucial 
to consider at this stage is that the Trial Court acquitted all the above 
accused of the charge of conspiracy under Section 120-8 of !PC. They 
have however, been convicted for, among others, the offences under 
Section 302 read with Section I 09 and Section 364 read with Section 
I 09 ofIPC. 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 Ford Escort Car (M.0.12) recovered at the instance of 
PW-10, from the house of A-3, does not trace back its ownership to A-
4. The requirement ofcorroboration from independent sources in material 
particulars has 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-I 0 nor PW-11 are witnesses to the abduction
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [V. GOPALA GOWDA, J.] 
of the deceased. PW-13, who witnessed the abduction, also did not 
mention the above three accused at the site of the abduction. PW-I 0 
places A-3 and A-4 at the meeting on 05.12.2001. But this fact loses 
significance in view of the fact that they have been acquitted of the 
offence of conspiracy under Section 1208 of lPC. PW-I 0 and PW-11 
also saw the body of the deceased being brought down in the vermicelli 
factory premises on the night ofO 1.01.2002. 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-I 0 and PW-I I is that even at the vem1icelli 
factory premises, A-3 stayed downstairs, while it was PW-I I who went 
upstairs and actually saw the deceased tied to chains and the room where 
he was kept. PW-I I only saw A-15 atthe site on the night of30.12.2001, 
carrying a tiffin parcel. A-4 has not been mentioned anywhere at the 
vermicelli factory at all. Further, as 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. In light of the fact that PW-32 has admitted to 
issuing the death certificate without even seeing the dead body of the 
deceased at the request of PW-33. PW-33 has stated that he
only did so 
at the instance of A-3. 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 wayconnectA-3 to the deceased, thus rendering 
the claim of the prosecution doubtful and shaky. 
65. As far as A-1 S is concerned, the crucial evidence on which 
reliance was placed upon by both the courts below to convict him was 
the recovery of M.O. I, reebok shoes on his direction. PW-31, 
Samundeswari, a supervisor at the vermicelli factory, in her deposition 
stated that she saw a person at the vermicelli factory premises on the 
next day, i.e. 01.01.2002, who stated that he had come to take something. 
He took a Reebokshoe from the factory. Both the courts below, however, 
failed to notice that PW-31 had explicitly stated in her testimony that: 
"On l 81h March, one person was brought by the police that 
I only shouted him and that ifit is asked me whether I could 
be able to identify the said person, I could say that as it is a 
lapse of more than 2 years, I could not remember that 
person." 
(emphasis laid by th is Court) 
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Thus, the evidence of PW-31 cannot be used againstA-15, which 
has erroneously been done by the courts below. Further, PW-I and PW-
2 have both stated in their testimony that the particular reebok shoe did 
not belong to the deceased. Thus, there is nothing on record which 
connects A-15 either to the crime, or to the deceased. 
66. Thus, the evidence of PW-IO and PW-II is not reliable for 
recording the finding of guilt on the charges against the accused appellants. 
Even ifit is placed reliance upon, A-3, A-4 andA-15 cannot be convicted 
of the offences of kidnapping and murder, more so in 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 ofIPC. 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. 
67. The accused appellants in the instant case have also been 
convicted under Section I 09 ofIPC (.Section 302 read with 109 and 365 
read with I 09 IPC), which prescribes the punishment for the offence of 
abetment. Section 107 of !PC provides for the offence of abetment as 
under: 
"107.Abetment ofa thing-A person
abets the doing of 
a thing, who---
(First)- Instigates any person to do that thing; or 
(Secondly)- Engages with one or more other person or 
persons in any conspiracy for the doing of that thing, ifan 
act or illegal omission takes place in pursuance of that 
conspiracy, and in order to the doing of that thing; or 
(Thirdly)-Intentionally aids, by any act ot illegal omission, 
· the doing of thatthing. 
Explanation 1-A person who, by wilful misrepresentauon, 
or by wilful concealment of a material fact which he is 
bound to dis-close, voluntarily causes or procures, or attempts 
to cause or procure, a thing to be done, is said to instigate 
the doing of that thing ....... "
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
·OF POLICE [V. GOPALA GOWDA, J.] 
Mr. Siddharth Luthra, the learned senior counsel appearing on 
behalf of appellant A-4 rightly places reliance on the decision of this 
Court in the case of Pramat/1a Natlt Taluktlar (supra), wherein this 
Court discussed the distinction between the offence of criminal conspiracy 
under Section I 20A of IJ>C and that of abetment by conspiracy under 
clause second of Section 107 of!PC. The view taken in that case was 
reiterated by a three judge bench of th is Court in the case of Ke/tar 
Singh & Ors v. State (DelhiAtlministration)' 8 as under: 
" ...... For the present, it may be sufficient to state that the 
gist of the offence of criminal conspiracy created under 
Section 120-A is a bare agreement to commit an offence. 
It has been made punishable under Section 120-B. The 
offence of abetment created under the second clause of 
Section I 07 requires that there must be something more 
than a mere conspiracy. There must be some act or illegal 
omission in pursuance of that conspiracy. That would be 
evident by the wordings of Section I 07 (Secondly) ...... " 
(emphasis laid by this Court) 
Thus, for Section I 09 ofIPC, 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 1208 of IPC. Once the charge 
under Section 1208 ofIPC falls, in order to convictthe accused appellants 
under Section 302 read with Section I 09 IPC, or Section 365 read with 
Section 109 !PC, what was needed to be established was the happening 
of some overt act on the part of the accused appellants. From the 
evidence on record which.has already been appreciated in detail in the 
preceding part of this judgment, there is no evidence except the testimony 
of PW- I 0 and PW-I I which links the accused appellants to the crime. 
For the reasons stated supra, I have already come to the conclusion that 
the testimony of PW-I 0 and PW-I I is untrustworthy and cannot be relied 
upon to convict the accused appellants in the instant case. Thus, the 
charge under Section 109 of!PC also cannot sustain. 
68. Thus, for the reasons stated supra, the Trial Court erred in 
convicting the accused appellants, more so, after having acquitted them 
of the offence of criminal conspiracy punishable under Section 1208 of-
"< 1988) 3 sec 609 
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!PC. Even the High Court adopted the same erroneous approach while 
re-appreciating the evidence against the accused appellants and attempting 
to look for a complete link, as ifthe 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. Therefore, these criminal appeals must be allowed in exercise of 
the power of this Court under Article 136 of the Constitution of India 
and the accused appellants are entitled for acquittal from the charges. 
69. For the reasons recorded supra, I set aside the impugned 
judgment and order dated 06.10.2007 passed by the High Court in 
upholding the judgment and order passed by the Trial Court convicting 
A-3, A-4 and A-15. The prosecution has not proved its case beyond 
reasonable doubt against the accused appellants. Hence, I acquit A-3, 
· A-4 and A-15 of all charges. They may be released forthwith if they are 
not required in any other case. 
ARUN MISHRA, J, 1. I have gone through the opinion of my 
esteemed Brother but I find myself unable to agree with the same. In 
my opinion judgment-order of conviction of Trial Court affirmed by the 
High Court deserves to be upheld. 
2. The appellants are aggrieved by their conviction. They have 
been convicted and sentenced, as
noted by my learned Brother, for 
commission of abduction and murder of one Shri M.K. Balan, former 
Member of Legislative Assembly. In all, 18 accused were put to trial. 
The trial court acquitted Romita Mary accused No.12 and Ganesan 
accused No.18 and convicted the remaining accused. The appeal filed 
by accused No.JO, namely, Leela Shankar, has been allowed by the 
High Court and with respect to remaining I 5 appellants, the same has 
been dismissed; thereby maintaining the conviction and sentence imposed 
by the trial court. Out of the convicted accused, only three accused 
Manickam @ Poonga Nagar Manickam A-3; Somasundaram A-4; and 
Bomb Selvam A-15 are in appeal before us. Senthil Kumar A-1 and 
Manickam were highly influential figures and the murder is a high profile 
political murder involving various personalities. 
3. As per the prosecution case, on 30.12.200 I one M .K. Balan 
went for a morning walk at about 5.30 a.m. but did not return home. 
Hence, a complaint was lodged by his son Manimaran PW-I. Complaint
SOMASUNDARAM@ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [ARUN MISHRA, J.] 
Ex. Pl was filed at Pattinpakkam P.S. at about 11 a.m. Photo of deceased 
Shri M.K. Balan was published in the newspaper and sent to the Police 
Stations. The case was transferred to CBCID, Chennai on 12.1.2002. 
Initially, the investigation was done by John Joseph, PW-66. Later on, it 
was taken over by PW-67, the Deputy Superintendent of Police, Ci3 
CID. On 21.2.2002, the Investigating Officer (IO) came to know of the 
involvement of accused A-5, Balamurugan, in the offence through an 
informant. On 18.3.2002, at about 5.30 a.m. Investigating Officer PW-
67 arrested A-5 and recorded his confessional statement Ex. P-43 who 
identified T.K.P. Food Products Company i.e. vermicelli factory at 
Mudichur as place where deceased was kept after abduction. A-5 also 
319 
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took the IO to a cremation ground at Perambur where body was cremated, 
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the IO prepared a m~mo Ex. A-47, sketch Ex. P-48 and recorded 
statements ofPWs. 12 and 19, two vettiyans, who identified MO 14, the 
photograph of the deceased M.K. Balan whose body was cremated. 
Identification memo Ex. P-46 was prepared in the presence of PW-44. 
Thereafter, one Kannan, Office Assistant of Corporation of Chenn,;ii . 0 
had been examined and death report Ex. P-29 submitted in the name of 
fictitious person to cremate deceased, was seized which related to one 
Rajamani Chettiar son ofChindamani Chettiar, aged about 61 years. Ex. 
P-30 death
register, Ex. P-31 the counterfoil and Ex. P-32 despatch 
notebook were also seized. Deceased was cremated on the basis of 
false death certificate Ex. P-27.Aftertwoand half months on 19.3.2002, 
E 
certain articles were recovered from cremation ground and on the same 
day at about 11.30 p.m., Shankar Ganesh A-6 was arrested near 
Perambur buscstand, and I.O. recorded the confessional statement of 
A-6 on 20.3.2002 in the presence of Jagannathan PW-24 and other 
witnesses. Seizure ofMaruti Omni van under memo Ex. P-17 was also 
F 
made. Irudhayaraj A-7 was also arrested on the same day and his 
confessional statement Ex. P-38 was recorded. Pursuant thereto, an 
. iron cot, used in factory premises of Mudichur, M0-11 was seized vide 
memo Ex. P-7 in the presence of Geetha PW-17. 
4. On 25.3.2002, at about 8.15 a.m., Manickam A-3, was arrested 
and his confessional statement Ex. P-20 came to be recorded on the 
G 
basis whereof M0-12 Maruti zen car was seized vide memo Ex. P-6. 
On the same day the IO also recorded the statement of PW-32 who 
was Lusker in the Corporation of Chennai, and the proprietor of vermiCelli 
factoryT.K.P. Food Products, Mudichur, namely, Krishnapandi PW-34. ·· 
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Accused No.9 was arrested and as per his information furnished under 
section 27 of the Evidence Act, Maruti van TN-22-B-8853 was recovered 
from V.R. Pandian PW-18, in the presence ofSriramulu PW-25. On the 
basis of confessional statement of A-3 dated 5.4.2002, recovery ofMOs. 
28 to 33 vide memo Ex. P-36 was made. Somu @ Somasundaram A-4, 
had been arrested on 9.4.2002 at about 6 a.m. at Chrompet Railway 
Station. His confessional statement Ex. P-34 had been recorded in the 
presence of PW-9 and recovery of M0-6 Ford Escort car No. TN- IO-
F-5555 was made vide memo Ex. P-9. Bomb Selvam A-15, was arrested 
on 24.4.2002 and his confessional statement Ex. P-50 was recorded in 
the presence of PW-44. Pursuant to information furnished by him, 
recovery ofM0-10 Hero Honda bike was made vide memo Ex. P-51. 
Other accused persons were also arrested from time to time. Their 
confessional statements were also recorded and recoveries made. 
Ultimately, after investigation, final report was filed. In the course of 
trial, the prosecution examined all the 67 witnesses. Documents Ex.P-1 
to P-86 were exhibited and articles MOs. I to 39 were produced 
consisting of six cars: M06 Ford Escort Car TN 1OF5555; M07 Golden 
colour Maruti van TN 22P 8853, MOS Maruti van TN 02 0343; M09 
Maruti van TNA 7484; M0-12 Maruti Zen TN 02 Z99; Tata Sumo car 
TN-04 D 9657; Motorcycle M.0-10 - Hero Honda; tape-recorder; 
suitcase; bedpan;
chain; iron cot; photo ofM.K. Balan; TTK cassettes; 
2 pants, 2 shirts, one dhoti, knife, charger, mobile phones etc. were 
recovered. Accused abjured their guilt and pleaded innocence. 
5. The arguments advanced and evidence produced by prosecution 
consists of different sets which can be divided in the following heads : 
(i) Prosecution case - Evidence of PWs. I 0 and 11; 
(ii) Prior relationship of accused; 
(iii) Selection of premises where M.K. Balan was kept/and other 
arrangements; 
(iv) Abduction of deceased M. K.Balan on 30.12.2001 in white 
omni van; 
(v) Taking of M. K. Balan to factory premises/meeting dated 
30.12.2001 at the residence ofA-9; 
(vi) Commission of offence under section 302 IPC; 
H 
(vii) Removal of dead body from factory premises;
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
321 
Of' POLICE [ARUN MISHRA, J.] 
' (viii) Cremati.on of dead body; 
A 
(ix) Procurement of death certificate by A-3; 
(x) Confessions and recoveries from accused; 
(xi) Commission of offence under section 387 IPC; 
(xii) Effect ofacquittal under section 1208 IPC; 
(xiii) Evidence of accomplices; 
(xiv) Holding Tl/recording of statement under section 164 Cr.P.C.; 
(xv) Cell phones/cassettes/forensic evidence 
6. Evidence of PW-10 and PW-11 : 
It appears that Venugopal PW-10 and Newton PW-11 helped the 
accused persons for hiring of vermicelli factory at Mudichur, renting 
some of cars, arranging for hotels, food, arrangement of fan, bedpan, 
cot, arrangement for money, hiring of vermicelli factory which was hired 
twice firstly for a week in the end of November/early December then 
again in end of December to 1.1.2002 when incident took place. 
7. Venugopal PW-10 is one of the main witnesses in the instant 
case. He has deposed that he and Newton PW-11, are business partners. 
During 1999, he and A-9 had obtained licence to quarry sand at Kulur, 
Tiruvallur district. A-9 told him that one Krishnapandi PW-34 is running 
a Semiya manufacturing company in the name ofT.K.P. Food Products 
at Mudichur and as the company was running at loss, and if they invested, 
they may earn profit. Therefore, both, PW-i 0 and PW-11 invested Rs. 3 
lakhs each in the said company and gave money to Krishnapandi. That 
while PW-10 and PW-11 had gone
to a polling booth in the election held 
during August 200 I, A-9 met PW-I 0. A-9 told PW-10 that he will be 
joining a leading political party andA-3 will help him and to reciprocate, 
he should do some favour for A-3. A-9 also told him thatA-3 has promised 
him to get him a post in the party and therefore, he wanted a place to 
complete the job assigned to him by A-3. 
· 
8. Venugopal PW-10 has clearly stated that he had shown the 
house at Mahalakshmi Nagar of his friend Mr. Chowdry but that was 
not liked by Manickam and Udayakumar. The house of the witness was 
also not liked by accused Manickam A-3 and Udayakumar A-9. A-9 
had asked to show the vermicelli factory at Mudichur Road then the 
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'' 
-~ ...... 
said witness took A-3 and A-9 to vei:micelli factory where Krishnapandi 
P-34 was also present. Manickam A-3 told A-9 that place is suitable for 
the work to be done by them. Later on, it was this factory where deceased 
M.K. Balan was kept after abduction. Krishnapandi was told that they 
required the factory for one week and the loss to be caused will be paid 
to him. The witness h,as identified A-3. The said witness Venugopal 
PW-I 0. Newton PW-I I, A-3 and A-9 travelled in the same car to 
Tambaram, that is in the white Ambassador car PY-0 l-H-4046. The 
witness has also stated that Manickam, A-3 told him that a screen was 
required to be put on the windows of factory in the first floor in which 
M.K. Balan was kept. The witness also arranged two cots on credit 
from Mis. N irmala Industries. On being asked by A-9 besides the chairs 
from his house, fan from A-9's house, bed pan was also kept in the 
vermicelli factory at Mudichur. Venugopal PW-I 0, A-9 and his friend 
Newton PW-11 had put them in the room. Screen over the windows 
was also fitted. Manickam A-3 and Udayakumar A-9 asked Krishnapandi 
to give one week off to the employees of the factory but on and around 
,5.12.2001, no VIP came there as at that time, M.K. Balan could not be 
abducted. In the end of November, A-9 asked the witness for his Ford 
Escort car for 2-3 months to send it to A-9. Vijayan PW-49, driver of A-
3 took the
car. On 5.12.2001, A-9 called Venugopal PW-10 over phone 
and requested him and Newton PW-11 to reach the house of Manickam 
A-3 at Perambur. On that day they went to the house of A-3. In the 
house 2-3 persons were also there. They went inside the house. 
Manickam A-3 was telling to the persons who were present there and 
Udayakumar A-9 that ex-MLA M.K. Balan has to be brought as some 
money was to be collected from him. After that PW-I 0 and PW- I I 
went and sat in the car. After about half an hour A-9 came. Manickam 
A-3 also came out who went out in Ford Escort car ofVenugopal PW-
10 which had been given by him on rent. They followed the said car. 
Venugopal PW-I 0, Newton PW-I I and A-9 followed the said car of A-
9. Other persons who were present in the meeting at the residence of 
Manickam, came by another car. They were Somasundaram A-4, 
Shankar A-6, and Sampath A-11. When they were travelling by a car, 
Manickam A-3 called A-9 over phone and asked him to come to the 
temple at N .S.C. Bose Road. Venugopal PW-I 0, Newton PW- I I and 
Udayakumar A-9 went to the temple. After sometime Manickam A-3 
brought two men and one woman in the Ford Escort car. Four persons 
came in the car, went to a temple and came out after worship. Thereafter
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [ARUN MISHRA, J.] 
Manickam travelled in the same car. They followed them. The persoris 
accompanyingA-3 were Senthil Kumar A-I, Hariharan A-2 and Romita 
A-12. A-12 was dropped at Chintadripet and the car ultimately reached 
Woodlands Drive Hotel. Then PW-I 0 and PW-I I left for their respective 
places. By that time Manickam A-3 told A-9 to follow and wenfalong 
with Senthil Kumar A- I and Hariharan A-2 in the Ford Escort car. A-3 
came alone to the hotel by the car then Venugopal, Newton and 
Udayakumar came by the car of A-9 to Tambaram. A-9 again contacted 
PW-I 0 over phone on the next day, and requested him to get the key of 
the house belonging to one Chowdry ofMahalakshmi Nagar. Accordingly, 
PW-!O and PW-I I collected the said key from Chowdry and waited in 
the house for A-9 to come. At around 7 p.m., Manickam A-3, A-9 and 
A-1 came with one more person by Ford Escort car along with A-5. A-
3 introduced Venugopal and Newton to A-I by referring him as a big 
r 
VIP known as Senthil Kumar and that they should not talk to him. A-3 
also asked Venugopal PW-I 0 to arrange food for Senthil Kumar and to 
do other works for him. Balamurugan A-5 served the food to A-1. Since 
mobile connection was not available for Senthil Kumar A-I at the said 
place, he was made to stay in the house of A-9, Cell No. used by Senthil 
Kumar A-1was9840230709. 
9. PW-10 has further stated that on 08.10.2001, A-I infonned 
PW-I 0 that
A-3 requires Rs. I, 10,000/- and it will be returned in two to 
three days. On 10.12.2001, PW-10 pledged jewels belonging to him and 
obtained Rs. I, I 0,000/- and took the said amount to A-9's house as per 
his instruction. Thereafter A-9 took PW-I 0 to Hotel Excellency in 
T.Nagar where A-9 handed over the said amount to A-2. As factory at 
Mudichur was selected to keep abductee. That at the request of A-9 
and A-3, PW-10 had arranged the Semi ya manufacturing factory 
belonging to PW-34 for a week. On 30.12,200 I, after getting the keys of 
Semiya manufacturing factory from him, A-3 handed over the said keys 
to A-5 and A-3 returned to A-9's house along with PW- I 0, where PW-
10 saw A-1 and A-2 were staying and PW- I 0 heard A-3 telling them 
that M.K. Balan was brought (abducted) and the money alone remains 
to be collected. On 31.12.2001, A-1 asked A-9 to collect the recorded 
cassettes from A-2 and bring a tape recorder and empty cassettes. A-3 
also directed A-9 to collect the same from A-2, A-9 collected two audio 
cassettes. 
10. PW-10 has stated that PW-11 had provided food to A-I on 
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30.12.2001 and 31.12.2001. Again A-3 requested PW-10 to arrange a 
Maruti Van, but he expressed his inability to provide Maruti Van. That 
thereafter, on the request PW-10 and PW-11 had arranged rooms in 
. Hotel Henkala, Tambaram for A-9. He heard A-3 askingA-9 as to where -
they have disposed the Maruti Van on that A-9 replied that the Maruti 
van was just in front ofVasantha Bhavan Hotel. PW-10 also heard the 
driver of A-3 asking him for a chain to tie M.K. Balan. He also saw A-
9 handed over Rs. I 00/- to the driver Viji PW-49 for purchasing a chain. 
He also saw A-3 informing PW-10 to provide food for those who are 
staying in the Semiya factory. On 31.12.2001 at about 8.30 p.m., both 
PW-I 0 and PW-11 saw M.K. Balan tied in a chain, his eyes also tied 
and was sitting on the green colour steel cot which PW-I 0 and PW- I I 
had purchased. He also saw M.K. Balan wearing the T-shirt and dark 
pant and also the Reebok shoes lyingjust some distance away from the 
cot. PW-I 0 made arrangement to buy the audio cassettes and he also 
arranged the two-in-one tape recorder which was used for recording. 
Thereafter, PW- I 0 heard A-3 saying A-9 that he wants one Ambassador 
car and A-9 replied that in spite of the best effort, he could not get an 
Ambassador car. Thereafter, he also heard that if no Ambassador car 
was available, if he could get one Maruti van and to fix one Lummox 
light on it to look
like ambulance. As PW-I 0 and PW-I I had suspected 
something was going on, they again went to the Semiya factory at 8.45. 
·p.m. on 1.1.2002, and saw four persons bringing down the body ofM.K. 
Balan and A-5 covered the body with a cloth brought by him. Both of 
them saw no movements in the body, it was the dead body and they also 
saw the body was loaded in the van and taken out from the place. PW-
10 had paid the room hiring charges to Henkala Hotel, Tambaram. He 
was also informed by one Sarni A-13 that M.K. Balan was murdered 
and his body was burnt in cremation ground and therefore, he requested 
PW-10 to perform pooja in the factory premises but PW-10 did not do. 
He also saw the fan, bedpan, chair, cot etc., were removed from the 
premises on 0i'.O1.2002. On 03.01.2002, he made arrangements for taking 
a room as told by A-9 for A-I, A-2 and A-12 to stay. Thereafter he left 
for Bangalore and stayed there till he was informed by his wife on 
18.03.2002 that A-5 was arrested by CBCID Police in connection with 
the murder ofM.K. Balan and the police had enquired her. He contacted 
.;. his wife on 25th or 26'h of April, 2002, and at the request of his wife, he 
came to CBCID Office on 01.05.2002 and narrated as to what had 
happened.
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [ARUN MISHRA, J.] 
11. Newton PW-I I is another witness in the instant case. He has 
fully supported the version given by Venugopal PW-I 0. He has deposed 
that Venugopal and Udayakumar were partners in Sand Quarry business. 
If he happens to see Udayakumar A-9, he could identify him. A-9 was 
same person produced before the court. In August, 2001, Venugopal 
PW-10 purchased a Ford Escort car bearing Regn. No.TN 10-F-5555. 
By the end of August, Corporation election was held. He along with 
PW-I 0 went to the Polling Booth in the said car. At Udayakumar's A-9 
request, he and Venugopal showed some houses to Udayakumar A-9 
and Manickam A-3. Venugopal PW-I 0 showed his house and some other 
houses to Udayakumar and Manickam, as they had asked. In 1999, 
Udayakumar A-9 told him and Venugopal PW-I 0 to invest money in 
vermicelli factory which had been run by Krishnapandi PW-34, since he 
had faced losses in business. Accordingly he and Venugopal became 
partners in the said company. Manickam A-3 told Udayakumar that 
vermicelli factory was the correct place for the works to be done by him 
as it was away from other buildings. He also told that the said place is 
needed by them for a week and that company should be given leave for 
a week and also he was ready to pay the amount towards the loss of 
income during that period. He has totally supported the other version of 
Venugopal PW-10 with regard to other facts also.
12. In addition he has deposed that M.K. Balan was brought to 
Mudichur Semi ya facory on 30.12.200 I. He has also stated that he saw 
four persons bringing body of M.K. Balan from upstairs and put the 
same in a Maruti van and also saw the van leaving the said place. He 
had also stated that even on 5.12.2001 he travelled with accused 
Manickam in his car along with other accused ~rsons. 
In re: Prior relationship of accused 
13. With regard to prior relationship of accused persons, prosecution 
has examined Mohan Babu PW-4, Ganeshan @Vethilai Ganesan PW-
5, N'enru PW6; Kamal Anand PW7; Deivanayaki PW8; and Lalitha 
PWl4. PW-4 has stated in respect of meeting of deceased M.K. Balan 
with Senthil Kumar-A I. PW 5 Ganeshan alias Vethilai has stated that 
he knew M.K. Balan. Mohan Babu PW-4 has also deposed that Senthil 
Kumar came with him. PW-4 deposed that one Lalitha helped him in 
getting the job in the financial institution belonging to deceased. Lalitha 
asked him to arrange for a loan of Rs.2,50,000 for lesser interest and 
she stated that she would return the amount by lending the said amount 
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for higher rate of interest but she paid interest for the first month only 
and was avoiding further payment. That he met A-I on road when he 
took lift from him. Thereafter he even sought help of A-I in getting the 
money back from Lalitha. It is stated that deceased M.K.Balan told 
PW-4 that he wanted to meet A-I. Both the deceased and A-I met each 
other. Nehru PW-6 has stated that he knew Manickam A-3. He also 
met Hariharan A-2. Kamal Anand PW-7 has deposed that Deivanayaki 
PW-8 had asked for his cell phone for two days. He gave her cell phone 
No.984C053 887. After two days he asked the cell phone back for which 
she told that she requires the cell phone for one more week and he told 
that he will procure another cell phone from one Muttu. As told to her he 
got one cell phone from Muttu with No.9840133368 and gave it to her 
and got back Mobile No. 9840053887 from her. PW-8, sister in law of 
A-2 has stated that her brother-in-law had asked for the cell phone for 
the purpose of party work for two days which she obtained from Kamal 
Anand PW-7 who in the meantime procured the cell phone from his 
friend Muttu. A-2 returned the cell phone in the first week of December 
and she handed over the same to Kamal Anand PW-7. Christopher PW-
9 has stated that he knew A-I and A-2. Durai Swami PW-15 had stated 
that he knew Udayakumar A-9 and sold Tata Sumo car No. TN 04T-
9657 - M0-13 to A-9 for
Rs.1,75,000/-. Udayakumar also sold Maruti 
zen car to him. In January, 2002, Udayakumar A-9 left the car stating 
that the car was not auspicious and took his old Maruti zen back from 
him. Laxminiwas Chaudhary PW-16 gave Zen car M0-12 to Manickam 
A-3. Danasekar PW-27 was known to A-1. Jayaprakash PW-28 was in 
the company of deceased M.K. Balan. Soundarajan PW-30 knew 
Udayakumar A-9 and owner of van M0-9. Samundeswari PW-31 
worked with T.K.P. Food'· Products factory where the deceased was 
kept after abduction. John Kennedy PW-37 is the owner ofMaruti van 
M0-8. He had given the same to Venugopal PW-I 0. Syed Akbar PW-
48 is the ownerofmotorcycle, Viji@Vijayan PW-49 is the Driver of A-
JManickam. Suresh PW-57 is stated to be driver ofSomasundaram A-
4. Evidence as to prior relationship has also been furnished by Venugopal 
PW-10, Newton PW-11, Krishnapandi PW-34, owner of vermicelli 
factory; Lalitha PW-14, mother of kept of deceased; and Ramesh PW-
2, driver of the deceased. 
t 4. The happenings in-between 5 .12.200 I and 30.12.200 I regarding 
preparation are apparent from the statements of PW-I 0, PW- I I, 
. -'
SOMASUNDARAM @ SOMU v. STATE ~P. BY DY. COMM. 
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OF POLICE [ARUN MISHRA, J.] 
statements of PW-49, PW-7, PW-8, A-2, Laxminiwas Chaudhary PW-
A 
16 about Maruti van M0-12, PW-18 V.R. Pandian, Velmayal PW-20 
and Krishnapandi PW-34 etc. on record. 
In re : Selection of premises where M.K. Balan was kept/and 
other arrangements 
15. It is proved that selection of premises T.K.P. vermicelli factory 
at Mudichur near Tambaram where M.K. Balan was kept after 
abduction, had been done by A-3 amd A-9. It is stated by PWs.10, 11 
and 34 that accused A-3 and A-9 had selected the same. PW-I 0 and 
PW-I I were partners for some time with proprietor Krishnapandi PW-
34. A-9 met and told PW-I 0 that he would join an important political 
party for which Manickam, A-3 will help him, and forthat some obligations 
have to be done to him. Manickam was one of the secretaries of the 
Branch of an important political party. The evidence also discloses that 
after inspecting vermicelli factory at Mudichur, A-3 and A-9 had asked 
to put fan, table, chair, cot, bedpan in the room in the upstairs and screen 
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 29•h day ofNovember, 2001 leave was 
given for a periQd of one week. Sarne has been supported by PW-31 
and PW-I 0 but as M.K. Balan could not be abducted at thattime, no 
one came in the factory. Statement of PWs.10 and 11 is
corroborated by 
PWs.3 I and 34. 
I6.Evidence also discloses thatA-9 had called PW-IO and asked 
for his Ford car M0-6 for 2-3 months on rent. The same was given by 
Viji to Ac9. It was taken by Viji who was driver of A-3. Use of said car 
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is established from evidence. There is nothing to doubt that PW-I 0 and 
F 
PW-i I visited the house ofManickam at Perambur along with A-9; and 
it is established that Manickam had told A-9 in the presence of PWs. I 0 
and I I that M.K. Balan has to be brought as some amount had to be 
collected from him. The involvement ofManickam-A-3, A-4 and Bomb 
Selvam-A-15 is established at the relevant time, and were part of the 
design to abduct M.K. Balan. It is unbelievable that A-4 was present by 
G 
chance but he 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-I I etc, Venugopal 
PW-I 0 had arranged for a sum of Rs. I, I 0,000/- by pledging his jewels 
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and handed over the amount to accused Hari along with A-9 in the Hotel 
Excellent. Evidence also discloses that on 24.12.200 I, Udayakumar A-
9 phoned to PW-10 and went to the house of A-3 and A-3 had asked 
PW-JO to arrange for a Maruti van. As the charges for Ford car were 
not paid to him, he replied in the negative. Udayakumar A-9 then informed 
PW-10 that he had already made arrangements to get p. Maruti van 
from one Kennedy PW-37 and another Maruti van from one Jayaprakash, 
brother-in-law of Soundara Rajan and sent them to the house of 
Manickam A-3. 
17. Syed Akbar PW-48, owner of Hero Honda motorcycle has 
been examined. PW-JO has stated that the said motorcycle was given 
through him. Thus PW-48 corroborates and confirms the evidence of 
Venugopal PW-I 0 and PW-11. 
In re : Abduction of M.K. Balan on 30.12.2001 
18. With respect to abduction of M.K. Ba Ian on 30.12.200 I in 
white Maruti van, statement ofSudhakar PW-3 is that he used to practice 
boxing, skipping and running along with others at MRC Nagar from 5.30 
to 7 a.m. On 30.12.2001 at about 5.30 a.m. he started to run and at that 
time he heard a noise and saw that at a distance of 75 mtrs. a person 
was pushed down in the van by the three persons and all the three 
persons went in the same van. The van was an Omni Van and one 
motor cycle was chasing the said Van. N irmal Kumar PW-13 has stated 
that he used to go for walk in M.R.C. Nagar
everyday at about 5.30 
a.m. On 30.12.2001 at about 5.45 a.m. in the morning when he was 
walking in the Kasturi Estate, M.K. Balan came from opposite direction. 
He was wearing bright shoes, sandal color T-Shirt and dark pant. He 
crossed him and left. 
19. Son of M.K. Balan, deceased, Manimaran PW-1, lodged a 
complaint about missing ofhis father M.K. Balan stating that the deceased 
used to go for morning walk everyday at about 5.30 a.m. He used to 
walk up toAyappan Temple M.R.C. Nagar and return by 7.30 a.m. On 
30.12.2001 his father went for walk but did not return back. He was 
infonned about the same by his mother at around 8.30 A.M. Since his 
father was not found anywhere he gave a complaint E-5 to police station. 
He also filed a Habeas Corpus petition before the High Court. 
20. When we assess evidence, it becomes apparent that PW-3 
H 
has clearly stated that the fonner MLA was abducted on 30.12.200 l at
SOMASUNDARAM@ SOMU v. STATE REP. BY DY. COMM. 
329 
OF POLICE [ARUN MISHRA, J.] 
about 5.30 a.m. Sudhakar PW-3 has stated that a person was put inside 
A 
a van by three persons. Thereafter motorcycle followed the said van. 
.) 
That his friend Selvam A-15 also came there. PW-13 had also stated 
that he had seen M.K. Balan taking morning walk at about 5.30 a.m. A 
person was pushed into a Maruti van. It is apparent that M.K. Balan 
had t>een abducted from M.R.C. Nagar. 
B 
21. 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 
Udayakumar A•9. On 30.12.2001 at 8.30 a.m. as unfolded byVenugopal 
PW-I 0 and Newton PW-11, where A-3 stated that abduction of M.K. 
Balan has been made and money remains to be collected. 
c 
In n : Takini:; of M.K. Balan to factoc: nremises 
22. On the day of abduction 30.12.2001 at about 8.30 a.m., A-9 
phoned to PW-10 asking him to come to the house of A-9. PW-10 asked 
PW-: 1 to come to the house of A-9 and then he had taken Newton, PW-
D 
11 in a motorcycle which belonged to a boy working in the office of PW-
10 and left Newton, PW-11 atthe house of A-9. Udayakumar A-9 asked 
PW-10 to give the key of verinicelli factory and as he had no vehicle to 
go to the vermicelli factory, he asked him to take PW-10 on the motorcycle 
kept in his house. Accordingly he had done so. PW-10 and Balamurugan 
A-5 were getting down at vermicelli factory at that time A-9 contacted 
E 
PW- I
0 on his cell phone and asked whether they had reached the 
vermicelli factory to which PW-10 replied that they had reached. A-9 
further asked PW-I 0 whether he had received the key of the factqry. 
Cellphone was given for talking to Krishnapandi PW-34 by A-9. 
Krishnapandi agreed to give the key to PW-I 0 and after some time the 
F 
key was entrusted by Krishnapandi to PW-10. Newton PW-11 and 
Manickam came there in an auto-rickshaw and the key kept by PW-I 0 
was given to Manickam A-3.-The key was entrusted by A-3 to A-5. A-
3 asked Venugopal PW-I 0 how he came to which he replied that he 
came on a motorcycle. Manickam A-3 asked Venugopal to drive the 
motorcycle. He also sat on the motorcycle and went to the house of A-
G 
9. While Manickam A-3 went upstairs, PW-10 followed him where 
accused A-1 and A-2 were also present. At that time Manickam had 
told those two accused persons that M.K. Balan was brought and the 
collection of amount was to be made from him. These are the facts 
stated by PW-10. 
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23. The evidence of Newton, PW-11 indicates that on 30.12.200 I 
after about halfan hour, A-9 phoned to him to open the gate of vermicelli 
factory. At that time firstly the Tata Sumo car and then Ford Escort car 
followed by one Maruti zen car came there and four persons got down 
from the said Ford car and they took M.K. Balan to upstairs of the said 
vermicelli factory by shutting his eyes, mouth and hands. M.K. Balan 
was wearing black colour pant, sandal colour T-shirt and shoes. At that 
time ManickamA-3 and A-9 had asked him not to disclose it to anybody. 
The persons who came in Ford car were Somasundaram @ Somu A-4, 
A-11, A-16 andA-17. PW-11 has further stated thatA-5 went.in zen car 
and came back after about 30 minutes in Tata Sumo car carrying tiffin 
to the factory. Along with A-5 were other accused, namely, A-4, A-6, A-
7 and Bomb Selvam A-15. Thus presence and participation in abduction 
and at vermicelli factory of accused Manickam A-3, Somasundaram A-
4 and Bomb Selvam A-I 5 is established. 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. I 0 and I I that when M.K. Balan 
was broughtto the vermicelli factory at Mudichur, A-3 to A-7, A-I I 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 deceased M.K. Balan. 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. 
24. On 31.12.2001 and 1.1.2002 when M.K. Balan was abducted, 
the meals were supplied through Newton PW-11 and in order to establish 
the fact that PW-56 has been examined where he has stated that on 
31.12.200 I and 1.1.2002 he had taken the tiffin in the morning, meals in 
the afternoon and evening tiffin, they carried the food for about 8 to I 0 
persons. The witness lends support to evidence ofVenugopal PW-10. 
PW-56 also supports version of PW-I 1. 
In re: commission of offence under section 302 
25. With respect to charge of murder against A-3 .and A-4 it is 
apparent that M0-31 is in the handwriting of A-1. It was read out by A-
12 and heard by A-3 and was acted accordingly. Evidence of Sahul 
Hameed PW-47 also proves recovery of chain with which M.K. Balan 
was tied and that of other articles. It is apparent that M.K. Balan was 
abducted. There was an attempt to extract money when it was not
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [ARUN MISHRA, J.] 
possible, he was murdered in factory premises. The appellants were 
charged for committing the murder by putting nylon rope around his 
neck and tightening it. Though there is no direct evidence with respect 
to that but it can be inferred in the circumstances that they committed 
the offence of murder also. Once they had abducted M.K. Balan it was 
for them to explain how they dealt with him. The dead body of M.K. 
Balan could not be found as it was cremated in the name of a fictitious 
person - Rajamani Chettiar. His post mortem also could not be conducted 
but the evidence clearly indicates that the dead body ofM.K. Balan was 
taken from the vermicelli factory. 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 M.K. Balan was done to death by the 
appellants. His dead body was seen by the witnesses. 
26. I find no force in the submission that at the time of murdering 
M.K. Balan there is no evidence and appellants were not present when 
dead body was taken out. In the instant case 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 had 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, as held by this Court in State ()(MP. v. Lattora (2003) 11 SCC 
761: 
"4. Learned counsel for the appellant State contended that 
the High Court, while rendering the impugned judgment, 
did not follow the correct legal position. This Court in State 
of W.B. v. Mir Mohd. Omar (2000) 8 SCC 382 held that if 
the deceased was proved to have been abducted by the 
accused and was found murdered soon thereafter it is for 
the abductors to satisfy the court as to how else the abducted 
victim was dealt with by them. In the absence of any such 
explanation it is open to the court to draw the presumption 
that the abductor is the murderer also. The said view of 
this Court was reconsidered subsequently in Sucha Singh 
v. State of Punjab(2001) 4 SCC 375 and the legal position 
has been reiterated by this Court. 
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5. In the light of the legal position so adumbrated by 
this Court, we deem it necessary, in the interest of justice, 
that the High Court should consider the appeal filed by the 
respondent all over again. This is to enable the respondent 
to canvass regarding the conviction under Section 364 of 
the Indian Penal Code also. If the conviction is to be 
maintained the High Court has to consider how far the 
presumption mentioned above wi II apply to the situation of 
this case. For enabling the High Court to reconsider the 
appeal afresh we set aside the impugned judgment. The 
appeal filed before the High Court shall stand remitted to 
the High Court." 
27. In Ram Gu/am Choudhary & Ors. v. Stale of Bihar (2001) 
8 SCC 311, this Court considered assaulting the victim by the accused 
persons and they carried away the body, the victim was not seen alive 
thereafter. No explanation was given by the accused as to what they did 
with the victim. The accused abductor who had special knowledge in 
this regard, having withheld the information, this Court held that an 
inference can be drawn that they had murdered the victim. This Court 
has laid down thus : 
"24. Even -otherwise, in our view, this is a case where 
Section I 06 of the Evidence Act would apply. Krishnanand 
Chaudhary was brutally assaulted and then a chhura-blow 
was given on the chest. Thus chhura-blow was given after 
Bijoy Chaudhary had said "he is
still alive and should be 
· · · killed". The appellants then carried away the body. What 
happened thereafter to Krishnanand Chaudhary is especially 
within the knowledge of the appellants. The appellants have 
given no explanation as to what they did after they took 
away the body. Krishnanand Chaudhary has not been since 
seen alive. In the absence ofan explanation, and considering 
the fact that the appellants were suspecting the boy to have 
kidnapped and killed the child of the family of the appellants, 
it was for the appellants to have explained what they did 
with him after they took him away. When the abductors 
withheld that infonnation from the court, there is every 
justification for drawing the inference that they had 
murdered the boy. Even though Section I 06 of the Evidence
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [ARUN MISHRA, J.] 
Act may not be intended to relieve the prosecution of its 
burden to prove the guilt of the accused beyond reasonable 
doubt, but the section would apply to cases like the present, 
where the prosecution has succeeded in proving facts from 
which a reasonable inference can be drawn regarding death. 
The appellants by virtue of their special knowledge must 
offer an explanation which might lead the Comt to draw a 
different inference. We, therefore, see no substance in this 
submission of Mr Mishra." 
In re: Removal of dead body from factory premises 
28. With respect to the death of deceased M.K. Balan in the factory 
premises and removal of his dead body from the same, the evidence of 
PW-10, PW-I I, Rajendran PW-21 and Head Constable on Beat Duty, 
and Arumugham, Head Constable PW-35 are relevant. 
29. PWs. I 0 and I I both have stated that body ofM.K. Balan was 
taken out of the vermicelli factory on 1.1.2002. Both of them suspected 
that something was going on in the factory and at about 8.40 p.m., they 
reached the factory at Mudichur. At 9 p.m. the gate of the vermicelli 
factory was closed. A-6 was standing there. A-5 came to the factory on 
a motorcycle. He carried one cloth bag on the motorcycle. Four persons 
came down from upstairs carrying body of M.K. Balan. Two persons 
were holding legs; two others were holding the hands and the body was 
brought down and covered like a dead body with
cloth brought by A-5. 
There was no movement in the body, it appeared to be a dead body. 
Body was taken in the Maruti van. The Maruti van went away speedily. 
A-5 followed the same on motorcycle. One person was sitting along 
with him on the motorcycle. Due to fear, PW- I 0 and PW- I I came out of 
factory. Body of M.K. Balan was carried by A-6, A-7, A-8 and A- I I. 
Version is supported by PW-21 and PW-35. 
30. PW-21 deposed that he was the Head Constable ofSembiyam 
Crime Branch Police Station. That on 01.01.2002 he was given beat 
tickets and appointed for night rounds from 23 hours to 6 PM. At about 
I 00 ft. away from Melpatti Ponnappa Street a Maruti Van was standing 
in the middle of the road and he went along with constable Arumugam to 
the Van and enquired 4 persons who were in the van. Then they left the 
place. M0-7 Golden Color Maruti Van was identified by him, and 4 
persons were identified as Accused 6, 7, 8 and I I. 
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PW-35 deposed that he was working as Head Constable. That on 
01.01.2002 he was given beat tickets and appointed for night rounds 
from 23 hours to 6 PM. At about I 00 ft. away from Melpatti Ponnappa 
Street a Maruti Van was standing in the middle of the road and he went 
along with the head constable Rajendran went to the Van and enquired 
4 persons who were in the van. Then they left the place. MO-7 Golden 
Color Maruti Van was identified by him, the 4 persons were identified as 
Accused 6, 7, 8 and 11. 
31. Driver Vijayan PW-49 was examined so as to prove attempt 
of procurement of Dumax top light for the van to look like an ambulance. 
However, the witness has turned hostile, resiled from his statement 
recorded under section 164 Cr.PC. Even if his statement is ignored it is 
apparent from other statements that the vehicle was procured and light 
was fitted on it. 
32. The van on which body was taken was bearing Regn. No. 
TN-22-8-8853 and was marked as M0-7. It is apparent that M.K. Balan 
was killed in factory some time on 1.1.2002 and the fact thatthe 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. 
In re: cremation of dead body 
33. Next set of evidence is with respect to the cremation ground. 
Ramu, PW-12 was asked by Hari Krishnan
PW-19 to lit pyre. He was 
declared hostile as he resiled from part of his statement. 
Ramu PW-12, who had cremated the body had deposed that he is 
a Cemetery Keeper. That on 01.01.2002 he was told by Harikrishnan to 
light the pyre. That they did not know who came in the vehicle and the 
vehicle ;>articulars. He further deposed that they did not know if the 
body was of male or female. 
Hari Krishnan PW-19, vettiyan in the cremation ground at Melpatti 
Ponnappa Mudali Street, has stated on 1.1.2002 at about 6 p.m. two 
persons came and told that a body has to be burnt and they would take 
the body from the hospital to the cremation ground and paid the expenses 
for getting woods, cow-dung cakes, kerosene and informed that the body 
would come at 8 p.m. in the night but the body came at 10 p.m. They 
carried the body and on asking the death certificate of hospital, they told
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
335 
OF POLICE [ARUN MISHRA, J.] 
that they would bring the same the next day. Body was cremated at 
night itself. It was deposed that the CB CID had examined him and put 
his signature on the reverse of M0-14, photo of M.K. Balan; and the 
test identification parade was conducte~. He was able to identify certain 
accused persons, out of 7-8 persons who came for cremation. He had 
identified M0-14 the photo of M.K. Balan. He stated that he under 
threat of police, had stated to the Magistrate in statement under section 
164 Cr.PC that accused Manickam came there and told Hari Krishnan 
that he is an important person in the area and asked him to cremate the 
body and told that he will produce the death certificate in the next morning. 
Be that as it may. He also said that he did not identify the accused 
before the Magistrate and was not aware whether A-3 was an influential 
person of a political party. Be that as it may. We ignore the part of 
statement under section 164 from which he has resiled. 
34. Kannan PW-36, in-charge of the cremation ground has deposed 
that he is working as Office Assistant in Chennai Corporation. That on 
01.01.2002 he left early from the cremation ground. That when returned 
on the next date then he was informed by Hariharan that one dead body 
came after he left the office and that the dead body has been cremated 
·and the person who came along with the dead body assured that death 
certificate
would be produced in the morning. That at around 8.15 AM 
one person came along with Hariharan who produced the death certificate 
in the name ofRajamani Chettiar. That in the certificate the address and 
father's name of the deceased was not mentioned and he got the 
particulars from the person who came with the death certificate. The 
same were recorded in the Death Register. 
In re: Procurement of death certificate by A-3 
35. Next set of evidence is relating to procurement of death 
certificate in the name of Rajamani Chettiar. For cremating a body in 
the cremation ground, death certificate was required to accompany the 
dead body. Death certificate in a fictitious name of Rajamani Chettiar 
was obtained from PW-32 at the instance of Manickam A-3 through 
one Kamaraj PW-33. 
Dr. Anbarasu PW-32 deposed that on 02.01.2002 at 6 AM in the 
morning one Kamaraj who is working in the Government General Hospital 
and known to him for the past 15 years came and requested to issue 
death certificate for Rajamani Chettiar aged about 61 years. Kamaraj 
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PW-33 submitted that Rajamani Chettiar was the poor person and died 
due to chest pain. That there was no one to perform his last rites. He 
believed the word ofKamaraj PW-33 and issued the death certificate in 
question. 
Damodaran PW-38 has been examined so as to prove that no 
person in the name of Rajamani Chettiar ever resided in his house in 
question, the particulars of which were falsely given in the death 
certificate. 
Dr. Prabhavathi PW-45 deposed that she is working as Asst. 
Welfare Officer in the Chennai Corporation. That she has given Medical 
Report Ex.P27, Death Report Form 2 Ex. P29. That the letter given by 
him to DSP is marked as Ex.P52. Medical certificate and death certificate 
have been proved by PW-45. 
36. With respect to obtaining of death certificate by A-3, the trial 
court has given the following findings : 
"171. Now we have to analyze whether there are any other 
,,evidences for that and for that purpose, the evidence of 
PWs-32, 33, 36 and 38 have to be perused. PW 32 is the 
Doctor Anbarasu and before analyzing the evidence of PW-
32, the evidence of PW-33 has to be analyzed. PW-33 has 
deposed in his evidence that on 1.1.2002 while he was on 
bed due to illness in the evening at about 5.00 p.m. one 
Samikannu came to him and told that Poonga Nagar 
Manickam is calling him and that at that time he told that 
he was not well and asked him as to what was the matter 
for which
he said he did not know anything about the same, 
then the said Samikannu took him along with him and 
that Poonga Nagar Manickam was in bis house and 
that at that time he informed him that one watchman 
of a company at Kolathur expired and that he asked 
him whether any trama car is available for taking the 
body for that he had replied to him (Manickam) that 
to bring out the dead body no such vehicle would be 
available and then he has informed me to try for the 
s2me by saying so he has sent Samikannu to accompany 
him and that then he has gone to Government General 
Hospital, Chennai from Perambur and after finding out that 
no such vehicle was available there and informing the same 
and when he was about to board a bus to go, Samy informed
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [ARUN MISHRA, J.] 
him that Poonga Nagar Manickam asked him to come 
to his house at 6.00 am in the morning and that 
accordingly on the next day morning i.e. on 2•d i1e 
went to the house of Poonga Nagar Manickam and 
that this was the time for finding out car in many ways for 
bringing the body of the deceased M.K. Balam as 
established by the evidence of PW·32 and that in the said 
circumstances, on the next day i.e. on 2.1.02 PW-33 
went to the house of the said Poonga Nagar 
Manickam and that at that time the J•d accused 
Manickam informed him that one Rajamani Chettiar, 
aged about 61 years died on the previous day for which 
he asked him to get a doctor's certificate, as deposed. 
He has further deposed in his evidence that he has been 
well acquainted with him (Manickam) for the past 16 years 
and that he went to the doctor Anbarasan (PW-32) and 
obtained a certificate from him in his English letter pad to· 
the effect that one watchman of a company at Kolathur 
died due to chest pain and that certificate has been marked 
as Ex. P.27. That Doctor Anbarasu PW-32 has been 
examined as a witness in this case and he has deposed in 
his evidence that he has issued the certificate Ex.P.27 and 
that as requested by PW-33 Kamaraj, he has issued the 
said certificate Ex.P.27 as deposed by him. As per his 
evidence only on the compulsion of PW-23; the certificate 
Ex.P.27 has. been issued and in the certificate issued
by 
him inEx.P.27 it has been mentioned by him that 'Rajamani 
Chettiar, aged about 61 years died due to chest Qain '. 
Investigation was done to prove the fact that no such person 
in the name of Rajamani Chettiar on the side of the 
prosecution, and to that effect one Damodharan has be.;:n 
examined as PW-38. He has deposed in his evidence that 
'I am residing at No.11/18 4m street, Anjuham Nagar, 
Kulathur, Chennai and that this is my own house and that 
my wife is Lalaitha and my father is Ramasamy and that I 
have one daughter and two sons and that they are 
Prahbaharan and Sudhakaran aged about 29 and 27 
respectively. Both Prabaharan and Sudhakaran have no 
other names; that I am working in Sharp Motor company 
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for the past 5 years. In one portion of my house Auto driver 
Devaraj is residing and that no person in the name of 
Rajamani chettiar, aged about 61 years was residing in my 
house ever before. Either on 1.1.02 or on 2.1.02 no person 
. ir~the name of Rajamani chettiar, aged about 61 years was 
residing either in our house or in any portion of our house; 
that like wise no person in the name ofRajamani chettiar, 
son ofChinthamani chettiar, aged about 61 years died either 
on 31.12.0 I or 1.1.2002 in the above said house and that no 
dead body of that person was also brought to that house, as 
deposed. It is seen from these evidences and 
documents that the J•d accused Manickam sent the 
lJ•h accused Samikannu, asking him to meet PW-33 
Kamaraj and through the said Kamaraj, a forged 
document (doctor's certificate) marked as Ex.P.27 has 
been obtained in the name of one Rajamaui chettiar, 
aged about 61 years from PW-32 and that the evidence 
of PW-36 has to be analysed to find out the fact as to where 
that certificate has been given. PW-36 is Kannan and he 
has deposed in his evidence that 'I am residing at No. 371, 
Sanjan Nagar, Melpatti Ponnambala street, Vyasarpadi, 
Chennai-39. I am working as Office Assistant in the 
Corporation ofChennai on compassionate ground from 1979 
onwards. I joined in service during 1998 as incharge of Hindu 
Grave yard at Melpattu Ponnappa Mudali street, Chcnnai
belonging to Chennai Corporation; that my immediate 
superior officer is the Assistant Health Officer'. He has 
further deposed in his evidence that 'on 2.1.02 as 
usual I came to grave yard at about 7.30 a.m. and that 
at that time Harikrishnan who was present there told 
me that after I left that place one dead body had come 
and that doctor's certificate would be given today by 
the party for cremating the body'. He has further 
deposed in his evidence that 'Ex.P.27 was given to 
me by a person who accompanied with the said 
Harikrishnan on 2.l.Q2 morning at about 8.15 a.m'. 
He has further deposed in his evidence that I 
registered this Ex.P.27 in Form.2. This is the said 
Form.2 marked as Ex.P.29. That death has been
SOMASUNDARAM@ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [ARUN MISHRA, J.] 
registered in the Death Register as l" row of the date 
1.1.02 and that portion has been marked as Ex.P.30 
and that in that connection death report of the grave 
yard has been prepared and a copy of the same has been 
given to the person who came along with the said 
Harikrishnan and the other copy is marked as Ex. P.31. In 
that regard I filed a Despatch note book which is marked 
as Ex.P.32 (the entry made in the said Despatch Note Book 
is marked as Ex.32). The person who came along with 
Harikrishnan signed in Ex.P.31 and Ex.P.29 and that for 
the seizure of these documents the DSP attached to CB 
CID had prepared a magazar and obtained my signature 
therein. That magazar has been marked as Ex.P.33. He 
has deposed evidence now that there is no necessity to 
produce the doctor certificate to cremate the body of a 
person who is aged more than 60 years. While that being 
so it is the case of the accused that this Ex.P.27 has been 
fabricated falsely for the purpose of the case. The body of 
the deceased M.K. Balan was taken to the grave yard 
and tried to cremate the body by saying that the 
deceased was the age of 61 years. But PW-12 asked 
for the production of doctor certificate by saying that 
the age of the person would be 48 to 50 yrs. Therefore 
Ex.P.27 has been created as if that deceased person 
would be aged about more than 60 years and the same has 
been issued by PW-36 and the same
has been recorded 
which has to be taken into consideration. In that manner 
also the contention of the accused could not be acceptable 
one. Now we have to peruse the evidence of PW-45 Dr. 
Prabhavathi (Health officer) and that as per her 
statement it has been stated by her that 'a letter dated 
20.3.02 was shown to me and that Medical Certificate 
(Ex.P.27) and death report (Form II) Ex. P.29 were 
given by me to the DSP, CB CID. The letter given by 
me to the DSP has been marked as Ex.P.52'. Now even 
as per this evidence also, it has been established on 
the side of the prosecution that the body ofM.K. Balan 
was cremated." 
(emphasis supplied by me) 
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From the aforesaid discussion made by the trial court and evidence 
it is apparent that Kamaraj PW-33 on 2.1.2002 went to the house of 
Manickam A-3 who had informed him that one Rajamani Chettiar aged 
about 61 years had died and a doctor's certificate was.required. PW-33 
had stated that he knew A-3 for the last 5 years and as such on his 
request went to Dr. Anbarasan PW-32 and obtained death certificate 
Ex. P-27 from him with respect to death of Rajamani Chettiar. Dr. 
Anbarasan PW-32 had deposed that he issued the certificate Ex. P27 in 
the aforesaid circumstances to Kamaraj PW-33. Damodharan PW-38 
has stated that no such person Rajamani Chettiar resided in House No. I I I 
18, 4'h Street, Anjuham Nagar, Kulathur, Chennai. Thus it is apparent 
that the death certificate related to non-existent person and dead body 
of M.K. Balan was cremated under the guise and at the instance of 
Manickam A-3; false certificate Ex. P-27 was prepared and produced 
at cremation ground on next day showing cremation of Rajamani 
Chettiar. Kannan PW-36, Office Assistant in the Corporation ofChennai 
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 
I" 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 ofManickam
A-3 is proved to the hilt 
by the aforesaid evidence also. 
37. The trial court has rightly found that the accusedA-3, A-4 and 
A-15 had acted upon the conspiracy of A-I and A-2 and have been 
found guilty ofoffences under sections 365, 387, 302, 347, 364, I 09 and 
201 IPC. 
In re: confessions and recoveries from accused 
38. Witnesses as to police confessions of various accused persons 
have been furnished by : Salmi Hameed PW-44 with respect to A-5; 
Tulasirangan PW-22 with respect to A-1, Pasupathy PW-23 with res~t 
to A-1, Jagannathan PW-24 with respect to A-6; Siva PW-26 with respect 
to A-3; Seetha PW-29 with respect to A-12, Francis Arpudham PW-39 
with respect toA-4; Prasad PW-42 with respecttoA-7; Raja Masilamani 
PW-46 with respect to A-10 and A-11; and Sahul Hameed .PW-4 7 with 
respect to A- L6 etc. 
39. The seizure of articles has been proved by TMT Geetha PW-
17 of green cot M0-11; Sriramulu PW-25 of Ford Escort car M0-6;
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
· OF POLICE [ARUN MISHRA, J.] 
Babt• PW-40 of audio-cassettes M0-33; Raja Masilamani PW-46 of 
tape recorder M0-2; Kuteeswaran PW-41 of golden colour Maruti van 
and Tata Sumo van MOs. 9 and 13 etc. Similarly, seizure of other articles 
has b~en proved. 
40. The accused persons' confessional statements and recoveries 
based thereon support the version of PW-I 0 and PW-I I. A-5 was arrested 
on 18.3.2002 at Perambur Railway Station. Kaha Sahu( Hameed PW-
44 has proved the confessional statement of A-5. It is stated that he 
identified the Maruti omni van and also the cremation ground where the 
body was burnt and also disclosed the name of A-3 and the Maruti van 
which was used for abducting and that on instructions of A-3, dead body 
was burnt in the cremation ground. The witness has also proved the spot 
map of factory Ex. P-44 signed by Selvaraj also. At the instance of A-5, 
Maruti van M0-9 has been seized from one Jayaprakash vide Ex. P-25. 
As siated by PW-3, M.K. Balan was abducted in the said van. It has 
been established that the place of occurrence is vermicelli factory at 
Mudichur. Samundeeswari PW-31 and Krishnapandi PW-34 have proved 
the said facts. PW-30 has also stated that A-9 studied with him and one 
Somu ofChitlapakkam had entrusted a Maruti van bearing Regn. No. 
TSI 7484 and A-9 had asked him to lend the said car, and he had given 
the same to A-9 who told him to return the same on the next day. On
receiving the van, its tape recorder and speaker were found missing and 
there were liquor bottles in the same and seats were burnt with fire. 
Then he went upstairs in the house ofUdayakumar A-9 and asked about 
the said condition of vehicle, and A-9 assured him to compensate for the 
loss but did not give any amount. Thereafter, CBCID came to PW-30 
and seized the vehicle and prepared Ex. P-25. Thus it is apparent that 
M0-9 was in custody of A-9 and the vehicle was used in commission of 
offence. This also lends corroboration to statements of PW-IO and PW-
11. 
41. Sankar Ganesh A-6 was arrested on 19 .3 .2002 who identified 
Maruti Omni van No. TN-0343 and his confessional statement Ex. P-16 
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had been recorded in the presence of PW-24. At his instance said Maruti 
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van was recovered in front of the house of John K~n.nedy, PW-37 at 
11.30 a.m. under Ex. P-17. Said Maruti van is M0-8. PW-37 has owned 
a signature on the memo. At the instance of A-7, cot which was used to 
keep M.K. Balan in the factory had been recovei:ed. Cot had been 
identified also. This lends further support to versions of PWs. 10 and 11. 
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42. A-3 was arrested on 25.3.2002. His confessional statement 
was recorded by CB CID in the presence of Premkumar. PW-26 has 
deposed as to seizure of Maruti zen TN-02-Z-99. He was taken to the 
residence of PW-16. On being identified by A-3, said Maruti zen car had 
been seized from PW-16. Ex. P-20 is the admissible portion of the 
confessional statement of A-3. Seizure memo Ex. P-6 ofMaruti zen car, 
M0-12, was drawn. PW-16 has stated that he had given the car for 
marriage of said Manickam as his office is near to his house so he could 
identify Manickam A-3. A-3 had taken M0-12 Maruti car in November, 
2001 and was returned to him during the month of February, 2002. The 
police seized the car from him on 25.3.2002 as per Ex. P-6. Use of this 
car in offence is established by evidence on record. 
43. PW-26 who is an Administrative Officer, has also proved the 
confessional statement of A-3. The witness has proved his signature on 
the same. A-3 had identified the Maruti zen car of maroon colour. PW-
11 has stated that the Maruti zen car came to the vermicelli factory 
along with Ford car and Tata Sumo car. It is apparent from PW s. I 0 and 
11 that Maruti zen car was used for committing the offence. Maruti van 
was alsc recovered on 30.3.2002 at the instance of A-9 from PW-18. At 
the instance of A-9, bedpan was also recovered. Maruti omni van M0-
7 of golden colour, bearing Regn. No. TN-22-B-8853 and
Tata Sumo 
car were also recovered. PWs.10 and 11 have deposed about bedpan, 
Tata Sumo and Maruti van. As instructed by A-3, bedpan was kept at 
vermicelli factory, Maruti van M0-8, had been used for taking the dead 
body of the deceased, Tata Sumo car was also used by the accused 
persons. PW-18 has deposed that he had given Maruti van to A-9. On 
31.12.200 I at about I 0 a.m., he had taken the van and returned it in the 
night itself and on 1.1.2002 he took the same at about I 0 a.m. but did not 
return as usual on the night of 1.1.2002 but returned it only on 2.1.2002 
at about 11 p.m. i.e. after M.K. Balan was killed and. body cremated. 
Thereafter on 30.3.2002 CB CID seized his Maruti car M0-7, vide Ex. 
P-8. The statement of PW-18 corroborates the versions of PW-I 0 and 
PW-11. 
44. Manickam's confession was recorded on 5.4.2002 in the 
presence of Purushothaman and Babu-PW-40. PW-40 deposed that on 
the direction of the Tehsildar, he along with one Purushothaman went to 
the CB CID Office on 05.04.2002, where one Manickam was being 
investigated with regard to the M.K. Balan murder case and he along
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [ARUN MISHRA, J.] 
with Purushothaman signed the confession statement. Based on the 
confessional statement the TTK 90 Cassette along with a piece of paper 
kept in the back of the photo of the Accused No.3 was seized by CB 
CID and the same were marked as M028 and M033 respectively. The 
Mahazar was prepared and they signed the same. The admitted portion 
Ex. P-35 of the confessional statement given by Manickam was also 
signed by them as witnesses. 
45. The bit of paper M0-33, which had been seized from A-3 and 
also bit of paper M0-31 regarding extortion of money seized from A-12 
in order to establish the fact that both had been written by A-1. As 
mentioned above the High Court has ignored it as the articles were not 
kept ;n a sealed condition, we also leave it out of consideration. 
46. On 9.4.2002 accused Somasundaram A-4 was arrested at about 
6 a.m. near Chromepet police station. His confessional statement Ex. 
P-34 was recorded in the presence of Francis Arpudham PW-39. On 
the basis thereof Ford white colour car bearing Regn. No. TN-10-F-
5555 was recovered as per memo Ex. P-19. PW-39 has proved his 
signatures on the confessional statement. Use of car is corroborated by 
PWs. I 0 and 1 l. The car had been entrusted to accused A-9. Recovery 
of the car also implicates SomuA-4 and supports the versions of PWs. I 0 
and 11. 
4 7. Bomb Selvam A-15 was arrested near Egmore Railway Station 
on 25.4.2002 at
about 12.30 p.m. in the presence of Muthurakku and 
Kaha Sahu I Hameed PW-44. His confessional statement Ex. P-51 came 
to be recorded.As per his statement Hero Honda 6475 and black colour 
Reebok shoes were recovered as per Ex. P-51. Motorcycle was article 
MO-I 0, and shoes were marked as MO-I. Samundeeswari, PW-31, 
has stated that at about 11.30 a.m., a person came and went upstairs 
and took along with him Reebok shoe, MO-I. At that time he came.in a 
car and took an object in a gunny bag. Even if we discard recovery of 
Reebok shoes it is apparent that motorcycle used by the accused had 
been recovered at the instance of A-15. This lends additional support to 
versions of PWs. l 0 and 11. 
In re: Commission of offence under section 387 IPC 
48. On the basis of statement of PW-11, it is established thatA-4 
was present when M.K. Balan was brought to the vermicelli factory 
after abduction and after about half an hour, Bomb Selvam A-15 also 
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came there along with A-5 to provide tiffin. PW-I 0 has also stated that 
M.K. Balan 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 thatA-3, A-4 andA-15 along with 
other accused persons were involved in the abduction ofex-MLA M.K. 
Balan. PW-IO has deposed that driver of Manickam namely Viji told 
that he wanted a chain to tie M.K. Balan. A-9 had taken out Rs. I 00/-
from his shirt pocket to buy one chain. However, Viji PW-49 tumed 
hostile. He was confronted with his statement under section 164 Cr.PC. 
He admitted that he had given a statement before the Magistrate but 
under fear. Be that as it may. We ignore the version of Viji PW-49. 
There is nothing to doubt the aforesaid statement of PW-I 0 regarding 
purchase of chain. The trial court with respect to commission of offence 
under section 387 IPC has rightly given the finding in para 166 that the 
prosecution has established its case to the effect that the accused I to 
11 and l 4 to 17 have committed the offence punishable under section 
387 IPC beyond all reasonable doubt. 
Effect of acquittal under section 1208 
49. Now I take up effect of acquittal of appellants under section 
1208 !PC. The accused appellants have been convicted for commission 
of offence under section 365 read with section I 09 IPC, under sections 
387,
302 read with section 109, under section 347 read with section 109; 
under section 364 read with section 109 and section 201 !PC. In the 
facts and circumstances of the case when charge under section I 09 has 
been found established, mere their acquittal under section 1208 is ofno 
avail to them. Charges which were framed were specific ingredients of 
section I 09 have been rightly found to proceed by both the courts below. 
Their acquittal under section 1208 of IPC cannot help them as offences 
of both sections are sep¥ate. Section 1208 found established against 
A-I and A-2 and other charges against accused/appellants. 
50. This Court has considered the abduction under section I 09 
and the conspiracy and the explanation thereof and compared with the 
same under section 1208. This Court held that under section I 09 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 1208 is different. 
Section 120A is bare agreement to commit an offence which has been 
made punishable under section 1208. The punishment for these two
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [ARUN MISHRA, J.] 
categories of crimes is also quite different. Section l 09 IPC is concerned 
only with punishment of abetment for which no express provision has 
been made in the !PC. An offence of criminal conspiracy on the other 
hand is an independent offence which is made punishable under section 
l 20B !PC for which a charge under section 109 is unnecessary and 
inappropriate. In Ranganayaki v. State by Inspector of Police (2004) 
12 SCC 521, this Court has held thus: 
"10. Motive for doing a criminal act is generally a 
difficult area for prosecution. One cannot nonnally see into 
the mind of another. Motive is the emotion which impels a 
man to do a particular act. Such impelling cause need not 
necessarily be proportionally grave to do grave crimes. 
Many a murder has been committed without any known or 
prominent motive. It is quite possible that the aforesaid 
impelling factor would remain undiscoverable. Lord Chief 
Justice Campbell struck a note of caution in Red v. Palmer 
[Shorthand Report at p. 308, May 1856] thus: 
"But ifthere be any motive which can be assigned, 
I am bound to tell you that the adequacy of that motive 
is of little importance. We know, from experience of 
criminal courts that atrocious crimes of this sort have 
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been committed from very slight motives; not merely 
E 
from malice and revenge, but to gain a small pecuniary 
advantage, and to drive off for a time
pressing 
difficulties." 
Though, it is a sound presumption that every criminal act is 
done with a motive, it is unsound to suggest that no such 
F 
criminal act can be presumed unless motive is proved. After 
all, motive is a psychological phenomenon. Mere fact that 
prosecution failed to translate that mental disposition of the -
accused into evidence does not mean that no such mental 
condition existed in the mind of the assailants. In Atley v. 
State of U.P. AIR 1955 SC 807 it was held: (AIR p. 810, 
G 
para 6) 
"That is true, and where there is clear proof of motive 
for the crime, that lends additional support to the finding 
of the court that the accused was guilty, but absence of 
H
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clear proof of motive does not necessarily lead to the 
contrary conclusion." 
In some cases it may be difficult to establish motive 
through direct evidence, whi-le in some other cases , 
inferences from circumstances may help in discerning the 
mental propensity of the person concerned. There may also 
be cases in which it is not possible to disinter the mental 
transaction of the accused which would have impelled him 
to act. No proof can be expected in all cases as to how the 
mind of the accused worked in a particular situation. 
Sometimes it may appear that the motive established is a 
weak one. That by itselfis insufficient to lead to an inference 
adverse to the prosecution. Absence of motive, even if it is 
accepted, does not come to the aid of the accused. These 
principles have to be tested on the background of factual 
scenario. 
lLUnder Section 109 the abettor is liable to the same 
punishment which may be inflicted on the principal offender: 
(J) ifthe act of the latter is committed in consequence of 
the abetment, and (2) no express provision is made in IPC 
for punishment for such an abetment. This section lays down 
n0thing more than that if IPC has not separately provided 
for the punishment ofabetment as such then it is punishable 
with the punishment provided for the original offence. Law 
does not require instigation to be in a particular form or that 
it should only be in words. The
instigation may be by 
conduct. Whether there was instigation or not is a question 
to be d,ecided on the facts of each case. It is not necessary 
in law for the prosecution to prove that the actual operative 
cause in the mind of the person abetting was instigation 
and nothing else, so long as there was instigation and the 
offence has been committed or the offence would have 
been committed if the person committing the act had the 
same knowledge and intention as the abettor. The instigation 
must be with reference to the thing that was done and not 
to the thing that was likely to have been done by the person 
who is instigated. It is only if this condition is fulfilled that a 
person can be guilty of abetment by instigation. Further the
SOMASUNDARAM @ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE [ARUN MISHRA, J.] 
act abetted should be committed in consequence of the 
abetmeilt or in pursuance of the conspiracy as provided in 
the Explanation to Section I 09. Under the Explanation an 
act or offence is said to be committed in pursuance of 
abetment if it is done in consequence of (a) instigation, (b) 
conspiracy, or (c) with the aid constituting abetment. 
Instigation may be in any form and the extent of the influence 
· which the instigation produced in the mind of the accused 
would vary and depend upon facts of each case. The 
offence of conspiracy created under Section 120-A is bare 
agreement to commit an offence. It has been made 
punishable under Section 120-B. The offence of abetment 
created under the second clause of Section 107 requires 
that there must be something more than mere conspiracy. 
There must be some act or illegal omission in pursuance of 
that conspiracy. That would be evident by Section I 07 
(secondly), "engages ... in any conspiracy forthe doing of 
that thing, if an act or illegal omission takes place in 
pursuance of that conspiracy". The punishment for these 
two categories of crimes is also quite different.· Section 
109 IPC is concerned only with the punishmentofabetment 
for which no express provision has been made in !PC. The 
charge under Section I 09 should, therefore, be along with 
charge for murder which is the offence committed in 
consequence of abetment. An offence
of criminal 
conspiracy is, on the other hand, an independent offence. It 
is made punishable under Section 120-B for which a charge 
under Section I 09 is unnecessary and inappropriate. [See 
Kehar Singh v. State (Delhi Ad11111.) ( 1988) 3 SCC 6091 
Intentional aiding and active complicity is the gist of the 
offence of abetment." 
51. Thus commission of offence under section I 09 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 I 20B !PC. That does 
l)_Ot adversely impinge upon the ingredients of section I 09 IPC and other 
sections for which he has been founcl guilty. Thus I find no force in 
submission of appellants that once appellants have been acquitted under 
section 120B the entire case falls down. 
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In re: evidence of accomplices 
52. Several decisions were cited which are referred to by esteemed 
brother ·Nhich indicate that accomplice version requires corroboration, 
same cannot be rejected outrightly. It was submitted that PW- I 0 and 
PW-I I are not reliable being accomplices and there is no corroboration 
of their version. Submission is too tenuous to be accepted. Though only 
their help was taken as discussed above. In my opinion even if PW-I 0 
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 been found guilty under section 109 IPC also. All 
convicted accused persons including appellants acted together. Entire 
gamut of evidence discussed above, admissible portions of confes~ional 
statements of various accused persons including appellants, recovery of 
articles of offence also lends credence to versions of PW s. I 0 and 11. 
In re : ~folding T.I./recording statement under section 164 Cr.PC 
o 
53 .. Holding test identification parade has been proved by 
E 
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Krishnasamy-PW-60. Recording of statement under section 164 Cr.PC 
has been proved by Thangamariyappan PW-59; Karunanidhi PW-61 for 
A-12, PW-32 and PW-33, Vijayakanth PW-62 recorded the statements 
ofVettiyans PW-12 and PW-19. Junath Sherif PW-64 has recorded the 
statement under section 164 of PWs. l 0 and 11. 
In re : Cell
phones/cassettes/forensic evidence 
54. Evidence discloses that cell phone was given toA-2 by PW-7. 
Cassettes were recovered with suitcase M03 from A-1 which is 
supported by PW-43 Accountant of Butts Paradise Hotel where suitcase 
was left and for stay money was paid by Venu. Forensic evidence is 
furnished by Kasi PW-63 and Dr. C.P. Singh PW-65. PW-63 has deposed 
that he had compared the documents M03 I and M033 with the specimen 
handwritings and signature ofSenthil Kumar and submitted his report 
Ex. P-55 dated 24. 7 .2002 by concluding that both the handwritings were 
of the same person. PW-65 had deposed that he had received four video 
cassettes and two audio cassettes which are marked as MOs.27 and 
28. After analyzing he found both the voices to be same and marked the 
report as Ex. P-83. However, the High Court has not relied upon forensic 
evidence relating to cassettes and MOs. 31 and 33 and also regarding 
voice comparison, for the reason that the said aiiicles were not kept in a 
sealed condition. We also ignore this evidence but ignoring this evidence